A Case for Effective Lokayuktas: Beyond Half-baked Solutions to Curb Corruption

Filed under Prevention of Corruption

Ways to curb corruption and thereby ensure probity and integrity in public life rightly seems to be the issue taking the centre stage and occupying priority in the minds of the citizenry at last. But to concentrate solely on the drafting of the Lokpal Bill and to expect that it would be able to arrest the growth of all forms of corruption at all levels is nothing short of a misconstruction.

Along with the Lokpal Bill being drafted for the Centre, parallel democratic institution of Lokayuktas at the level of state, complementing and furthering the cause of checking corruption needs to be effectively brought into force with equal urgency and efficacy.

Lokayuktas as a overseer to check the rising cases of corruption at the level of the states, modeled on the lines of the Ombudsman institutions in the Scandanavian countries for the redressal of citizen’s grievances, was proposed way back in 1966 by the First Administrative Reforms Commission (ARC). The National Commission for the Review of the Working of the Constitution in 2002 the Second Administrative Reforms Commission (ARC) of 2007 once again reiterated that the Constitution should make it obligatory on the part of state governments to establish the institution of Lokayukta and stipulate the general principles about its structure, power and functions. The present status is such that now even International bodies have started emphasizing the underlying need for determined actions towards effectively dealing with the deep-seated problem of corruption existing at multiple levels. The UN General Assembly, of which India is a party, recently adopted the resolution No. 58/4 on 31st of October 2003. The Article 36 of the Convention states clearly that, “Each State party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement.”

As the creation of the office of Lokayukta Institution falls within the concurrent list, till now only these 19 states have enacted the Lokayuktas Act. These are Gujarat, Madhya Pradesh, West Bengal, Karnataka, Chhattisgarh, Uttar Pradesh, Andhra Pradesh, Kerala, Maharashtra, Haryana, Jharkhand, Bihar, Delhi, Punjab, Uttarakhand, Assam, Orissa, Rajasthan and Himachal Pradesh. But this Act enacted in various states is not uniform, there being wide divergence as regards to jurisdiction over men and matters, over submission of property statements by public servants, over power of inspection, search and seizure of the properties of the Public Servants, and over matters of taking suo-moto cognizance in regards to relevant areas falling well within the jurisdiction of the Lokayukta.

In order to bridge over these discrepancies present in the various state Lokayukta Acts, it was proposed at many forums that a Model Draft Lokayukta Bill should be drafted by the Centre to be enacted as a Union Model Lokayukta Bill, which should then act as the guide for the states in drafting or further amending their version of the Lokayukta Act. One such Model Lokayukta Bill has been proposed recently at a colloquium of All India Lokayuktas/UpLokayuktas held at Bhopal in December 2010. This Bill is called the ‘Mukhya Lokayukta & Lokayukta Bill’ (the soft copy of this bill is available at http://it.delhigovt.nic.in/writereaddata/Cir2011663.doc). To have clearer consolidated view of the wide discrepancies existing between the enacted Lokayukta Act of various states, the attached Table 1 compares the effectiveness of the Lokayuta Act of a few states in light of certain important indispensable powers envisioned within the ‘Mukhya Lokayukta & Lokayukta Bill’.

Table 1: Comparison of the relative powers of various state Lokayuktas

STATE

LOKAYUKTAS

Mukhya

Lokayukta & Lokayukta Bill

Karnataka Madhya Pradesh Himachal Pradesh Chhattisgarh Bihar

Gujarat
Do the Public Functionaries include civil servants, elected representatives & others? YES YES YES YES YES YES YES
Is the appointing process transparent, consultative & clear? YES YES YES YES NO NO NO
Does it have suo-moto powers of cognizance? YES YES NO NO NO YES YES
Does it have suo-moto powers of investigation? YES YES NO NO NO YES YES
Does it have independent investigating agency? YES YES YES NO NO NO YES
Does it have suo-moto powers of prosecution? YES YES NO NO NO YES NO
Does it have powers to enforce its recommendations? YES YES YES YES YES YES NO
Does it have Judicial powers to punish for contempt of court? YES YES YES YES NO NO NO
Does it have police powers? YES YES YES NO NO NO NO
Does it have power to issue warrants for search & seizure? YES YES YES YES NO NO YES
Does it have powers to call for annual asset statement from Public Functionaries? NO YES NO NO NO NO NO

 

The major highlights of this ‘Mukhya Lokayukta & Lokayukta Bill’ are in its coverage of jurisdiction the definition of Public Functionaries includes the chief ministers, ministers of the state legislature and all bureaucrats. The Selection process herein conducted through Governor in consultation with the Chief Minister and the leader of the opposition in State Legislature provides for an un-circuitous and unbiased way of selection, not unduly favoring the ruling party in any way. It gives power to the Lokayukta to take up suo-moto cognizance of cases. Further the Lokayukta has also been provided with suo-moto powers of investigation if after preliminary enquiry he is satisfied that the grievance or allegation against the Public Functionary is sustained. As regards search and seizure, he may by a search warrant authorize any officer to search or carry out inspection empowered under the Code of Criminal Procedure, 1973. Moreover this bill conceives of the Lokayukta institution as a deemed court within the meaning of Contempt of Courts Act. Giving powers to check compliance, so as to ensure that the recommendations of the Lokayukta are not merely advisory with no binding clause, this Model Bill empowers the Lokayukta to send a report to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. And this report is not merely recommendatory, as it is an obligation on the part of the competent authority to intimate the Lokayukta within a stipulated time period the action taken on the report sent by the Lokayukta. In case the competent authority fails to intimate the Lokayukta on the action taken on the report within the permitted time, then Lokayukta has the authority to make a special report upon the case to the Governor. Striving further to provide limited powers of suo-moto persecution to the Lokayukta, this bill proposes that if after any investigation into any complaint the Lokayukta is satisfied that the Public Functionary has committed any criminal offence and should be prosecuted in a court of law for such offence, then he may pass an order to that effect and the appropriate authority or agency shall initiate prosecution of the Public Functionary concerned, and that no prior sanction of any authority is required for passing an order of such prosecution.

Making way for the Ideal Institutionalization of Lokayuktas

From the reading of the above, what seems to emerge as a graver issue at hand is that the loopholes present in the various versions of diluted Lokayukta Acts of different states are paralyzing the functioning of this institution in addressing the very problem of corruption it is supposed to deal with as a primary focus.

To take a stock of the ideal picture, a few important enabling powers which are indispensible if we envisage a functionally effective Lokayukta Act. To start with, the definition of the Public Functionaries, which come within the purview of this Act, should be well defined to include all politicians as well as all the public servants. Secondly there should be a definitive attempt towards checking that in the appointment, removal as well in the maintenance of the Lokayukta’s office no unnecessary bias and discretion is granted to the ruling party, so that independent functioning of the institution is ensured in the long run. Suo-moto powers should be conferred on the Lokayuktas in matters of taking cognizance, investigation and prosecution, in case preliminary investigation indicates the commission of some substantive act of corruption. To ensure the above it is further required that Lokayuktas should have police powers; and also an independent investigating agency of its own taking orders directly and solely from the Lokayuktas in relation to the cases of corruption it is handling for the Lokayukta. Next there is an urgent need to make the recommendations of the Lokayukta binding in nature and not merely advisory through outlining concrete and corrective punitive actions in case of any non-compliance to the Lokayukta’s recommendations. Judicial powers conferred on Lokayuktas for issuing warrants for the search and seizure in the furtherance of any investigation, as well as prohibition on any kind of outside judicial interference as far as the proceedings of the Lokayutas are concerned will further establish its status of an independent body against corruption. Another important powers which will consolidate the position of the Lokayuktas as a central authority against corruption in the state, is the binding obligation on all Public Functionaries to submit annually a declaration of their assets and liabilities, this will also greatly facilitate the Lokayuktas in keeping a close tab on any incident of amassing of huge wealth through corrupt means by the Public Functionaries. Last but not the least, as advocated by the 2nd Administrative Reforms Committee Report and also strongly seconded by the Lokayuktas Conference there should be a comprehensive Bill for a uniform institution of Lokayukta in every state, based on Central legislation with constitutional back up.

 

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