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THE LOKPAL& LOKAYUKTA ACT 2013- A CRITICAL EVALUATION

INTRODUCTION

The Lokpal Act, 2013, officially The Lokpal and Lokayukta Act, 2013, is an anticorruption Act
of Indian Parliament in India which "seeks to provide for the establishment of the institution of
Lokpal to inquire into allegations of corruption against certain public functionaries and for
matters connecting them. The bill was tabled in the Lok Sabha on 22 December 2011 and was
passed by the house on 27 December 2011 as The Lokpal and Lokayukta Bill, 2011. The bill was
subsequently tabled in the Rajya Sabha on 29 December 2011. After a marathondebate that
stretched until midnight of the following day, the vote failed to take place for lack of time. On
21 May 2012, the bill was referred to a Select Committee of the Rajya Sabha for consideration.
The bill was passed in the Rajya Sabha on 17 December 2013 after making certain amendments
to the earlier Bill and in the Lok Sabha on 18 December 2013. The Bill received assent from
President Pranab Mukherjee on 1 January 2014 and came into force from 16 January 2014. The
bill was introduced in parliament following massive public protests led by anticorruption
crusader Anna Hazare and his associates. The bill is one of the most widely discussed and
debated bills in India, both by the media and the People of India at large, in recent times. The
protests were named among the "Top 10 News Stories of 2011" by the magazine Time. The bill
received worldwide media coverage. In 2011, India ranked 95th in the Corruption Perceptions
Index ofTransparency International. A recent survey estimated that corruption in India had cost
billions of dollars and threatened to derail growth. India lost a staggering $462 billion in illicit
financial flows due to tax evasion, crime and corruption postIndependence, according to a report
released by Washington-based Global Financial Integrity

BRIEF HISTORY

It is of interest to trace the history of legal institution of Lokayukta as a machinery to deal with
administrative ills or corruption or misconduct. Sweden can be credited to think of such an
institution on its first origin merely over 2 centuries in the past naming it an ‘Ombudsman’ its
equivalence in terms of Indian counterpart as Lokpal dating back to the year 1808. Nehruji a
leading statesman of India as Prime Minister used for first time Lokpal in the Centre and
Lokayukta in State. In 1963 and 1966 respectively which became the cornerstone for introducing
Lokpal and Lokayukta bill in 1968 in the fourth Loksabha which was several times re introduced
from 1971 to 2011 (8 times) but never saw the bill taking the shape of an enactment, which can
be read as lack of political will to transform it into an enactment. This demonstrates the political
will to keep the administrative authorities from the legal control of the institution of Lokpal
which can be attributed to a large number of scams occurring. Even the recent bill of 2013
suffered from same kind of indifference to scams and other irregularities of the administration. It
is of significance to note that the Central Government succeeded in making it as an enactment
finally bringing even the Prime Minister under the purview of Lokpal, despite lot of commotion
in the Parliament by those agitating for a separate Telangana State. The passage of the bill
became possible when government accepted some amendments like delinking of mandatory
creation of Lokayuktas by States. This issue earlier stalled the passage of the bill. It appears as if
the State wanted nochecks on their administration or the States must have final say about the
need for Lokayukta in keeping with the federal structure of the Constitution. However, it is
noticeable that the several States have established the institution of Lokayukta to overcome the
criticism that the administration is too unwilling to set up a corrupt free administration.

NEED FOR LOKPAL

There are several deficiencies in our anti-corruption systems because of which despite
overwhelming evidence against the corrupt, no honest investigation and prosecution takes place
and the corrupt are hardly punished. The whole anti-corruption set up ends up protecting the
corrupt.

1) Lack of Independence Most of our agencies like CBI, state vigilance departments, internal
vigilance wings of various departments, Anti-corruption Branch of state police etc are not
independent. In many cases, they have to report to the same people who are either themselves
accused or are likely to be influenced by the accused.

2) Powerless Some bodies like CVC or Lokayuktas are independent, but they do not have any
powers. They have been made advisory bodies. They give two kinds of advise to the
governments – to either impose departmental penalties on any officer or to prosecute him in
court. Experience shows that whenever any minister or a senior officer is involved, their advice
is rarely followed.
3) Lack of Transparency and internal accountability In addition, there is the problem of internal
transparency and accountability of these anti-corruption agencies. Presently, there isn’t any
separate and effective mechanism to check if the staff of these anti-corruption agencies turns
corrupt. That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has
become a high profit zero risk business. There is absolutely no deterrence against corruption.

4) Lack of Transparency and internal accountability In addition, there is the problem of internal
transparency and accountability of these anti-corruption agencies. Presently, there isn’t any
separate and effective mechanism to check if the staff of these anti-corruption agencies turns
corrupt. That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has
become a high profit zero risk business. There is absolutely no deterrence against corruption. Our
anti-corruption laws also have several critical deficiencies, which end up protecting the corrupt.

SALIENT FEATURES OF THE LOKPAL AND LOKAYUKTAS ACT, 2013

1) The Lokpal and Lokayuktas Act, 2013 provided for Lokpal at the centre having jurisdiction of
trying cases of corruption against all Members of Parliament and central government employees.
The Lokayuktas have functions similar to the Lokpal, but they function on a state level.

2) The office of the Lokpal and Lokayuktas deals with charges of corruption against any public
official and includes the office of the prime minister of the court but with reasonable safeguards.
Both the Lokpal and the Lokayukta deal with charges of corruption against the government and
its employees, in fact they even conduct investigations and based on the findings from such
investigations they conduct trial

3) The act lays down the provision to set up a Lokayukta and its set of powers for each state
without clearly defining the extent of the same, this has led to various different Lokayuktas being
setup, some with more power than the others. In order to create uniformity a proposal to
implement the Lokayukta uniformly across Indian states has been made. The Act provides that
all states set up office of the Lokpal and/or Lokayukta within one year from the commencement
of the said Act.On the other hand, Lokpal will consist of a chairperson and a maximum of eight
members, of which 50% will be judicial members, 50% members of Lokpal shall be from
SC/ST/OBCs, minorities and women.
4) The newly enacted Lokpal Act provides for confiscation and attachment of any property of
any government official which he or she has come to own through corrupt practices and the same
can be done during pendency of proceedings against the said official.

5) The Lokpal Act mandates that all public officials should furnish the assets and liabilities of
themselves as well as their respective dependents. In fact the said Act even guarantees protection
to any government official who acts as a whistle blower and as an ancillary a Whistle Blowers
Protection Act has also been enacted.

COMPOSITION

The institution of Lokpal shall consist of eight members along with a chairperson. The members
are further classified into judicial and non-judicial members. The judicial members should have
higher judicial experience and the non-judicial should have experience in public administration,
finance, insurance and banking laws, anti-corruption and vigilance. Half of the members should
be from among the SC/ST/OBC/ minority and women.

APPOINTMENT

The Chairman is to be appointed by a Selection Committee consisting of Prime Minister, Leader


of the Opposition, Speaker of the Lok Sabha, an eminent jurist nominated by the President on the
basis of the recommendation of the Selection Committee and Chief Justice of India or any other
sitting judge of Supreme Court nominated by the Chief Justice. The chairperson or member can
be removed from his office by President on grounds of misbehavior after a Presidential reference
to Supreme Court on a petition signed by 100 MPs.

ELIGIBILITY

The Chairman has to be either the former Chief Justice of the Supreme Court or the former judge
of the Supreme Court. An eminent person of impeccable integrity and outstanding ability, having
special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption
policy, public administration, vigilance, finance including insurance and banking, law and
management can also be appointed as a chairperson.
The judicial members should be a former judge of the Supreme Court or a former Chief Justice
of a High Court. As far as the non-judicial members are concerned, he should be an eminent
person with impeccable integrity and outstanding ability, having special knowledge and expertise
of minimum 25 years in the matters relating to anti-corruption policy, public administration,
vigilance, finance including insurance and banking, law and management. Every member of the
Lokpal has to declare its assets before taking up the office.

JURISDICTION

The jurisdiction of the Lokpal will include the Prime Minister except on allegations of corruption
relating to international relations, security, the public order, atomic energy and space and unless
a Full Bench of the Lokpal and at least two-thirds of members approve an inquiry. It will be held
in-camera and if the Lokpal so desires, the records of the inquiry will not be published or made
available t anyone. The Lokpal will also have jurisdiction over Ministers and MPs but not in the
matter of anything said in Parliament or a vote given there. Lokpal’s jurisdiction will cover all
categories of public servants.

Group A, B, C or D officers defined as such under the Prevention of Corruption Act, 1988 will
be covered under the Lokpal but any corruption complaint against Group A and B officers, after
inquiry, will come to the Lokpal. However, in the case of Group C and D officers, the Chief
Vigilance Commissioner will investigate and report to the Lokpal. However, it provides adequate
protection for
honest and upright Public Servants.Also any person who is or has been in charge (director /
manager/ secretary) of anybody / society set up by central act or any other body
financed / controlled by central government and any other person involved in act of abetting,
bribe giving or bribe taking.

WORKING OF THE LOKPAL

The Lokpal has three officials under him- Secretary to Lokpal, Director of Inquiry and
Prosecution. After receiving the complaint, the Lokpal will decide whether the inquiry is to be
conducted or not. The inquiry wing is headed by the Director of Inquiry, and the function of the
inquiry wing is to conduct a preliminary inquiry into the offenses alleged to have been
committed by the public servants. The inquiry needs to be completed within 90 days. The Lokpal
can also conduct the inquiry through CBI. The report made by the inquiry wing or CBI would be
placed before the Lokpal bench with at least 3 members. Right to be heard will be given to the
alleged officer. If he is found guilty, then the prosecution wing/ CBI would be directed to file the
charge sheet against him. Departmental inquiry can also be initiated. If the officer is found to be
innocent, then a closure report can be filed and proceed against the complainant for a false
complaint. If the complaint is against an A to D officer, then the complaint is to be referred to the
CVC, who will inquire and submit the report to the Lokpal in the case of group A and B officers.
As far as group C and D officers are concerned, the matter will be further dealt by the CVC only.
The Lokpal has powers of superintendence, ordering search and seizure, confiscation and
attachment of property, recommending transfer or suspension of the accused public servant. It
can also recommend constitution of Special Courts to try the cases of corruption. The inquiry
wing of the Lokpal will have the powers of a civil court.

The salary of the Lokpal will be charged on the consolidated funds of India. However, the
Lokpal is required to prepare its budget for every financial year. A Lokpal cannot conduct an
inquiry against itself.

Officials of Lokpal There are three important officers of Lokpal. They are appointed by Lokpal
Chairperson. Secretary to Lokpal Director of Inquiry .

Powers of lokpal

1) It has powers to superintendence over, and to give direction to CBI.

2) If it has referred a case to CBI, the investigating officer in such case cannot be transferred
without approval of Lokpal.

3) Powers to authorize CBI for search and seizure operations connected to such case.

4) The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
5) Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured
by means of corruption in special circumstances

6) Lokpal has the power to recommend transfer or suspension of public servant connected with
allegation of corruption.

7) Lokpal has power to give directions to prevent destruction of records during preliminary
inquiry.

COMPLAIN AND AFTER PROCEDURE -

 How can a complaint be made and what happens next?

A complaint under the Lokpal Act should be in the prescribed form and must pertain to an
offence under the Prevention of Corruption Act against a public servant. There is no restriction
on who can make such a complaint. When a complaint is received, the Lokpal may order a
preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the
CBI, if there is a prima facie case. Before the ordering of an investigation by the agency, the
Lokpal shall call for an explanation from the public servant to determine whether a prima
facie case exists. This provision, the Act says, will not interfere with any search and seizure that
may be undertaken by the investigating agency. The Lokpal, with respect to Central government
servants, may refer the complaints to the Central Vigilance Commission (CVC). The CVC will
send a report to the Lokpal regarding officials falling under Groups A and B; and proceed as per
the CVC Act against those in Groups C and D.

 What is the procedure for preliminary inquiry?

The Inquiry Wing or any other agency will have to complete its preliminary inquiry and submit a
report to the Lokpal within 60 days. It has to seek comments from both the public servant and
“the competent authority,” before submitting its report. There will be a ‘competent authority’ for
each category of public servant. For instance, for the Prime Minister, it is the Lok Sabha, and for
other Ministers, it will be the Prime Minister. And for department officials, it will be the Minister
concerned.
A Lokpal Bench consisting of no less than three members shall consider the preliminary inquiry
report, and after giving an opportunity to the public servant, decide whether it should proceed
with the investigation. It can order a full investigation, or initiate departmental proceedings or
close the proceedings. It may also proceed against the complainant if the allegation is false. The
preliminary inquiry should normally be completed within 90 days of receipt of the complaint.

 What happens after the investigation?

The agency ordered to conduct the probe has to file its investigation report in the court of
appropriate jurisdiction, and a copy before the Lokpal. A Bench of at least three members will
consider the report and may grant sanction to the Prosecution Wing to proceed against the public
servant based on the agency’s chargesheet. It may also ask the competent authority to take
departmental action or direct the closure of the report. Previously, the authority vested with the
power to appoint or dismiss a public servant was the one to grant sanction under Section 197 of
the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act. Now this
power will be exercised by the Lokpal, a judicial body. In any case, the Lokpal will have to seek
the comments of the ‘competent authority’ as well as the public servant’s comments before
granting such sanction

LOKAYUKTAS

A Lokayukta is a state counterpart of the Lokpal. Prior to the enactment of the Act, it was left to
the respective states to institute Lokayukta or not. The Act provided for appointment of
Lokayuktas within a year in every state. Presently only states of
Maharashtra, Orissa, Rajasthan, Bihar, Uttar Pradesh, Karnataka, Madhya Pradesh, Andhra
Pradesh, Gujarat have Lokayuktas. Different states have different acts which impart different
powers to the Lokayukta accordingly.

LOOPHOLES AND LACUNAE

The institution of Lokpal is yet to see the light of the day. No new state has implemented the
Lokayukta yet. Parliamentary Standing Committee on personnel, public grievances, law, and
justice, in its report tabled in Parliament in April 2015 has slammed the government for the non-
implementation of the Act. The lack of political will is to be blamed.

Even if the Act is implemented, it will only add to the already complex and complicated
bureaucratic system which only defeats its own purpose. Further, it is not free from political
influence as the appointing committee itself consist of parliamentarians. There is no criteria to
decide who is an ‘eminent jurist’ or ‘a person of integrity.’ Thus, this appointment can easily be
manipulated.

Further, the act provides no immunity to the whistleblowers. The provision for initiation of
inquiry against the complainant if the accused is found innocent will only discourage people
from complaining. Also, there is no foolproof way to determine whether the person who is
appointed as the Lokpal will remain honest throughout.

The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal. The Lokpal is also
not given a constitutional backing. There are no adequate provisions for appeal against the
Lokpal. The powers, composition and scope of Lokayuktas do not find any mention of the act.
There is a long way to go to ensure transparency and crusade against corruption are still on and
yet to reach its destination.

CONCLUSION
The institution of lokpal has been a land mark move in the history of Indian polity, The lokpal
and lokayukta act 2013 has offered a productive solution to combat the never ending menace of
corruption.

The institution of lokpal has tried to bring a much needed change in the battle against corruption
in the administrative structure of India but at the same time there are loopholes and lacunae
which need to be corrected. Firstly it is not free from political influence as the appointing
committee itself consist of parliamentarians There is no criteria to decide who is an ‘eminent
jurist’ or ‘a person of integrity.’ Thus, this appointment can easily be manipulated. Further, the
act provides no concrete immunity to the whistle blowers. The provision for initiation of inquiry
against the complainant if the accused is found innocent will only discourage people from
complaining. Also, there is no foolproof way to determine whether the person who is appointed
as the Lokpal will remain honest throughout.

The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal. The Lokpal is also
not given a constitutional backing. There are no adequate provisions for appeal against the
Lokpal. The powers, composition and scope of Lokayuktas do not find any mention of the act.
There is a long way to go to ensure transparency and crusade against corruption are still on and
yet to reach its destination.