The Lokpal and Lokayuktas Act of 2014 can be said
to be a positive step forward, subject to certain weaknesses related to
the provision on Lokayuktas and the autonomy of investigating
authorities,
among others.
The Lokpal and Lokayuktas (L&L) Act 2014
1 was passed
by Parliament in December 2013, and got Presidential assent on 1 January
2014. It aims to prevent and control corruption through the setting up
of an independent and empowered body at the central level, called the
Lokpal that would receive complaints relating to corruption against most
categories of public servants and ensure that these are properly
investigated and, where warranted, effectively prosecuted. All this is
envisaged in a time-bound manner, with the help of special courts set up
for the purpose. The Act also makes it incumbent for each state to
pass, within a year, a law setting up a body of Lokayuktas at the state
level, but leaves it to the states to work out the details.
Brief History and Salient Features
The process leading to the enactment of the L&L Act started in
2010, when the government formulated a new Lokpal Bill. This bill,
however, was widely criticised for being weak.
2
In December 2011, the revised and renamed Lokpal and Lokayuktas Bill,
2011 was introduced in, and subsequently passed by, the Lok Sabha.
However, this bill could not be passed in the Rajya Sabha due to
objections by some of the opposition parties to various sections of the
bill.
In May 2012, the bill was referred to a Select Committee of the Rajya
Sabha to try and develop a consensus on the disputed issues. After the
report of the Select Committee was submitted in November 2012, the bill
was again taken up in the Rajya Sabha and passed, with several
amendments, on 17 December 2013. The amended bill was sent back to the
Lok Sabha, which passed it on 18 December 2013. The bill received the
assent of the president on 1 January 2014, thereby becoming the L&L
Act of 2014.
Process of Investigating and Prosecuting Complaints of Corruption: The
L&L Act 2014 provides for setting up a body called the Lokpal at
the central level to have complaints of corruption against various
categories of public servants enquired into, investigated, and
prosecuted, as warranted. The bill makes it mandatory for states to set
up Lokayuktas within one year of the passage of the bill, but the nature
and type of Lokayukta is left to the discretion of the state
legislatures.
The legislation envisages that the Lokpal would receive complaints of
corruption against the prime minister, ministers, Members of Parliament
(MPs), officers of the central government (all levels), and against
functionaries of any entity that is wholly or partly financed by the
government with an annual income above a specified limit, and also, all
entities receiving donations from foreign sources in excess of 10 lakh
per year.
3
The Act states that on receipt of a complaint against any public
servant, except for officers from groups A, B, C or D, the Lokpal will
order a preliminary inquiry against the public servant. The inquiry may
be done by its own inquiry wing, provided for this purpose,
4 or the Lokpal may direct the Central Bureau of Investigation (CBI)
5 or any other agency to do the preliminary inquiry. The preliminary inquiry has to ordinarily be completed within 60 to 90 days
6
and a report has to be submitted to the Lokpal. For complaints against
public servants belonging to groups A, B, C or D, the Lokpal will refer
the complaints to the Central Vigilance Commission (CVC) for preliminary
inquiry. After the completion of the preliminary inquiry, the CVC will
submit its report to the Lokpal in respect of public servants belonging
to group A or B, while in cases of public servants belonging to group C
or D, the CVC will proceed in accordance with the provisions of the CVC
Act, 2003.
7
Upon receiving the report of the preliminary inquiry (for groups A
and B officers and other public servants, including ministers and MPs),
the Lokpal will give an opportunity to the public servant to be heard,
and if it decides that there exists a prima facie case, order an
investigation by the CBI (or any other agency) or order departmental
proceedings against the concerned public servant. The investigation has
to be ordinarily completed within six months, extendable to one year,
and a report has to be submitted to the appropriate court having
jurisdiction, with a copy being sent to the Lokpal.
8
Every investigation report must be considered by a bench consisting
of not less than three members of the Lokpal and, after obtaining the
comments of the public functionary, the Lokpal may grant sanction to its
own prosecution wing, or to the investigating agency, to file a charge
sheet before the special court, or direct filing of a closure report, or
direct initiation of departmental proceedings against the concerned
public servant.
Apart from providing the Lokpal with its own prosecution wing,
9
the bill provides for amending the Delhi Special Police Establishment
Act, 1946 to set up a Directorate of Prosecution headed by a Director of
Prosecution under the overall control of the CBI director.
10
For the purpose of deciding cases arising out of the Prevention of
Corruption Act (PCA), 1988, the bill provides for setting up of special
courts. All trials in the special courts have to be ordinarily completed
within one year, extendable to two years for reasons to be recorded in
writing.
11
Selecting Members of the Lokpal: The Lokpal chairperson and
its eight members will be selected by a committee consisting of the
prime minister, the speaker of the Lok Sabha, the leader of opposition
in the Lok Sabha, the chief justice of India (CJI) or a judge of the
Supreme Court nominated by the CJI, and one eminent jurist, as
recommended by the other four members of the committee.
12
A search committee of at least seven members will be constituted to
shortlist a panel of eligible candidates for the post of chairperson and
members of the Lokpal. This panel would be put up to the selection
committee. At least half the members of the search committee,
13 and of the Lokpal,
14
must be from amongst persons belonging to the scheduled castes, the
scheduled tribes, Other Backward Classes, minorities and women.
Critique of the Act
The appropriateness and efficacy of the Act can be determined by
applying the five-point test: are the institutions and processes
proposed to be set up under the Act:
(a) Adequately independent of the government and others whom they are
mandated to scrutinise, so that they can function without interference,
pressure, and conflict of interest;
(b) Adequately empowered to detect, investigate and prosecute cases of corruption;
(c) With adequate jurisdiction, so that no category of public servant is exempt from effective scrutiny;
(d) Adequately accountable to the people of India; and
(e) Yet, practical and realistically workable?
Independence
Superintendence and Administrative Control over the CBI: Though
the L&L Act envisages that the Lokpal may use any agency it chooses
to enquire or investigate complaints under its jurisdiction, in actual
fact there are very few choices at the moment apart from the CBI. But,
in order to ensure that such investigations, many of which might involve
very senior and powerful members of the government, are fair and
professional, the CBI must be functionally independent of the central
government.
To some degree this independence has been achieved by the L&L Act changing the process of selecting the director of the CBI,
15
who would now be selected by a committee consisting of the prime
minister, leader of opposition of the Lok Sabha, and the CJI or a
Supreme Court judge nominated by him. Prior to this, the CBI director
was appointed by a committee dominated by functionaries of the incumbent
government.
The Act also envisages that the Lokpal will have powers of “superintendence” over the CBI.
16
However, experience has shown that such powers are meaningless without
instruments to ensure actual administrative control. The Act empowers
the Lokpal with partial administrative control over the CBI as it states
that transfer of CBI officers investigating cases referred by the
Lokpal can be done only with the approval of the Lokpal.
17 Unfortunately, all this is still not adequate to provide the required functional independence to the CBI.
The central government still controls the budget of the CBI, appoints
its officials, and is the receiving authority for the annual
confidential reports of senior CBI officials, thereby making them
vulnerable to pressure from the government. It would have been much
better if the CBI had been brought under the comprehensive
administrative and financial control of the Lokpal, whose own
expenditure is chargeable to the consolidated fund of India.
18
Or at the very least, the appointment and removal of senior CBI
officers should have required the approval of the Lokpal and for
officers working on cases referred by the Lokpal, the chairperson of the
Lokpal should have been the receiving authority for the annual
confidential reports. These measures were suggested by various civil
society groups, but ignored by the government.
19
Empowerment
Arbitrary Time Frame for Completion of Trial:20 The
Act, in Section 35, specifies that any trial before the special court
must be completed in two years. While it is a welcome move towards
ensuring time-bound completion of trial, the Act does not specify what
would happen in those rare cases where, despite best efforts, this was
not possible. This ambiguity could lead to the proceedings being
abandoned just because they could not be completed in time, and the
accused getting off scot-free. This would also give an incentive for the
accused to delay the proceedings. Therefore, a caveat to prevent
benefit or undue advantage to the accused should have been included in
the Act.
Power to Order Inquiry or Investigation without Seeking Government Approval: Unfortunately
Section 6A of the Delhi Special Police Establishment Act of 1946, which
specifies that the CBI cannot inquire or investigate into any offence
committed by an officer of the rank of a joint secretary or above of the
Government of India, and of equivalent rank in government-owned or
controlled bodies, without the previous approval of the central
government
21 has not been specifically amended or overridden
in this Act. Though in Section 23(1) of the L&L Act of 2014 it is
specified that the Lokpal shall have the right to order prosecution,
notwithstanding anything contained in Section 6A referred to above, it
does not similarly talk about inquiry or investigation. However, this
appears to be an oversight as the general tenor of the L&L Act and
many other sections suggest that the Lokpal should be able to order the
CBI to inquire or investigate without seeking permission of the central
government. Nevertheless, it needs to be corrected, otherwise it could
make the Lokpal a non-starter for, though the Lokpal can ask agencies
other than the CBI to inquire or investigate, presently there are very
few such at the central level.
Jurisdiction
Power and Jurisdiction of the Lokayuktas in States: The
biggest shortcoming of the Act is that while it makes it mandatory for
Lokayuktas to be set up in each state within one year, state
legislatures will be free to determine the powers and jurisdiction of
the Lokayukta.
22 The apprehension is that this could result
in very weak and ineffective Lokayuktas being set up in many of the
states, with limited jurisdiction. As much of the corruption that
affects the common person, especially the poor and marginalised, occurs
under the jurisdiction of the state government, the absence of strong
and effective state Lokayuktas would deny the majority of Indians,
especially those who are most in need of relief, any respite from
rampant corruption.
Admittedly, this is one of the most politically sensitive issues. In
fact, perhaps the main reason why the earlier bill was objected to by
many of the opposition parties and even some of the constituent and
support parties of the UPA, was because it provided for the simultaneous
setting up of Lokayuktas in the states along the same lines as the
Lokpal invoking Article 253 of the Constitution.
However, in the revised bill the government had the option of
invoking Article 252 of the Constitution, which would allow each state
to decide whether it wanted to enact a Lokayukta law or not. However,
the law, when enacted, would have been identical to the central Act in
terms of jurisdiction and efficacy. This would have been a preferred
alternative.
Statute of Limitation
The Act envisages that the Lokpal “shall not inquire or investigate
into any complaint, if the complaint is made after the expiry of a
period of seven years from the date on which the offence mentioned in
such complaint is alleged to have been committed.”
23 This
seems to be unnecessarily restrictive, especially in relation to some of
the large and complex scams that are exposed from time to time. Scams
are often unearthed only after a political regime change, especially if
they involve high level public functionaries. If a complaint is
accompanied with credible proof, there is no reason why it should not be
examined by the Lokpal.
Coverage of the Private Sector
The jurisdiction of the Lokpal covers all complaints under the PCA
1988. Unfortunately, the PCA is weak insofar as fixing responsibility of
the private sector is concerned. Recent events have shown that even
where companies or other private entities are in receipt of government
patronage in the form of illegitimate profit-making opportunities,
unless it can be proved that they had bribed or otherwise benefited a
public servant, it is almost impossible to indict them under the PCA. It
had, therefore been suggested by the civil society organisation, the
National Campaign for People’s Right to Information (NCPRI) that the
L&L Act, while making various amendments to various existing laws,
24 including the PCA, make the following addition to the PCA (to Section 12 of the PCA):
Where any entity, including but not restricted to a private body,
corporation or profit seeking entity, or any NGO that receives from any
public authority any grants, concession or dispensation or executes an
agreement to carry out a public service, including but not restricted to
licences, subsidies, contracts, orders, quotas, allocations,
clearances, etc, or any opportunity to make profits, where either such a
receipt, is in violation of the law or of any prevailing rules and
attains or causes illegitimate benefits from such violations, it would
be deemed to have abetted an offence under this Act.
Unfortunately, no such provision has been made in the PCA and
therefore jurisdiction over the private sector will continue to be
tenuous.
Accountability
The Act falls short on several counts on ensuring the accountability
of the Lokpal. Being a high-powered anti-corruption agency with powers
of enquiry, investigation and prosecution, strong measures were required
to ensure the accountability of the institution and officials of the
Lokpal.
Parliamentary Oversight
As per Section 48 of the Act, the Lokpal is required to send an
annual report to the president on the work done by it which is to be
laid before each house of Parliament. The Lokpal should have been made
accountable to Parliament for the maintenance of ethical standards
within the institutions, specifically maintaining impartiality in
functioning, especially the absence of political, caste, class, gender
and religious bias, the prevention of victimisation, and the avoidance
of conflict of interests. This could have been ensured by constituting a
multiparty Standing Parliamentary Committee which would have the
responsibility of examining the functioning of the Lokpal and be
empowered to receive complaints against the Lokpal and its members and
officers regarding parameters of ethical functioning.
Complaints against the Chairman and Members of the Lokpal: The
L&L Act envisages that any complaint against a member or
chairperson of the Lokpal will be taken cognisance of only if it is
signed by at least a 100 MPs.
25 However, past experience has
shown that this is very difficult to implement, especially as the matter
often becomes politicised. Civil society groups had suggested that
ordinary citizens also be empowered to make complaints against members
of the Lokpal – a suggestion that was not accepted by the select
committee and has not been included in the Act.
26 The select
committee in its report has noted that it was felt that “empowering
citizens to approach the Supreme Court directly would result in flooding
the Supreme Court with large number of petitions”.
27
Complaints of Corruption against Lokpal Staff: The Act envisages that the Lokpal would itself deal with complaints of corruption against its own staff.
28
Considering one of the basis of setting up an independent Lokpal is the
principle that all complaints of corruption should be dealt with by
independent bodies, and considering the type of powers the Lokpal has,
there would be many opportunities by its staff to indulge in corrupt
practices, the Act should have provided for a system that is independent
of the Lokpal to deal with complaints of corruption against Lokpal
staff. A suggestion made to the Standing Committee
29 was that
an ombudsman be appointed by an independent committee, which would in a
time-bound manner enquire into the complaints against Lokpal staff, and
make recommendations to the Lokpal, which would be binding. However,
the suggestion was not accepted.
Workability
Coverage of Public Servants Belonging to Groups C and D: The Act envisages that all the nearly 30 lakh groups C and D public servants
30 would be covered by the CVC.
31
However, it does not specify how a CVC, located in Delhi, would receive
complaints, conduct preliminary enquiries, and exercise superintendence
and issue directions on investigations, against lakhs of employees who
are spread across thousands of post offices and manned railway
crossings, for example, in the villages of India. Would they set up
thousands of
thanas in the villages and rural blocks of India, or
would they expect villagers to come to Delhi, or to state or district
headquarters, to lodge and pursue complaints and conduct enquiries and
oversee investigations? And would it be desirable to have thousands of
new CVC thanas all over the country? Would these prevent or promote
corruption? The Act and the explanatory notes accompanying the Act do
not clarify the envisaged process.
Conclusions
All in all, the L&L Act of 2014 can be said to be a positive step
forward, subject to the weaknesses described above. Perhaps that is why
there has been little criticism of the Act, except by the Aam Aadmi
Party (AAP). Their main objection seems to be that it is not the Jan
Lokpal Bill that its parent movement, India against Corruption, had
drafted. That it is not, but it is debatable whether the Jan Lokpal Bill
is a preferred alternative.
If the L&L Act is properly implemented, it should provide a
significant deterrent to corruption, especially the high level of
corruption that seems to have become increasingly common in India. Of
course, in order to achieve that, it has to be ensured that the right
sorts of people are appointed to the Lokpal, that they and the agencies
assisting them are provided adequate and appropriate human and financial
resources, and that there is political will, especially among the top
political and bureaucratic leadership, to make this institution succeed.
Though getting this far has been a major struggle for the people of
India, they need to continue to be vigilant and to keep up the pressure
on the government to ensure proper implementation. And the L&L Act
by itself is only a part of the battle won, other legislations are
required to ensure a comprehensive reform of the anti-corruption and
grievance redress framework of the country. The three critical bills
pending in Parliament are the Judicial Standards and Accountability
Bill, the Whistle Blowers Protection Bill, and the Grievance Redress
Bill. These need to be appropriately amended and urgently passed by
Parliament.
