Introduction
Corruption and maladministration in public life is fatal to economic growth. Corruption also erodes the authority of the State, promotes crime and violence, and undermines the rule of law and the very foundations of a democratic polity. The issue of corruption in India merits consideration as a national issue at least at par with secularism, stability, reservation in services, political empowerment of women and like subjects. Though at different times different persons raised their voice against corruption, but the real fight against corruption as a national and priority issue was championed by late Jayaprakash Narayan. After his movement, the fight against corruption continued by several other leaders, however, sometimes wrong priorities focusing on non-issues and divisive factors by some leaders on the national agenda lead to negative consequences. The concept of establishing an independent body to look into the citizens grievances in India dates back to the year 1952, when for the first time it was discussed in Parliament during a discussion on the Prevention of Corruption Bill. Seven years later the need for Ombudsman type of institution in India was effectively articulated by the then Chairman of the University Grants Commission and former Minister of Finance, Shri C.D. Deshmukh. Shri Deshmukh observed that “an uneasy public hears of nepotism, high-handedness, gerrymandering, feathering of nests through progeny, and a dozen other sins of omission and commission, and yet is helpless for lack of precise data, facts and figures, evidence and proof”[1]. He even came forward to make a beginning by lodging half a dozen complaints if a high level, impartial standing judicial Tribunal to investigate and report on complaints or lying of information was set up.
Genesis of the Ombudsman concept in India
Regarding the need of an independent agency to look into the grievances of citizens was highlighted by Mr M.C. Setalvad, the then Attorney General of India in the Third All India Law Conference held on 12-8-1962 to 14-8-1962. It was in fact the relentless effort of the great Parliamentarian Dr L.M. Singhvi who fought rigorously for setting up of an Ombudsman type of institution in India. Dr Singhvi said that “the institution of Ombudsman would enable the citizens to effectively ventilate their grievances which could not be substituted by the question hour in Parliament or through writing letters to the Ministers concerned and the available judicial remedy is also not adequate as the courts are prejudiced by limitations of procedures and technicalities.”[2] Dr Singhvi made several efforts to make the Government convinced for establishing the Ombudsman, but failed. During that period Prime Minister Jawaharlal Nehru in his address to the All India Congress Committee at Jaipur (3-11-1963) observed that “while the system of Ombudsman fascinated him, since the office would have overall authority to deal with charges even against the Prime Minister and would command respect and confidence of all, he, nevertheless, felt that its introduction was beset with difficulties in a big country like India”[3].
Subsequently, Shri P.B. Gajendragadkar, the then Chief Justice of India, raised the issue of Ombudsman and he commended for careful examination of the idea of an independent authority for the redress of public grievances.[4] The Provincial Bar Association of Madras supported the creation of the institution of Ombudsman in their meeting held in October 1963. A number of other Committees also like the Committee on Prevention of Corruption (1962), Administrative Reforms Commission of Rajasthan, Special Consultative Group of Ministers of Parliament (1965), Administrative Reforms Commission (ARC) (1966 and 2007), the National Commission to Review the Working of the Constitution (2002), all have recommended the setting up of the institution of Ombudsman or Lokpal.
The Administrative Reforms Commission (ARC) set up in 1966 under the chairmanship of late Shri Morarji Desai have recommended the idea of setting up two types of Ombudsman institutions, namely, (1) the Lokpal (protector of people); and (2) the Lokayukta (Commissioner of the People). As per the recommendation of the ARC, the Lokpal was expected to deal with the complaints against the Ministers and the Secretaries of Government posted at the Centre and in the States, whereas the Lokayukta in each State and one for the centre to look into the complaints against public officials other than Ministers and Secretaries to the Government.
In the year 2002, another Commission was set up under the chairmanship of former Chief Justice of India, Shri M.N. Venkatachaliah in the name of “The National Commission to Review the Working of the Constitution.” The Commission recommended the establishment of the institution of the Lokpal as a constitutional authority so that a cleaner Government could be achieved. More specifically, the Commission recommended two things—(1) The Constitution should provide for the appointment of the Lokpal and make it obligatory for States to establish the institution of Lokayukta; and (2) the office of the Prime Minister should be kept out of the purview of the Lokpal.
Again in 2007, the Second Administrative Reforms Commission under the chairmanship of Dr Veerappa Moily was set up, which also recommended to amend the Constitution so as to provide for a national Ombudsman called the Rashtriya Lokayukta. The Commission further recommended that the role and jurisdiction of the Rashtriya Lokayukta should be defined in the Constitution, but the composition, mode of appointment and other details can be decided by Parliament through legislation. All Ministers, Chief Ministers and Members of Parliament, except the Prime Minister, should come within the purview of the Rashtriya Lokayukta. Regarding the composition and appointment of the Rashtriya Lokayukta, the Commission suggested that it should consist of a serving or retired Judge of the Supreme Court as the Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner as the ex-officio Member. The Chairperson and Members should be selected by a Committee consisting of the Vice-President, the Prime Minister, the Leader of the Opposition, the Speaker of the Lok Sabha and the Chief Justice of India. The Commission has said that the Chairperson and Member should be appointed for only one term of three years and they should not hold any public office later, except the office of Chief Justice of India, if they are eligible.
Need for establishment of the Lokpal
When the question of governance comes, the possibilities of misgovernance by the rulers become more visible. The need for the establishment of any institute always depends upon a specific and pertinent cause. Likewise, the need for establishment of the institute of Lokpal is the outcome of the issue of rampant growth of corruption in almost every sphere. It is not that the evil of corruption is of recent origin; rather it was as old as governance.
Kautilya in his Arthashastra rightly observes that for those who guard the treasury the temptation to be dishonest is almost a natural instinct. He says:
“Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up at least a bit of the king’s revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out while taking money for themselves.”
Corruption in India has been a problem ever since the country had been having a multilayered administration by Ministers, Administrative Chiefs and Officers. The problem of corruption in ancient India, coupled with bribery, kept infesting the society more and more in an increasing rate. This is quite clear from the way the contemporary writers like Kshemendra and Kalhana, who lived in 990-1065 BC, have condemned the government officials, as well as other employees of different levels, in their celebrated works.[5] Kshemendra has advised the king to remove all the ministers, generals, officials and priests from office with immediate effect, who were either taking bribes themselves or have been indulging in corruption in some other way. Yet another work by Kshemendra, called Narmamala, depicts corruption bribery spreading fast like rampant maladies. He also found an answer to the much discussed question how to stop corruption in India of his time; he has explicitly addressed the contemporary intelligentsia to step forward and shoulder the responsibility of purging their folks.
Anti-Corruption laws in India
Public servants in India can be penalised for corruption under the Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions. The Prevention of Money-Laundering Act, 2002 penalises public servants for the offence of moneylaundering. India is also a signatory to the UN Convention against Corruption since 2005. The Convention covers a wide range of acts of corruption and also proposes certain preventive policies.
Key features of the Acts related to corruption
Penal Code, 1860
(i) The Penal Code, 1860 defines “public servant” as a government employee, officers in the military, navy or air force, police, Judges, officers of court of justice, and any local authority established by a Central or State Act.
(ii) Section 169 pertains to a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of up to two years or with fine or both. If the property is purchased, it shall be confiscated.
(iii) Section 409 pertains to criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine.
The Prevention of Corruption Act, 1988
(i) In addition to the categories included in the IPC, the definition of “public servant” includes office-bearers of cooperative societies receiving financial aid from the Government, employees of universities, Public Service Commission and banks. The words as per Section 2(c) of the Act mean that a person who is in service at the time when the court is called upon to take cognizance of the offence[6].
(ii) If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine. The Act also penalises a public servant for taking gratification to influence the public by illegal means and for exercising his personal influence with a public servant. However, nexus should be established between performance of the official duty and acceptance of gratification.[7]
(iii) If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalised with minimum punishment of six months and maximum punishment of five years and fine. Under Section 4 of this Act presumption will be drawn against the accused the moment the prosecution proves that the accused accepted or agreed to accept or obtained or attempted to obtain any gratification or valuable thing.[8]
(iv) It is necessary to obtain prior sanction from the Central or State Government in order to prosecute a public servant. The section is a safeguard for the innocent and not a shield for the guilty[9]. The discretion to sanction for prosecution is absolute. It cannot be questioned in a court of law[10]. Trial without sanction is null and void. Subsequent trial with proper sanction is not barred[11]. If there is no sanction no cognizance of the offence can be taken at all. The sanction is required only for purpose of taking cognizance of offence. Once cognizance is taken its utility is exhausted and it is no longer needed either during trial or conviction[12].
The Benami Transactions (Prohibition) Act, 1988
(i) The Act prohibits any benami transaction (purchase of property in false name of another person who does not pay for the property) except when a person purchases property in his wife’s or unmarried daughter’s name.
(ii) Any person who enters into a benami transaction shall be punishable with imprisonment of up to three years and/or a fine.
(iii) All properties that are held to be benami can be acquired by a prescribed authority and no money shall be paid for such acquisition.
The Prevention of Money-Laundering Act, 2002
(i) The Act states that an offence of moneylaundering has been committed if a person is a party to any process connected with the proceeds of crime and projects such proceeds as untainted property. “Proceeds of crime” means any property obtained by a person as a result of criminal activity related to certain offences listed in the schedule to the Act. A person can be charged with the offence of moneylaundering only if he has been charged with committing a scheduled offence.
(ii) The penalty for committing the offence of moneylaundering is rigorous imprisonment for three to seven years and a fine of up to Rs 5 lakhs. If a person is convicted of an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can extend up to 10 years.
(iii) The adjudicating authority, appointed by the Central Government, shall decide whether any of the property attached or seized is involved in moneylaundering. An Appellate Tribunal shall hear appeals against the orders of the adjudicating authority and any other authority under the Act.
(iv) Every banking company, financial institution and intermediary shall maintain a record of all transactions of a specified nature and value, and verify and maintain records of all its customers, and furnish such information to the specified authorities.
Procedure followed to investigate and prosecute corrupt public servants
In order to investigate cases against corrupt public servants and to prosecute them, the following process is to be followed—
(i) The three main agencies involved in inquiring, investigating and prosecuting corruption cases are the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI) and the State Anti-Corruption Bureau (ACB).
(ii) Cases relating to moneylaundering by public servants are investigated and prosecuted by the Directorate of Enforcement and the Financial Intelligence Unit, which are under the Ministry of Finance.
(iii) The CBI and State ACBs investigate cases related to corruption under the Prevention of Corruption Act, 1988 and the Penal Code, 1860. The CBI’s jurisdiction is the Central Government and Union Territories while the State ACBs investigates cases within the States. States can refer cases to the CBI.
(iv) The CVC is a statutory body that supervises corruption cases in government departments. The CBI is under its supervision. The CVC can refer cases either to the Central Vigilance Officer (CVO) in each department or to the CBI. The CVC or the CVO recommends the action to be taken against a public servant but the decision to take any disciplinary action against a civil servant rests on the department authority.
(v) Prosecution can be initiated by an investigating agency only after it has the received sanction.
The Lokpal and Lokayuktas Act, 2013
After the success of a longstanding movement, finally the Lokpal and Lokayuktas Act, 2013 was passed by Indian Parliament in December 2013 and received the Presidential assent on 1-1-2014. As sought for, the Act aimed at the prevention and control of corruption by setting up of an independent and impartial body at the central level named as the “Lokpal” and at the State level as the Lokayukta . The institution of Lokpal would receive complaints relating to corruption against public servants from most of the categories within and outside India. The extent of the Act is to the whole of India, including Jammu and Kashmir.
Powers of the Lokpal as per the Lokpal and Lokayuktas Act, 2013
(i) It includes the powers of superintendence over, and to give direction to the CBI. Any case when referred by the Lokpal to the CBI, the investigating officer in such case cannot be transferred without the approval of the Lokpal. The Lokpal has the power to authorise the CBI to search and seizure as and when required for the matters connected to such case.
(ii) The Inquiry Wing of the Lokpal is to be vested with the powers of a civil court that includes the Lokpal to confiscate the assets, proceeds, receipts and benefits acquired or procured by the alleged person by means of corruption under certain special circumstances.
(iii) Lokpal will have the power to recommend for the transfer or suspension of public servant connected with allegation of corruption.
(iv) During preliminary inquiry Lokpal has the power to pass any direction to prevent destruction of records by anybody.
(v) The Lokpal while dealing with the cases arising out of the Prevention of Corruption Act, 1988 or under the Lokpal Act, if recommends, the Central Government shall constitute Special Courts to hear and decide the cases. The time-limit for such courts to complete the trial as per the Act, is to be within a period of one year from the date of filing of the case in the court which may be extended for 3 months by recording in writing.
(vi) The Act, however, excludes the power of the Lokpal to inquire into any complaint made against the Chairperson or any Member of its own institution.
When the central law was enacted, Anna Hazare, the pioneer of the Lokpal movement, was quite apprehensive about the fact that it would be meaningless to enact the law unless implemented and enforced properly. He even accused the Government of delaying the Lokpal’s appointment, and questioned its intent and credibility to fight corruption. Ironically while he continues to make noises at this age, his aides like Kiran Bedi and V.K. Singh have accepted top Government positions. Arvind Kejriwal who was the Chief Architect of the Civil Society Movement against corruption in 2011 that forced United Progressive Alliance (UPA) to introduce a Bill in Parliament, has formed a party of his own, and become the Chief Minister of Delhi. Though Kejriwal passed Delhi’s Lokpal legislation in 2015, but faced several allegations of inserting weak provisions in the law.
Conclusion
Four years have already been passed since the passing of the Lokpal and Lokayuktas Act, 2014, but still it is not implemented. India is still waiting to see its first Lokpal. These four years of Government under the National Democratic Alliance (NDA) banner, which has come to power with a massive mandate to push growth and fight against corruption, is not taking any effective step to implement the law. Regarding non-appointment of the Lokpal, the Government’s contention is that a search committee could not be formed as there was no leader of opposition in the Lok Sabha. Justifying its stand by giving a very shocking explanation, the Government instead of urgently sorting out the limited issue of leader of opposition introduced a 10 page amendment to the Act in December 2014. The matter subsequently moved to a parliamentary panel. Previously, while the present party in power was in opposition, it has always emphasised more on establishment of a strong and independent Lokpal, whereas now being in power, the party is not only trying to dilute the law, but also delaying its enforcement.
The Government’s strong belief is that it is performing well instead of having a Lokpal Institution. “Corruption had eaten away our country like termites. So if I have stopped so much corruption, there will of course be many who will curse me. Only those who looted the nation are not enthused by this Government,” said the Prime Minister, while giving speech in the completion of second year celebration of his Government. The Prime Minister’s remarks come just days after the Supreme Court questioned why his Government had not appointed anyone as Lokpal. “What is holding you back? You cannot sit over it,” the court asked the Government, while seeking to know by 19-7-2016 the steps taken for the appointment. The court was hearing a Public Interest Litigation (PIL) filed by NGO Common Cause that alleged that the Government and other parties were dragging feet. In 2002 the Supreme Court had directed the Government to appoint a Lokpal to bring an end to the commission of a scam each day. Recently on 15-5-2018, while asked by the Supreme Court to the Centre regarding the steps taken by it to implement the Act, the Government informed the Supreme Court that it has appointed Mukul Rohatgi, former Attorney General of India to the post of “eminent jurist” of the Lokpal Selection Committee which post remained vacant since the demise of Senior Advocate P.P. Rao last year and is going to take necessary steps for appointment of the Lokpal.
As per the current ranking of the Transparency International’s global corruption index, India stands on 81. At this point of time, one cannot say that the Lokpal and Lokayuktas Act, 2014 would be the best law India needs to check corruption. Still the hope for having a better future could not be ruled out, which is possible only when the law would be implemented in its proper perspective.
—————
* Associate Professor, SOA National Institute of Law (SNIL), Bhubaneswar, Odisha, e-mail madhubratamohanty@soa.ac.in
[1] Shri C.D. Deshmukh, in his lecture delivered on 11-7-1959 at Madras.
[2] During the debates in the Lok Sabha for demands for the grants of Law Ministry, on 3-4-1963.
[3] Quoted in “Lokpal : Ombudsman in India” M.P. Jain, First Edn., 1970, p. 2.
[4] Justice Shri P.B. Gajendragadkar in his analysis on the “Role of Administration in a Democratic Welfare State.”
[5] Kshemendra in his famous book Desopadesha.
[6] State of Bombay v. Vishwakant Shrikant, 1953 SCC OnLine Bom 52 : AIR 1954 Bom 109.
[7] Ram Krishan v. State of Delhi, AIR 1956 SC 476; Mahesh Prasad v. State of U.P., AIR 1955 SC 70; Ram Charan Bhatt v. State, 1964 SCC OnLine All 377 : AIR 1967 All 321.
[8] M.C. Mitra v. State, 1951 SCC OnLine Cal 74 : AIR 1951 Cal 524; State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61; State of Ajmer v. Shivji Lal, AIR 1959 SC 847.
[9] Gurbachan Singh v. State, 1969 SCC OnLine Del 57 : AIR 1970 Del 102 : 1970 Cri LJ 674.
[10] Dharam Sarup v. State, 1952 SCC OnLine All 256 : AIR 1953 All 37 : 1953 Cri LJ 192.
[11] Baij Nath Prasad v. State of Bhopal, AIR 1957 SC 494 : 1957 Cri LJ 597.
[12] Ram Pukar Singh v. State, 1953 SCC OnLine All 193 : AIR 1954 All 223 : 1954 Cri LJ 459.
