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- Modern democratic states are characterized by a welfare orientation.
- Abuse of this power and discretion by civil servants opens up scope for harassment, malpractices, maladministration and corruption.
- Such a situation gives rise to citizens’ grievances against administration.
- The following institutional devices have been created in different parts of the world
- The Ombudsman System
- The Administrative Courts System
- The Procurator System
- The institution of ombudsman originated in Scandinavian countries.
- In 1713, a “chancellor of justice” was appointed by the king of Sweden.
- The institution of Ombudsman was 1st created in Sweden in 1809 by their constitution.
- ‘Ombud’ is a Swedish term.
- It refers to a person who acts as the representative or spokesman of another person.
- According to Donald C. Rowat, Ombudsman refers to “an officer appointed by the legislature to handle complaints against administrative and judicial action.”
- New Zealand is the 1st Commonwealth country to adopted the Ombudsman system in 1962.
- United Kingdom adopted Ombudsman-like institution called Parliamentary Commissioner for Administration in 1967.
- Since then, more than 40 counties of the world have adopted Ombudsman like institutions with different nomenclature and functions.
- Ombudsman in India is called Lokpal/Lokayukta.
- The term lokpal and lokayukta were coined by Dr. L. M. Singhvi.
- Lokpal mean ‘Caretaker of the people’.
- Socialist countries like the former USSR (now Russia), China, Poland, Hungary, Czechoslovakia and Romania have created their own institutional device for the redressal of citizens’ grievances.
- It is called ‘Procurator System’ in these countries.
- It should be noted here that the office of the Procurator-General is still functioning in Russia.
- The Administrative Reforms Commission (ARC) of India (1966 – 1970) recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘lokayukta’.
- 10 bills were introduced in parliament so far.
- The first four bills lapsed due to the dissolution of Lok Sabha, while the fifth one was withdrawn by the government.
- The sixth and seventh bills also lapsed due to the dissolution of the 11th and 12th Lok Sabha.
- Again, the eighth bill (2001) lapsed due to the dissolution of the 13th Lok Sabha in 2004.
- The ninth bill (2011) was withdrawn by the government.
Lokpal and Lokayuktas Act 2013
- In order to meet a long-standing demand to establish a mechanism for dealing complaints on corruption Govt. had constituted a Joint Drafting Committee on 08.04.2011.
- It was consisting of five nominee Ministers from Government of India and five nominees of Shri Anna Hazare (including Shri Hazare himself), to prepare a draft of the Lokpal Bill.
- Based on the deliberations of the Committee, and on the basis of inputs from Chief Ministers of States and political parties, a draft Lokpal Bill was prepared.
- Lokpal Bill 2011 was introduced in Lok Sabha on 04.08.2011.
- Bill was referred to the Department related Parliamentary Standing Committee on Personnel.
- The Bill has been finally passed by Rajya Sabha with amendments on 17.12.2013.
- Lok Sabha has agreed to the amendments made by Rajya Sabha.
- The Act has been brought into force with effect from 16th January, 2014.
- It seeks to establish the institution of the Lokpal at the Centre and the Lokayukta at the level of the State.
- It seeks to provide a uniform vigilance and anti-corruption road map for the nation both at the Centre and at the States.
- Lokpal is a statutory body without any constitutional backing.
Composition of Lokpal
- Lokpal to consist of a Chairperson with a maximum of 8 members.
- 50% of the members shall be judicial members.
- 50% of the members shall come from amongst SCs, STs, OBCs, minorities and women.
Qualification of Chairperson
- Must be a citizen of India
- At least 45 years old
- Chairperson of the Lokpal should be either of followings
- Former Chief Justice of India
- Former Judge of Supreme Court
- An eminent person having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration etc.
- The following persons cannot become chairperson or member
- MPs and MLAs or a member of local authority
- A person who is affiliated to a political party
- Persons convicted of any offense involving moral turpitude
- A person who was removed or dismissed from the public services
Qualification of Members
- Judicial member of the Lokpal should be
- a former Judge of the Supreme Court, or
- a former Chief Justice of a High Court.
- Non-judicial member should be an eminent person having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration etc.
Selection Process of Chairperson & members
- Chairperson selected by a selection committee on the recommendation of searching committee
- Selection Committee for Chairperson and members of Lokpal
- Prime Minister
- Speaker of the Lok Sabha
- Leader of the Opposition in the Lok Sabha
- Chief Justice of India or a sitting Supreme Court Judge nominated by him
- An eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
- A Search Committee will assist the Selection Committee in the process of selection.
- 50% of the members of the Search Committee shall also be from amongst SCs, STs, OBCs, minorities and women.
Tenure, Salary & Service Conditions
- Lokpal Chairman and Members is 5 years or till attaining age of 70 years.
- The salary, allowances and other conditions of service of chairperson are equivalent to Chief Justice of India.
- Members salary is equivalent to Judge of Supreme Court.
- Salary and allowances are charged on Consolidated Fund of India.
- They are not eligible for reappointment.
- They are not eligible for any constitutional or statutory posts.
- Not eligible for any office under govt. of India or any state.
- Cannot contest any elections for 5 years after relinquishing the post.
- If the chairperson dies or has resigned from the post, President can authorize the senior-most Member to act as the Chairperson.
Removal of Lokpal
- According to section 37 of the act, the Lokpal shall not inquire into any complaint made against the Chairperson or any Member of its own institution.
- The chairperson or member can be removed from his office by President on grounds of proven misbehavior by Supreme Court.
- It need Presidential reference to Supreme Court on a petition signed by 100 MPs.
- President also can remove Lokpal on grounds of
- Bankruptcy or insolvency
- Unsound mind, infirmity of body or mind
- Engages in paid employment
- If acquired financial or other interest that might affect his judgment
Officials of Lokpal
- There are three important officers of Lokpal.
- They are appointed by Lokpal Chairperson.
- Secretary to Lokpal
- Director of Inquiry
- Director of Prosecution
- Secretary appointed from a panel of names sent by central govt.
- Director of Inquiry and Director of Prosecution cannot be below the rank of Additional Secretary to the Govt. of India.
Inquiry Wing of Lokpal
- It is headed by Director of Inquiry.
- It conducts the preliminary inquiry into any offense alleged to have been committed by a public servant
- It will follow the Prevention of Corruption Act, 1988
- Lokpal by notification would constitute a Prosecution Wing
- This wing will be headed by the Director of Prosecution for prosecution of public servants
Jurisdiction of Lokpal
- Jurisdiction of Lokpal includes the Prime Minister, Ministers, Members of Parliament and Groups A, B, C and D officers and officials of the Central Government.
- Prime Minister has been brought under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister.
- Armed forces do not come under the ambit of Lokpal.
- Institutions which are financed fully or partly by Government are under the jurisdiction of Lokpal,
- Institutions aided by Government are excluded from Lokpal.
- Entities receiving foreign donations more than Rs.10 lac/year as per FCRA Actare brought under the jurisdiction of Lokpal.
Working Process & Power
- On complaints referred to the CVC by the Lokpal, the CVC will send its report of preliminary enquiry in respect of Group A and Group B Officers back to the Lokpal for further decision.
- With respect to categories of employees from Group C and Group D, CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by the Lokpal.
- Lokpal will have the power of superintendence and direction over any investigating agency, including the CBI, for cases referred to them by the Lokpal.
- It incorporates provisions for attachment and confiscation of property of public servants acquired by corrupt means, even while the prosecution is pending.
- It lays down clear timelines for enquiry
- For preliminary enquiry, it is 3 months extendable by 3 months
- For investigation, it is 6 months which may be extended by 6 months at a time
- On the recommendation of the Lokpal, the Central Govt. shall constitute Special Courts
- Special court hear and decide the cases arising out of the Prevention of Corruption Act, 1988 or under Lokpal Act.
- Such courts are required to finish each trial within a period of 1 year from the date of filing of the case in the Court.
- This 1 year period may be extended for 3 months by recording in writing.
- It enhances maximum punishment under the Prevention of Corruption Act from 7 years to 10 years.
- The minimum punishment under sections 7, 8, 9 and 12 of the Prevention of Corruption Act will now be 3 years
- Minimum punishment under section 15 (punishment for attempt) will now be 2 years.
- It provides adequate protection for honest and upright public servants.
- Lokpal conferred with power to grant sanction for prosecution of public servants in place of the Government or competent authority.
- Lokpal will submit an annual report to President who will present this to each House of Parliament
- Lokpal cannot suo motu proceed against any public servant.
- Emphasis on form of complaint rather than substance.
- Heavy punishment for false and frivolous complaints against public servants may deter complaints being filed to Lokpal.
- Anonymous complaints not allowed – Can’t just make a complaint on plain paper and drop it in a box with supporting documents.
- Legal assistance to public servant against whom complaint is filed.
- Limitation period of 7 years to file complaints.
- Very non-transparent procedure for dealing with complaints against the PM.
- Even much before the enactment of the Lokpal and Lokayuktas Act (2013), many states had already set up the institution of Lokayuktas.
- It must be noted here that the institution of lokayukta was established 1st in Maharashtra in 1971.
- Although Odisha had passed the Act in this regard in 1970, it came into force only in 1983.
- Karnataka has the strongest Lokayuktas Act.
- In J&K, its known as State Accountability Commission (SAC).
- Lokpal & Lokayuktas Act. 2013 mandate for setting up of the institution of Lokayukta in every state.
- States must enact a law by the State Legislature within a period of 365 days.
- Act provides freedom to the states to decide upon the contours of the Lokayukta mechanism in their states.
- The lokayukta and upa–lokayukta are appointed by the governor of the state.
- While appointing, the Governor in most of the states consults
- Chief justice of the state high court
- Leader of Opposition in the state legislative assembly
Qualification & Tenure
- Qualification and tenure is depends on the state Lokayuktas Act.
- Most of states fixed term of office for lokayukta is of 5 years duration or 65 years of age, whichever is earlier.
- He is not eligible for reappointment for a second term.
- There is no uniformity in jurisdiction of Lokajuktas in all states.
- In most of the states, the lokayukta can initiate investigations either on the basis of a complaint received from the citizen against unfair administrative action or suo moto.
- But he does not enjoy the power to start investigations on his own initiative (suo moto) in the States of Uttar Pradesh, Himachal Pradesh and Assam.
Scope of Cases Covered
- Lokayukta can consider the cases of ‘grievances’ as well as ‘allegations’ in the States of Maharashtra, Uttar Pradesh, Assam, Bihar and Karnataka.
- But, in Himachal Pradesh, Andhra Pradesh, Rajasthan and Gujarat, the job of lokayuktas is confined to investigating allegations (corruption) and not grievances (maladministration).
- Lokayukta presents, annually, to the governor of the state a consolidated report on his performance.
- Governor places this report along with an explanatory memorandum before the state legislature.
- Lokayukta is responsible to the state legislature.
- He takes the help of the state investigating agencies for conducting inquiries.
- He can call for relevant files and documents from the state government departments.
- Recommendations made by the lokayukta are only advisory and not binding on the state government.
- 1st Lokpal in India is Pinalki Chandra Ghosh