Lok Ayuktas/Lokpals: a Civil Society, Expectation and Reality

Lok Ayuktas/Lokpals: A Civil Society, Expectation and Reality

By Justice M. Jagannadha Rao

Chairman, Law Commission of India

I am very happy to have been asked to participate in the 8th All India Conference of Lok Ayuktas/Lokpals here from 27th to 29th September, 2004. Various topics have been proposed for discussion today and tomorrow in about four different sessions, namely, the Need of Constitutional status and Uniform Legislation; Lok Ayuktas/Lokpals: A Civil Society, Expectation and Reality; Role of Lok Ayuktas/Lokpals in the present Socio-Political and Economic Scenario; Lok Ayuktas/Lokpals: Expectations and Realities and thereafter one session is allocated for open discussion. Eminent speakers are participating in this Conference which is being inaugurated by His Excellency the President of India and where the valedictory address is being given by none other than the Hon’ble Prime Minister of India. In this session, the subject is about the “Lok Ayuktas/Lokpals: A Civil Society, Expectation and Reality”. Corruption, inefficiency, delays and insensitivity to people’s grievances have been identified as key problems with which the Lok Ayuktas/Lokpals are to deal with in their functions. The present incumbents in these high offices who are either former Supreme Court Judges or Chief Justices or Judges of the High Court or Senior bureaucrats appear to have a genuine feeling that, in the last more than two decades, these institutions have not had the desired impact due to various reasons, including the apathy of the governments and inadequacies inherent in the various legislations. That, in fact, is the reason for holding periodical Conferences to highlight the problems that are being faced by the Lok Ayuktas/Lokpals. The existence of corruption in our country, as in others, is not a matter of doubt. There is extensive corruption here as in other countries. The difference in the levels of corruption between India and other countries is only a matter of degree. According to the ‘Corruption Perception Index’ (CPI) prepared annually by the Transparency International, which refers, in fact, to the levels of absence of corruption, India was placed at the rank of 35 out of 41 countries in 1995, with CPI at 2.78. In seven years, by 2002 we went down to the 71st rank among 102 countries with CPI at 2.7 and in the latest figures for 2003 we are at rank 83 among 133 countries with CPI 2.8. Finland which has the least corruption is at rank number 1 with a CPI score of 9.7, UK is at rank 11 with CPI of 8.7, USA is at rank 18 with CPI of 7.5, Japan is at 21 with CPI at 7.0. Between rank 1 of Finland and rank 83 of India (out of 133 countries), there is a big gap. The CPI of Finland is 9.7 and CPI of India is 2.8 and there is a vast distance. There is, however, some satisfaction that in the year 2003 there are 50 countries which are more corrupt than our country but that is no reason to remain complacent. The total estimated outflow due to global corruption in various sectors is estimated at about Rs.30,000 crores. About 35 to 40 crores of people in various countries are estimated to be affected. If our country has been progressively becoming more corrupt year after year, it having slipped from the rank 41 in 1995 to 83 in 2003, the question is as to how we should go about the problem. Is everybody serious about the problem or should we accept corruption as a way of life and agree to get along with increasing corruption as a permanent feature of our life?

Before answering the above question, I shall briefly touch upon certain recent international developments. The UN Convention Against Corruption has, after several years of discussion, been recently adopted by the UN General Assembly on the 31st October 2003 and the Convention has been opened up for signature at the High-level Political Signing Conference at Meridi, Mexico, from 9th to 11th December 2003. The Convention has been signed by 111 countries and ratified by six countries by August 2004. The six countries which have ratified are Algeria, El Salvador, Kenya, Mexico, Namibia and Sri Lanka. The Convention needs 30 ratifications to come into force. Once it enters into force, the Convention will provide the international community with an efficient instrument to tackle corruption provided, of course, the States have the will to bring in appropriate domestic legislation. The ‘Legislative Guide’ of the UN will layout the basic requirements for the incorporation of the Convention into domestic legislation, and will also refer to the issues which each State-party must address to implement the Convention. The salient features of the UN Convention are the following: Preventive Measures (Ch II), Criminalisation and Law Enforcement (Ch III), International Cooperation (Ch IV), Asset Recovery (Ch V), Technical Assistance and Information Exchange (Ch VI), Mechanisms for Implementation (Ch VII) and Final Provisions (Ch VIII). In all it contains 71 Articles. We may also note that earlier, the Inter-American Convention against Corruption was adopted by the Organisation of American States on 29th March 1996; the Convention on the Fight against Corruption was adopted by the European Union on 26th May 1997 and was meant to apply to corruption involving officials of the European communities or officials of Member States of the European Union; the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions was adopted by the OECD on 21st November 1997; the Criminal Law Convention on Corruption was adopted by the Committee of Ministries of the Council of Europe on 27th January 1999; the Civil Law Convention on Corruption was adopted by the Committee of Ministries of the Council of Europe on 4th November 1999; and the African Union Convention on Preventing and Combating Corruption was adopted by the Heads of State and Governments of the African Union on 12th July 2003. The UN Convention against Transnational Crime came into force on 29th September 2003 upon the ratification by the required minimum number of States. Article 36 of the latest UN Convention against corruption exhorts that ‘specialised authorities’ be created. It states:

“Art. 36: Each State shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption though law enforcement. Such body or bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such body or bodies should have the appropriate training and resources to carry out that work.”

The above Article of the Convention obviously contemplates mechanisms like the Lok Ayukta/Lokpal to be constituted, apart from the regular anti-corruption agencies of Governments. If we read the speeches made and views expressed in the various articles published at the last several conferences of the Lok Ayuktas/Lokpals, we find that very valuable suggestions have been made but practically nothing has come about.

Some States still do not have Lok Ayuktas/Lokpals and those that have, do not have adequate powers. It has been repeatedly pointed that there is no uniformity in legislation made in the various States and that most statutes do not grant adequate powers to the Lok Ayuktas/Lokpals at least to the extent granted by the Karnataka and Madhya Pradesh Acts. In the various Acts, jurisdictions vary and classes of persons covered also vary. This variance has led to two significant recommendations in the previous Conferences. One relates to producing a Model Lok Ayukta Act to be adopted by each State and the other recommendation is for seeking Constitutional status. A Model Lok Ayukta Act 2001 has indeed been prepared by the participants in the previous Conferences. Several Committees and Commissions, including the recent Commission to Review the Constitution, have also advocated that the institution be given Constitutional status. That is where we stand now. At the national level, the Lok Pal Bill which has lapsed on several occasions in Parliament, is yet to become law. Corruption which touches the ordinary common man, touches various departments, such as taxation, police, land administration, health, education, power, rations, telecom, railways and the judiciary. There is corruption in business and the businessmen corrupt officers in various departments and also help politicians to come to power and then abuse power. Major source of corruption is the election process, both at the National and State levels and also at the level of the local bodies. Politicians who spend money during elections like to recover the money back and grant undue benefits to their benefactors in some way or other. In fact, funding of elections is motivated by the desire to gain benefits from the politicians who may get into power. The scams which have come up in the last decade are so glaring and have now reached the level of hundreds or thousands of crores. In the major scams, politicians and senior police officers appear to be involved. If politicians and the police are involved in such high levels of corruption, we cannot expect good legislation or proper enforcement of laws which deal with corruption.

There is, however, no need to get disheartened. If we give up our efforts, nothing can be achieved. The model Lokayukta Bill prepared in the year 2001 contains useful provisions. Under proposed section 8 of the Model Bill, the Lokayukta or Upa-Lokayukta can receive complaints against actions of the Chief Minister, Minister or Secretary to Government, a Legislator, Vice-Chancellor (by whatever name called) of a Local Authority and any other public functionary as may be notified. The proposed sec. 8

says that action can be taken against the above dignitaries even if they had given general or specific approval to corrupt actions of their subordinates. Section 9 refers to matters which cannot be subject matter of investigation. In the matter of procedure for complaints, section 10(3) permits any letter written by a person in police custody or in a jail or in an asylum or other place where insane persons are kept, to be sent-up unopened and without delay to the Lokayukta. Section 11 enables a preliminary inquiry to be conducted so that if no prima facie case is made out, the complaint can be closed. But, if a prima facie case is made out, it can proceed to investigation under section 12. It can refuse to investigate if the complaint is not in good faith or is frivolous or vexatious or, in regard to redressal of the grievance there are other effective remedies. It, however, has a power to review its order.

Proposed section 13 is important and under that provision the Lokayukta/Upa-Lokayukta can issue search warrants in various contingencies referred to in clauses (a) and (b) and the provisions of the Cr.P.C. apply. Such search warrants shall have the same status as the one issued by a Criminal Court under section 93 of the Cr.P.C. 1973. Section 14

enables calling for relevant information from any public functionary or other person/authority, unless the information pertains to security or defence or international relations or might involve disclosure of proceedings or the Cabinet.

Section 15 enables interim recommendations for stay of implementation or enforcement of the decision or of the action complained against. Section 16 permits Interim Report to be forwarded, and provides for granting interim relief to the complainant. Proposed section 17 is crucial and permits the utilization of services of other persons – such as officers or investigation agencies of Government. Section 18 proposes constitution of District Vigilance Committees which, under section 17, could serve and help in the investigation process. Section 19 would enable the Lokayukta/Upa Lokayukta to authorize any other officer to inspect. Section 20 requires secrecy to be maintained in regard to the investigation and no Court should be able to call for information. Under proposed section 23, the Lokayukta/Upa-Lokayukta can punish for contempt. Section 26 states that the Lokayukta and Upa Lokayukta may forward reports to the competent authority recommending grant of relief to the complainant or direct that any decision or action of the person/authority shall be reviewed or modified etc. Within thirty days, the authority must send information about the action taken on the Report and the authority must also take action within 90 days. In the case of a complaint against the Chief Minister, or a Legislator, the Report will have to be submitted to the Governor. Section 27 enables initiation of prosecution by the competent authority against persons who are found to be prima facie guilty. These are some of the salient provisions in the Model Law prepared in the year 2001. I would, however, think that Lokayuktas/Upa Lokayuktas must consider whether the Model Law of 2001 requires further changes and improvement. In this connection, I request that the Lok Ayuktas/Upa Lokayuktas may kindly verify if the various recommendations made in the previous resolutions at the various Conferences, have all been brought within the Model Bill. For example, in the 1st Conference of 1986, the following recommendations were made: “1. That the institution of the Lokayuktas and Upa-Lokayuktas be given a constitutional status. 2. That suitable amendments be made in the Representation of People’s Act and similar other Central and State enactments so as to enable the authorities concerned to take into consideration the findings/recommendations of the Lokayuktas and Upa-Lokayuktas in respect of persons holding elective offices. 3. That since the jurisdiction of the Lokayuktas/Upa-Lokayuktas in some enactments is restricted to the Ministers and public servants in officer, it is advisable that ex-Ministers and ex-public servants concerned in regard to the action complained against be also expressly brought within their 4. That the jurisdiction of Lokayuktas and Upa-Lokayuktas should cover not only allegations/corrupt practices, but also grievances/mal-administration as defined in the Central Lokpal and Lokayukta Bill of 1968. 5. That a time limit be prescribed for placing the special and annual Reports by the Governor before the Houses of Legislature. Such time limit should not, under any circumstances, exceed four months from the date of the receipt of the Report by the Governor or till the Legislature meet next, whichever is earlier. 6. That the nomenclature of the institution should be ‘Lokayukta’ in every state. 7. That there should be uniformity throughout India in regard to the service conditions of the Lokayuktas and the Upa-Lokayuktas. 8. That there should be no security deposit for making a complaint before the Lokayuktas/Upa-Lokayuktas. 9. That the Lokayuktas and Upa-Lokayuktas should have discretion to dispense with the requirement of filing an affidavit with the complaint. 10. That there be a separate independent investigating agency under the direct control of the Lokayuktas/Upa-Lokayuktas. 11. That the provision relating to “Removal of Doubts” in the Lokayukta Acts, the expressions “Court” and “Judge” should mean only “High Court” “Civil and Criminal Courts” and their presiding officers, as the case may be. 12. That the Lokayukta/Upa-Lokayukta be given the power to sanction search and seizure within the meaning of the Case of Criminal Procedure. 13. That suo-motu power of investigation be conferred on the Lokayuktas/Upa-Lokayukta. 14. That the Lokayukta and Upa-Lokayukta be deemed to be High Court within the meaning of the Contempt of Courts Act.” 15. The Lokayukta of Himachal Pradesh, Shri Justice T.V. Tatachari is hereby authorized to release a copy of the above fourteen conclusions to such persons as he may deem fit.” I am not sure whether all of them have been taken care of in the Model Bill, 2001. In the subsequent six Conferences, several other recommendations have been made and, if any item has been omitted, it should be brought into the Model Bill. Civil Society does expect clean administration and speedy disposal of grievances. Today, even if a citizen has conformed with all the requirements of the law for getting a particular sanction or order from a public servant, still, by and large, he cannot expect to get the order unless the officer is bribed. If the bribe is not paid, all sorts of irrelevant objections will be raised. This is the worst type of corruption. There are, however, a large number of other citizens who are bent upon violating the law and believe that if they bribe officials, the violations of the law will be ignored. Society today has great expectations and wants a bureaucracy which is not corrupt but I think that is a far cry. The public are clear that nothing will happen to improve the status quo. If the institution of Lok Ayukta/Upa Lokayukta is strengthened, there can be some hope that there is one forum to which they could resort. In some States, all IAS and IPS officers are kept out of the purview of the Lok Ayuktas. In some other States, other senior officers are kept out. The public at large do not want paper-tigers to be constituted without teeth. If the Governments are sincere that corruption should be routed out, why do they not empower the Lok Ayuktas/Upa Lokayuktas in the proper manner? Do they not have the will to do all that is required to curb corruption? Or, do they think that the present state of affairs must continue? Let us wait and see if the participation of His Excellency the President of India and the Hon’ble Prime Minister in the present Conference will result in some improvement in the present state of legislation.