Lokpal or Jokepal

Introduction 

The term Lokpal is the Indian version of Ombudsman which is a Swedish term. The institution of ombudsman was first established in Sweden in 1808. He is an officer of Parliament and his job is to ensure that the civil servants discharge their functions properly. This institution has emerged as watch dog of the administration and protector of the common man. Corruption is a term and every common man is familiar with this. In fact, it seems that a person cannot have a single discussion without the topic of corruption. The Prevention of Corruption Act, 1947was a measure which sought to eradicate corruption. But this measure failed to check the same. A new technique was adopted on the recommendations of Santhanam Committee and the Central Vigilance Commission, a non-statutory body established in 1964.Today Lok Sabha is the fifteenth Lok Sabha and the bill for the establishment of Lokpal and Lokayuktas had been introduced in the fourth Lok Sabha. It was then described as the Lokpal and the Lokayuktas Bill, 1968.

History:

Lokpal derives its existence since 1963, when this term was first coined by Dr L.M. Singhvi, however the concept of a constitutional ombudsman was first proposed in parliament by Law Minister Ashoke Kumar Sen in the early 1960s. The first Jan Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not pass through the Rajya Sabha. Thus, the origin of Lokpal which is commonly known as “anti-corruption ombudsman” dates back to 1963 in India. It was in 1966 that a Lokpal was proposed at the centre and Lokayuktas in the states. For the first time in 1968, this bill was presented in the Lok Sabha. In 1968, the Bill was referred to the Joint Committee of the two Houses and it was passed by the Lok Sabha. While the Bill was pending before Rajya Sabha, Lok Sabha was dissolved and the Bill could not be passed. The house passed it in 1969, but while it was pending, Lok Sabha was dissolved and the bill lapsed. This was further re-introduced in 1971, 1977, 1985, 1989, 1996, 1998, and 2001 but was never passed. In the year1977 during the fifth Lok Sabha, Smt. Indira Gandhi introduced the Bill but it again lapsed after waiting for six long years in a queue to be considered; the reason being that Lok Sabha was dissolved. In the same year, the Bill was again introduced by Moraji Desai’s Government and it was referred by the Joint Committee in the year 1978. While the Bill was under consideration with Lok Sabha, the latter got prorogued and dissolved and, therefore, the Bill again lapsed. In the year 1980, no such Bill was introduced at the time of seventh Lok Sabha. In 1985, the then Prime Minister Rajiv Gandhi presented the Lokpal Bill and this was referred to the Joint Committee which again was of no use. With failures in the consequent years, this Bill was again introduced in the year 2001, 2005, 2008 and most recently in 2011.  Each time the Bill was introduced in one House, it was referred to other Committees for recommendations such as Joint Committee and before a final decision could be taken by the Government, the House was dissolved. Each time a failure and the road to its success seemed tough.

Importance:

The Lokpal Bill is important in the sense that even people occupying high public offices including the Prime Minister, ministers and MPs can be probed for corruption charges. The Bill seeks to create the institution of Lokpal or ombudsman of India, who will receive complaints even against the Prime Minister.

The Lokpal Bill seeks the establishment of the institution of Lokpal to inquire into allegations of corruption against public functionaries. The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption against the Prime Minister, other ministers, and MPs. The Administrative Reforms Commission (ARC) recommended the enacting of the Office of a Lokpal, convinced that such an institution was justified, not only for removing the sense of injustice from the minds of citizens, but also to instill public confidence in the efficiency of the administrative machinery. The basic idea of a Lokpal is borrowed from the Office of the Ombudsman, which has the Administrative Reforms Committee of a Lokpal at the Centre, Lokayuktas in the states.

Jan Lok Pal Bill

It proposes a single, autonomous Lokpal combining within it, the powers and mandate of the CBI and the CVC and with jurisdiction over politicians, bureaucrats and judges.

This agency will be able to initiate investigation without prior permission from any other agency. The whistleblowers will come under the protective purview of Lokpal. The need for Lokpal at the centre and Lokayuktas in states is therefore, justified in this democratic framework. After all, public also wants that their problems should be looked after. This cannot be possible unless we have these two separate agencies to function for the welfare of the public. This will help the public to instill confidence in the administrative bodies. Not only this, but the corrupt officials will also find the way out from their chambers which they might have obtained through numerous illegal ways. This will give a sigh of relief to the citizens. But not even one has taken place till now. This is the saddest part. It is very essential to give a blow to those political dignitaries who are working for the general good just for name sake. A system of this kind will prove to be an effective system to drive out the so-called lok-sevak, some of whom might not be eligible for the particular posts that they are holding. Very clearly, this system is to keep a check on the political dignitaries to prevent any sort of corruption to take place. And if they are found to be corrupt or misusing their authority in the name of public, they will be driven out from their chairs. This is will help the citizens’ build confidence in our administration and other authorities. Currently, there are multiple anti-corruption agencies to deal with corruption cases. But they spend a lot of time in dealing with the same cases. Therefore, other important cases are made to stand in queue and wait for their chance to be considered. This problem can be solved if there happens to be a separate and independent agency that would deal specifically with corruption cases

Issues regarding the institution of Lokpal and Lokayuktas

To establish a Lokpal at the centre and Lokayuktas in the states, the proposed bill, that is, the Jan Lokpal Bill, has been surrounded by many issues. This bill has been compared on various points with the “Government bill, that is, Lokpal Bill”. One of the major issues regarding the Jan Lokpal Bill was to settle whether the Prime Minister (PM) be included or not in the purview of Lokpal. One view emerged saying that PM must be excluded from the scope of the Bill. This view is taken as the PM is responsible to the Parliament and also he or she is the face of the nation in the International arena. One of the basic premises of the institution of Lokpal is to bring effective checks and balances to the system of governance as well as the centers of power, irrespective of their position of their constitutional eminence.

In any form, maladministration is the root to corruption. When checks and balances are not so efficient, it gives way to maladministration which further paves the way for scandals and corruption. To consider another point, in the cabinet form of the Government, the Prime Minister’s office (PMO) occupies a locus of decision making, and PM is the “Chief whip” of the cabinet. If the civil servants are included in the Lokpal, the PMO will come under the scope of the bill.

Another point of issue regarding the same was whether MPs should fall within the scope of Lokpal. The Government’s view is that MPs must be excluded from the scope of Jan Lokpal Bill because the Lokpal will not deal with corruption allegations against the MPs for how they voted or spoke in the Parliament. Such allegations are left to be probed by the Parliament itself.

Whereas, the opposite is the view of the supporters of Jan Lokpal Bill. Another side of objections regarding Lokayuktas to be implemented by the same bill. Government’s view is that Lokayuktas should be implemented by a separate bill and only Lokpal should be implemented at the centre. But this is also denied by the supporters of Jan Lokpal Bill because they want the same bill to be implemented for both Lokpal and Lokayuktas. It, therefore, can be said that it’s a kind of a war going on for establishing these agencies. The Jan Lokpal Bill deals with grievance redressal of citizens, in addition to the process for prosecuting corruption cases. It requires every public authority to publish citizen's charters listing its commitments to citizens. But the government Bill does not deal with grievance redressal.

Jan Lokpal Bill verses Government Bill

It is a good opportunity for the citizens to understand the loops and holes of the two bills which will help in enacting a law. After all, it a citizens’ bill where the agency will work for redressing the grievances of the public so that justice is done in an unbiased way.

However it is important to mention here that today things are not how they appear. Saying that a system will wholly work for the welfare of the general public does not show, by any way, their pure character. Today, in the era of modernization, nothing is so pure. In fact, it’s difficult to distinguish between what is pure and what is impure. Coming to the point, saying that Lokpal members will work for the public good does not prove its efficacy. It will be wrong to neglect here that the Lokpal members cannot be corrupt. We have corrupt judges, citizens, and constitutional authorities. Who says that only politicians are corrupt?

Therefore, we see that purity cannot be guaranteed. It will be wrong to consider only the advantageous point of it neglecting the other sides which can prove to be one of its strong opposing points. However, the present legal mechanism is considered to be weak and rather corrupt because it is composed of MPs who try all methods to save a person who may have benefitted them in any form. This shows their corrupt characteristic. Some of the weaknesses of the present legal mechanism to deal with corruption are; the Central Bureau of Investigation (CBI) comes under the purview of Government

Historic Days for the Lokpal

17 & 18 December, 2013 are the historic days for the enactment of Lokpal when Parliament passed the Lokpal Bill with the Lok Sabha adopting the measure as amended by the Rajya Sabha after a short discussion? Following are the salient features of the amended Lokpal Bill.

1. Lokayuktas: The new bill mandates states to set up Lokayuktas within 365 days. States have the freedom to determine the nature and type of Lokayuktas.

However, the old bill said the law shall be applicable to states only if they give consent to its application. The old bill gave power to the central government to appoint state Lokayuktas while the new draft gives this power to the states.

2. Constitution of Lokpal: The Lokpal will consist of a Chairperson and a maximum of eight members, of which fifty percent shall be judicial members. Fifty percent members of Lokpal shall be from among SC, ST, OBCs, minorities and women.

However, the older version said the Chairperson shall be the Chief Justice of India or a present or former judge of the Supreme Court or a non-judicial member with specified qualifications (chief justice or a judge of a high court).

3. Selection of Lokpal: The selection committee will have Prime Minister, Lok Sabha Speaker, leader of the opposition in Lok Sabha and the Chief Justice of India. A fifth member of the selection committee for selection of Lokpal under the category of "eminent jurist" may be nominated by the President on the basis of recommendation of the first four members of the selection committee.

However, in the old bill, selection of the fifth person was left entirely to the President.

4. Religious bodies and trust: The new bill includes societies and trusts that collect public money, receive funding from foreign sources, and have an income level above a certain threshold, it excludes bodies creating endowments for or performing religious or charitable functions. The old bill expanded definition of public servant by bringing societies and trusts which receive donations from the public (over a specified annual income) and, organisations which receive foreign donations (over Rs 10 lakh a year) within the purview of the Lokpal.

5. Prosecution: In the new version, before taking a decision on filing a charge-sheet in a case upon consideration of the investigation report, the Lokpal may authorise its own prosecution wing or the concerned investigating agency to initiate prosecution in special courts. Under the old bill, prosecution of the case could be done only by the prosecution wing of the Lokpal.

6. Central Bureau of Investigation: For independence of the CBI, in the new bill a directorate of prosecution will be formed. Appointment of the director of prosecution will be on the recommendation of the Central Vigilance Commissioner.

Transfer of officers of CBI investigating cases referred by Lokpal will be only with the approval of Lokpal who will also have superintendence over CBI in relation to Lokpal referred cases.

7. Hearing: The new bill says a government servant will get a hearing before a decision is taken by the Lokpal.

8. Prime Minister: The Prime Minister will be under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister. Lokpal cannot hold any inquiry against the prime minister if allegations relate to international relations, external and internal security of the country, public order, atomic energy and space. Any decision of Lokpal to initiate preliminary inquiry or investigation against prime minister shall be taken only by the full bench with a 3/4th majority. Such proceedings shall be held in camera.

9. Investigation: Inquiry has to be completed within 60 days and investigation to be completed within six months. Lokpal shall order an investigation only after hearing the public servant. Inquiry against the prime minister has to be held in-camera and approved by two-thirds of the full bench of the Lokpal.

10. Penalty: False and frivolous complaints - imprisonment up to one year and a fine of up to Rs.1 lakh. Public servants - imprisonment up to seven years. Criminal misconduct and habitually abetting corruption - jail term up to 10 years.

11. Miscellaneous:

· Its jurisdiction to include all categories of public servants including Group 'A', 'B', 'C' and 'D' officers and employees of government.

· On complaints referred by Lokpal, the Central Vigilance Commission (CVC) will send its report in respect of Group 'A' and 'B' officers back to Lokpal for further decision. With respect to Group 'C' and 'D' employees, the CVC will proceed further in exercise of its own powers under the CVC act subject to reporting and review by Lokpal.

· Lokpal will not be able to initiate suo moto inquiries.

· Other significant features of the Bill:

· No prior sanction shall be required for launching prosecution in cases enquired by Lokpal or initiated on the direction and with the approval of Lokpal.

· Provisions for confiscation of property acquired by corrupt means, even while prosecution is pending.

· Lokpal to be final appellate authority on all decisions by public authorities relating to provision of public services and redressal of grievances containing findings of corruption.

Efficacy & Effectiveness of proposed institution ‘Lokpal’.

It is important to understand that the Bill, although a good beginning, is not a magic wand that will banish corruption overnight. To be effective, it must be part of a series of parallel actions, so that we have an effective architecture against corruption. Proposed legislation must included following measures to have an authoritative look:

a. Reform of funding and financial accountability of political parties.

b. A systematic increase in the neutral intervention of technology into as many areas as possible where the common man has to deal with government.

c. Finalization of a model legal framework ensuring transparency and fair play in all transactions relating to the disposal and acquisition of national resources and government procurement processes.

d. Instituting deterrent action in a time bound and exemplary manner for all acts of corruption, which, in turn, presupposes substantive judicial reforms. 

Laws Needed To Give Lokpal Teeth

The crusade against Corruption will remain half done unless following  six pending ‘Probity Legislations’ are passed in order to strengthen the institution of the proposed Lokpal:

1. Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011: 

The proposed mechanism will have to redress within 30 days grievances related to the charter, functioning of the public authority and violations of a law or policy. It provides for the appointment of central and state public grievance redressal commissions, which will fine errant officers up to Rs 50,000. While Lokpal will deal with corruption, this Bill is about grievances like potholed roads or failure to supply ration cards. Parliament was obliged to pass this Bill to honour its 2011commitment before Anna Hazare broke his fast. One of the three clauses of the Sense of the House resolution passed then was a promise to enact a citizen’s charter for every public authority. This Bill subsequently introduced seeks to create a mechanism under which the charter will detail goods and services to be provided and their delivery timelines. 

2. Whistleblowers Protection Bill, 2011: 

The government came up with this Bill to strengthen safeguards for whistleblowers. It widened the whistleblower definition to include not just a conscientious public servant exposing corruption but also “any other person” including NGOs so that even RTI activists get similar protection. Disclosures of whistleblowers could be about an act of corruption, misuse of power or any criminal offence by public servants. Under this, whistleblower can make his disclosure in confidence to the central or state vigilance commission. Anyone disclosing the complainant’s identity will be penalized. It imposes a penalty on whistleblowers if they knowingly make false complaints. 

3. Judicial Standards and Accountability Bill 2010:

 
This lays down enforceable standards of conduct for SC and HC judges. Sixteen of the 18 enumerated standards are derived from SC’s code of conduct for judges and requires judges to declare their and their kin’s assets and liabilities. Given the need to maintain judicial independence, it creates three mechanisms to deal with complaints on grounds of misbehavior or incapacity. Once a complaint is filed, the proposed Judicial Oversight Committee will serve as first check. It will be a five-member body comprising two serving judges, a retired judge, attorney general and an eminent person. In keeping with the practice in countries like UK and US, this panel will allow non-judicial members to evaluate complaints. 

If the complaint is in order, the oversight committee will forward it to the Scrutiny Panel comprising judicial members. Two of the three members will be judges sitting in the same court as the judge against whom there is a complaint. If the scrutiny committee is convinced of the complaint’s truthfulness, it will be referred to the Investigation Committee, which will have civil court powers. Penalties that may arise from this network of committees could range from an advisory to public censure of a sitting judge. This may also lead to a recommendation to the President for a judge’s removal. 

4. Prevention of Corruption (Amendment) Bill 2013: 

The proposed amendment seeks to delete the clause in the corruption law against “misuse of official position to extend undue favours”. This will ensure that a public servant isn’t booked for a judgment error on his part unless there’s evidence of graft. This introduces the need for sanction to prosecute retired bureaucrats, joint secretary and above and strengthens the investigating agency’s power to go after bribe givers. 

5. The Prevention of Bribery of Foreign Public Officials Bill:

It penalizes Indian companies and individuals bribing foreign state or international agency officials. 

6. Public Procurement Bill: 

It seeks to ensure transparency in procurement by the Central government and its entities. It exempts procurements for disaster management or strategic purposes, and those below Rs 50 lakh. It sets open competitive bidding as preferred procurement method and mandates publication of all information on a portal. 

Conclusion:

The passage of Lok Bill is ultimately the victory of democracy and the public movements initiated for the creation of an effective Lokpal are the testimonies of the fact that people of this country are the final arbitrator for the cause of the people. This legislation is landmark in the sense that it leads to the creation of a political party from the public movement started for the cause of the Lokpal. Political equations are definitely going to be changed in coming days and people India shall benefit from it.

By Anurag Tiwari, Advocate

anurag.adv@gmail.com

http://anuragtiwariadvocate.blogspot.in/