Relevance: GS-2: Statutory, Regulatory and various Quasi-judicial Bodies.

Key Phrases: Lokayukta, Lokpal, Unconstitutional, Ordinance, Political corruption, Administrative Reforms Commission, Ombudsman, Anti-Corruption movement, Sarkaria Commission, Political functionary, Public functionary.

Why in News?

• The controversy surrounding the amendment to the Lokayukta Act of Kerala — effected through an ordinance —has raised the political temperature in the State with the Opposition accusing the Government of trying to whittle away at the powers of the Lokpal.
• On the other hand, the Government claims that through the amendment, a provision in the Act which is unconstitutional has been excised as it gave power to the Lokpal to give directions to the Governor to remove a Chief Minister or a Minister on being found guilty of corruption.
• So, basically the Lokayukta has indirectly expressed its resentment over the attempt to take away some of its powers by the Lokpal.

Background:

• The Lokpal-Lokayukta issue has always generated intense debate in the country. In fact, this term was first used in a report of the Administrative Reforms Commission headed by Morarji Desai as far back as in 1966. Political corruption had become rampant by then and it was thought that a credible system of an ombudsman should be established to redress public grievances against public officials and Ministers of the government.

The Journey of Lokpal:

• The term Lokpal, which literally meant “people’s protector” was coined by L.M. Singhvi, then Rajya Sabha member and a respected and renowned Jurist.
• The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House.
• Similar attempts were made in 1971, 1977, 1985, 1989, 1996, 1998 and 2001. Thus, even after making 8 attempts to pass the bill, they were not successful.
• The Commission to review the working of the constitution also in 2002 made similar recommendations. The Second Administrative Reforms Commission in 2005, like its previous suggestions, again stressed the need for passing the Lokpal act.
• Finally, the Anti-Corruption movement was launched by the famous social activist of Civil Society Anna Hazare in 2011 which called for the enactment of Jan Lokpal Bill.
• After much deliberation and some changes, the Lokpal and Lokayukta bill was passed and it became the Lokpal and Lokayukta Act 2013.

What is Lokpal?

Lokpal is conceived of as a body which will inquire into allegations of corruption. It is basically an investigative body whose task is to conduct prompt and fair investigation and the prosecution of cases of corruption.

• Composition: A Chairperson, who is or has been a Chief Justice of India or is or has been a Judge of the Supreme Court or an eminent person . It has eight members, four of whom are judicial members. Thus, the whole system is studded with judges or judicial men
• Structure: The Lokpal has an inquiry wing and a prosecution wing to deal with investigation and prosecution, respectively. The director of prosecution files the case in the special court based on the findings of the Lokpal.
• Jurisdiction: The Lokpal has jurisdiction to inquire into allegations of corruption against the Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officers and officials of the central government.
• Powers: After the conclusion of the investigation, the Lokpal may file a Case under Prevention of Corruption Act.
  • However, the Lokpal does not have the power to ask the President to remove the Prime Minister or a Minister from office.

Formation of Lokayukta:

The Lokpal and Lokayukta Act delegates the power to States to establish by law the Lokayukta to deal with complaints relating to corruption against public functionaries. Some States have already established Lokayuktas. For example, Maharashtra in 1971, and Kerala in 1999.

• The Lokayukta is appointed by the Governor of the State. At the time of appointment, the Governor, generally, consults the Chief Justice of the State High Court, and Leader of Opposition in the State Legislative Assembly.
• The Lokayukta, along with the Income Tax Department and the Anti -Corruption Bureau will act as a safeguard in our democratic framework; and help people to highlight corruption cases.
• The structure of Lokayukta does not follow a uniform pattern in all the states. Some states such as Rajasthan, Karnataka, Andhra Pradesh and Maharashtra have created the Lokayukta as well as Up-Lokayukta, while some others like Uttar Pradesh and Himachal Pradesh have created only the Lokayukta

Case of Kerala and the controversy:

Amending provision of Lokayukta Act: Section 14 of the Act which has now been amended said that if the Lokayukta is satisfied on the complaint against the public servant being substantiated that he should not continue to hold the post held by him, he shall make a declaration to that effect in his report to the competent authority who shall accept it and act upon it.

In other words, if the public servant is the Chief Minister or a Minister, he shall forthwith resign his office. It may be noted here that such a provision does not exist in any of the State laws or the Lokpal Act of the Centre.

Implication of the amendment: This provision in the State law has serious legal and constitutional implications.

• Exceeding power beyond capability: an investigative body does not have the legal authority to direct the public servant to resign his post on the basis of its findings. It can only submit its findings to the competent authority or, as is provided in the Lokpal Act, file a case in the special court.
  • The Lokayukta is basically an investigative body with certain powers to carry out an investigation into cases relating to the Prevention of Corruption Act.
  • It does not and cannot enjoy the powers of the higher courts which alone can issue such directions in the nature of writs.
• Violation of Constitution: Article 164 – Chief Minister or a Minister holds office during the pleasure of the Governor. The Constitution of India does not contemplate any external pressure on the Governor to withdraw his pleasure.
  • As per Sarkaria commission, which was accepted by the supreme court, the Governor can dismiss a Chief Minister only when he loses his majority in Assembly and refuses to step down.
  • Another occasion when the Governor could withdraw his pleasure is when the Chief Minister is disqualified from being a member of the House on account of his having been convicted in a criminal case and sentenced to not less than two years of imprisonment.

Therefore, a Chief Minister cannot be asked to resign when he enjoys a majority in the House. The Governor, being a high constitutional authority, cannot be compelled by a law to act in a particular manner so far as his constitutional duties and functions are concerned. No agency created by a law made by the Assembly, particularly an investigative body, can declare that its decision be carried out by the Governor. It would amount to a violation of the Constitution.

Other questionable provisions of this Lokayukta act of Kerala are:

• Inclusion of political functionary: Law includes the office bearers of political parties within its definition of ‘public servant’. The Lokayukta law was enacted to inquire into cases of corruption of public functionaries such as Ministers, legislators, etc. who are covered by the Prevention of Corruption Act.
• Closing of a case by Lokayukta: The question is how the Lokayukta can close a corruption case which is a criminal case and which invites imprisonment for three to seven years. The Lokpal files the case in the court after the investigation. There is no provision in the central law under which the Lokpal can close the case before it reaches the court.

Conclusion:

• There is a need for an objective and dispassionate analysis of this law that has been made by all the stakeholders. The ballyhoo by television channels has effectively clouded the issue. The target rating point of channels has definitely increased but the public has been left none the wiser. The Kerala Lokayukta Act should be re¬-examined by a committee of the Assembly and should be brought on a par with the Lokpal Act. A legislation which seeks to punish corrupt public functionaries should be placed above controversies.

Sources: The Hindu

Mains Question:

Q. Explain the journey of Lokpal in India and how it is still far from being effective despite witnessing rampant corruption in society? [250 words].