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LOK PAL BILL -- AN ANALYSIS

“Corruption will be out one day, however much

one may try to conceal it: and the public can as
its right and duty, in every case of justifiable
suspicion, call its servants to strict account,
dismiss them, sue them in a law court, or appoint
an arbitrator or inspector to scrutinize their
conduct, as it likes.”

-Mahatma Gandhi (1928)

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LOK PAL BILL -- AN ANALYSIS

INTRODUCTION:

India is a country where honesty and integrity in public and private life
have been glorified and upheld in great epics such as the Vedas,
Upanishads and in the books and practices of every religion practiced
here. Yet, India today is one of the most corrupt countries in the world.
Bringing public servants under a scanner which makes them strictly
accountable is the start of a movement against corruption in India. And
one significant step in attacking the spectre of corruption in India will be
the implementation of the lok pal bill.

The Indian Lokpal is synonymous to the institution of Ombudsman

existing in the Scandinavian countries. The office of the ombudsman
originated in Sweden in 1809 A.D., and adopted eventually by many
nations 'as a bulwark of democratic government against the tyranny of
officialdom'. Ombudsman is a Swedish word that stands for "an officer
appointed by the legislature to handle complaints against administrative
and judicial action. Traditionally the ombudsman is appointed based on
unanimity among all political parties supporting the proposal. The
incumbent, though appointed by the legislature, is an independent
functionary - independent of all the three organs of the state, but reports
to the legislature. The Ombudsman can act both on the basis of
complaints made by citizens, or suo moto. She/he can look into
allegations of corruption as well as mal-administration.1
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The functionary is called by different names in different countries; its

power and functions also vary. In the Scandinavian countries 2 (Sweden,
Denmark, Finland, Norway) he is called the 'Ombudsman'. He can take
cognizance of the citizens' grievance by either directly receiving
complaints from the public or suo moto on the basis of information
provided by the interested persons, or from newspapers, etc. However,
in the U.K. the functionary - known as the Parliamentary Commissioner
- can receive complains only through members of parliament.

The ombudsmen can investigate a complaint by themselves or through

any public or private agency. After investigation, in Sweden and
Finland, the Ombudsman has the power to prosecute erring public
servants; whereas in Denmark, he can only order prosecution. However,
the power of prosecution is very rarely used. The strength of the
ombudsman lies in the publicity attached to the office, and the negative
view that attaches itself to all that the office scrutinises. In Sweden and
Finland, ombudsmen can also supervise the courts. In other countries,
their authority is only over the non-judicial public servants. In almost all
the cases they deal with complaints relating to both corruption and mal-
administration.

HISTORY:

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LOK PAL BILL -- AN ANALYSIS

The misdeeds committed during the Emergency remind us of the

necessity of including the PM within the purview of the Lokpal.

The basic idea of the Lok Pal is borrowed from the office of
ombudsman, which has played an effective role in checking corruption
and wrong-doing in Scandinavian and other nations.3

In early 1960s, mounting corruption in public administration set the

winds blowing in favour of an Ombudsman in India too.

The Administrative Reforms Commission (ARC) set up in 1966

recommended the constitution of a two-tier machinery - of a Lokpal at
the Centre, and Lokayukt(a)s in the states. 4 The ARC while
recommending the constitution of Lokpal was convinced that such an
institution was justified not only for removing the sense of injustice from
the minds of adversely affected citizens but also necessary to instill
public confidence in the efficiency of administrative machinery.
Following this, the Lokpal Bill was for the first time presented during
the fourth Lok Sabha in 1968, and was passed there in 1969.

However, while it was pending in the Rajya Sabha, the Lok Sabha was
dissolved, resulting the first death of the bill. The bill was revived in
1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and most recently in
2008.
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LOK PAL BILL -- AN ANALYSIS

Each time, after the bill was introduced to the house, it was referred to
some committee for improvements - a joint committee of parliament, or
a departmental standing committee of the Home Ministry - and before
the government could take a final stand on the issue the house was
dissolved.

There are as many as 17 states where the institution of Lokayukta has

been constituted, beginning with Orissa in 1971. However the power,
function and jurisdiction of Lokayuktas are not uniform in the country.

In some states it has been applicable to all the elected representatives

including the CM. In some other states legislators have been deliberately
kept out of his purview. Often, lacunae have been left in legislation
creating the office, apparently to keep the elected representatives outside
meaningful jurisdiction of the Lokayukta, even when the laws appear to
include them. Lokayuktas have not been provided with their independent
investigative machinery making them dependent on the government
agencies, which leaves enough scope for the politicians and the
bureaucrats to tinker with the processes of investigation.

Objectives of the bill:

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LOK PAL BILL -- AN ANALYSIS

The Lokpal was visualized as the watchdog institution on ministerial

probity. Broadly the provisions of different bills empowered the Lokpal
to investigate corruption cases against political persons at the Central
level. Some important features of the Lokpal Bill have varied over the
years; in its most recent avatar, the bill contains the following.

 The main objective is to provide speedy, cheaper from of

justice to people.

 Members:

Lokpal is to be a three member body with a chairperson who is or

has been a chief justice or judge of the Supreme Court; and its two
other members who are or have been judges or chief justices of
high courts around the country.

 Appointment :The chairperson and members shall be appointed

by the President by warrant under his hand and seal on the
recommendation of a committee consisting of the following
persons. It's not clear whether the committee has to make a
unanimous decision or a majority decision will do. (a) The Vice-
President (Chairman) (b) The PM (c) The Speaker of LS (d) Home
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LOK PAL BILL -- AN ANALYSIS

Minister (e) Leader of the House, other than the house in which
PM is a member. (f) Leaders of Opposition of both the houses.

 Independence of the Office:

In order to ensure the independence of functioning of the august

office, the following provisions have been incorporated.

o Appointment is to be made on the recommendation of a

committee.
o The Lokpal is ineligible to hold any office of profit under
Government of India or of any state, or similar such posts
after retirement.
o Fixed tenure of three years and can be removed only on the
ground of proven misbehaviour or incapacity after an inquiry
made by CJI and two senior most judges of SC.
o Lokpal will have its own administrative machinery for
conducting investigations.
o Salary of Lokpal is to be charged on the Consolidated Fund
of India.

 Jurisdiction of Lokpal:
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LOK PAL BILL -- AN ANALYSIS

o The central level political functionaries like the Council of

Ministers including the Prime Minister, the Members of
Parliament etc.
o He can not inquire into any allegation against the PM in
relation to latter's functions of national security and public
order.
o Complaints of offence committed within 10 years from the
date of complaint can be taken up for investigation, not
beyond this period.
 Any person other than a public servant can make a complaint. The
Lokpal is supposed to complete the inquiry within a period of six
months. The Lokpal has the power of a civil court to summon any
person or authority. After investigation, the ombudsman can only
recommend actions to be taken by the competent authority. A
number of safeguards have been taken to discourage false
complains or complain of malafide intent.
 He can order search and seizure operations.
 He shall present annually to the President the reports of
investigation and the latter with the action take report has to put it
before the both houses of parliament.

It may be noted that the Lokpal is supposed to investigate cases of

corruption only, and not address himself to redressing grievances in
respect of injustices and hardship caused by maladministration.
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LOK PAL BILL -- AN ANALYSIS

THE CURRENT SITUATION:

Very recently a highly discouraging phenomenon has come to light, that

is, the prevalence of corruption in the subordinate courts and even in
High Courts. Probably due to this, the present government has planned
to bring the Judiciary within the purview of Lok pal; this is one reason
why the Bill has been referred to the Group of Ministers. However given
the history of Lok pal bill, there is a constant risk that the bill will
simply lapse because no conclusion is reached within the life of this Lok
Sabha!

The political fraternity is understandably opposed to a Lok pal, since the

purported target of the Lokpal is mainly the politicians themselves. The
publicly stated reason for the current delay is that some important issues
are as yet unresolved.5

CONCLUSION:

In the regular dispensation of government there are implicit and explicit

ways that citizens can voice their grievances and demand change. But
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LOK PAL BILL -- AN ANALYSIS

these are often difficult. Within administrative departments, for example,

any decision of one official can be appealed to a higher official, all the
way up to the head of a department. However, this mechanism has
inherent flaws. Higher officers enjoy departmental fraternity with those
against whom complaints are made, and both sail the same boat.
Therefore their impartiality in judging appeals is always doubted. On the
legislative side, an individual can approach the member representing his
constituency for his demands. But given the absence of easy access of an
ordinary citizen to his representative, this has more remained a myth
more than reality. Among the organs of state, the Judiciary has proved
itself to have highest credibility in protecting individual rights. However,
due to procedural complexities involved in court cases - right from filing
a case to the delivery of final verdict - there are inevitable delays of
justice, which often are also denial of justice.

The existing devices for checks on elected and administrative officials

have not been effective, as the growing instances of corruption cases
suggest. The Central Vigilance Commission (CVC) is designed to
inquire into allegations of corruption by administrative officials only.
The CBI, the premier investigating agency of the country, functions
under the supervision of the Ministry of Personnel, Public grievances
and Pensions (under the Prime Minister) and is therefore not immune
from political pressures during investigation. Indeed, the lack of
independence and professionalism of CBI has been castigated by the
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Supreme Court often in recent times. All these have necessitated the
creation of Lokpal with its own investigating team in earliest possible
occasion.

Therefore, there is a need for a mechanism that would adopt very

simple, independent, speedy and cheaper means of delivering justice by
redressing the grievances of the people. Examples from various
countries suggest that the institution of ombudsman has very
successfully fought against corruption and unscrupulous administrative
decisions by public servants, and acted as a real guardian of democracy
and civil rights.
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