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THE CONCEPT OF LOKPAL : EVOLUTION AND PARLIAMENTARY HISTORY
3.1. There can be no denial of the fact that corruption has always remained a significant and highly relevant issue to be dealt with in our country. This stands corroborated from the findings of various international bodies like the World Bank, Transparency International and other organizations, which have consistently rated India quite low on this facet. Concerns have repeatedly arisen, in and out of Parliament, for putting in place appropriate mechanisms to curb corruption. But the Lokpal concept has had an interesting and chequered history in India.
3.2. The initial years following independence witnessed legislators conveying the people's concerns to the Government over the issue of corruption through raising of questions and debates in Parliament. At that time, the scope of the debates was contextually confined to seeking information from the Government about its anti-corruption measures and to discussions regarding the formation of anti-corruption committees/agencies and vigilance bodies to put a check on corruption, but it clearly reflected the seriousness on the issue of corruption in the minds of Members. Acknowledging the need for a thorough consideration of the issue, the Government set-up a Committee under the Chairmanship of Shri K. Santhanam to review the existing instruments for checking corruption in Central Government. The Committee inter alia recommended the creation of an apex body for exercising superintendence and control over the vigilance administration. In pursuance of the recommendations of the Santhanam Committee, the Government established the Central Vigilance Commission through a Resolution on 11.02.1964. The Commission was concerned with alleged bureaucratic corruption and did not cover alleged ministerial corruption or grievances of citizens against maladministration. While laying the report on the creation of the CVC on the table of the House, the then Deputy Home Minister1, interestingly, recognized that the Commission would be overburdened if the responsibility to redress the citizens' grievances against corruption were to be placed
1 Statement made by the then Deputy Minister in the Ministry of Home Affairs, Smt. Maragatham Chandrasekhar in the Rajya Sabha on 16th December, 1963, Rajya Sabha Debates, Vol. XLV, No. 21, P.3572. upon it and the Commission might, as a result, be less effective in dealing with the core problem of corruption.
3.3. While the country had been grappling with the problem of corruption at different levels including at the level of Parliament, there emerged globally, and especially in the Scandinavian countries, the concept of Ombudsman to tackle corruption and/or to redress public grievances. A proposal in this regard was first initiated in the Lok Sabha on April 3, 1963 by the Late Dr. LM Singhvi, MP2. While replying to it, the then Law Minister observed that though the institution seemed full of possibilities, since it involved a matter of policy, it was for the Prime Minister to decide in that regard3. Dr. LM Singhvi then personally communicated this idea to the then Prime Minister, Pandit Jawahar Lal Nehru who in turn, with some initial hesitation, acknowledged that it was a valuable idea which could be incorporated in our institutional framework. On 3rd November, 1963, Hon'ble Prime Minister made a statement in respect of the possibilities of this institution and said that the system of Ombudsman fascinated him as the Ombudsman had an overall authority to deal with the charges of corruption, even against the Prime Minister, and commanded the respect and confidence of all4. Resolutions, in this behalf in April 1964 and April 1965 were again brought in the Lower House and on both occasions, during the course of discussions, the House witnessed near unanimous agreement about the viability, utility and desirability of such an institution5. However, in his resolution, the Member of Parliament (Dr. L.M. Singhvi) did not elaborate upon the functions/ powers of the institution, but instead asked for the appointment of a Committee of Members of Parliament who would consider all the complex factors relating to this institution and would come forward with an acceptable and consensual solution. While making a statement in the House on 23rd April, 1965, Dr. L.M. Singhvi elucidated the rationale of the institution as:
4 His initial hesitation to this idea was probably due to the Scandinavian origin of the nomenclature of the institution. In a lighter vein, he happened to ask Dr. L.M. Singhvi "To what zoo does this animal belong" and asked Shri Singhvi to indigenize the nomenclature of the institution. Dr. L.M. Singhvi then coined the term Lokpal / Lokayukta to modify the institution of Ombudsman to the Indian context (as related by Dr. L.M. Singhvi to the Chairman of this Committee). Also referred to by Mr. Arun Jaitley M.P. during the Parliament Debate on 27th August 2011. He started the debate in the Upper House thus:-"Now, 'Ombudsman' was a Scandinavian concept and, coincidentally, on 3rd April, 1963, then an Independent young Member of the Lok Sabha, Dr. L.M. Singhvi, in the course of his participation in a debate for having an Ombudsman in India, attempted to find out what the Indian equivalent could be, and this word 'Lokpal' was added to our vocabulary, the Hindi vocabulary, by Dr. L.M. Singhvi who translated this word."
5 Lok Sabha Debates dated 23rd April, 1965 P. 10839 – 40. "…..an institution such as the Ombudsman must be brought into existence in our country. It is for the sake of securing justice and for cleansing the public life of the augean stable of corruption, real and imaginary, that such an institution must be brought into existence. It is in order to protect those in public life and those in administration itself that such an institution must be brought into existence. It is to provide an alternative to the cold and protracted formality of procedure in course of law that such an institution should be brought into existence. There is every conceivable reason today which impels to the consideration that such an institution is now overdue in our country….6"
3.3A. The word Lokpal etymologically, means the "protector of the people". Adopting the famous Lincolnian phrase, it can also be seen as a protection/protector "of the people, by the people, for the people". The word 'Ombudsman', on the other hand, is rooted in the Old Norse language, essentially meaning "representative", i.e. an official charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens. Roman Law has also had a similar counterpart viz. the "tribunition role "of a person/institution, whose role was to intercede in the political process on behalf of common citizens and in Roman times was fulfilled by elected officials.
3.4. These efforts set the stage for evolving an institution like Ombudsman in India and consequently, the idea of Lokpal surfaced in the national legislative agenda. Later, the Government appointed an Administrative Reforms Commission which in its recommendation suggested a scheme of appointing Lokpal at Centre and Lokayuktas in each State7.
3.5. Thereafter, to give effect to the recommendations of the First Administrative Reforms Commission, eight Bills were introduced in the Lok Sabha from time to time. However, all these Bills lapsed consequent upon the dissolution of the respective Lok Sabhas, except in the case of the 1985 Bill which was subsequently withdrawn after its introduction. A close analysis of the Bills reflects that there have been varying approaches and shifting foci in scope and jurisdiction in all these proposed legislations. The first two Bills viz. of 1968 and of 1971 sought to cover the entire universe of bureaucrats, Ministers, public sector undertakings, Government controlled societies for acts and omissions relating to corruption, abuse of position, improper motives and mal-administration. The 1971 Bill, however, sought to exclude the Prime 6 Lok Sabha Debates dated 23rd April, 1965, P. 10844. It is ironic that something described as "overdue" in 1965 by the MP is being enacted in 2011!
7 Problems of Redress of Citizen and Grievances, Interim Report of the First Administrative Reforms Commission, 1966.
Minister from its coverage. The 1977 Bill broadly retained the same coverage except that corruption was subsequently sought to be defined in terms of IPC and Prevention of Corruption Act. Additionally, the 1977 Bill did not cover maladministration as a separate category, as also the definition of "public man" against whom complaints could be filed did not include bureaucrats in general. Thus, while the first two Bills sought to cover grievance redressal in respect of maladministration in addition to corruption, the 1977 version did not seek to cover the former and restricted itself to abuse of office and corruption by Ministers and Members of Parliament. The 1977 Bill covered the Council of Ministers without specific exclusion of the Prime Minister.
The 1985 Bill was purely focused on corruption as defined in IPC and POCA and neither sought to subsume mal-administration or mis-conduct generally nor bureaucrats within its ambit. Moreover, the 1985 Bill impliedly included the Prime Minister since it referred to the office of a Minister in its definition of "public functionary".
The 1989 Bill restricted itself only to corruption, but corruption only as specified in the POCA and did not mention IPC. It specifically sought to include the Prime Minister, both former and incumbent.
Lastly, the last three versions of the Bill in 1996, 1998 and 2001, all largely;
(a) focused only on corruption;
(b) defined corruption only in terms of POCA;
(c) defined "public functionaries" to include Prime Minister, Ministers and MPs;
(d) did not include bureaucrats within their ambit.
3.6. The Lokpal Bill, 2011 enables the Lokpal to inquire into allegations made in a complaint against a 'public servant'. With the coining of this new term, the current Lokpal Bill, as proposed and as sent to this Committee, is distinct from the previous Bills mainly on the following counts:-
• Its jurisdiction is comparatively wider as it has widened the scope of 'public servant' by including the bureaucracy as also institutions and associations, wholly or partly financed or controlled by the Central Government or those who are in receipt of public money.
• It provides for separate investigation and prosecution wings of Lokpal
• It makes the declaration of assets by all 'public servants' mandatory and failure to do so liable to the presumption that such assets have been acquired by corrupt means.
• It is far more detailed and more inclusive then earlier versions, with a large number of principal and ancillary provisions not found in earlier versions.
3.7. It is thus clear that the concept of the institution of Lokpal has undergone vital and important changes over time keeping in view the changing socio-economic conditions and varying nature, level and pervasiveness of corruption in society.
3.8. Though the institution of Lokpal is yet to become a reality at the Central level, similar institutions of Lokayuktas have in fact been setup and are functioning for many years in several States. In some of the States, the institution of Lokayuktas was set up as early as in 1970s, the first being Maharashtra in 1972. Thereafter, State enactments were enacted in the years 1981 (M.P.), 1983 (Andhra Pradesh and Himachal Pradesh), 1984 (Karnataka), 1985 (Assam), 1986 (Gujarat), 1995 (Delhi), 1999 (Kerala), 2001 (Jharkhand), 2002 (Chhatisgarh) and 2003 (Haryana). At present, Lokayuktas are in place in 17 States and one Union Territory. However, due to the difference in structure, scope and jurisdiction, the effectiveness of the State Lokayuktas vary from State to State. It is noteworthy that some States like Gujarat, Karnataka, Bihar, Rajasthan and Andhra Pradesh have made provisions in their respective State Lokayuktas Act for suo motu investigation by the Lokpal. In the State Lokayukta Acts of some States, the Lokayukta has been given the power for prosecution and also power to ensure compliance of its recommendations. However, there is a significant difference in the nature of provisions of State Acts and in powers from State to State. Approximately nine States in India have no Lokayukta at present. Of the States which have an enactment, four States have no actual appointee in place for periods varying from two months to eight years.
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