Proposal to limit Lokayukta’s Powers

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• Recently, the Kerala government proposed to amend the Kerala Lok Ayukta Act with an ordinance.

What are the proposed changes?

• The cabinet has recommended to the Governor that he promulgate the ordinance, which proposes to give the government powers to “either accept or reject the verdict of the Lokayukta, after giving an opportunity of being heard”.
• Currently, under Section 14 of the Act, a public servant is required to vacate office if directed by the Lokayukta.
• Criticism :
  • By this ordinance, the quasi-judicial institution will turn into a toothless advisory body, whose orders will no longer be binding on the government.

How does Lokayuktas work in the states?

• Lokayuktas are the state equivalents of the central Lokpal.
  •  Section 63 of the Lokpal and Lokayuktas Act, 2013 states: “Every state shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.
  • Originally, the central legislation was envisaged to make a Lokayukta in each state mandatory. However, regional parties and the BJP, which was in opposition then, argued that this would be against the spirit of federalism. 
    • The law then created a mere framework, leaving it to the states to decide the specifics.

Lokpal and Lokayukta Act 2013

• The central Lokpal and Lokayuktas Act, 2013 was notified on January 1, 2014.
  • The law was a result of demands of several decades for stronger anti-corruption laws.
• It mandates the establishment of Lokpal for the Union and Lokayukta for the States.
• It aims to inquire into allegations of corruption against certain public functionaries and for related matters. 
• The act extends to the whole of India and is applicable to “public servants” within and outside India. 
• The President of India had on March 23, 2019, administered the oath of office to Justice Pinaki Chandra Ghose as the first Chairperson of the Lokpal.
• He is a former Judge of the Supreme Court of India and was a sitting member of the National Human Rights Commission.
• Structure of Lokpal:
  • The institution of Lokpal is a statutory body without any constitutional backing. 
  • Lokpal is a multi-member body, made up of 
    • one chairperson and 
    • a maximum of 8 members.
  • The person who is to be appointed as the chairperson of the Lokpal should be 
    • either the former Chief Justice of India Or 
    • the former Judge of Supreme Court Or 
    • an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of a minimum of 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
  • Eight members will be divided as such: 
    • Half will be judicial members. 
    • Minimum fifty per cent of the Members will be from SC / ST / OBC / Minorities and women. 
    • The judicial member of the Lokpal should be either a former Judge of the Supreme Court or a former Chief Justice of a High Court. 
    • The non-judicial member 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. 
    • The members are appointed by the president on the recommendation of a selection committee, composed of: 
      • The Prime Minister who is the Chairperson; 
      • Speaker of Lok Sabha ,
      • Leader of Opposition in Lok Sabha ,
      • Chief Justice of India or a Judge nominated by him / her, and 
      • One eminent jurist.
• Jurisdiction of Lokpal:
  • The Lokpal and Lokayukta are to deal with complaints against public servants, a definition that includes the Lokpal chairperson and members.
  • Prime Minister included: 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
    • Also 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 to anyone. 
  • Ministers and MPs: The Lokpal will also have jurisdiction over Ministers and MPs except not in the matter of anything said in Parliament or a vote given there. 
  • Public Servants: 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.
• Section 20 (1) (b):
  • According to provisions contained under Section 20 (1) (b) of the Lokpal and Lokayuktas Act, 2013, complaints in respect of public servants belonging to groups A, B, C or D are referred by the Lokpal to the CVC for a preliminary inquiry.
  • The CVC forwards such references to the concerned chief vigilance officer for preliminary inquiry and report.
• Confiscation of Property: 
  • 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.
  • The Lokpal Act mandates that all public officials should furnish the assets and liabilities of themselves as well as their respective dependents. 
• Whistleblower protection: 
  • The Act even guarantees protection to any government official who acts as a whistleblower and as an ancillary a WhistleBlowers Protection Act has also been enacted.

Need for Lokpal

• 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.
• 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 advice 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.
• 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.

Powers of Lokpal

• It has powers to superintendence over, and to give direction to CBI.
• If it has referred a case to the CBI, the investigating officer in such a case cannot be transferred without approval of Lokpal.
• Powers to authorize CBI for search and seizure operations connected to such cases.
• The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
• Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances
• Lokpal has the power to recommend transfer or suspension of public servants connected with allegations of corruption.
• Lokpal has power to give directions to prevent destruction of records during preliminary inquiry.

Limitations

• Political Influence: The appointing committee of Lokpal consists of members from political parties that put Lokpal under political influence.
• No criteria to decide eminent Jurist: There are no criteria to decide who is an ‘eminent jurist’ or ‘a person of integrity’ which manipulates the method of the appointment of Lokpal. 
• No proper immunity to Whistle Blowers: The Lokpal and Lokayukta Act 2013 failed to provide any kind of concrete immunity to the whistleblowers. The provision related to the initiation of inquiry against the complainant, in cases where the accused is found innocent, leads to discouraging people from making complaints. 
• Judiciary excluded: One of the biggest lacunae is the exclusion of the judiciary from the ambit of the Lokpal.
• No constitutional backing: The Lokpal does not have any constitutional backing. 
• No provisions of appeal: There are no adequate provisions for appeal against the actions of Lokpal. 
• Time period for filing Complaint: The Lokpal and Lokayukta Act also mandates that no complaint against corruption can be registered after a period of seven years from the date on which the mentioned offense is alleged to have been committed.

Way Ahead

• The institution of lokpal has been a landmark move in the history of Indian polity.
• The Lokpal and Lokayukta Act 2013 has potential to offer a productive solution to combat the never ending menace of corruption.
• The Lokpal needs to be given constitutional status to enhance its functional autonomy and effectiveness.
• Any shortage of manpower pertaining to administrative lapses have to be addressed on priority basis.

Source:IE