Tuesday, November 9, 2010
LOK PAL BILL - - AN ANALYSIS
“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
scrutinize their conduct, as it likes.”
“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
scrutinize their conduct, as it likes.”
-Mahatma Gandhi (1928)
INTRODUCTION :
Yet,
Bringing public servants under a scanner which makes them strictly accountable is the start of movement against corruption in
The Indian Lokpal is synonymous to the institution of Ombudsman existing in the Scandinavian countries. The office of the ombudsman originated in
The incumbent, though appointed by the legislature, is an independent functionary – independent of all the three organs of the state, but reports to the legislature. The Ombudsman can act both on ADMINISTRATIVE LAW
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LOK PAL BILL - - AN ANALYSIS
the basis of complaints made by citizens, or suo moto. She/he can look into allegations of corruption as well as mal-administration.1
The functionary is called by different names in different countries; its power and functions also vary. In the Scandinavian countries2 (Sweden , Denmark , Finland , Norway
complaints from the public or suo moto on the basis of information provided by the interested persons, or from newspapers, etc. However, in theU.K.
The ombudsmen can investigate a complaint by themselves or through any public or private agency. After investigation, inSweden and Finland , the Ombudsman has the power to prosecute erring public servants; whereas in Denmark
of prosecution is very rarely used. The strength of the ombudsman lies in the publicity attached to the office, and the negative view that attaches itself to all that the office scrutinises. InSweden and Finland
over the non-judicial public servants. In almost all the cases they deal with complaints relating toboth corruption and mal-administration.
the basis of complaints made by citizens, or suo moto. She/he can look into allegations of corruption as well as mal-administration.1
The functionary is called by different names in different countries; its power and functions also vary. In the Scandinavian countries2 (
complaints from the public or suo moto on the basis of information provided by the interested persons, or from newspapers, etc. However, in the
The ombudsmen can investigate a complaint by themselves or through any public or private agency. After investigation, in
of prosecution is very rarely used. The strength of the ombudsman lies in the publicity attached to the office, and the negative view that attaches itself to all that the office scrutinises. In
over the non-judicial public servants. In almost all the cases they deal with complaints relating toboth corruption and mal-administration.
1 The Lokpal cycle, an article by Pradeep K Baisakh.
2 Subset of the Nordic countries.
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LOK PAL BILL - - AN ANALYSIS
HISTORY:
The misdeeds committed during the Emergency remind us of the necessity of including the PM within the purview of the Lokpal.
The basic idea of the Lok Pal is borrowed from the office of ombudsman, which has played an effective role in checking corruption and wrong-doing in Scandinavian and other nations.
3
In early 1960s, mounting corruption in public administration set the winds blowing in favour of an Ombudsman inIndia
The Administrative Reforms Commission (ARC) set up in 1966 recommended the constitution of a two-tier machinery - of a Lokpal at the Centre, and Lokayukt (a) s in the states.4 The ARC while recommending the constitution of Lokpal was convinced that such an institution was
justified not only for removing the sense of injustice from the minds of adversely affected citizens but also necessary to instill public confidence in the efficiency of administrative
machinery.
In early 1960s, mounting corruption in public administration set the winds blowing in favour of an Ombudsman in
The Administrative Reforms Commission (ARC) set up in 1966 recommended the constitution of a two-tier machinery - of a Lokpal at the Centre, and Lokayukt (a) s in the states.4 The ARC while recommending the constitution of Lokpal was convinced that such an institution was
justified not only for removing the sense of injustice from the minds of adversely affected citizens but also necessary to instill public confidence in the efficiency of administrative
machinery.
Following this, the Lokpal Bill was for the first time presented during the fourth Lok Sabha in 1968, and was passed there in 1969.
However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, resulting the first death of the bill. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998, 2001, and 2005 and most recently in 2008.
Each time, after the bill was introduced to the house, it was referred to some committee for improvements - a joint committee of parliament, or a departmental standing committee of the Home Ministry - and before the government could take a final stand on the issue the house was
dissolved.
There are as many as 17 states where the institution of Lokayukta has been constituted, beginning with Orissa in 1971. However the power, function and jurisdiction of Lokayuktas are not uniform in the country.
However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, resulting the first death of the bill. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998, 2001, and 2005 and most recently in 2008.
Each time, after the bill was introduced to the house, it was referred to some committee for improvements - a joint committee of parliament, or a departmental standing committee of the Home Ministry - and before the government could take a final stand on the issue the house was
dissolved.
There are as many as 17 states where the institution of Lokayukta has been constituted, beginning with Orissa in 1971. However the power, function and jurisdiction of Lokayuktas are not uniform in the country.
3 The Lok Pal Bill, http: / / w ww . hi ndu. c o m/ 2 00 1 /0 1 /2 6/ stori e s/ 05 26 25 1 1. htm.
4 The LokAyukta (also Lok Ayukta) is an anti-government corruption organization in the Indian state.
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LOK PAL BILL - - AN ANALYSIS
In some states it has been applicable to all the elected representatives including the CM. In some other states legislators have been deliberately kept out of his purview. Often, lacunae have been left in legislation creating the office, apparently to keep the elected representatives outside
meaningful jurisdiction of the Lokayukta, even when the laws appear to include them.
Lokayuktas have not been provided with their independent investigative machinery making them dependent on the government agencies, which leaves enough scope for the politicians and the
bureaucrats to tinker with the processes of investigation.
Objectives of the bill:5
The Lokpal was visualized as the watchdog institution on ministerial probity. Broadly the provisions of different bills empowered the Lokpal to investigate corruption cases against
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LOK PAL BILL - - AN ANALYSIS
political persons at the Central level. Some important features of the Lokpal Bill have varied over the years; in its most recent avatar, the bill contains the following.
The main objective is to provide speedy, cheaper from of justice to people.
Members:
Lokpal is to be a three member body with a chairperson who is or has been a chief justice or judge of the Supreme Court; and its two other members who are or have been judges or chief justices of high courts around the country.
Appointment :
The chairperson and members shall be appointed by the President by warrant under his hand and seal on the recommendation of a committee consisting of the following persons.
It's not clear whether the committee has to make a unanimous decision or a majority decision will do. (a) The Vice-President (Chairman) (b) The PM (c) The Speaker of LS (d) Home Minister (e) Leader of the House, other than the house in which PM is a
member. (f) Leaders of Opposition of both the houses.
In order to ensure the independence of functioning of the august office, the following provisions have been incorporated.
Appointment is to be made on the recommendation of a committee.
The Lokpal is ineligible to hold any office of profit under Government of
Fixed tenure of three years and can be removed only on the ground of proven misbehaviour or incapacity after an inquiry made by CJI and two senior most judges of SC.
Lokpal will have its own administrative machinery for conducting investigations.
Salary of Lokpal is to be charged on the Consolidated Fund of
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LOK PAL BILL - - AN ANALYSIS
Jurisdiction of Lokpal:
The central level political functionaries like the Council of Ministers including the Prime Minister, the Members of Parliament etc.
He can not inquire into any allegation against the PM in relation to latter's
functions of national security and public order.
Complaints of offence committed within 10 years from the date of complaint can be taken up for investigation, not beyond this period.
Any person other than a public servant can make a complaint. The Lokpal is supposed to complete the inquiry within a period of six months. The Lokpal has the power of a civil court to summon any person or authority. After investigation, the ombudsman can only recommend actions to be taken by the competent authority. A number of safeguards have been taken to discourage false complains or complain of malafide intent.
He can order search and seizure operations.
He shall present annually to the President the reports of investigation and the latter with the action take report has to put it before the both houses of parliament.
It may be noted that the Lokpal is supposed to investigate cases of corruption only, and not address himself to redressing grievances in respect of injustices and hardship caused by maladministration.
THE CURRENT SITUATION:
Very recently a highly discouraging phenomenon has come to light, that is, the prevalence of corruption in the subordinate courts and even in High Courts. Probably due to this, the present ADMINISTRATIVE LAW.
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LOK PAL BILL - - AN ANALYSIS
government has planned to bring the Judiciary within the purview of Lok pal; this is one reason why the Bill has been referred to the Group of Ministers. However given the history of Lok pal
bill, there is a constant risk that the bill will simply lapse because no conclusion is reached within the life of this Lok Sabha!
The political fraternity is understandably opposed to a Lok pal, since the purported target of the Lokpal is mainly the politicians themselves. The publicly stated reason for the current delay is that some important issues are as yet unresolved.6
CONCLUSION:
In the regular dispensation of government there are implicit and explicit ways that citizens can voice their grievances and demand change. But these are often difficult. Within administrative departments, for example, any decision of one official can be appealed to a higher official, all the
way up to the head of a department. However, this mechanism has inherent flaws.
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