This Article is written by Shweta Sabuji. She is Legal Researcher at Legal Thirst.
The Lokpal and Lokayukta Act, 2013, allowed for the creation of Lokayukta for the States and Lokpal for the Union. These organizations are statutory organizations with no constitutional authority. They serve as an “ombudsman” and look into complaints of corruption against specific public officials as well as other connected issues.
NECESSITY OF SUCH AN INSTITUTION
Maladministration erodes a nation’s foundation like a termite over time and prevents the administration from doing its job. This issue is primarily caused by corruption. Most anti-corruption organizations hardly ever function independently. Even the Supreme Court has referred to the CBI as “its master’s voice” and a “caged parrot.” The advice of many of these organizations is rarely acted upon because they are merely advisory groups with no real authority. The issue of internal accountability and openness also exists. Additionally, there is no distinct and efficient way to hold these institutions accountable.
FORMATION OF THIS INSTITUTION
The ombudsman institution was formally established in Sweden in 1809. The Second World War was a turning point in the development and expansion of the Ombudsman institution in the 20th century. This method was adopted by New Zealand and Norway in 1962, and it was very important in popularizing the idea of the ombudsman. On the basis of the Whyatt Report’s 1961 recommendations, Great Britain implemented the institution of the ombudsman in 1967 and became the first significant country in the democratic world to do so. Guyana was the first developing country to embrace the ombudsman idea in 1966. Following that, it was also adopted by India, Singapore, Malaysia, and Mauritius. The idea of a constitutional ombudsman was initially put out in India’s parliament in the early 1960s by Ashok Kumar Sen, who was then the country’s minister of law. By Dr L. M. Singhvi, the terms Lokpal and Lokayukta were first used.
The establishment of two independent authorities—at the federal and state levels—to investigate complaints against public officials, including MPs, was suggested by the First Administrative Reforms Commission in 1966. The Lokpal bill was enacted by the Lok Sabha in 1968, but it expired with the dissolution of the Lok Sabha, and since then, it has repeatedly expired in the Lok Sabha. Eight attempts to pass the Bill were made up until 2011, but none were successful. The Lokpal and Lokayukta positions were recommended for appointment by the Commission to Review the Working of the Constitution in 2002, which also suggested keeping the PM out of the purview of the authority. The Veerappa Moily-led Second Administrative Reforms Commission proposed in 2005 that the Lokpal office be constituted right away. A group of ministers led by Pranab Mukherjee was established by the government in 2011 to evaluate the Lokpal Bill proposal and make recommendations for how to combat corruption. The United Progressive Alliance (UPA) government at the centre came under criticism from the “India Against Corruption movement” led by Anna Hazare, which led to the Lokpal and Lokayuktas Bill, 2013, being approved by both Houses of Parliament.
KEY PROVISION OF THIS INSTITUTION
The 2013 Lokpal and Lokayukta Act was modified. Additionally, it revised Section 44 of the 2013 Act, which deals with the need that public employees to disclose their assets and liabilities within 30 days of beginning employment with the government. It replaces the 30-day time limit and requires public employees to declare their assets and liabilities in the format and manner outlined by the government.
STRUCTURE OF LOKPAL
The Lokpal is a multi-member body with a maximum of 8 members and a chairperson. The former Chief Justice of India, a former Supreme Court judge, or a distinguished individual with unwavering integrity and exceptional talent should serve as the Lokpal’s chair. They should also have at least 25 years of experience in the fields of law, management, insurance, banking, and anti-corruption policy.A minimum of 50% of the members must be from SC/ ST/ OBC/ Minorities and women, and half of the maximum eight members must be judges. A former Chief Justice of a High Court or a former Judge of the Supreme Court may serve as the Lokpal’s judicial member. The chairman and members of the Lokpal have a five-year tenure in office, or until they turn 70.
On the advice of a Selection Committee, the president appoints the members. The Chief Justice of India or a judge that he or she nominates, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, and one distinguished jurist make up the selection committee, which has them as its members. The selection committee creates a search panel of at least eight people to choose the chairperson and members.
LOKPAL SEARCH COMMITTEE
The Department of Personnel & Training (DoPT) is mandated by the Lokpal Act of 2013 to compile a list of persons interested in serving as the Lokpal’s chairperson or members. The planned eight-member search committee would shortlist names from this list and present them to the selection committee led by the prime minister. The search committee’s suggested names may or may not be chosen by the selection panel. A search committee was established by the government in September 2018 and was presided over by Justice Ranjana Prakash Desai, a former justice of the Supreme Court. The 2013 Act also mandates that all states create the Lokayukta office within a year of the Act’s start date.
The Prime Minister, Ministers, Members of Parliament, Groups A, B, C, and D officers, as well as Central Government officials, are under the purview of the Lokpal. With the exception of claims of corruption involving public order, atomic energy, international affairs, security, or space, the Lokpal had jurisdiction over the Prime Minister. Ministers and MPs are not subject to the Lokpal’s oversight on anything said or a vote taken in Parliament. Its jurisdiction also extends to anyone who currently oversees or has overseen (director, manager, secretary) any organization created by a central act, any other body funded by the central government, or any other entity that engages in bribery giving or taking. All public officials must disclose their assets and liabilities, as well as those of any dependents, according to the Lokpal Act. It has the authority to supervise CBI and to provide guidance in its operations. The investigating officer in a case that Lokpal has referred to the CBI is not permitted to be transferred without Lokpal’s consent.
The Lokpal’s inquiry division has been given civil court-like authority. In some cases, the Lokpal has the authority to seize property, proceeds, receipts, and perks obtained via corruption. The Lokpal has the authority to propose the transfer or suspension of a public employee who is the subject of a corruption charge. The Lokpal institution has made an effort to implement a much-needed shift in the fight against corruption in India’s administrative system, but there are still gaps and inadequacies that need to be filled. The Lokpal and Lokayuktas Act 2013 has been in effect for five years, but so far, not a single Lokpal has been appointed, demonstrating a lack of political will. The Lokpal act also required states to name a Lokayukta within a year of the legislation’s entry into force. However, the Lokayukta has only been constituted by 16 states. As members of political parties make up the appointment committee, Lokpal is not immune from political influence. Since there is no set standard for determining who qualifies as an “eminent jurist” or “a person of integrity,” the appointment of the Lokpal can be manipulated in some way. The whistle-blowers were not given any specific immunity under the 2013 statute. People will stop complaining if there is a provision for starting an investigation against the complainant if the accused is proven to be innocent. The major gap is that the court is not included in Lokpal’s purview. There is no constitutional support for the Lokpal, and there are insufficient provisions for an appeal against the Lokpal. The States have been given full authority over the specifics of the Lokayukta appointment.
The institution of the ombudsman should be reinforced in terms of both functional autonomy and manpower availability in order to address the issue of corruption. Along with strong leadership that is prepared to put itself under public scrutiny, more transparency, a stronger right to information, and the empowerment of citizens and citizen groups are needed. The appointment of a Lokpal is insufficient by itself. The problems that are motivating people to call for a Lokpal should be addressed by the government. The size of the government will grow just by beefing up the investigative agencies, but governance won’t necessarily get better. Less government and greater governance is the government’s campaign slogan, and it should be adhered to in letter and spirit. Additionally, Lokpal and Lokayukta must be legally, financially, and administratively separate from the people they are asked to look into and penalize. Appointments for Lokpal and Lokayukta must be made in a transparent manner to reduce the possibility of the wrong types of persons being selected. To prevent the concentration of too much power in any one institution or authority, it is necessary to have a variety of decentralized institutions with proper accountability systems.
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