Anupam Aysha·
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History of Lokpal and Lokayukta in India; A critical analysis






The author of this article is Sinya K, a research scholar at the Central University of Kerala. She is the President of Kozhikode Chapter, Law and Justice Research Foundation and a member of the State Chapter. She is also the Convenor of LJRF Centre for Research and Development.

“Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruption are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain.”1

 Rigoberta Menchu Tum, 1992 Nobel Prize Laureate.

Abstract 

Lokpal and Lokayukthas are Indian models of the ombudsman, set up to investigate individuals’ complaints against public servants or any politician concerning corruption at the center and state levels. To fight against corruption committed by public servants or politicians, the Lokpal and Loyayukthas must be stronger than these influential people. Ever since the birth of Lokpal and Lokayukta in India, our Governments have been competing to hold the neckband of this watchdog. Lokayukta in Kerala was considered as strongest and ideal one between other Lokpal and Lokayuktas in India.

In the context of the present heated debate over the Kerala Lokayukta Amendment ordinance, LJRF presents a legal analysis of the Kerala Lokayukta Amendment Ordinance as a series containing six chapters. The current paper deals with the evolution of Lokpal and Lokayuktas in India with special reference to Kerala. The paper also mentions some important decisions taken by Lokayukta to fight against corruption.

Introduction

An ombudsman means a commissioner or an agent. While the Swedish are typically credited with having the first legislative ombudsman, ombudsman-like roles were popular in other nations and traditions. In first nations communities in North America, for example, disputes were frequently decided by an elder – someone who understood the people and could make choices that were far-reaching on a personal basis. Other examples are Muslims (the Mohtasib), China (the Censorate), and elders on many islands around the South Pacific who follow an old reconciliation and forgiveness procedure called Ho’oponopono2.

The Constitution of India came into force on January 26, 1950, which established a Parliamentary democratic framework. Accordingly, the Indian government has implemented measures to combat corruption and the establishment of the institution of an ombudsman has become a sine qua non to reduce corruption and maladministration.

Origin and Meaning

The term ‘Ombudsman’ is of Scandinavian origin literal translation of the Swedish word is “representative” or “agent”3. Ombudsman is defined as 

“A public official appointed by the legislature to receive and investigate citizen complaints against administrative acts of government”; and, furthermore, “a neutral, independent intermediary between the complainant and the agency, who investigates complaints and objectively determines if an agency acted in a mistaken, unfair, arbitrary or illegal manner.”4

The United States Ombudsman Association (USOA) defines a governmental Ombudsman as

“An independent, impartial public official with authority and responsibility to receive, investigate or informally address complaints about government actions, and, when appropriate, make findings and recommendations, and publish reports”5.

The ombudsman was first established in Sweden in 1713, when a “chancellor of justice” was appointed6 by King to protect the Kings rights7. For example, when King Charles XII was at a war the ombudsman would make sure everything was in order while the king was abroad8 . Lars Augustin Mannerheim, the first government ombudsman, was appointed by the Swedish Parliament to protest the people’s rights rather than preserve the king’s rights9. In 1809 Sweden became the first nation to establish the institution of the ombudsman, but the ombudsman has appeared in various other countries over the century. Since 1920, Finland has had the institution of a parliamentary ombudsman. More than 130 countries now have similar institutions of ombudsmen.10

Ombudsman in India

The term Lokpal was coined by M. Singhvi and is derived from Sanskrit , which means “protector of people.”11. Lokayukta comes from a Sanskrit term, means “appointed by the people.”The first Lokayukta was established in 1971 in Maharashtra, and ever since, Lokayuktas have been established in all the other states and union territories (In J&K, the institution has been dissolved, and in Puducherry, no institution has been established yet). However, data regarding complaints is not maintained by any Lokayuktas effectively.12

Lokpal and Lokayukta

Lokpal and Lokayukta’s are Indian forms of ombudsman

  • Lokayukta is the body operating at the state level, set up to investigate individuals’ complaints against public servants or any politician concerning corruption. The Lokayuktas shall have jurisdiction over the CM, Ministers, MLAs, all state government employees, and certain private entities (including religious institutions)13
  • Lokpal is the body operating at the central level, set up to investigate individuals’ complaints against all categories of public servants, including Prime Minister, or a Minister in the Union government, or a Member of Parliament, and officials of the Union government under groups A, B, C, and D categories.   The chairpersons, members, officers, and directors of any board, corporation, society, trust, or autonomous body established by an Act of Parliament or wholly or partly funded by the Centre also come under the jurisdiction of the Act. If the allegations against Prime minister are related to international relations, external and internal security, public order, atomic energy, and space, the Lokpal has no authority to investigate. 14

Format of the complaint form15

Both lokpal and lokayukthas following different format of complaint form.

  • Union Level: According to the Lokpal (Complaint) Rules, 2020, the complaint format is 8-12 pages long, and the complaint can be filed “ordinarily in English.” As a result of this,ordinary citizens may find it difficult to approach the Lokpal
  • State Level: Nine states or  union territories do not have a proper complaint format . Most states and unions territories require the submission of an affidavit that must be attested by the Oath Commissioner/First Class Magistrate and any other authority, which will make registering a complaint with the Lokayukta difficult.
  • Assam and Karnataka are state Lokayuktas with simple complaint forms.

Evolution of of Lokpal and Lokayukta in India16

Evolution of lokpal and lokayuktha in india can summed up as follows

  • 1963:  L.M. Singhvi has coined the word Lokpal 
  • 1963: The concept of an ombudsman first came up in Parliament during a discussion over the Law Ministry’s budget allocation.
  • 1966: The First Administrative Reforms Commission recommended that two independent authorities be established- at the Central and State level, to look into complaints against publicservants, including M.P.s.
  • 1968: The Lok Pal Bill was introduced eight times in Parliament but was never passed.
  • 1971: The Maharashtra was the first Indian state to establish a corruption watchdog, The Maharashtra Lokayukta
  • 2002: The Commission to Review the Working of the Constitution (headed by Shri M.N. Venkatachiliah)) advocated the appointment of the Lok Pal and Lokayuktas, as well as the exclusion of the Prime Minister from the jurisdiction of  authority.
  • 2005: The second Administrative Reforms Commission (headed by Shri Veerappa Moily) advised establishing the Lok Pal office as soon as possible.
  • 2011: The popular Anna Movement for Lokpal.
  • 2013: Both Houses of Parliament passed the Lokpal and Lokayuktas Bill, which was introduced in 2011.
  • 2014: The Lokpaland Lokayuktas Act, 2013, came into force on January 16, 2014..
  • 2016: The Lokpal and Lokayuktas Act, 2013, was amended by Parliament to address minor issues.
  • 2018: Meetings of the Selection Committeeas per section 4(1) of the Lokpal and Lokayuktas Act, 2013 were held in March and April 2018 following the intervention of the Supreme Court.
  • 2019: On March 19, 2019, Justice (Retd) Pinaki Chandra Ghose was appointed as the first Lokpal of India, along with eight judicial and non-judicial members, following judicial intervention.
  • 2020: Rules and format for filing complaints with Lokpal issued.

Types of Ombudsman in India

Several institutions are functioning as ombudsman in different sectors such as banking, insurance, telecom, local self-government, and electricity to redress the grievances of the general public relating to these departments, and such institutions are termed as ombudsman functioning in their respective spheres. 

  1. Maladministration, Corruption and Governance

The public can directly approach the Lokayukta with complaints of corruption, nepotism, or any other form of maladministration.17

  • Maladministration: Maladministration means unreasonable, unjust or improper administration, undue delay or negligence in administrative procedure. It is malafide exercise of powers or dishonest management of public affairs.
  • Corruption: Corruption in India is a dysfunctional outcome of public and private interaction. This action includes corruption, bribery, nepotism, etc..18
  • Governance: The institution of the ombudsman as a control mechanism of Parliament aims at restricting administrative excess and ensuring fair play in the exercise of administrative powers. For the citizens in democratic states, powers of the State must be exercised in a way comfortable to their ideas of liberty, fair dealing, and good administration.

Lokayukta in Kerala- “biting dog to barking dog?”19

The Lok Ayukta was established under the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) to investigate allegation of corruption and maladministration against public servants, as well as for the speedy redressal of grievances of the public. First LokAyukta of Kerala is  Justice P C Balakrishna Menon and Justice Cyriac Joseph is the present Lokayukta.

The Lok Ayukta Act, 1999 (Act 8 of 1999) was amended through the Kerala Lokayukta Amendment ordinance, on February 7. With this amendment, the state government would have the power to “either accept or reject the verdict of the Lokayukta after an opportunity of being heard.”Under Section 14 of the Act, a public servant is required to vacate office if directed by the Lokayukta. The amendment removed the mandatory nature of the quasi-judicial anti-corruption body’s verdicts. After the amendment, a Lokayukta verdict would only have recommendatory rather than mandatory nature. The Ordinance also changed the need for Lokayuktas to be retired Supreme Court justices or former Chief Justices, allowing retired High Court judges to be appointed.

It was alleged that the amendment was inconsistent with the provisions of the Central Lokpal Act. As a result, the Governor had no choice but to hold the Ordinance until the President gave his consent, as required by the Indian Constitution. The Governor, on the other hand, agreed to the Ordinance prior to the consent of President of India. There for, the Governor’s consent was unconstitutional and contrary to the constitutional framework.

Another major issue of concern is that whether the power of  Lokayukta to remove an elected legislature is constitutional, as the latter is an executive body.

Lokayukta decisions

Following decisions will show the effectiveness of watchdogs with claws and teeth

  • The Kerala Lok Ayukta has found K T Jaleel, Minister for Higher Education and Minority Welfare, guilty of nepotism, abuse of power, and favouritism, and has declared that Jaleel shall not remain in his position as minister under Section 12(3) of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) and as a result he has resigned from the office.20
  • The Karnataka Lokayukta has found,Mr B S Yeddyurappa’s government caused a huge  loss to the state exchequer of Rs 16,085 crore between 2006 and 2010 due to large-scale illicit mining  and as a result he has resigned as the Chief Minister of Karnataka.21

Conclusion

“Power corrupts, and absolute power corrupts absolutely.”22 If there are no checks and balances on power, the temptation is too great to act corruptly. The primary function of Lokpal and Lokayukta is to investigate the corruption and maladministration of public servants. At present, Lokpal and Lokayukta are diminished as an advisory body and the decision-making power vest with the same public servant, against whom such investigation was conducted. Thereby, it is destroying good governance aimed by Lokpal and Lokayukta and putting the very existence of Lokpal and Lokayukta in question. When Lokpal and Lokayukta decisions are advisory, there is a high chance that they can be easily used as  a weapon by the ruling party against their rivals. When the decision-making authority is Government based on Lokpal and Lokayukta investigation report, it will violate the natural justice principle and right to live in a corruption-free environment as guaranteed under Article 21 of the Indian Constitution. The paper concluding with the words of James Madison23 “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”23

Referrence

  1.  Rigoberta Menchu Tum, 1992 Nobel Prize Laureate.
  2. UOTTAWA, https://www2.uottawa.ca/about-us/office-ombudsperson/learning-corner/ombuds-timeline(last visited  Feb.25,2022).
  3. DSPD.UTAH.GOV, https://dspd.utah.gov/wpcontent/uploads/2021/09/Disability_Ombudsman_Program_Report2021.pdf(last visited  Feb.24,2023)
  4. USOMBUDSMAN,http://usombudsman.org (last visited  Feb.24,2023)
  5. Id.
  6. RAJYASABHA ,https://rajyasabha.nic.in/rsnew/publication_electronic/Lokpal_LokayuAct%202013.pdf (last visited  Feb.26,2023)
  7. NORDICS, https://nordics.info/show/artikel/preview-ombudsman (last visited  Mar.2,2023).
  8.  Id.
  9. UOTTAWA, https://www2.uottawa.ca/about-us/office-ombudsperson/learning-corner/ombuds-timeline(last visited  Feb.25,2022).
  10. TALENTKAS, https://talentkas.com/2019/03/26/lokpal-indias-anti-corruption-ombudsman/ (last visited  Feb.24,2023)
  11.  Id.
  12. TRANSPARENCYINDIA, https://transparencyindia.org/wp-content/uploads/2020/12/Lokayuktas-in-India-Report-2020.pdf (last visited  Feb.26,2022).
  13. LOKAYUKTA.ODISHA,https://lokayukta.odisha.gov.in/wp-content/uploads/2020/06/Lokayukta-Annual-Report-E.pdf (last visited  Feb.26,2023).
  14. Ipleaders ,Lokpal and Lokayuktas under the Lokpal and Lokayukta Act, 2013, IPLEADERS(Mar.1,2023,10.00 PM),https://blog.ipleaders.in/lokpal-and-lokayuktas/.
  15. TRANSPARENCYINDIA, https://transparencyindia.org/wp-content/uploads/2020/12/Lokayuktas-in-India-Report-2020.pdf (last visited  Feb.26,2022).
  16. RAJYASABHA ,https://rajyasabha.nic.in/rsnew/publication_electronic/Lokpal_LokayuAct%202013.pdf (last visted  Feb.26,2023) see also TRANSPARENCYINDIA, https://transparencyindia.org/wp-content/uploads/2020/12/Lokayuktas-in-India-Report-2020.pdf (last visited  Feb.26,2022).
  17. Renuka , Study of ombudsman, Legal Service India, (Feb. 27, 2022, 9:10 PM), http:// Legalserviceindia com/legal/article-103-study-of-ambudsman.
  18.  PREETI DILIP POHEKAR, A STUDY OF OMBUDSMAN SYSTEM IN INDIA NWITH SPECIAL REFERENCE TO  LOKAYUKTHA IN MAHARASHTRA 55 (Gyan Publishing House 2010).
  19. FREEPRESSJOURNAL, https://www.freepressjournal.in/analysis/fpj-edit-keralas-lokayukta-can-bark-but-not-bite (last visited  Feb.26,2023).
  20.  Dr. K.T.Jaleel v. Sri. V.K Muhammed Shafi, WP(C).No.9742 OF 2021(P)
  21.  B S Yeddyurappa v. The State Of Karnataka, WRIT PETITION NO.29046 OF 2017(GM-RES)
  22. Lord Acton, the historian and moralist ,expressed this opinion in a letter to Bishop Mandell Creighton in 1887 
  23. Fourth President of  USA.
  24. University of Kerala v. Council, Principals’, Colleges,Kerala & Others , CIVIL APPEAL NO. 887 OF 2009
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