UPSC MAINS 2019: The search for a Lokpal

The search for a Lokpal

 

Topic: The search for a Lokpal

Topic in Syllabus: GS Paper 2: Indian Governance

 

The search for a Lokpal

Context:

Last week, the Supreme Court “requested” a search committee to suggest by February-end a panel of names for appointment of the country’s first Lokpal, an anti-corruption ombudsman.

 

More about on news:

  • Supreme Court asked eight member Search Committee under the Lokpal Act to recommend the panel of names before the end of February.
  • The shortlist has to be sent to the Selection Committee, headed by the Prime Minister.
  • The Lokpal and Lokayuktas Act, 2013 got the President’s assent on January 1, 2014. Search Committee was formed only on September 27, 2018, after Common Cause, an NGO, filed a contempt petition against the Government.

 

LOKPAL:

  • The Administrative Reforms Commission (ARC) of India (1966–1970) recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘lokayukta’ for the redressal of citizens’ grievances.
  • These institutions were to be set up on the pattern of the institution of Ombudsman in Scandinavian countries and the parliamentary commissioner for investigation in New Zealand.
  • The Lokpal would deal with complaints against ministers and secretaries at Central and state levels, and the lokayukta (one at the Centre and one in every state) would deal with complaints against other specified higher officials.
  • The ARC kept the judiciary outside the purview of Lokpal and lokayukta as in New Zealand. But, in Sweden the judiciary is within the purview of Ombudsman.
  • According to the ARC, the Lokpal would be appointed by the president after consultation with the chief justice of India, the Speaker of Lok Sabha and the Chairman of the Rajya Sabha.

 

The ARC also recommended that the institutions of Lokpal and lokayukta should have the following features:

  • They should be demonstratively independent and impartial.
  • Their investigations and proceedings should be conducted in private and should be informal in character.
  • Their appointment should be, as far as possible, non-political.
  • Their status should compare with the highest judicial functionaries in the country.
  • They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.
  • Their proceedings should not be subject to judicial interference.
  • They should have the maximum latitude and powers in obtaining information relevant to their duties.
  • They should not look forward to any benefit or pecuniary advantage from the executive government.

 

Timeline:

  • 1963: The idea of an ombudsman first came up in parliament during a discussion on budget allocation for the Law Ministry.
  • 1966: The First Administrative Reforms Commission recommended the setting up of two independent authorities- at the central and state level, to look into complaints against public functionaries, including MPs.
  • 1968: The Lokpal Bill was introduced in parliament but was not passed. Eight attempts were made till 2011 to pass the Bill, but in vain.
  • 2002: The Commission to Review the Working of the Constitution headed by M.N. Venkatachiliah recommended the appointment of the Lokpal and Lokayuktas; also recommended that the PM be kept out of the ambit of the authority.
  • 2005: The second Administrative Reforms Commission chaired by Veerappa Moily recommended that office of Lokpal be established without delay.
  • 2011: The government formed a Group of Ministers, chaired by Pranab Mukherjee to suggest measures to tackle corruption and examine the proposal of a Lokpal Bill.
  • 2013: Lokpal and Lokayuktas Bill, 2013, was passed in both Houses of Parliament.
  • 2016: Lok Sabha agreed to amend the Lokpal Act and Bill was sent to Standing Committee for review.

 

What is the Lokpal Bill?

  • Though a Bill to set-up an anti-corruption body was put forth as many as eight times between 1968 and 2011, the Lokpal and Lokayuktas Bill, 2011, stands as the base for the Lokpal Act in the present form.
  • A Group of Ministers chaired by Pranab Mukherjee proposed this Bill, to which the Standing Committee made substantial modifications.
  • The modified Bill, called as Lokpal and Lokayuktas Bill, 2013, was passed by the Parliament with the support of all major political parties, barring the Samajwadi party, making it the Lokpal Act of 2013.

 

Following are some important features of the Lokpal and Lokayuktas Bill 2011:

  • Lokpal at the Centre and Lokayukta at the level of the states.
  • Lokpal will consist of a chairperson and a maximum of eight members, of which 50 per cent shall be judicial members.
  • 50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities and women.
  • The selection of chairperson and members of Lokpal shall be through a selection committee consisting of Prime Minister, Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI, eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
  • Prime Minister has been brought under the purview of the Lokpal.
  • Lokpal’s jurisdiction will cover all categories of public servants.
  • All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are brought under the jurisdiction of Lokpal.
  • Provides adequate protection for honest and upright public servants.
  • Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal.
  • A high powered committee chaired by the Prime Minister will recommend selection of the Director, CBI.
  • Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director.
  • The appointment of the Director of Prosecution, CBI on the recommendation of the Central Vigilance Commission.
  • Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal.
  • The bill also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
  • The bill lays down clear time lines for preliminary enquiry and investigation and trial and towards this end, the bill provides for setting up of special courts.
  • A mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature within a period of 365 days from the date of commencement of the Act.

 

Who appoints the Lokpal?

  • A five-member panel comprising the Prime Minister
  • the Lok Sabha Speaker, the Leader of the Opposition
  • the Chief Justice of India
  • an eminent jurist nominated by the President

 

Composition:

  • The institution of Lokpal shall consist of eight members along with a chairperson.
  • The members are further classified into judicial and non-judicial members.
  • The judicial members should have higher judicial experience and the non-judicial should have experience in public administration, finance, insurance and banking laws, anti-corruption and vigilance.
  • Half of the members should be from among the SC/ST/OBC/ minority and women.

 

What are the powers of Lokpal?

  • The Lokpal will have the power of superintendence and direction over any investigation agency including CBI for cases referred to them by the ombudsman.
  • As per the Act, the Lokpal can summon or question any public servant if there exists a prima facie case against the person, even before an investigation agency (such as vigilance or CBI) has begun the probe. Any officer of the CBI investigating a case referred to it by the Lokpal, shall not be transferred without the approval of the Lokpal.
  • An investigation must be completed within six months. However, the Lokpal or Lokayukta may allow extensions of six months at a time provided the reasons for the need of such extensions are given in writing.
  • Special courts will be instituted to conduct trials on cases referred by Lokpal.
  • The Lokpal can award fine up to Rs. 2 lakh for “false, frivolous or vexatious” complaints.

 

Working of the Lokpal:

  • The Lokpal has three officials under him- Secretary to Lokpal, Director of Inquiry and Prosecution.
  • After receiving the complaint, the Lokpal will decide whether the inquiry is to be conducted or not.
  • The inquiry wing is headed by the Director of Inquiry, and the function of the inquiry wing is to conduct a preliminary inquiry into the offenses alleged to have been committed by the public servants.
  • The inquiry needs to be completed within 90 days.
  • The Lokpal can also conduct the inquiry through CBI.
  • The report made by the inquiry wing or CBI would be placed before the Lokpal bench with at least 3 members.
  • Right to be heard will be given to the alleged officer.
  • If he is found guilty, then the prosecution wing/ CBI would be directed to file the charge sheet against him.
  • Departmental inquiry can also be initiated. If the officer is found to be innocent, then a closure report can be filed and proceed against the complainant for a false complaint.
  • If the complaint is against an A to D officer, then the complaint is to be referred to the CVC, who will inquire and submit the report to the Lokpal in the case of group A and B officers.
  • As far as group C and D officers are concerned, the matter will be further dealt by the CVC only.
  • The Lokpal has powers of superintendence, ordering search and seizure, confiscation and attachment of property, recommending transfer or suspension of the accused public servant.
  • It can also recommend constitution of Special Courts to try the cases of corruption.
  • The inquiry wing of the Lokpal will have the powers of a civil court.
  • The salary of the Lokpal will be charged on the consolidated funds of India. However, the Lokpal is required to prepare its budget for every financial year.
  • A Lokpal cannot conduct an inquiry against itself.

 

Drawbacks:

The following are the drawbacks (shortcomings) of the Lokpal and Lokayuktas Act, 2013:

  • Lokpal cannot suo motu proceed against any public servant.
  • Emphasis on form of complaint rather than substance.
  • Heavy punishment for false and frivolous complaints against public servants may deter complaints being filed to Lokpal.
  • Anonymous complaints not allowed – Can’t just make a complaint on plain paper and drop it in a box with supporting documents.
  • Legal assistance to public servant against whom complaint is filed.
  • Limitation period of 7 years to file complaints.
  • Very non-transparent procedure for dealing with complaints against the PM.

 

Way forward:

  • Once the Search Committee submits the recommendation, Selection Committee will consider those names and forward them to the President for his consideration.
  • The Selection Committee is chaired by the Prime Minister and its members are the Lok Sabha Speaker, Leader of the Opposition in the Lok Sabha, the Chief Justice of India or the Judge of the Supreme Court nominated by him and an eminent jurist as nominated by the President.

 

Sample Question:

Critically discuss the Salient features of Lokpal, Lokayuktas Bill? Comment why is there no Lokpal yet?