It has been a long and gruelling wait for Lokpal to finally come in place as an anti-graft body. On March 19, Justice Pinaki Chandra Ghosh who is a former Supreme Court Judge and former Chief Justice of Andhra Pradesh High Court who retired in May 2017 and a current member of the National Human Rights Commission (NHRC) was appointed as India’s first Lokpal after President Ram Nath Kovind administered the oath of office to Justice Pinaki as the country’s first Lokpal. Earlier we saw how President Kovind had nominated former Attorney General of India Mukul Rohatgi as “eminent jurist” as member of the panel to select Lokpal against the vacancy arising following the death of senior advocate PP Rao. The Lokpal Selection Committee was headed by the Prime Minister and had as its members – Lok Sabha Speaker, Leader of the Opposition in the Lower House, Chief Justice of India and an eminent jurist nominated by President. A Judge of the top court nominated by the Chief Justice of India or any other member can also be selected to be a part of Lokpal Selection Committee.
To put things in perspective, all eight newly-appointed members of anti-corruption ombudsman Lokpal on March 27 took the oath of office. They were administered the oath by Lokpal chairperson Justice Pinaki Chandra Ghose. Former Chief Justices of different High Courts – Justices Dilip Babasaheb Bhosale of Allahabad High Court, Pradip Kumar Mohanty of Jharkhand High Court, Abhilasha Kumari of Manipur High Court and Ajay Kumar Tripathi of Chhattisgarh High Court took oath as judicial members in the Lokpal. Also, first former woman chief of Sashastra Seema Bal (SSB) Archana Ramasundaram, ex-Maharashtra Chief Secretary Dinesh Kumar Jain, former IRS officer Mahender Singh and Gujarat cadre ex-IAS officer Indrajeet Prasad Gautam were sworn in as the Lokpal’s non-judicial members.
In retrospect, we all saw earlier how way back in 2011 the social reformer Anna Hazare had crusaded for getting this law enacted and many eminent individuals from different walks of life joined him though most of them had a political agenda to fulfil unlike Anna who had no political aspirations to realize! But the overall objective was good that there must be an effective anti-graft body in place in India. There can be no denying it!
Simply put, it was in January 2011 that the government formed a Group of Ministers to suggest measures to tackle corruption. Also, the Group of Ministers were entrusted with the onerous task of examination of the proposal of a Lokpal Bill due to relentless agitation by Anna Hazare. In July 2011, the Union Cabinet approved the Lokpal Bill and both Houses of the country passed it in December 2013.
Needless to say, the Lokpal and Lokayuktas Act, 2013 came into being on January 1, 2014. Both UPA and NDA came on one platform to supports its passage as any opposition to it would send a wrong signal among the people which no party can afford but dilly-dallying on one ground or the other saw it being kept in abeyance for a long period of more than five years and it was only after the incumbent CJI Tarun Gogoi intervened and repeatedly sent signals to Centre that this institution of Lokpal could finally see the light of the day! Parliament has certainly not covered itself with glory by ensuring the excruciatingly slow progress of Lokpal institution since the last more than five years!
It may be recalled that it was way back in 1966 that the historic recommendation for a Lokpal at the Centre was first made by the Administrative Reforms Committee of 1966. It had recommended two independent authorities – one at the Centre and one at the State level to probe complaints against State functionaries including MPs. The idea of a Lokpal as Ombudsman first came up in Parliament in 1963 during a discussion on budget allocation for the Law Ministry and it was LM Singhvi who first coined it in 1962. It is now after 56 years that we finally now have a Lokpal in place! This is terrible!
According to Professional Referral Source (PRS) legislative research, the Lokpal Bill has been introduced eight times in the Lok Sabha in 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. It would be vital to mention here that each time the Lok Sabha was dissolved before the Bill’s passage could be ensured except in 1985 when it was withdrawn. Also, it must be borne in mind that several commissions including the First Administrative Reforms Commission of 1966 as mentioned above, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007 recommended the constitution of Lokpal. According to PRS Legislative Research which is an Indian non-profit organization, Sweden which was first country to have a Lokpal along with Finland, Denmark, the Netherlands, Austria, Portugal, Spain, New Zealand, Burkina Faso and the United Kingdom are some of the countries which have the office of an ombudsman that is Lokpal.
To be sure, it must be mentioned here that the Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union Government, or a Member of Parliament, as well as officials of the Union Government under Groups A, B, C and D. Also, it must be mentioned that chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre are also covered. Not stopping here, it also covers any society or trust or body that receives foreign contribution above Rs 10 lakh.
What’s more, the Lokpal Act, which stipulates appointment of a Lokpal at the Centre and Lokayuktas in the States to look into cases of corruption against certain categories of public servants was passed in 2013. It is worth noting that according to the rules, not less than 50 percent of the members of the Lokpal panel shall be from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women. Also, upon selection, the chairperson and members shall hold office for a term of five years or till they attain 70 years of age.
It would be imperative to mention here that the Lokpal cannot inquire into any corruption charge against the Prime Minister if the allegations are pertaining to international relations, external and internal security, public order, atomic energy and space, unless a full Bench of the Lokpal, comprising of its chairperson and all members, considers the initiation of a probe and then at least two-thirds of the members approve it also. It is good that such a hearing should be held in camera but it is quite baffling to note that if the complaint is dismissed, the records shall not be published or made available to anyone. How can this be justified? Why can’t there be more transparency? Why this hush hush? Is there something to hide?
Interestingly enough, a preliminary inquiry should be completed within 30 days of receiving a complaint. The period can be extended to a further three months. It must be mentioned that a full inquiry has to be completed within six months which is extendable by another six months. It must be also mentioned that trial should be completed within a year of filing the case and the time period can be extended to a maximum of two years. It is commendable that a Lokpal does not need prior sanction from the government to investigate a complaint.
More crucially, a complaint under the Lokpal Act should be made in the prescribed form and must be pertaining to an offence under the Prevention of Corruption Act against a public servant. Also, there is no restriction on who can make such a complaint. When a complaint is received, the Lokpal may after examining it order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the CBI, if there is a prima facie case found.
Be it noted, before the Lokpal orders an investigation by the agency, the Lokpal is mandated to call for an explanation from the public servant to determine whether a prima facie case exists that can be pursued. The Act makes it clear that this provision will not interfere with any search and seizure that may be undertaken by the investigating agency. The Lokpal may refer the complaints pertaining to the Central Government servants to the Central Vigilance Commission (CVC). The CVC will then send a report of the Lokpal regarding officials falling under Groups A and B and proceed as per the CVC Act against those in Groups C and D.
Now let us turn to the procedure for preliminary inquiry. The Inquiry Wing or any other agency will have to ensure completing its preliminary inquiry and submitting a report to the Lokpal within 60 days. Before submitting its report, it has to seek comments from both the public servant and the competent authority. Also, there will be a competent authority for each category of public servant. As for instance, for the Prime Minister, it is the Lok Sabha and for other Ministers, it will be the Prime Minister and for department officials, it will be the Minister concerned.
Going forward, a Lokpal Bench comprising of not less than three members shall consider the preliminary inquiry report, and after giving an opportunity to the public servant shall decide whether it should proceed with the investigation. It can order either a full investigation, or initiate departmental proceedings or close the proceedings. It is also empowered to proceed against the complainant if the allegation is false. The preliminary inquiry should normally be completed within 90 days of the receipt of the complaint.
It must be disclosed here that the agency ordered to conduct the probe has to file its investigation report in the court of appropriate jurisdiction and a copy before the Lokpal. A Bench of at least three members will consider the report and after considering it may then grant sanction to the Prosecution Wing to proceed against the public servant based on the agency’s chargesheet. It may also ask the competent authority to take departmental action or direct the closure of the report.
Earlier, the authority vested with the power to appoint or dismiss a public servant was the one to grant sanction under Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act. But now this power will be wielded by the Lokpal which is a judicial body and will have to seek the comments of the ‘Competent authority’ as envisaged in Section 24 as well as the public servant’s comments before granting such sanction.
All said and done, finally now India has in place a Lokpal as the anti-graft body to check and combat corruption which is certainly a great milestone and was due since a long time! But it would be premature to rush to any conclusions soon. We have to see now effectively it functions and what all roadblocks its faces in its functioning! One truly hopes that the Lokpal will be able to meet the high expectations of the people and function effectively for which it has been constituted! Some shortcomings must be revisited like Lokpal must have power to deal with not just public servants who come within the purview of the Union as we see right now but also broadened to include in its ambit the public servants in the states also! It must be ensured by Lokpal that all Lokayuktas are appointed in all States and there is no vacancy in any State on any ground whatsoever!
By Sanjeev Sirohi