By Agam H Maloo Raffles University

LOKPAL AND LOKAYUKTA
“Power doesn’t corrupt people, People corrupt power.”
William Gadias
Introduction
The idea of creating an anti corruption ombudsman, in the form of a Lokpal, was first conceptualized in 1968 in the fourth Lok Sabha. Thereafter in 1971, 1977, 1985, 1989, 1996, 1998 and 2001 efforts were made to enact legislation to create the institution of Lokpal, but these efforts remained unsuccessful. Over the last few years the issue of enacting a law to create Lokpal has seen active citizen engagement. Continued civic engagement with the issue resonated with the government and the legislature and led to the passing of the Lokpal Bill in the recently concluded winter session of Parliament. The bill has received parliament's assent on 01 Jan 2013.
This has been one of the few pieces of legislation in recent years which has been extensively debated publicly and received in depth parliamentary scrutiny. Before the bill was introduced in parliament, a joint committee made up of government and civil society representatives had made an attempt to draft the Bill. This effort remained inconclusive and the government introduced a Bill drafted by it in Lok Sabha. This Bill was examined by the Parliamentary Standing Committee on Law and Justice and passed by the Lower House in 2011. The Bill was then referred to a Select Committee of Rajya Sabha. Based on the recommendations of the Select Committee, the government made amendments to the Bill before it was passed in Rajya Sabha. Lok Sabha then approved these amendments leading to its passage in Parliament. Some of the key provisions of this Bill relate to the jurisdictions of Lokpal, its selection, autonomy of Central Bureau of Investigation and the creation of Lokayukta's in states.

The Bill as passed by Parliament creates a Lokpal at the centre which shall consist of a chairperson and up to eight members. Half of these members should have higher judicial experience and the other half should have experience in public administration, finance, insurance and banking laws, anti corruption and vigilance. It also provides that half the members of Lokpal shall be from amongst scheduled castes, scheduled tribes, other backward castes, minority communities and women. The chairman and members of Lokpal shall be appointed by a selection committee consisting of the Prime Minister, the Speaker of Lok Sabha, the Leader of Opposition in Lok Sabha, the Chief Justice of India or a sitting supreme court judge as nominated by the CJI and an eminent jurist to be nominated by the President based on the recommendations of the other members of the selection committee. The Bill specifies that the office of Lokpal shall investigate and prosecute cases of corruption. The jurisdiction of Lokpal extends to the Prime Minister, Ministers, current and former Members of Parliament and Members of Legislative Assemblies, government employees and employees of companies funded or controlled by the central or state government. Lokpal shall also have jurisdiction over institutions receiving foreign donations in excess of ten lakh rupees per year or such higher limit as specified. The Bill excludes, any allegation of corruption against a Member of Parliament in respect of anything said or a vote given in Parliament, from the jurisdiction of Lokpal.
It specifies a time limit of 60 days for completion of inquiry and 6 months for completion of investigation by the Central Bureau of Investigation. This period of 6 months can be extended by the Lokpal on a written request from CBI. Lokpal is also required to hear the explanation of the public servant before ordering an investigation. This however would not interfere with any search and seizure required to be undertaken by any agency. The bill also specifies that any inquiry against the Prime Minister has to be held in-camera and approved by two third of the full bench of the Lokpal. The Bill gives Lokpal the power of superintendence over CBI with respect to cases referred by it to CBI. It also specifies that CBI officers investigating cases referred by the Lokpal can only be transferred with the approval of the Lokpal. It proposes establishment of a Directorate of prosecution within CBI to be headed by Director who is an officer not below the rank of joint secretary for conduction prosecution of cases under the Lokpal Bill. The director of prosecution shall be appointed by the government on the recommendation of the Central Vigilance Commission. The CBI with the consent of Lokpal is empowered to appoint a panel of advocates, other than government advocates for conducting cases referred by Lokpal. The central government is entrusted with the responsibility of making funds available to CBI for conducting investigation into Lokpal referred matters. All expenses of Lokpal shall be charged to the Consolidated Fund of India.

The legislation provides an imprisonment of up to seven years for public servants on grounds of corruption. Criminal misconduct and habitually abetting corruption has a higher penalty and would result in imprisonment up to ten years. Making false and frivolous complaints to Lokpal would result in a fine of up to one lakh rupees and imprisonment of up to one year. In addition a person who is convicted for having made a false complaint shall be liable to compensate the public servant against whom the false complaint was made. However complaints made in good faith, that is with due care, caution and a sense of responsibility will be excluded from penalty.
A number of political parties had raised the issue that provisions relating to establishment of state Lokayuktas were not in line with the federal nature of governance as envisaged in the constitution during the debate in Lok Sabha. The Bill that as passed by Lok Sabha specified that provisions related to state lokayuktas would only be applicable to states that gave their consent. However, when the bill reached Rajya Sabha and was scrutinized by the Select Committee of RajyaSabha, the committee recommended that the states should have the freedom to determine the nature and type of lokayukta depending on their requirements. It also recommended that states have to mandatorily have a lokayukta in place within a period of one year from the passing of the Lokpal Bill. Both these recommendations of the select committee were incorporated into the Lokpal Bill which was passed by Parliament.

While the Lokpal bill has been passed by Parliament, a number of other supporting bills which address issues related to tackling corruption are still pending in Parliament. Bills related to citizen charter and electronic public service delivery, public procurement, whistle blower protection, judicial accountability, benami transactions are pending in Parliament. These bills when passed would ensure that the institution of Lokpal does not get flooded by day to day complaints of administrative inefficiency and corruption. And while enacting a law is the first step towards curbing corruption, the effectiveness of the law would depend on how well it is implemented on the ground.
Role of Lokayukta Role of Lokayukta in combating Corruption and Mal-administation and measures for strengthening these Institutions

Lokayukta investigates cases of corruption, where substantiated, recommend action. He is a great check on corruption, brings about transparency in the system, makes administrative machinery citizen friendly. His functions largely depend upon jurisdiction vested in him and facilities provided for taking cognizance of citizens’ grievances promptly, dexterously and expeditiously through simple, informal mechanism devoid of technicalities.
Corruption is internationally recognized a major problem,capable of endangering stability and security of society, threatening social, economic and political development and undermining the values of democracy and morality. It has assumed alarming proportions resultantly public funds going into private hands leading to enrichment of bribe givers and bribe takers. Ultimate result is, as said by former Prime Minister Rajiv Gandhi, only 15 paise, out of rupee reach the lowest level of population. Corruption, inefficiency, delays and insensitivity to people’s grievances can be identified key problems besetting the nation. Citizens bitterly feel the distance that separates them from the decision makers. This distance, makes them feel abandoned or even rejected and they eventually lose interest in public matters and become marginalized. Corruption does not mean only taking bribe. It is used in a much larger sense, “Conduct”, which is morally unsound and debased. It includes conduct which is blame-worthy or improper (See Dr. S. Dutt Vs State of UP), B. Gupta Vs The King Corruption and mal-administration are like twin sisters each acts in complement to the other. Corruption has ruined Empires. After completion of his book, “The Decline of Rome Empire” Edward Gibbon, the Great Historian, Writer and Philosopher was asked to reply in one word the reason for the decline Roman Empire, he remarked “Corruption.” Corruption in a civilized society, is described “disease like cancer.&rdquo, which if not detected in time is sure to malignise the polity of a country leading to disastrous consequences.” Pylee points out:
"Corruption at the bureaucratic level operated like a subterranean monster, aiding, abetting and colluding with the political bosses. Service to the public has long given way to careerism with a work culture of 19th century aristocracy dealing with the citizens as ‘subjects.’ Burke cautioned, “Among people, generally corrupt, liberty cannot last long".

Supreme Court also said that corruption in a civilized society is a disease like cancer and if not detected in time, will malignise the polity of the country leading to disastrous consequence. It is like plague, it is contagious and if not controlled, spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable (See State of MP & Others Vs Ram Singh, and State of Andhra Pradesh Vs V. Vasudeva Rao. Corruption in public life is a gross violation of human rights. It is anti-people, anti-development and anti-national. Rampant corruption is major national malady. It is the single big factor retarding the progress of our country, responsible for millions to live below poverty line despite astronomical amount being spent on development. It is garbage which is required to be removed otherwise it would hamper development of the country and bring bad name to the nation. Supreme Court observed in Lucknow Development Authority Vs M.K. Gupta:

"...Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grieveous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it...."

An honest man is the noblest wok of God – Pope. When men are pure, laws are useless; when men are corrupt, laws are broken – Benjamin Disraeli. Citizens realize that corruption is dominant factor keeping India a poor country, therefore, delaying march towards prosperity. A citizen faces corruption practically at every level and every sector of life. Corruption is anti-national, anti-poor, anti-economic development and anti-life. Rampant corruption is a major national malady. The Central Government as well as the State Governments are anxious to eradicate it because there is realization that it is a great hurdle on the path of progress because out of the huge plan outlays, very little goes to the people whose upliftment is essential for ushering the egalitarian society. This apart, it stalls the pace of development in other sectors too. It is, therefore, considered necessary to eradicate corruption with an iron hand otherwise march towards progress and prosperity would be delayed considerably. Why can’t it be eradicated when the number of persons indulging in corruption is hardly two percent of the total population of the country.

In its widest connotation corruption includes improper and selfish exercise of power and influence attached to a public office due to the special position one occupies in public life. Developing countries like India, face this problem, as a result, it assumes status of mega industry, where some people thrive at the cost of public exchequer resultantly imparting the developmental activities of the State. The United Nations Convention against corruption (2003) signed/ratified by the member countries to deal firmly with corruption. Secretary General stressed that corruption violates the socio-economic human rights of the people especially in the developing countries because funds meant for roads, wells, hospital, schools and other basic necessities are siphoned off and deposited in safe havens abroad.
Inaugurating two day National Seminar on “Access to Justice”, organized by the Supreme Court Advocates-on-Record Association, in association with the United Nations Development Programme, His Excellency The President of India, Dr. A.P.J. Abdul Kalam said that with the rising all-round awareness and a demand for clean and corruption-free public life, the burning issue of probity in public life was increasingly coming into focus.
&lsquo.Conduct and behavior in public life are, like never before, under very close scrutiny. It was essential that the three pillars of democracy-Legislature, Judiciary and Executive-are strong in structure, pure in form and un-corrupted and un-blemished in conduct.&rsquo The President made it clear that:

If we cannot make India corruption free, then the vision of making the nation developed by 2020 would remain a dream"

Consequently, understanding the menace of corruption and urgent necessity to deal with it in the context of existing scenario,public outcry, warning by transparency International, other NGOs and media, Government is attempting to eradicate it by taking steps for sometime past. The first Administrative Reforms Commission, headed by Late Shri Morarji Desai studied the causes for the steep deterioration in all areas of administration, Central and States and recommended remedial measures. In its report (1966) suggested, among other things, appointment of Lokpal at the Centre and Lokayukta at the State. Second Administrative Reforms Commission, headed by Shri Veerappa Moily, deliberated extensively for elimination of corruption in the administration and the strengthening of the Lokpal and the Lokayukta in two day National Colloquium on “Ethics in Governance: Moving from Rhetoric to Results” September ½, 2006 at the National Judicial Academy, Bhopal. Mahatma Gandhi, father of the Nation, had understood the gathering crisis of corruption and prophesized that the public would lead in the forefront in exposing corrupt practices and taking to task those who were involved in them. He wrote in Young India in 1928:
"Corruption will be out one day, however, much one may try to conceal it; and the public can, as its right and duty, in every case of justifiable suspicion, call its servants to strict account, dismiss them, sue them, in a law court or appoint an arbitrator or inspector to scrutinizetheir conduct, as it likes."He also said "On this earth, there is enough for everyone’s need but not for their greed. Allah Curses The Giver Of Bribes And
The ReceiverOf Bribes And
ThePerson Who Paves The Way For Both | You Shall Not Take Bribe Blinds
The Eyes Of The Wise And
Subverts The Cause Of The Righteous |

"> Institution of Lokpal has not as yet been created at the Centre although efforts have been made since, 1959 while Institution of Lokayuktas/Lokpal has been established by many States through State Legislations. They provide for inquiry/investigation into complaints of corruption against public servants. He protects Citizens’ Right against mal-administration, corruption, delay, inefficiency, non-transparency, abuse of position, improper conduct etc. The procedure to be followed is informal and inexpensive, technicalities do not come in way. Complaint is supported by affidavit, making out case for inquiry. He is representative of Legislature, powerful friend of citizens to act against officials action, inaction or corruption. But not anti-administration, rather helps in humanizing relations between the public and the administration, a step forward in establishing an ‘Open Government’ securing respect for the rule of law, an educator aiming at propagating the prevention of corruption, inefficiency and mal-administration in governance. He is, therefore, a check on corruption.

Lokpal
A Lokpal ("caretaker of people") is an anti-corruption authority or ombudsman who represents the public interest. The concept of an ombudsman is borrowed from Sweden. The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption.The Lokpal and Lokayuktas Act was passed in 2013 with amendments in parliament, following the Jan Lokpal movement led by Anna Hazare. The Lokpal is responsible for enquiring into corruption charges at the national level while the Lokayukta performs the same function at the state level. The concept of a constitutional ombudsman was first proposed in parliament by Law Minister Ashoke Kumar Sen in the early 1960s. The first Jan Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not pass through the Rajya Sabha.

Following are some important features of the Lokpal and Lokayuktas Bill, 2011, passed by Parliament.
** Lokpal at the Centre and Lokayukta at the level of the states.
** Lokpal will consist of a chairperson and a maximum of eight members, of which 50 per cent shall be judicial members.
** 50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities and women.
** The selection of chairperson and members of Lokpal shall be through a selection committee consisting of Prime Minister, Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI, eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
** Prime Minister has been brought under the purview of the Lokpal.
** Lokpal’s jurisdiction will cover all categories of public servants.
** All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are brought under the jurisdiction of Lokpal.
** Provides adequate protection for honest and upright public servants. |
** Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal.
** A high powered committee chaired by the Prime Minister will recommend selection of the Director, CBI.
** Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director.
** The appointment of the Director of Prosecution, CBI on the recommendation of the Central Vigilance Commission.
** Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal.
** The bill also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
** The bill lays down clear time lines for preliminary enquiry and investigation and trial and towards this end, the bill provides for setting up of special courts.
** A mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature within a period of 365 days from the date of commencement of the Act.
Fundamental duties 1. To judge the cases and make jurisdictions against corruption cases with the Lokpal. 2. To judge whether a case is genuine or whether a fake complaint has been made. 3. To potentially impose fines on a fake complaint, or even a short span of jail time, if the case is not proved to be legally true.
Anna Hazare, a Gandhian rights activist, had started a fast unto death at Jantar Mantar in New Delhi demanding the passing of the bill. Hazare called off his hunger strike on 9 April 2011, bringing to an end his 98-hour protest after the government issued a gazette notification constituting a 10-member Joint Committee of government ministers and civil society activists, including him, to draft a bill for the creation of an effective Lokpal. Thousands of people from all over India, especially youth, supported Anna Hazare's cause by attending candle lit marches and conducting online campaigns through social media.
Recently a yoga guru, Swami Ramdev, fasted for this cause for 9 days from 4 to 12 June 2011. He wanted the Government of India to accept various demands, which mainly included those related to the Lokpall Bill. Many claimed he had a personal interest in it.
Anna Hazare on 8 June 2011, declared that he would again fast unto death on 16 August, if the Lokpal bill were not passed by the Parliament of India by 15 August, which is the Independence Day of India.[4]
On 16 June, Civil Society reported that only 15 points, of 71, that they recommended have been agreed to by the Joint Committee consisting of five central ministers. Following differences with the Civil Society, the team of five central ministers decided to forward two drafts of the Lokpal Bill to the Cabinet, one from each side. Anticipating some sort of police action against his fast, intended for 16 August, social activist Anna Hazare said he would ask the Supreme Court to prevent any situation similar to the police crackdown on Baba Ramdev and his supporters at Ramlila Maidan.
"The government said, ‘we will suppress the agitation of Anna Hazare as had been done in the case of Ramdev’. Is this democracy or autocracy? You cannot suppress.... That is why we will go to the Supreme Court tomorrow," Hazare told reporters, adding "the Constitution has given right to every citizen to lodge a protest. We will launch the agitation from August 16."[5]
On 27 December 2011, the Lokpal bill was passed by the Lok Sabha after a day-long debate and amendments. The Indian Army, the Indian Air Force and the Indian Navy have been kept out of the jurisdiction of the Lokpal. The bill also keeps the CBI independent.
Conclusion
The present status for the establishment of Lokpal and Lokayukta is still waiting. The government is going to begin a debate in the Parliament on Lokpal Bill in the coming days. The government is thinking to accept some of the demands made by the activists of Jan Lokpal Bill for instance, bringing the Prime Minister and junior bureaucrats under the ambit of new Lokpal or Ombudsman agency which will be empowered to investigate corruption amongst the government servants. A Parliamentary Standing Committee examining the Lokpal has finalized its draft but it has been disagreed by many members including Congress MPs.
The sources say that the government is heading towards accepting some of the key points. The Prime Minister will be covered by Lokpal though with safeguards; the government sources say that the Prime Minister will himself offer in the Parliament that his office should be included in the Lokpal. For now, what remains unresolved is the matter of who the CBI will report to- the government does not want to change the present reporting structure. However, the supporters of Jan Lokpal Bill have decided to take back one of their demands of bringing the higher judiciary under the ambit of the proposed Lokpal institution after they were assured that corruption cases involving the senior judges will be separately dealt by Judicial Standards and Accountability Bill.
Therefore, the present situation suggests that action is not yet taken on the establishment of such independent institutions. Although, in the coming days discussions on this is issue will take place so that implementation can be done.

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[ 2 ]. AIR 1966 SC 523
[ 3 ]. ILR (1949) 2 CAL 440).
[ 4 ]. (2000) 5 SCC 88
[ 5 ]. 2003 (9) Scale 569
[ 6 ]. (AIR 1994 SC 787)
[ 7 ]. http://www.dnaindia.com/india/report-hopeful-jan-lokpal-bill-will-be-passed-anna-hazare-1864911