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Lokpal Act: The Toothless Tiger And The Need For Amendments

The present world has become into a place where people with an enormous wealth and money are considered as some achiever and they are the most desired of all. The concept of respect has seen a paradigm wherein people with money and wealth derive the so called respect even though the source could be anything like that of corruption or the case where they don’t show accounts for the wealth they possess.

The people who we choose to represent the population has become worse mostly because of corruption and the intention behind the search for power. In those period, people wished to enter politics to go some good for the general public but it has transformed into a place where one amass huge amount of wealth coupled with power which in turn would provide them the desired respect.

And we have been encountering corruption all along the way from the time of independence and this is prevalent in every corner of our country. From many decades, people have been protesting against the corruption and many legislations have also been passed but the question arises with respect to the efficacy of those legislations and the rate of reduction in corruption.

The concept of Lokpal and Lokayukta is an independent body for the centre and states respectively, and both these bodies derive its birth from the Lokpal and Lokayukta Act, 2013 which would address the corruption issues and charges against the public officials including the Prime Minister as per the text but there are lots of intricacies and provisions that seem to be acting as a loophole and paving way for further corruption by the public officials.

The general idea behind this institution is to prosecute against the public officials and this could be possible only through an independent body and Lokpal is said to be one among them. But the issue if such body is independent or not will be looked into in the forthcoming chapters. Because of all these, we could see that the general public even if they are not so educated portray their opinion and we hear most of saying that the officials are all corrupt and they contend that the officials doesn’t work for the welfare of the public but instead for themselves.

For an institution like Lokpal and Lokayukta, the independence from any sorts of politicians or bureaucrats in their core functioning must be upheld to make it more efficient. Here any person, whom so ever it could be and their complaints against the authorities will be initially looked into and if they find merits into it, further inquiries will be held and because of this we could say that the general public is in some way engaging in the betterment of the society by alleviating corrupt public authorities.

The history behind this kind of an institution will be dealt in the next chapter but India being a country known for its boundless corruption, needed an institution like this very badly and after many decades, this corruption ridden country has got a so called effective system for grievance redressal to make this country a corruption free nation.

History
Starting from the origin of the term ‘Lokpal’, it was first called as ombudsman in the Scandinavian countries and this office was originated in Sweden in the year 1808. This ombudsman was basically an officer of parliament vested with the job to make sure that the public servants fulfil their duties and functions properly. The ombudsman and its body was termed as the “watchdog of the administration” and “protector of the common man”.

There was a legislation which had a motive to eradicate or remove corruption and corrupt people and that was the prevention of corruption Act, 1947[1], but this legislation did not serve the purpose and it considerably failed. Eventually, a non-statutory bodies called the Central vigilance commission was created because of the recommendations of Santhanam committee which in turn gave rise to a new idea.

The bill for a Lokpal and Lokayukta initially started or introduced in the 4th Lok Sabha and the establishment of a body called Lokpal didn’t happen even after many decades of repeated promulgation but ended up in the garbage. The late Indian Prime Minister, Jawaharlal Nehru was the first person to use this phrase or the term called a Lokpal and this process started from the year 1963 and then it was called as the Lokpal and Lokayuktas Bill, 1968.

Therefore we have to trace back to 1963 to look at its birth wherein it was popularly considered as the “anti-corruption ombudsman” in our country. Basically it was an Act or a legislation that prescribed two bodies respectively for the central domain and the states and as I have mentioned earlier, they are Lokpal for central domain and Lokayuktas for the states.

The line of story was similar in most of the wherein it started off in the year 1968 and it was passed by the Loksabha after it was referred to the joint committee of both the houses but unfortunately, the Bill could not be passed since it was pending in the Rajya Sabha and in the meantime Loksabha was dissolved. Again the Loksabha passed it in the year 1969 and when it was pending before the Rajya Sabha, the lower house was dissolved and as a result the Lokpal bill was lapsed.

“This process didn’t stop and kept repeating and being reintroduced again in 1971, 1977, 1985, 1989, 1998, 2001 but the saddest part, it was never passed in all these decades since the Loksabha was dissolved before getting passed from the Rajya Sabha and one interesting event was during the period of Indira Gandhi wherein she introduced in the year 1977 but it remained waiting for a very long time i.e. 6 years in a queue but as usual was lapsed because of the dissolution of the lower house.”[2]

Later on, there were instances of being introduced again such as during the period of Morarji Desai but the same thing happened here without any difference, and followed by this the then Prime Minister Rajiv Gandhi introduced this Bill in the year 1985, but went useless as expected. Each and every time the bill was introduced it was very very tough to get the Bill passed since very time, it would be referred to some kind of a joint committee and before the government could decide on it, the lower house would be dissolved and as a result the Bill would be thrown to the bins. Now it would be very evident after the long story with regards to the times the Bill has been introduced on how difficult the path was in introducing a system of curb corruption and corrupt officials.

India With Respect To Corruption

One of the many things our country India is popular for is the corruption that has been prevalent in every phase of our country and there has been many redressal technique or mechanism to curb this issue but as I have mentioned the path was very rough and didn’t yield the expected fruit out of it.

From the time we never knew, the concept of corruption prevailed and remained because of the classes that were present in the society wherein one class possess some sort of power and influence over the other abiding class that result in misuse of the power and authority, corruption and poor administration and we have been seeing this throughout our life and its saddening to see a democracy where we send someone to represent us but in turn they work for themselves instead of working for us.

This chapter will basically be a reiteration of few instances of corruption we are aware of, but this would be something to remind ourselves of those horrific instances. One of the huge corruption scandal was the “2G Spectrum” and that was financial scandal in the Telecommunication and IT ministry and this was done by A. Raja who is the present MP of Nilgiris constituency and this is known as one of the biggest corruption case in the recent times but “all 18 accused including A. Raja and Kanimozhi were acquitted”[3]. It is said that the government had seen a huge loss because of this scandal but still the offenders weren’t made to suffer or return back the fund they appropriated through this corruption.

Many more instances of severe corruption can be listed out which would actually an enormous one but mentioning a few starting with the mining case in Andhra Pradesh wherein a 1988- batch officer of Indian Administrative service was prosecuted for her close connection with mining in an illegal manner. And to substantiate this, our country has bagged a wonderful score in a sarcastic note in the Integrity score wherein the numbers or scores were 3.5, 3.4, 3.3, 3.1 in the years 2007, 2008, 2010, and 2011 respectively.

To site another case, we could mention the mining case of the previous Chief Minister Mr. Yeddyurappa and this case costed him his post as the Chief Minister and then a case of Mr. L.K. Advani was alleged of a very famous bribery scandal wherein they were alleged that those accused were illegaly getting payments through the so called “Hawala Brokers” and this was also considered as the Hawala case.

As I have mentioned earlier it’s so unfortunate and disheartening to know that the trusted representatives we elect by voting for them and sending them to the assemblies and parliaments does nothing good for the public welfare but instead has been stacking money with themselves for their own needs which would probably last for another hundred generations of their family.

Another question that arise in my mind is with regards to the economic condition of our country wherein a common perception that a normal man has towards the economy is totally different from what is evident. We could see examples of politicians keeping heaps and heaps of money lasting generations but when asked about the country, the answer would be that “India is a poor country”, then how come a particular portion of the population alone has a wealth that seems to be unimaginable.

We contend that the country doesn’t have enough money for public welfare policies, but where would they get money if all those corrupt authorities pit pocket the money we pay as taxes. In order to change this conception itself, we must change the system that is prevailing in our county, we need someone to question the authorities which is lacking big time. This Bill was also introduced repeatedly without losing the hope so that a check can be kept on these authorities and public officials from pocketing all the money that we pay as taxes in good faith to be used for public welfare and development policies.

One biggest sub-question or an issue that I must raise here is regarding the concept of fine that is levied by the police for not wearing a helmet or anything of that sort. We could see that the police are that involved and determined to stopping the people who doesn’t adhere to the rules and make them pay the fine.

There is another view of human safety but just to keep it as a comparison, here they are so keen to fine the public who has not done a mistake equivalent to that of a politician, but what happens is “nothing” as we all are aware about. As a matter of fact, the government is happy as their pocket is just filling through tax money and fines which would be illegally taken by someone else through this holy act of corruption.

“Since these practices couldn’t be curbed by the measures under Indian Penal Code, 1860 and Prevention of Corruption Act, 1988, therefore, there is a need to establish a separate agency which will be independent of Legislature, Executive and Judiciary to look into the citizens’ grievances and cases of corruption and that is why it is felt necessary and is considered of great need to introduce “Jan Lokpal Bill” as a mechanism to tackle Corruption”.[4] And this body or institution was to be referred as “Anti-corruption, grievance redressal and whistle-blower protection Act, 2010”[5] by Anna Hazare.

The Lokpal And Lokayuktas Act

Since 1963, efforts have been made tirelessly in order to bring in someone called an ombudsman but has as I have mentioned, it resulted in a complete failure through all those decades. There are few instances where the states itself has made their own legislation in order to bring in the institution to look into corruption charges but those became inactive unfortunately. To start with the basic idea of the democracy, its generally conceived that the supreme power lies with the people of India and all the officials and authorities must exercise their power only for the interest and betterment of public.

The idea remains the same but through passage of time, the conception of the people has changed because of the increase in scope of administration in India and the people think that this could eventually result in some kind of misuse of their enhancing power held by the administrative officials. Therefore, something new and completely independent from the other well-known corrupt officials must be created so that that institution could help the general public by acting as a check on the public officials.

And this is where, the people demanded someone called an “ombudsman” and that person is known as official who is elected by the Government in order to look into the complaints received and to make an investigation that allege some sort of illegal acts of the public authorities. And there was the “Jan Lok Pal Bill” and that thought bringing an independent body called Lokpal and that would possess the functions of the central Bureau of Investigation and Central Vigilance Commission and their scope and ambit would cover every bureaucrats, political leader and judges.

An institution like Lokpal is needed so badly in a democracy where we i.e. the public give certain power and authority to the politicians in order to govern and rule us. When the public gives the politicians their authority, it’s justified that the people’s complaints on such officials should also be looked into and appropriate actions has to be taken to uphold public welfare. But the issue over here is whether this problem was sorted out or not?

Well, the fact is a big no, since still as mentioned in the previous sections, we witness an enormous amount of corruption and allegations with regards to corruption. From here on, we will be dealing with the actual provisions of the Lokpal and Lokayuktas Act, 2013 and elucidate in brief about the ambiguities and the limitations it has in the forthcoming chapters. After a first-hand perusal at the text of the Lokpal and Lokayuktas Act, I am of the view that this institution came or emerged after decades of struggle and was brought in with lots of expectations as the most needed institution in order to bring a change in the present eco system against the evil crime of corruption. But, does the legislation provide for a full-fledged, independent, body with the power to prosecute the guilty?

I don’t think so, since I could see lots of loopholes that has to addressed but has been disregarded by the legislators. The reason people wanted such kind of an institution was to ensure that such body remains independent so that its functioning could be independent without any external or internal influences and that would have resulted in an efficient performance in alleviated corruption and corrupt officials.

To cite few of those limitations, the jurist who are supposedly members of the selection committee doesn’t specify or define who is an “eminent jurist” and the problem with respect to the people who report against the officials and they are known as the “whistle-blowers” and there is a provision for the whistle blowers that would basically do a job of discouraging them from complaining. All those limitation which I feel to be addressed will be dealt properly in the next chapter.

Limitations Of The Institution

  1. Impeccable Integrity” And “Eminent Jurist
     

    To start with the first limitation after the perusal of the text of the Lokpal and Lokayuktas Act, 2013, section 3 of the said Act talks about the establishment of the Lokpal and its chairperson, as well as the members. Specifically, section 3(3) (b) deals with the provisions with regards to the four non judicial members of the Lokpal and it says that a person can be a non-judicial member of the Lokpal,

    “If he is a person of impeccable integrity and outstanding ability having special knowledge and expertise of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.”[6]

    And this person with the so called impeccable integrity and knowledge is to be selected by a selection committee which shockingly consists of members and with majority of them from the ruling party. Section 4 of the Lokpal and Lokayuktas Act mentions the members who are supposed to be part of the selection committee and this committee will in turn select those four Non judicial members. To start with the members of the selection committee, the Prime Minister would be the Chairperson of the selection committee and its members would be namely the “the speaker, the leader of opposition, the chief justice or judge of the supreme court- ‘Nominated by the members’, and one eminent jurist ‘recommended by the chairperson (Prime Minister)’. There are basically two issues with regards to the problem mentioned above:
    1. The eminent jurist will be recommended by the Chairperson,
    2. The four non judicial members with special knowledge must be selected by the selection committee.

    The selection committee is already filled with members from the ruling party and the chief justice or the judge is also nominated by the members with only one person against the majority and that is the leader of opposition.

    To add to this, the provision clearly mandates that the “eminent jurist” should be recommended by the chairperson which would add most strength to majority in the committee and as a result, it’s evident that except the leader of opposition, most of the members seem to be from the ruling party who possess a majority in the Lokpal.

    Therefore, the chairperson, the speaker, the eminent jurist, sometimes the Chief justice or the judge seem to be from the same side and they form a faction with the power to do anything and notably the power to select the members of the Lokpal. We are aware that the decision has to made with a majority of the total members of the committee, therefore when a question arises on who has to be the member, it’s obvious that the decision taken by the faction we mentioned earlier would prevail since they have the majority with only one or two person opposing that and that includes the Leader of opposition. The issue doesn’t stop here since the role of the selection committee is to select members to the Lokpal.

    It’s totally up to the committee to select whoever they want, namely they can select anyone to be the chairperson that could either be a chief justice or a judge or an “eminent person” and this would totally be a subjective question that will be decided by the selection committee.

    The Lokpal must consist of 4 non judicial members and they must be the so called eminent person which is evidently left to the discretion of the committee and I contend that this would as a result create one more faction or a majority in the Lokpal itself and that would influence any decision that has to be taken by the Lokpal. The ways in which this loophole could be used will be dealt in the forthcoming chapters.

     
  2. The Special Category

    The special category is basically a type of immunity or a specific procedure that has to be fulfilled only when it comes to the allegations or complaints against the Prime Minister of India. And this procedure of the special category has been mentioned under section 14 of the Lokpal and Lokayuktas Act, 2013.

    And this section deals with the Jurisdiction and it is stated that it would include the:
    Prime Minister, Ministers, Members of Parliament, and other officials of Central Government. Specifically section 14(1) (a) deals with the jurisdiction over the Prime Minister of India wherein it is evident that the procedure when it comes to the case of Prime Minister is totally different and that position is considered as something special from other public offices. Section 14(1) (a) of the Lokpal and Lokayuktas Act reads as follows:
    “Provided that the Lokpal shall not inquire into any matter involved in, or arising from, or connected with, any such allegation of corruption against the Prime Minister,:
    1. in so far as it relates to international relations, external and internal security, public order, atomic energy and space;
    2. Unless a full bench of the Lokpal consisting of its Chairperson and all Members considers the initiation of inquiry and at least two-thirds of its Members approves of such inquiry.”[7]
    I consider this provision to one of the major loophole through which corruption charges or allegations could be evaded. It says that the Lokpal shall not inquire into allegations made which are in connection with the following fields namely “international affairs, external and internal security, public order, atomic energy and space”. These terms are so broad and vague and through this, there remains an ample scope to do corruption within these fields.

    Take for example, the government has made a deal with some corporation for the purpose of procuring some armed equipment’s or vehicles for the police force or the armed forces. It is possible that a public authority can use these chances and policies related to these field to fill up their pocket and show this clause to evade those corruption charges.

    We could take the example of the Rafale deal controversy wherein the Modi government was alleged of wrongly quoting the price of those jets and the price of the jets were mentioned as around 1600 crore but contended that the price of an aircraft was 715 crore. Corruption could happen like this instance by the parliament while drafting the Lokpal Bill was so determined to exclude the Prime Minister from the checks of Lokpal.

    When we pass on to the next condition which deals with the majority that is needed to initiate an inquiry into the allegations against the Prime Minister, the Prime minister is placed in a special position and its evident that it was done to exclude him from these inquiries. It is stated that a two third majority is required of all the members of the Lokpal in order to initiate an inquiry. And this is where the majority plays it’s another game as I have mentioned in the previous chapter, where in the selection committee is filled with the people of ruling party and they in turn select members to the Lokpal of their choice since majority of them in the selection committee belong to the same side.

    As a result, Lokpal being a body or institution filled with the members elected by the Prime Minister and the members from their party can become super biased and because of this even an inquiry cannot be initiated against the Prime Minister of India. I strongly consider this to be chain reaction which the legislators have planned so well when this Act was enacted to make sure that the Prime Minister stays out of the reach.

    The next issue is with regards to the Records of such enquiries against the Prime Minister. There is a general idea that in a democracy, people are supreme, and to keep a check on the representatives, something called an ombudsman is needed. When something like is done for the betterment of the people, there arises a question on the need to hide the records only with when it comes to the cases of Prime Minister.

    The last part of section 14 of the Lokpal and Lokayuktas Act says that, if the Lokpal dismisses the case against the Prime Minister, “such records of the inquiry shall not be published or made available to anyone”.[8] An institution which is said to be independent but in fact it isn’t, has to be transparent and all of its proceedings should be made public so that the people as well as the person who has made the compliant would be able to know about it.
     
  3. Miscellaneous
    Through the text of the Lokpal and Lokayuktas Act, we could see that the interference of the Central Government in many of the function of the so called independent body. The provisions with regards to the inquiry as well as the prosecution wing says that the Central government can conduct the inquiries and prosecution through their officers and staffs till such wing is constituted by the Lokpal themselves.

    And these powers have been mentioned under section 11 and 12 of the Lokpal and Lokayuktas Act. And I feel that the Lokpal doesn’t seem to be independent in terms of its functioning, and its finances as well. And basically, there an influence of the Central government in almost all parts of the Lokpal. Section 35 of the said act deals with the special courts to be constituted by the Central Government.

    The provision just talks about the trial and the duration within which such trial must be completed but the issue over here is with respect to the officials who are found guilty. The provisions doesn’t say anything about an appeal of such decision of the special court and this is one among the many provisions which I feel to be ambiguous and can be considered as a limitation.

Conclusion

After analysing the provisions of the Lokpal and Lokayuktas Act, we would be clear on its limitation and the reason for not being an efficient body to curb corruption and corrupt officials. In order to address this serious issue, the institution has been mended by strengthening in every ways possible.

And the Lokpal is called independent, as we all know it isn’t and this institution has to be financially and administratively independent of all the officials who remain in a position to influence them. The appointments are the stepping stone that shatters the efficiency of this body since that is where the independence is lost.

The first suggestion to improve this mechanism is remove all those ambiguous clauses that vests some sort of discretion with the people who make the appointment and the special provision with regards to the Prime Minister must also be removes as the PM is also a normal man and must be considered at par and in equal footing with other officials and beings. And on top, to remove all these shortcomings, I propose a mechanism to make this Lokpal even more independent.

The Judicial member seems to be a necessity but the other half of the Lokpal that was selected upon the discretion of the committee should be removed. This new mechanism must consist of 5 judicial members and 4 members who shouldn’t be elected by the biased selection committee but instead through an exam as it is done with the Indian Administrative service.

This exam could be termed LEE (Lokpal entrance exam) and it has to be that tough as the Indian Administrative services so that only competent individuals enter the Lokpal and that would eradicate the influence of executive and judiciary. In this mechanism, the eldest member could become the chairperson with a fixed term for everyone and judicial members must be selected through a committee of officers that must completely disregard the membership of anyone from the Parliament. This mechanism would seem to be a bit vague but with proper alterations, suggestions and implementation, a change could be brought in eradicating corruption and corrupt officials.

Bibliography
  • The Lokpal and Lokayuktas Act, 2013 (Act no. 1 of 2014)
  • The Lokpal and Lokayuktas (Amendment) Act, 2016 (Act no.37 of 2016)
  • Compendium on Parliamentary Enactments. The Lokpal and Lokayuktas Act 2013. Secretary General, Rajya Sabha, New Delhi, 2015.
  • Report of the national commission to review the working of the Constitution, available at: https://legalaffairs.gov.in/volume-1 (visited on 16-05-2021).
  • Jha, Rajani Ranjan, "India’s Anti-Corruption Authorities: Lokpal and Lokayukta." Indian Journal of Public Administration 64.3 (2018): 502-517.
  • Amrita johri, “Six years on, Lokpal is a non-starter”, available at: https://www.thehindu.com/opinion/op-ed/six-years-on-lokpal-is-a-non-starter/article30794590.ece (visited on 11-05-2021)
  • Mahesh Langa, “Pinaki Chandra Ghose set to be India’s first Lokpal” available at: https://www.thehindu.com/news/national/former-sc-judge-pinaki-chandra-ghose-tipped-to-be-indias-first-lokpal/article26559961.ece (visited on 11-05-2021)
End-Notes:
  1. Prevention of Corruption Act, 1947 (Act No. 2 of 1947)
  2. A Lokpal Bill- A Nightmare for Corrupt Officials” posted on September 8, 2011 by Goodpal, www.socialissuesindia.wordpress.com as visited on 5th May 2021
  3. 2G scam verdict updated on 21 December 2017, https://www.businesstoday.in and visited on 7-5-2021
  4. Lokpal in India- an Analysis” by “Triloknath Mishra”, www.wisdomblow.com as visited on 8th May 2021
  5. Jan Lokpal Bill version 1.8, www.annahazare.org as visited on 8th May 2021.
  6. The Lokpal And Lokayuktas Act, 2013 (Act No. 1 Of 2014), S.3.
  7. The Lokpal And Lokayuktas Act, 2013 (Act No. 1 Of 2014), S. 14(1)(a)
  8. The Lokpal And Lokayuktas Act, 2013 (Act No. 1 Of 2014) – last paragraph of section 14 deals with the record that is not supposed to be revealed when the case is dismissed.

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