There appears to be a complete lack of political will to operationalize the Lokpal and Lokayukta law

lokpal-billCSO (Civil Society Organizations), a joint initiative of many organisations to respond to shrinking civil society space, has expressed concern over the non-operationalization of the Lokpal and Lokayuktas Act, 2013. Text of the note prepared by it:

We are very concerned to note that despite the passage 3 years since the enactment of the Lokpal and Lokayuktas Act, 2013 (LL Act, 2013) the law has not been operationalised. In order to operationalize the law, a simple amendment was required to the LL Act to provide that in the absence of a recognised leader of opposition, the leader of the single largest party in opposition be included in the selection panel for appointing the Lokpal.

There appears to be a complete lack of political will to operationalize the Lokpal law. This is borne out by the fact that although the Lokpal and Lokayuktas (Amendment) Bill, 2016 was passed by Parliament in July 2016, it did not include the provision to alter the composition of the selection committee.

In order to operationalise the LL Act 2013, an amendment stating that in the absence of a recognised leader of opposition, the leader of the single largest party in opposition in the Lok Sabha be included in the selection panel for appointing the Lokpal, must be immediately taken up for passage in the current session of Parliament.

Dilution of provision related to asset disclosure by public servants (S. 44 of the LL Act, 2013) 

Section 44 of the LL Act, 2013 required all public servants covered under the Act to publicly disclose their assets and liabilities and those of their spouses and dependent children. It stated that:

“44. (1) Every public servant shall make a declaration of his assets and liabilities in the manner as provided by or under this Act.

(2) A public servant shall, within a period of thirty days from the date on which he makes and subscribes an oath or affirmation to enter upon his office, furnish to the competent authority the information relating to—

(a) the assets of which he, his spouse and his dependent children are, jointly or severally, owners or beneficiaries;

(b) his liabilities and that of his spouse and his dependent children.

(3) A public servant holding his office as such, at the time of the commencement of this Act, shall furnish information relating to such assets and liabilities, as referred to in subsection(2), to the competent authority within thirty days of the coming into force of this Act.

(4) Every public servant shall file with the competent authority, on or before the31st July of every year, an annual return of such assets and liabilities, as referred to in sub-section (2), as on the 31st March of that year.

(5) The information under sub-section (2) or sub-section (3) and annual return under sub-section (4) shall be furnished to the competent authority in such form and in such manner as may be prescribed.

(6) The competent authority in respect of each Ministry or Department shall ensure that all such statements are published on the website of such Ministry or Department by31st August of that year.

Explanation.—For the purposes of this section, “dependent children” means sons and daughters who have no separate means of earning and are wholly dependent on the public servant for their livelihood.”

The Lokpal and Lokayuktas (Amendment) Act, 2016 fundamentally dilutes the 2013 law as it has replaced the original S. 44 with:

44. On and from the date of commencement of this Act, every public servant shall make a declaration of his assets and liabilities in such form and manner as maybe prescribed.”.

The amended law, therefore, does away with the statutory provision to disclose the assets and liabilities of spouses and dependent children of public servants. The public disclosure clause has also been dispensed with. The amendments allow for the form and manner of disclosure of assets and liabilities of public servants to be prescribed by the Central government.

The amendments militate against the very purpose of the Lokpal which was established to receive and inquire into complaints related to offences punishable under the Prevention of Corruption Act (PCA). As one of the grounds of criminal misconduct under the PCA relates to public servants, or any person on their behalf, being in possession of pecuniary resources or property disproportionate to their known sources of income, it is critical that disclosure of assets and liabilities of public servants be of a high standard. Since illegally amassed assets can be handed over to family members, it is important that the declaration include details of assets of the spouse and dependent children of the public servant. Further, wide publicity, as envisioned in sub-section 6 of section 44 of the original Lokpal Act, is required to enable members of the public to make informed complaints to the Lokpal.

The amendments were made to ostensibly address various concerns of public servants, including those relating to invasion of privacy, security threats and fear of harassment.

However, the Supreme Court in PUCL vs UOI (2003) comprehensively examined and struck down the plea that the public disclosure of assets of the spouse of a candidate contesting elections would be a violation of the right to privacy of the spouse. The Supreme Court held that given the social order in our country, spouses look at properties held by them as belonging to the family. The Court stated that since benami property is often kept in the name of the spouse, the assets and liabilities of the spouse and dependent children must be disclosed. It went on to state that, “When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.”

The argument that public disclosure of assets will result in blackmail and harassment is not borne out by experience. In India, all candidates contesting elections to the Parliament and state legislatures are required to disclose details of their assets and liabilities and those of their spouse and dependents. These disclosures are publicly available on the website of the Election Commission of India from the year 2004. Similarly, since 2009, disclosure of assets of judges of the Supreme Court and High Courts, are publicly available on the websites of the respective courts. No significant cases of harassment of public servants or their security being compromised have come to light so far.

The need for a thorough financial disclosure regime, which entails disclosing assets of not just the public servant but also the spouse and dependent children, is globally recognised as an important element in an anti-corruption framework. Several countries, including the Nordic countries, which have among the lowest incidence of corruption globally, require asset disclosure information to be made publicly available, most commonly through the internet. Other countries which also publicly disclose asset declarations of public servants include- Portugal, Germany, the United Kingdom, Australia, Belgium, Canada, Finland, Ireland, Bulgaria, Croatia, Estonia, Georgia, Hungary, Latvia, Lithuania, Romania, Slovakia, USA, Cape Verde, Republic of Central Africa, South Africa, Belize, Brazil, Chile, Jamaica, Nicaragua, Canada and South Korea.

Therefore, the original scheme of public disclosure of assets and liabilities of public servants and their spouses and dependent children under S. 44 of the LL Act 2013 must be restored.

Workability of the Lokpal 

The LL Act, 2013 is a major step for the transparency and accountability regime in India. However, there are concerns about its workability as it covers a very large number of people in its ambit, which could potentially overwhelm the institution and undermine its efficacy.

Section 14 of the Act (enclosed as annexure 1) envisages that the Lokpal will receive and enquire into complaints of corruption againstthe Prime Minister, ministers, members of parliament, group A & B officials and also chairpersons, members, officers and employees of organisations established by an Act of Parliament. For group C & D officials, the law envisages that the complaints will be dealt with by the CVC.

In addition, the law also covers various functionaries of private, non-governmental organisations. Specifically, the law seeks to include under the jurisdiction of the Lokpal-

  1. Persons (current and former chairperson, members, officers and employees) associated with organisations which are wholly or partly financed by the Central Government or controlled by it [S.14(1)(f)]
  2. Persons (current and former directors, managers, secretaries or other officers) associated with organisations which are wholly or partly financed by the Government and the annual income of which exceeds Rs. 1 crore [S.14(1)(g) read with the notification]
  3. Persons (current and former directors, managers, secretaries and other officers) associated with organisations receiving donation from any foreign source under the Foreign Contribution (Regulation) Act, 2010 in excess of ten lakh rupees in a year [S.14(1)(h) read with the notification].

Under Section 14(1)(f) and (g), the existing and former functionaries of all organisations even partly financed by the central government would be covered. This, by itself, would translate into lakhs of people situated across the country coming under the ambit of the Lokpal. In addition, under Section 14(1)(h), the current and former directors, managers, secretaries and other officers of organisations receiving donation from any foreign source under the Foreign Contribution (Regulation) Act, 2010 in excess of ten lakh rupees in a year are included in the ambit of the Lokpal. As per the MHA annual report, more than 30,000 organisations are registered under the FCRA, most of which would be receiving foreign funds in excess of 10 lakh rupees. Given the various functionaries of such organisations which the law seeks to cover, even a conservative estimate would suggest that at least an additional 1.5 lakh people would be covered.

Covering such a large number of persons under the jurisdiction of the Lokpal is undesirable and impractical. The Lokpal Act was legislated to fill the vacuum resulting from the lack of an adequately independent and empowered body to look into allegations of corruption in high offices, including those of the PM, Ministers, Members of Parliament and high ranking government functionaries. Corruption involving high ranking public officials is usually of a complex and intricate nature and therefore, the Lokpal has been set up as a specialised agency with appropriate resources.

Burdening the Lokpal with complaints of corruption against lakhs of persons associated with private, non-governmental bodies who do not exercise the kind of influence and power which high ranking public functionaries do,will distract the agency and dilute its efficacy, thereby defeating the key purpose for setting it up. Figures available in the public domain suggest that the CBI, the premiere investigating agency of the country currently disposes about 1100 cases every year. The LL Act envisages that the Lokpal will primarily depend on the CBI to carry out investigations into complaints received by it (barring those related to group C & D officials). Even if the resources and capacity of the CBI are augmented, a very wide jurisdiction of the Lokpal would result in huge delays in investigation thereby adversely impacting the functioning of the anti-corruption ombudsman. The purpose of having a specialised agency and special courts in order to ensure time-bound investigation and prosecution of cases of corruption will be totally defeated.

Rather than attempting to make the Lokpala “super” institution which deals with all cases of corruption, it would be prudent to set up different appropriately empowered institutions, if required, to deal with allegations of corruption against functionaries of private organisations, whether commercial, for profit or not-for-profit.

In any case, as per Section 14(3) of the LL Act, 2013, all persons including functionaries of private organisations will be inquired into by Lokpal if such persons are involved in the act of abetting, bribe giving or bribe taking or conspiracy relating to any allegation of corruption under the Prevention of Corruption Act, 1988 against a person covered under S 14(1).

Therefore, Section 14(1)(g) should be deleted and Section 14(1)(f) should be amended as follows to remove reference to “wholly or partly financed by the Central government”:

“(f) any person who is or has been a chairperson or member or officer or employee in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or controlled by the Central Government.”

If at all functionaries of private organisations are to be included, then the criteria for inclusion should be defined in such a manner that functionaries of only a limited number of organisations which are financed by the government (involving significantly large sums of public funds) are included under the jurisdiction of the Lokpal. To that end, Section 14(1)(g) could be amended as follows:

“(g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not), by whatever name called, wholly or partly financed by the Government in excess of Rs. 10 crore annually or such higher amount as the Central Government may, by notification, specify;”

The inclusion of organisations receiving funds under the Foreign Contribution (Regulation) Act, 2010 in excess of ten lakh rupees in a year under S. 14(1)(h)appears to be without a legal basis and potentially violates the constitutional guarantee of equality before law. The LL Act and the accompanying notes fail to explain why persons associated with only those organisations that receive foreign funds under the Foreign Contribution (Regulation) Act, 2010 have been singled out for inclusion under the Lokpal, while organisations receiving foreign funds under other instruments including FDI, bilateral agreements or through commercial contracts have been excluded.

Therefore, section 14(1)(h)  should be deleted.

Demands/ recommendations 

  1. In order to operationalise the LL Act 2013, an amendment stating that in the absence of a recognised leader of opposition, the leader of the single largest party in opposition in the Lok Sabha be included in the selection panel for appointing the Lokpal, must be immediately taken up for passage in the current session of Parliament.
  2. The original scheme of public disclosure of assets and liabilities of public servants and their spouses and dependent children under S. 44 of the LL Act 2013 must be restored.
  3. Functionaries of private, non-governmental organizations should not be included in the ambit of the LL Act, 2013. If required, different appropriately empowered institutions must be set up to deal with allegations of corruption against functionaries of private organisations (whether commercial, for profit or not-for-profit).Section 14(1)(g) and 14(1)(h) of the LL Act, 2013 should be deleted. Section 14(1)(f) should be amended as follows to remove reference to “wholly or partly financed by the Central government”: “(f) any person who is or has been a chairperson or member or officer or employee in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or controlled by the Central Government.”
  4. If at all functionaries of private organisations are to be included in the ambit of the LL Act, 2013, then the criteria for inclusion should be defined in such a manner that functionaries of only a limited number of organisations which are financed by the government (involving significantly large sums of public funds) are included under the jurisdiction of the Lokpal. To that end, Section 14(1)(g) could be amended as follows: “(g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not), by whatever name called, wholly or partly financed by the Government in excess of Rs. 10 crore annually or such higher amount as the Central Government may, by notification, specify;”
  5. The LL (Amendment) Act, 2016 must be immediately referred to a Parliamentary committee to provide an opportunity for wider public debate and discussion. On July 28, 2016 during the discussion in the Rajya Sabha on the Lokpal & Lokayuktas (Amendment) Bill, 2016, the Minister of State for DOPT Dr. Jitendra Singh stated that the legislation will be referred to a Standing Committee of Parliament. However, the legislation does not appear to have been referred to any Parliamentary Committee and is not listed on the webpage of any committee.
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