Lokpal and Lokayuktas

Global Scenario

• Modern democratic states are characterized by a welfare orientation, leading to an increased role of government in socio-economic development.
• This expansion increases administrative power and discretion of civil servants, creating opportunities for abuse, harassment, malpractices, maladministration, and corruption.
• The success of democracy depends on addressing citizens' grievances.

Institutional Devices for Redressal of Grievances:

1. The Ombudsman System
2. The Administrative Courts System
3. The Procurator System

The Ombudsman System:

• The earliest democratic institution for addressing citizens' grievances originated in Scandinavia.
• Donald C. Rowat describes it as uniquely appropriate for dealing with citizens' complaints about unfair administrative actions.
• First created in Sweden in 1809; 'Ombud' refers to a representative or spokesman.

Swedish Ombudsman:

• Deals with citizens' grievances in the following matters:

  • Abuse of administrative discretion
  • Maladministration
  • Administrative corruption
  • Nepotism
  • Discourtesy

• The Ombudsman is a constitutional authority with powers to supervise compliance with laws and regulations by public officials.

• The authority has no power to reverse decisions or directly control administration or the courts.

• The Ombudsman can act on complaints or suo moto (on his/her own initiative).

• Can prosecute erring officials, including judges, but cannot inflict punishment; only reports to higher authorities.

• From Sweden, the institution spread to other Scandinavian countries and New Zealand.

Other Systems:

• The United Kingdom adopted a similar institution called Parliamentary Commissioner for Administration.
• Ombudsman-like institutions exist worldwide under different names. In India it is known as Lokpal/Lokayukta.
• Donald C. Rowat describes the Ombudsman as a bulwark of democratic government against the tyranny of officialdom.
• Gerald E. Caiden describes the Ombudsman as an institutionalized public conscience.
• The French system of Administrative Courts is another device for redressal of citizens' grievances.
• Socialist countries (former USSR, China) have the Procurator System.

Position in India

• The existing legal and institutional framework to check corruption and redress citizens' grievances in India consists of the following:

Category	Act/Rule/Body
Legislation	Public Servants (Enquiries) Act, 1850, Indian Penal Code, 1860, Prevention of Corruption Act, 1988, Benami Transactions (Prohibition) Act, 1988, Commissions of Inquiry Act, 1952
Service Conduct Rules	All-India Services (Conduct) Rules, 1968, All-India Services (Discipline and Appeal) Rules, 1969, Central Civil Services (Conduct) Rules, 1964, Railway Services (Conduct) Rules, 1966, Central Civil Services (Classification, Control and Appeal) Rules, 1965
Vigilance Bodies	Central Bureau of Investigation, 1963, Central Vigilance Commission, 1964, State Vigilance Commissions, 1964, Anti-corruption bureaus in states, Lokpal (Ombudsman) at the Centre, Lokayukta (Ombudsman) in states, Divisional Vigilance Board, District Vigilance Officer
Grievance Redressal	Directorate of Public Grievances in the Cabinet Secretariat, 1988, Parliament and its committees, 'File to Field' programme, Department of Administrative Reforms and Public Grievances, Centralised Public Grievance Redress and Monitoring System, 2007
Other	National, State and District Consumer Disputes Redressal Commissions, National Commission for SCs, National Commission for STs, National Commission for BCs, National Commission for Minorities, Supreme Court and High Courts in states, Administrative Tribunals (quasi-judicial bodies), Whistle Blowers Protection Act, 2014

Lokpal

• The First Administrative Reforms Commission (ARC) (1966-1970) recommended establishing 'Lokpal' and 'lokayukta' for citizens' grievance redressal.
• Modeled after the Ombudsman in Scandinavian countries and the parliamentary commissioner in New Zealand.
• The Lokpal would handle complaints against ministers and secretaries at Central and state levels.
• The lokayukta would handle complaints against other higher officials.
• The judiciary was kept outside the purview of Lokpal and lokayukta.
• The ARC recommended the Lokpal be appointed by the President after consulting with the Chief Justice of India, the Speaker of Lok Sabha, and the Chairman of the Rajya Sabha.

Recommended features of Lokpal and lokayukta:

1. Independent and impartial
2. Private and informal investigations
3. Non-political appointments
4. Status comparable to highest judicial functionaries
5. Deals with injustice, corruption, or favoritism
6. Proceedings not subject to judicial interference
7. Maximum latitude and powers in obtaining relevant information
8. No benefit from the executive government

• The Government of India accepted the ARC recommendations.
• Ten official attempts were made to introduce legislation on this subject.
• The Lokpal and Lokayuktas Act was finally enacted in 2013.

Attempts at legislation:

Attempt	Year	Government	Outcome
1	May 1968	Congress (Indira Gandhi)	Lapsed due to dissolution of Lok Sabha
2	April 1971	Congress (Indira Gandhi)	Lapsed due to dissolution of Lok Sabha
3	July 1977	Janata (Morarji Desai)	Lapsed due to dissolution of Lok Sabha
4	August 1985	Congress (Rajiv Gandhi)	Lapsed due to dissolution of Lok Sabha
5	Dec 1989	National Front (V.P. Singh)	Withdrawn by the government
6	Sept 1996	United Front (Deve Gowda)	Lapsed due to the dissolution of the 11th Lok Sabha
7	August 1998	BJP-led coalition (A.B. Vajpayee)	Lapsed due to the dissolution of the 12th Lok Sabha
8	August 2001	NDA (A.B. Vajpayee)	Lapsed due to the dissolution of the 13th Lok Sabha in 2004
9	August 2011	UPA (Manmohan Singh)	Withdrawn by the government
10	Dec 2011	UPA (Manmohan Singh)	Enacted as the Lokpal and Lokayuktas Act, 2013

Lokpal and Lokayuktas Act (2013)

Features:

1. Establishes the institution of Lokpal at the Centre and Lokayukta at the state level.
2. Jurisdiction of Lokpal includes the Prime Minister, Ministers, Members of Parliament, and Groups A, B, C, and D officers of the Central Government.
3. Lokpal consists of a Chairperson and a maximum of 8 members (50% judicial).
4. 50% of the Lokpal members shall come from amongst the SCs, the STs, the OBCs, minorities and women.
5. Selection of the Chairperson and the members of Lokpal shall be through a Selection Committee.
6. A Search Committee will assist the Selection Committee.
7. 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.
8. Lokpal's jurisdiction covers all categories of public servants.
9. The Lokpal will have power of superintendence and direction over any investigating agency, including the CBI, for cases referred to them by the Lokpal.
10. A High-Powered Committee chaired by the Prime Minister will recommend the selection of the Director of CBI.
11. It incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
12. Clear timelines are specified for preliminary enquiry, investigation, and trial, with special courts to be set up.
13. It enhances maximum punishment under the Prevention of Corruption Act.
14. Institutions financed fully or partly by Government are under the jurisdiction of Lokpal.
15. It provides adequate protection for honest and upright public servants.
16. Lokpal conferred with power to grant sanction for prosecution of public servants.
17. It contains provisions aimed at strengthening the CBI.
18. All entities receiving donations from foreign sources in excess of ₹10 lakhs per year are brought under the jurisdiction of Lokpal.
19. It mandates the establishment of Lokayukta through law by State Legislatures within 365 days.

Drawbacks:

1. Lokpal cannot suo motu proceed against any public servant.
2. Emphasis is on form of complaint rather than substance.
3. Heavy punishment for false complaints may deter genuine complaints.
4. Anonymous complaints are not allowed.
5. Legal assistance is provided to public servants 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.

Lokayuktas

• Many states had established Lokayuktas before the 2013 Act.
• Maharashtra first established Lokayukta in 1971, although Odisha passed the Act earlier in 1970.
• The structure of Lokayukta varies across states (lokayukta/upalokayukta).
• The Lokayukta and Upalokayukta are appointed by the Governor.
• Judicial qualifications are prescribed for Lokayukta in some states.
• The term of office is generally 5 years or up to the age of 65.
• There is no uniformity regarding the jurisdiction of Lokayukta across states.
• The chief minister is included within the jurisdiction of lokayukta in some states, while he/she is excluded from the purview of lokayukta in other states.
• Ministers and higher civil servants are included in the purview of lokayukta in almost all the states.
• Members of state legislatures are included in the purview of lokayukta in some states.
• The authorities of the local bodies, corporations, companies and societies are included in the jurisdiction of the lokayukta in most of the states.
• In most states, the Lokayukta can initiate investigations on complaints or suo moto.
• The Lokayukta can consider 'grievances' and 'allegations' in some states, while others confine it to 'allegations'.
• The Lokayukta presents an annual consolidated report to the Governor, who places it before the state legislature.
• The recommendations made by the lokayukta are advisory and not binding on the state government.