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:
1. They should be demonstratively independent and impartial.
2. Their investigations and proceedings should be conducted in private and should be informal in character.
3. Their appointment should be, as far as possible, non-political.
4. Their status should compare with the highest judicial functionaries in the country.
5. They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.
6. Their proceedings should not be subject to judicial interference.
7. They should have the maximum latitude and powers in obtaining information relevant to their duties.
8. They should not look forward to any benefit or pecuniary advantage from the executive government.
The Government of India accepted the recommendations of ARC in this regard. So far, ten official attempts have been made to bring about legislation on this subject. Bills were introduced in the Parliament in the following years:
1. In May 1968, by the Congress Government headed by Indira Gandhi.
2. In April 1971, again by the Congress Government headed by Indira Gandhi.
3. In July 1977, by the Janata Government headed by Morarji Desai.
4. In August 1985, by the Congress Government headed by Rajiv Gandhi.
5. In December 1989, by the National Front Government headed by VP Singh.
6. In September 1996, by the United Front Government headed by Deve Gowda.
7. In August 1998, by the BJP-led coalition Government headed by AB Vajpayee.
8. In August 2001, by the NDA government headed by A B Vajpayee.
9. In August 2011, by the UPA government headed by Manmohan Singh.
10. In December 2011, by the UPA government headed by Manmohan Singh. The first four bills lapsed due to the dissolution of Lok Sabha, while the fifth one was withdrawn by the government. The sixth and seventh bills also lapsed due to the dissolution of the 11th and 12th Lok Sabha. Again, the eighth bill (2001) lapsed due to the dissolution of the 13th Lok Sabha in 2004. The ninth bill (2011) was withdrawn by the government.
LOKPAL AND LOKAYUKTAS ACT (2013)
In order to meet a long-standing demand to establish a mechanism for dealing complaints on corruption against certain public functionaries, including corruption at high places, the Government had constituted a Joint Drafting Committee on 08.04.2011, consisting of five nominee Ministers from Government of India and five nominees of Shri Anna Hazare (including Shri Hazare himself), to prepare a draft of the Lokpal Bill. Based on the deliberations of the Committee, and on the basis of inputs from Chief Ministers of States and political parties, a draft Lokpal Bill was prepared. The Cabinet at its meeting held on 28.07.2011 considered the draft Lokpal Bill, 2011 and upon approval by the Cabinet, the Lokpal Bill 2011 was introduced in Lok Sabha on 04.08.2011. The said Bill was referred to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on 8th August, 2011 for examination and report.
The Department-related Parliamentary Standing Committee after extensive discussion with all the stakeholders, in its 48th Report, made a number of recommendations suggesting major amendments in the Bill both as regards the scope and content of the Bill, including that necessary provisions be made, in the Union legislation, for establishment of Lokayuktas in the States, so as to provide leverage to the States where no such institution exists and to bring in uniformity in the laws relating to State Lokayuktas which are already in existence in a number of States. The Committee also recommended that Lokpal and Lokayuktas should be conferred constitutional status.
Upon consideration of the recommendations of the Standing Committee, the Government withdrew the Lokpal Bill, 2011 pending in the Lok Sabha and introduced a new comprehensive Lokpal and Lokayuktas Bill, 2011 in the Lok Sabha on 22.12.2011 to establish the institution of Lokpal at the Centre and Lokayukta at the level of States. Also, keeping in mind the recommendations of the Standing Committee that the Lokpal and Lokayuktas may be made constitutional bodies, the Government also introduced Constitution 116th Amendment Bill, 2011 to provide for constitutional status to these bodies.
These Bills were taken up for consideration by the Lok Sabha on 27.12.2011. The Lokpal and Lokayuktas Bill, 2011 was passed with certain amendments whereas the Constitution 116th Amendment Bill, 2011 could not be passed with the requisite majority. The Lokpal and Lokayuktas Bill, 2011 was taken up for discussion and passing in the Rajya Sabha on 29.12.2011 but the discussion remained inconclusive. Subsequently, the Rajya Sabha adopted a motion on 21.05.2012 and referred the Bill to a Select Committee of the Rajya Sabha for examination and report. The Select Committee of Rajya Sabha submitted its report to the Rajya Sabha on 23.11.2012. The recommendations of the Select Committee were examined and a proposal for moving official amendments to the Bill as reported by the Select Committee was considered and approved by the Cabinet in its meeting held on 31st January, 2013. The Bill has been finally passed by Rajya Sabha with amendments on 17.12.2013 and the Lok Sabha has agreed to the amendments made by Rajya Sabha on 18.12.2013. The Bill as passed by both Houses has received the assent of the President on 01.01.2014. The Act has been brought into force with effect from 16th January, 2014.
The salient features of the Lokpal and Lokayuktas Act (2013) are as follows.
1. It seeks to establish the institution of the Lokpal at the Centre and the Lokayukta at the level of the State and thus seeks to provide a uniform vigilance and anti-corruption road map for the nation both at the Centre and at the States. The jurisdiction of Lokpal includes the Prime Minister, Ministers, Members of Parliament and Groups A, B, C and D officers and officials of the Central Government.
2. The Lokpal to consist of a Chairperson with a maximum of 8 members of which 50% shall be judicial members.
3. 50% of the members of the Lokpal shall come from amongst the SCs, the STs, the OBCs, minorities and women.
4. The selection of the Chairperson and the members of Lokpal shall be through a Selection Committee consisting of the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a sitting Supreme Court Judge nominated by the Chief Justice of India and an eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
5. A Search Committee will assist the Selection Committee in the process of selection. 50% of the members of the Search Committee shall also be from amongst the SCs, the STs, the OBCs, minorities and women.
6. The Prime Minister has been brought under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister.
7. Lokpal’s jurisdiction will cover all categories of public servants, including Group A, Group B, Group C, and Group D officers and employees of Government. On complaints referred to the CVC by the Lokpal, the CVC will send its report of preliminary enquiry in respect of Group A and Group B Officers back to the Lokpal for further decision. With respect to categories of employees from Group C and Group D, the CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by the Lokpal.
8. The Lokpal will have the power of superintendence and direction over any investigating agency, including the CBI, for cases referred to them by the Lokpal.
9. A High-Powered Committee chaired by the Prime Minister will recommend the selection of the Director of CBI.
10. It incorporates provisions for attachment and confiscation of property of public servants acquired by corrupt means, even while the prosecution is pending.
11. It lays down clear timelines. For preliminary enquiry, it is three months extendable by three months. For investigation, it is six months which may be extended by six months at a time. For trial, it is one year extendable by one year and to achieve this, special courts to be set up.
12. It enhances maximum punishment under the Prevention of Corruption Act from seven years to ten years. The minimum punishment under sections 7, 8, 9 and 12 of the Prevention of Corruption Act will now be three years, and the minimum punishment under section 15 (punishment for attempt) will now be two years.
13. Institutions which are financed fully or partly by Government are under the jurisdiction of Lokpal, but institutions aided by Government are excluded.
14. It provides adequate protection for honest and upright public servants.
15. Lokpal conferred with power to grant sanction for prosecution of public servants in place of the Government or competent authority.
16. It contains a number of provisions aimed at strengthening the CBI such as:
(i) setting up of a Directorate of Prosecution headed by a Director of Prosecution under the overall control of the Director of CBI;
(ii) appointment of the Director of Prosecution on the recommendation of the CVC;
(iii) maintenance of a panel of advocates by CBI other than Government advocates with the consent of the Lokpal for handling Lokpal-referred cases;
(iv) transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal;
(v) provision of adequate funds to CBI for investigating cases referred by Lokpal.
17. All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs.10 lakhs per year are brought under the jurisdiction of Lokpal.
18. It contains 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 this Act. Thus, the Act provides freedom to the states to decide upon the contours of the Lokayukta mechanism in their respective states.
The following are the drawbacks (shortcomings) of the Lokpal and Lokayuktas Act, 2013:
1. Lokpal cannot suo motu proceed against any public servant.
2. Emphasis on form of complaint rather than substance.
3. Heavy punishment for false and frivolous complaints against public servants may deter complaints being filed to Lokpal.
4. Anonymous complaints not allowed - Can’t just make a complaint on plain paper and drop it in a box with supporting documents.
5. Legal assistance to public servant against whom complaint is filed.
6. Limitation period of 7 years to file complaints.
7. Very non-transparent procedure for dealing with complaints against the PM.