ABSTRACT

The Lokpal and Lokayukta Act, 2013 was enacted to establish institutions for the investigation and prosecution of corruption cases involving public officials. This research paper critically appraises the powers and functions of the Lokpal and Lokayukta with reference to judicial contribution and examines the efficacy of the Act.

The research paper utilizes a mixed-methods approach, which includes a systematic review of relevant literature, as well as an analysis of the Act and its implementation The analysis takes into account the powers and functions of the Lokpal and Lokayukta, as well as the role of the judiciary in shaping their effectiveness. It also constitutes a critique of the Act, highlighting its shortcomings and limitations. The analysis identifies gaps in the Act, which have impeded its effectiveness in addressing corruption in high places. The research paper also examines the challenges faced by the Lokpal and Lokayukta in fulfilling their mandate and the implications of these challenges for the overall fight against corruption. The study recommends a review of the Act, with a view to addressing the gaps and limitations identified, and strengthening the powers and functions of the Lokpal and Lokayukta.

Keywords: Lokpal and Lokayukta, Corruption, Independent Ombudsman, Judicial Contribution

RESEARCH QUESTIONS

1. What are the key powers and functions of the Lokpal and Lokayukta institutions in India, as outlined in the Lokpal and Lokayukta Act, and how have these institutions been implemented and functioning in practice?
2. To what extent have the Lokpal and Lokayukta institutions contributed to addressing corruption in India, and what is the nature and extent of the impact of these institutions in the fight against corruption?
3. How do the Lokpal and Lokayukta institutions interact with the judicial system in India, and what is the role of the judiciary in the effectiveness of these institutions in addressing corruption?
4. What are the key criticisms of the Lokpal and Lokayukta Act and the institutions established under the act, and what are the challenges faced by these institutions in their implementation and functioning?
5. What are the lessons that can be learned from the performance of the Lokpal and Lokayukta institutions in India, and what are the policy implications and recommendations for improving the effectiveness of these institutions in the fight against corruption?

POWERS AND FUNCTIONS OF LOKPAL AND LOKAYUKTA

INTRODUCTION AND HISTORY

The Lokpal and Lokayukta Bill is a landmark anti-corruption legislation in India. The bill looks to create a self-sustaining ombudsman institution, known as the Lokpal at the central level and the Lokayukta at the state level, to probe allegations of corruption against public servants and elected representatives. The stipulation of a strong anti-corruption legislation in India dates back to the 1960s when the first Lokpal Bill was instituted in the parliament. However, it could not be passed into law due to political and bureaucratic resistance. The demand for a Lokpal gained momentum in 2011 when the social activist Anna Hazare went on a hunger strike to stipulate the passage of a strong anti-corruption law.[1] The public support for the movement was enormous, and it put tremendous pressure on the government to act. In response to the public outcry, the government formed a joint committee to draft a new Lokpal Bill, which included members from civil society and the government. The committee yielded its report in June 2011, and the Lokpal and Lokayukta Bill was introduced in the parliament in August 2011.

The bill underwent several revisions and debates in parliament before it was finally passed in December 2013. However, it was further challenged in the Supreme Court, which administered the government to make certain changes to the bill to make it more effective.[2] Finally, in July 2016, the Lokpal and Lokayukta Act, 2013 was amended to make it operational. The act established the Lokpal as an independent statutory body to investigate corruption cases involving public servants and elected representatives, including the prime minister, except for matters related to national security. The act also established the Lokayuktas in the states to investigate corruption cases at the state level.

Despite its passage into law, the implementation of the Lokpal and Lokayukta Act has been slow. As of early 2023, the Lokpal has not yet been fully operationalized, and several key positions in the institution remain vacant. However, the act remains an important milestone in India’s fight against corruption and a significant achievement in the country’s history.

The Lokpal and Lokayukta Bill is a section of legislation that seeks to set up a self- sufficient ombudsman at both the national and state levels in India. The purpose of the bill is to provide an apparatus for citizens to report corruption and hold public officials accountable for their actions. The Lokpal and Lokayukta Act, 2013 was passed by the Parliament of India and came into force on January 16, 2014.

POWERS AND FUNCTIONS

The Lokpal and Lokayukta have the following powers and functions:

1. Investigation: Among the people subject to investigations by the Lokpal and Lokayukta are the Prime Minister, and all government officials including Members of Parliament, who are suspected of corruption. They can also investigate complaints against public servants working in organizations that receive public funds or are owned by the government.
2. Prosecution: The Lokpal can prosecute public officials who have been accused of corruption in court. This includes filing charge sheets and presenting evidence.

• Asset Forfeiture: The Lokpal and Lokayukta have the power to seize assets obtained by corrupt means. This includes money, property, and other assets.

1. Prevention: The Lokpal and Lokayukta can recommend changes to government policies and practices to prevent corruption. They can also make recommendations for changes to the law to strengthen anti-corruption efforts.
2. Whistle-blower Protection: The Lokpal and Lokayukta can protect whistle-blowers who report corruption from retaliation by their employers or others.
3. Grievance Redressal: The Lokpal and Lokayukta can address complaints related to grievances against public officials, including non-payment of pensions, salaries, and other benefits.

• Public Awareness: The Lokpal and Lokayukta can promote awareness of corruption and its impact on society through public education campaigns, seminars, and workshops.

In summary, the Lokpal and Lokayukta have the power to probe and prosecute corruption cases, recommend changes to government policies to prevent corruption, protect whistleblowers, address grievances, and promote public awareness of corruption. These powers are designed to ensure that public officials are held accountable for their actions and that the government operates transparently and in the best interests of the people.

ADJUDICATING POWERS OF LOKPAL

1. The Lokpal and Lokayukta are independent institutions that are not under the control of the government, ensuring that cases are investigated and prosecuted impartially.
2. The Lokpal and Lokayukta have the power to initiate and fast-track corruption cases, ensuring that justice is delivered in a timely manner.

• The existence of the Lokpal and Lokayukta has a deterrent effect on corruption, as public servants are aware that they can be held accountable for corrupt practices.

In conclusion, while the Lokpal and Lokayukta have the potential to make significant contributions to the judiciary in the fight against corruption, their effectiveness is limited by a lack of resources and the need for greater powers. However, the mere existence of these institutions has a deterrent effect on corruption, and they have the potential to be more effective with greater resources and powers.

THE VITAL ROLE PLAYED BY LOKPAL AND LOKAYUKTA

The purpose of the Act is to establish a mechanism for prosecuting cases of misappropriation and abuse of power by high-ranking government officials. The intention was to speed up the trial process while still adhering to the proper procedures and rules of evidence. The Supreme Court reviewed the constitutionality of the original bill twice, making some adjustments to it.[3] The modified bill was then passed into law and later challenged in State (Delhi Administration) v V.C. Shukla.[4] The central argument was that the bill, originally designed to try emergency offenses, was now a permanent statute and violated Article 14 due to a lack of classification. Despite this, the Supreme Court upheld the Act’s validity, stating that its primary objective was to ensure speedy trials for specific categories of offenses committed by those in positions of public or political trust. Such individuals were considered a distinct group of offenders. Maintaining democracy, administrative efficiency, and purity requires a special approach for when those in high-ranking positions commit severe abuses of power and betray the trust placed in them.

The opening statement of the main statute clearly highlights the significance of the Lokayukta in our region. Its duty involves directing both the government and legal system in combating corruption within our community.[5] In Justice Chandrashekharaih (Retired) v. Janekere C. Krishna & Ors[6]., Radhakrishnan, J. contemplated the Lokayukta’s role and proposed a solution. Ingeniously, he proposed the formation of two distinct entities, one at the state and national levels, with the responsibility of handling grievances regarding administrative actions undertaken by ministers or secretaries, and another dedicated to resolving complaints related to other officials. These bodies must operate independently and remain separate from the executive, legislative, and judiciary. In the case of Institution of A.P. Lokayukta/Upa-Lokayukta v. T. Rama Subba Reddy[7], the Hon’ble Apex Court explained the purpose behind the Lokayukta Acts. The Court noted that the Acts were designed to hold public servants accountable for their actions, and that the Lokayukta and Upa-Lokayukta, who are high-ranking judges, are intended to act as effective ombudsmen to maintain public confidence in public bodies. To ensure that their decisions are not disregarded, these authorities should be empowered with appropriate tools and penalties, and not merely be symbolic. Therefore, their recommendations must be enforceable to prevent their efforts from going to waste, and their reports from being disregarded by disciplinary authorities.

The Act is a comprehensive piece of legislation that can address many issues, such as prolonged detention of under-trial prisoners, torture of inmates, poor conditions for female prisoners, and low wages paid by government contractors to workers. The Ombudsman could have effectively addressed such cases if they had been expedited. The Act is a commendable effort to create a mechanism for investigating corruption charges against central ministers. However, it is essential to remember that addressing individual grievances against the Administration is just as important as combating corruption. The surging number of public interest litigations being presented before the Supreme Court and High Courts underscores the necessity for a system that facilitates individual resolution of grievances against the Administration.

CRITCAL INTERPRETATION OF PROVISIONS OF THE ACT

In the Act, Section 4(1) specifies that, “the President will appoint the Chairperson and members of the Lokpal based on the recommendations of the Selection Committee. This Committee consists of the Prime Minister, the Speaker of the House of People, the Leader of Opposition in the House of People, the Chief Justice of India or a nominated Supreme Court Judge, and an eminent jurist.” This provision has received criticism for potentially undermining the Chief Justice’s independence and the importance of selecting the Jurist with care to ensure the Lokpal’s effectiveness.

Section 4(2) states that, “a vacancy in the Selection Committee does not nullify the appointment of the Chairperson or a member of the Lokpal.” The intent behind this provision is unclear since it is highly unlikely that all the positions in the Committee would be vacant simultaneously. Section 5 requires the selection process to begin at least three months before the Chairperson or member’s term expires to avoid a vacancy in the Selection Committee. The appointment or vacancy of an eminent jurist can be used by the government to influence the executive members, which is a concern.

It is unexpected that the procedures detailed in Section 20 for the preliminary investigation and inquiry phases have contrasting features, and this could be considered as contradictory. When a complaint is received, the Lokpal has the option to authorize a preliminary inquiry to establish if a prima facie case exists or to instruct another agency to conduct an investigation, but only after verifying that a prima facie case has been established.

As stated in this section’s proviso, it is essential for the Lokpal to request an explanation from the public servant being investigated to ascertain the existence of a prima facie case before initiating an investigation. As a result, the Lokpal must review the public servant’s explanation before initiating any investigation.

JUDICIARY’S PERSPECTIVE ON IMPLEMENTATION OF LOKPAL AND LOKAYUKTA ACT, 2013

INTRODUCTION AND CASE LAWS

The rule of law is a cardinal foundational stone in the domain of administrative law. Regardless of his status, no man is beyond the law. With the same end goal, i.e. to subject public servants to the same laws applicable to an ordinary man, ensure fairness and equity in an investigation, and prosecute them for corruption, the Lokpal and Lokayukta Act was brought to the general public after years of sweat and blood. While the Legislature’s role was successful, the Executive’s role in implementing the Act had failed at various stages. The third pillar of democracy, i.e., the judiciary, has endorsed the bill confidently.

Even though courts have increasingly become involved in administrative management in recent years, they still play a minor role. In many cases, courts fail to conduct reviews, which impede the judicial process. Administrative authorities do not investigate the merits of official discretionary powers in their findings of fact. It is also imperative that they do not substitute their own judgment for the judgment of officials who have been entrusted with authority. As a result of the Lokpal Bill, gaps that had been left unfilled by the judiciary were filled.

In the landmark judgment of Mr. Justice Chandrashekaraiah vs. Janekere C. Krishna & Ors[8]., the Apex Court laid down general features and guidelines for the functioning of the Lokpal and Lokayukta institutions. According to them, the Lokpal was also given the status of being a member of the highest judicial body that deals with acts of injustice, corruption, favoritism, etc. A mechanism that is independent and unprejudiced must be established; investigations and proceedings should be confidential and informal; and appointments should, wherever possible, be nonpolitical. Additionally, they believe that Lokpal may acquire authority without conflicting with other constitutional authorities by being granted constitutional status for his office, powers, and functions.

The Indian Judiciary in the recent case of Vijay Raj Mohan vs. State Represented by the Inspector of Police, CBI, ACB, Chennai, and Tamil Nadu[9], the Supreme Court reaffirmed the importance and purpose of the Lokpal and Lokayukta Acts, stating that they were both made to maintain the integrity of certain public functionaries and that they work well with the Code of Criminal Procedure, and Prevention of Corruption Act etc.

CHALLENGES TO THE LOKPAL ACT

Many politicians and candidates have used the need for a Lokpal to combat corruption to further their own electoral and political agendas. However, the lack to subside by these rules after the Act came into public domain has led to nothing but a series of obstacles. One of the biggest challenges posed to the act was failure in its implementation. The Act requires every state for the appointment of a Lokayukta within one year, however numerous states have yet to do so. The Lokpal has tried to alter India’s administrative framework to fight corruption, but numerous loopholes remain.

19 states have established the office, and most are defunct. Only Kerala, Karnataka, and Uttar Pradesh succeeded. Even there, Lokayuktas lack prosecution authority, equipment, and people. Karnataka politicians have conveniently postponed a new Lokayukta.

Secondly, Lokpal is susceptible to political influence because of the composition of the appointing committee, which comprises of members of political parties and no criteria exist to determine who is “a person of integrity” or “an eminent jurist”.  It took nearly five years for the National government to create a Lokpal to investigate charges of corruption involving public employees on the grounds that there was no Leader of the Opposition in Parliament. This unrealistic approach has led to excessive delay in the process of justice administration. Further, Lokpal being a quasi-judicial body has no provisions for appeals, and A change brought about by this Act in the selection process of the CBI’s director has led to one of the biggest debates in the country regarding the demand for a supervisory committee of Lokpal taking into account the CBI’s need for functional independence.

Lastly, the Lokpal is often criticized for being toothless bodies. They do not have the power to initiate action on their own and can only investigate cases that are referred to them by the government or the courts. Further, the lack of resources and manpower add on to the ripple effect of collapsing authority of Lokpal and Lokayukta.

SUGGESTIONS AND CONCLUSION

The Act has been contested to be powerless by various critics however, from our opinion Lokpal as an institution has tremendous potential if the implementation procedure is up to mark. Lokayuktas should have been set up in every state after one of enactment of the Act however, the same has not been complied after all these years. Secondly, the Act includes Prime Minister in the Selection Committee, while simultaneously bringing Prime Minister’s office within Lokpal’s jurisdiction. It contradicts the purpose of the Act invariably. Lastly, a supervisory committee for the Lokpal and Lokayuktas should be set up excluding judiciary considering its hesitancy in the subject-matter. This committee may comprise of jurists and other corruption specialists with limited interest in legislative so the matters can address unbiasedly.

The Apex Court has expressed optimism time and again claiming the planned Lokpal and Lokayuktas will “strengthen the current legal and institutional structure” to combat corruption in Common Cause, a Registered Society V. Union of India and ors[10]. The language of “zero tolerance against corruption” was echoed throughout the ruling. The court lauded the legislative move, and anticipated that it would lead to the establishment of a stronger anti-corruption watchdog in India. Justice Krishna Iyer’s words from the Special Courts Bill, 1978 were appropriately cited by the court: “Law is what law does, not what law says, and the moral gap between word and practise menaces people’s trust in life and law.” The loss of democracy would be a terrible tragedy. However, the same optimism isn’t shared by the citizens and media. Despite substantial excitement surrounding the Lokpal’s establishment, it has not only failed to live up to expectations, but the buzz surrounding it has been unfounded, raising the question of whether the concept was such a good one in the beginning.

So far, the majority of complaints have been facetious or ultra vires of the ombudsman’s authority. Furthermore, the number of complaints, even frivolous ones, has decreased

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Written by- Mansi Malpani

[1] Maseeh Rahman, Anna Hazare ends Hunger Strike After Indian Government Backs Down, The Guardian, August 28^th, 2011

[2] Plea against notification of Lokpal Bill panel premature: Supreme Court, The Hindu, April 29^th, 2011

[3] In re, the Special Courts Bill, 1978, (1979) 1 SCC 380.

[4] State (Delhi Administartion) v. V.C. Shukla, (1980) 2 SCC 665.

[5] Mithilesh Kumar Singh vs. The State of Bihar and Ors., MANU/BH/0399/2022.

[6] Justice. Chandrashekaraiah (Retd.) v. Janekere C. Krishna, (2013) 3 SCC 117, para 19.

[7] A.P. Lokayukta/Upa-Lokayukta v. T. Rama Subba Reddy, (1997) 9 SCC 42, para 17.

[8] Justice. Chandrashekaraiah (Retd.) v. Janekere C. Krishna, (2013) 3 SCC 117.

[9] Vijay Raj Mohan vs. State Represented by the Inspector of Police, CBI, ACB, Chennai, and Tamil Nadu, (2022) LiveLaw (SC) 832

[10] Common Cause, a Registered Society V. Union of India and Ors., (2018) 9 SCC 382