Former-Supreme Court Judge AM Khanwilkar – New Lokpal Chairperson

Context:

This article is based on the news “Express View on government’s new grain storage plan: More in store” which was published in the Indian Express. Recently, the President of India appointed former Supreme Court Judge Justice AM Khanwilkar as the Chairperson of the Lokpal.  

Appointment of Members of Lokpal

• The government has also appointed six members:
  • Three Judicial Members: 
    • Former Himachal Pradesh High Court Chief Justice Lingappa Narayana Swamy, 
    • Former Allahabad High Court Chief Justice Sanjay Yadav and 
    • Law Commission Chairperson Ritu Raj Awasthi.
  • Three non-judicial Members: Former Chief Election Commissioner Sushil Chandra, former Chief Secretary of Gujarat Pankaj Kumar and former Rural Development Secretary Ajay Tirkey.

Lokpal: Historical Background

• Origin: In 1809, the institution of the ombudsman was inaugurated officially in Sweden.
  • From Sweden, the institution of the Ombudsman spread to other Scandinavian countries– Finland (1919), Denmark (1955) and Norway (1962).
  • New Zealand is the first Commonwealth Country to adopt an Ombudsman and later the UK adopted it.
• Rationale: The institution of the ombudsman is based on the doctrine of administrative accountability to the legislature.
• In India: The terms Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
  • The concept of a constitutional ombudsman was first proposed by the then law minister Ashok Kumar Sen in Parliament in the early 1960s.
• In 1966: The First Administrative Reforms Commission recommended the setting up of two independent authorities at the central and state level, to look into complaints against public functionaries, including Members of Parliaments.
• In 2002: The Commission to Review the Working of the Constitution headed by M.N. Venkatachaliah recommended the appointment of the Lokpal and Lokayuktas, also recommended that the PM be kept out of the ambit of the authority.
• In 2005: The Second Administrative Reforms Commission chaired by Veerappa Moily recommended that the office of Lokpal should be established without delay.
• In 2013: “India Against Corruption movement” led by Anna Hazare put pressure on the government at the Centre and resulted in the passing of the Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament.
  • It received assent from the President on 1 January 2014 and came into force on 16 January 2014.
• In 2017: The Supreme Court gave a significant judgment that the Lokpal appointment process need not be stalled merely due to the absence of the Leader of Opposition (LoP).
  • This judgment dismissed the government’s reasoning that the Lokpal appointment process should wait till the 2013 Act was amended to replace the LoP with the single largest Opposition party leader in the selection committee.
    • The LoP post is given only to a party with at least 10% of the strength of the House. 

Lokpal and Lokayukta

• About: The word “Lokpal” is derived from the Sanskrit word “loka” meaning people and “pala” meaning “protector of people”. 
• Lokpal and Lokayuktas Act 2013: The Lokpal and Lokayuktas Act was passed in 2013. It is a statutory body. 
  • The Lokpal is the first institution of its kind in independent India, established under the Lokpal and Lokayuktas Act 2013 to inquire and investigate allegations of corruption against public functionaries who fall within the scope and ambit of the above Act.
• The Lokpal and Lokayuktas (Amendment) Act, 2016: It amended the Lokpal and Lokayukta Act, 2013.

• • Amended section 44 of the 2013 Act: It replaced the time limit of 30 days. It means the public servants will declare their assets and liabilities in the form and manner prescribed by the government.
    • Section 44 of the 2013 Act deals with the provision of furnishing of details of assets and liabilities of public servants within 30 days of joining the government service.

• Mandate: 

  • To address concerns and aspirations of the citizens of India for clean governance. 
  • To serve the public interest and shall endeavour to use the powers vested in it to eradicate corruption in public life.
  • To present annually to the President a report to be laid before each House of Parliament.

• Appointment:

  • As per Section 4 of the Act, the Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of:
  • The Prime Minister—Chairperson
  • The Speaker of the House of the People
  • The Leader of Opposition in the House of the People
  • The Chief Justice of India or a Judge of the Supreme Court nominated by him
  • One eminent jurist, as recommended by the Chairperson and Members (referred above), to be nominated by the President. 

• Composition: 

• • Lokpal is a multi-member body that consists of one chairperson and a maximum of 8 members.

• • The Chairperson should be either the former Chief Justice of India or the former Judge of the SC or an eminent person with impeccable integrity and outstanding ability.
    • He/she should have special knowledge and expertise of a minimum of 25 years in matters relating to anti-corruption policy, public administration, vigilance, and finance including insurance and banking, law and management.
  • Members: Out of the maximum eight members, half will be judicial members, and a minimum of 50% of the Members will be from SC/ ST/ OBC/ Minorities and women.
    • Judicial members are either former judges of the Supreme Court or former Chief Justice of a High Court.
    • Non-judicial Members: They should be eminent persons with impeccable integrity and outstanding abilities.
      • They should have special knowledge and expertise of a minimum of 25 years in matters relating to anti-corruption policy, public administration, vigilance, finance, law and management.

• Lokpal Tenure: 

  • The Lokpal chairperson and the members are appointed for five years or serve until they are 70 years old, whichever is earlier. 
  • They are not eligible for reappointment and cannot hold any constitutional or governmental office.
  • They cannot contest any elections for 5 years.

• Condition of Services: 

  • The Salary allowances and other conditions of service of the chairperson and members are equivalent to that of Chief Justice of India and Judge of the SC respectively.

• Jurisdiction: 

  • The Lokpal has jurisdiction over the central government to inquire into allegations of corruption against its public functionaries.
    • It includes the Prime Minister, cabinet ministers, members of parliament, and Group A officers of the Central Government and for matters connecting them. 
  • The jurisdiction also covers 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 or state government.

• Lokpal Powers

• • Power to Inquire: When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing or any other agency, or refer it for investigation by any agency if there is a prima facie case. 
  • Power over CVC: Lokpal, with respect to Central government servants, shall refer the complaints to the Central Vigilance Commission (CVC), who will send a report regarding officials falling under Groups A and B and proceed as per the CVC Act against those in Groups C and D.
  • Power over CBI: Lokpal will have power of superintendence and direction over any central investigation agency including Central Bureau of Investigation (CBI) for cases referred to them by the Lokpal. 
  • Power of a Civil Court: The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
    • Lokpal can give directions to prevent the destruction of records during the preliminary inquiry.
  • Power to Search & Seizure: The Lokpal is vested with the power of search and seizure and also powers under the Civil Procedure Code for the purpose of conducting preliminary inquiry & investigation and power of attachment of assets and taking other steps for eradication of corruption.
  • Power in Special Circumstances: Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arising due to corruption in special circumstances.
  • Power on Transfer & Suspension: Lokpal has the power to recommend the transfer or suspension of public servants facing allegations of corruption.

Limitations and Challenges Faced by the Lokpal

• No Inquiry in Exceptional Cases: 

  • The Lokpal cannot inquire into allegations against the PM in matters related to international relations, external and internal security, public order, atomic energy and space. 

• Lack of Constitutional Status: 

  • It does not have any constitutional backing. 
  • Somehow lack of constitutional status is one of the reasons for delay of appointment of Chairperson.

• No Criteria for Eminent Jurist: 

  • There is no criteria to decide who is an ‘eminent jurist’, it can manipulate the appointment method of Lokpal. 

• Anonymous Complaints Not Allowed: 

  • It does not permit anonymous complaints, which may deter potential whistleblowers to come forward.

• Exclusion of Judiciary: 

• • The judiciary is excluded from its ambit.It means Lokpal cannot conduct enquiry on Judicial members.

• No provisions of Appeal: 

  • There are no adequate provisions for appeal against the actions of Lokpal. 

• Approval by Majority: 

  • It also cannot launch such an inquiry, unless a full bench of the Lokpal consisting of its chairperson and all members considers the initiation of an inquiry and at least two-thirds of its members approve it.

• Political Influence: 

  • The Lokpal appointing committee consists of members from political parties and hence a probability to put Lokpal under political influence.

• No Immunity to Whistle Blowers: 

• • The Lokpal and Lokayukta Act, 2013 failed to provide any kind of concrete immunity to the whistleblowers. 

• Specific Time Limit for Complaint: 

  • The complaint against corruption cannot be registered after a period of seven years from the date on which the offence is alleged to have been committed.
    • The Lokpal act also called upon states to appoint a Lokayukta within a year of its coming into force. However, only a few states have established the Lokayukta.

• Prosecution Record: 

  • According to a parliamentary committee report tabled in Parliament, the Lokpal “has not prosecuted even a single person accused of graft till date.
    • The data provided by the Lokpal office indicated that , since 2019-20, the anti-corruption body received 8,703 complaints out of which 5,981 complaints were disposed of.

• Delay in Appointment: 

  • After two years of the retirement of the 1st Chairperson, the current chairperson has been appointed.
    • Further, the lack of resources and manpower add on to the ripple effect on Lokpal.

Way Forward

• More Autonomy: To tackle the problem of corruption, Lokpal needs to be strengthened more both in terms of functional autonomy and availability of human power.
  • Example: In case of important judgments the provision of majority of two-third needs to be diluted and exceptional cases of PM that impact the nation should be considered.
• Greater Transparency: Enhancement of transparency and accountability is required to win the public trust and work in an excellent manner.
  • The slogan adopted by the government of “less government and more governance”, should be followed in spirit.
• Decentralization of Power: There is a need for a multiplicity of decentralized institutions to avoid the concentration of too much power, in any one institution or authority.
• More Independence: Such institutions must be financially, administratively and legally independent of those whom they are called upon to investigate and prosecute.
  • The independence of Lokpal can help to put Lokpal away from political influence.

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