There is an urgent need to make the Lokayukta’s recommendations binding in nature and not merely advisory, through provisions for concrete punitive action in cases of non-compliance.
The Lokayukta is an overseer to check rising cases of corruption at the state level. It is modelled on the lines of the Ombudsman institutions in the Scandinavian countries for redressing citizens’ grievances, and was proposed back in 1966 by the First Administrative Reforms Commission (ARC). The National Commission for the Review of the Working of the Constitution in 2002 and the Second Administrative Reforms Commission (ARC) of 2007 once again reiterated that the Constitution should make it obligatory on the part of state governments to establish the institution of a Lokayukta and stipulate the general principles of its structure, power and functions. Also, the UN General Assembly, of which India is a party, adopted resolution No. 58/4 on 31 October, 2003. Article 36 of the Convention states clearly, “Each State party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialised in combating corruption through law enforcement.”
As the creation of the office of a Lokayukta falls within the concurrent list, so far only 19 states have enacted the Lokayuktas Act. These are Gujarat, Madhya Pradesh, West Bengal, Karnataka, Chhattisgarh, Uttar Pradesh, Andhra Pradesh, Kerala, Maharashtra, Haryana, Jharkhand, Bihar, Delhi, Punjab, Uttarakhand, Assam, Orissa, Rajasthan and Himachal Pradesh. But this Act enacted in various states is not uniform, there being wide divergences in regard to jurisdiction over men and matters, over submission of property statements by public servants, over powers of inspection, search and seizure of the properties of public servants, and over matters of taking suo moto cognizance in regard to relevant areas falling well within the jurisdiction of the Lokayukta. (Click here for table)
In order to bridge the discrepancies present in the various state Lokayukta Acts, it was proposed at many forums that a Model Draft Lokayukta Bill should be drafted by the Centre, to be enacted as a Union Model Lokayukta Bill, which should then act as a guide for the states in drafting or further amending their versions of the Lokayukta Act. One such Model Lokayukta Bill was proposed at a colloquium of All India Lokayuktas/ UpLokayuktas held at Bhopal in December 2010. This Bill is called the ‘Mukhya Lokayukta & Lokayukta Bill’ (http://it.delhigovt.nic.in/writereaddata/Cir2011663.doc). A clearer consolidated view of the wide discrepancies existing among the Lokayukta Acts of various states is shown in the accompanying Table, which compares the effectiveness of the Lokayukta Acts of a few states in light of certain important indispensable powers envisioned in the ‘Mukhya Lokayukta & Lokayukta Bill’.
From a reading of the Table, what seems to emerge as a graver issue at hand is that the loopholes present in the various versions of the diluted Lokayukta Acts of different states are paralysing the functioning of this institution in addressing the very problem of corruption.
A few important enabling powers are indispensible if we envisage a functionally effective Lokayukta Act. To start with, the definition of the public functionaries that come within the purview of this Act should be well defined to include all politicians as well as all public servants. Secondly, there should be a definitive attempt towards checking that in the appointment, removal as well as maintenance of the Lokayukta’s office, no unnecessary bias and discretion is granted to the ruling party, so that independent functioning of the institution is ensured in the long run. Suo moto powers should be conferred on the Lokayuktas in matters of taking cognizance, investigation and prosecution, in case a preliminary investigation indicates the commission of some substantive act of corruption.
To ensure the above, it is further required that the Lokayuktas should have police powers; and also an independent investigating agency of its own, taking orders directly and solely from the Lokayukta in relation to the cases of corruption it is handling for the Lokayukta. Next, there is an urgent need to make the recommendations of the Lokayukta binding in nature and not merely advisory, through outlining concrete and corrective punitive actions in case of any non-compliance with the Lokayukta’s recommendations. Judicial powers conferred on the Lokayuktas for issuing warrants for search and seizure in the furtherance of any investigation, as well as prohibition on any kind of outside judicial interference as far as the proceedings of the Lokayutas are concerned, will further establish its status as an independent body against corruption.
Another important power which will consolidate the position of the Lokayuktas as a central authority against corruption in the state, is the binding obligation on all public functionaries to submit annually a declaration of their assets and liabilities. This will also greatly aid the Lokayuktas in keeping close tabs on any incident of amassing of huge wealth through corrupt means by public functionaries. Last, but not least, as advocated by the Second Administrative Reforms Commission Report and also strongly seconded by the Lokayuktas’ Conference, there should be a comprehensive Bill for a uniform institution of the Lokayukta in every state, based on Central legislation with constitutional back up.
Nripendra Misra is a former Secretary, Government of India, former Chairman of TRAI, and currently Director, Public Interest Foundation. Tannu Singh is Research Associate, Public Interest Foundation