Lokayukta and Upa-Lokayuta-Watchdog Agencies

Rajalaxmi Joshi Asst. Prof. ILS Law College

Why do we need Lokayukta and Upa-Lokayukta

• Traditional recourse • Departmental Control • Approaching the Court

• Departmental Hurdles – Factor of bias – Not very accessible– Lethargy – No action taken – Lack of documentary evidence

Hurdles in approaching courts

• Unequal contest – Common man V/S Public Officer– Lack of evidence– Less access to documents – Reluctance of courts to order disclosure– Govt. Privileges – Intention/ state of mind- difficult to prove – Lack of investigating tools– limitations on the power of the courts

Need for

• Independent • External to the Department • To review people’s grievances • To bring in administrative reform

• OMBUDSMAN

Indian Ombudsman

• Lokpal And Lokayukta: Upa-Lokayukata • Lokpal Bill : 1968,71,77,85,89,96,01,11

• Lokpal and Lokayukta Act 2013

• Lokayukta: Orissa, Maharashtra, Rajasthan, Bihar, UP, MP, AP, HP, Gujrath, Karnatak

The Lokpal and Lokayukta Act,2013

Sec. 63 Establishment of LokayuktaEvery State shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.

THE MAHARASHTRA LOKAYUKTA AND UPA-LOKAYUKTAS ACT, 1971

• Statutory Appointments • S. 3 Governor to appoint Lokayukta and one or more Upa-Lokayukta

In consultantion with in consultation CJ of HC and the leader with LokayuktaOf the opposition in Legislative Assembly

SECTION 4: LOKAYUKTA OR UPA-LOKAYUKTAS TO HOLD NO OTHER OFFICE

• The Lokayukta or an Upa-Lokayukta shall not be

• a Member of Parliament or• a member of the Legislature of any State and• shall not hold any office of trust or profit, or • be connected with any political party or • carry on any business or practice any

profession

• Term of office 5 years

• Powers and jurisdiction? • S.7 power to investigate

• Lokayukta•Upa-Lokayukta

•

Lokayukta may investigate

any action which is taken by, or with the general or specific approval of,

• (i) a Minister or a Secretary; or

• (ii) Public servant i.e. president or vice president of ZP, chairman or vice- chairman of Panchayat, chairman of standing committee

• or

• (iii) any other Public servant being a public servant of a class or sub-class of public Servants notified by the State Government in consultation with the Lokayukta, in this behalf,

Lokayukta and Upa-Lokayukta

• Operates at state level• S. 2(h) h) "Minister" means a member (other

than the Chief Minister) of the Council of Ministers by whatever name called, for the State of Maharashtra, that is to say, a Minister, Minister of State and Deputy Minister,

complaint regarding

• a ‘grievance’ or an ‘allegation’ in respect of such ‘action’

• (a) "action" means action taken by way of decision, recommendation or finding or in any other manner and includes failure to act; and all other expression connoting action shall be construed accordingly;

• (b) "allegation", in relation to a public, servant, means any affirmation that such public servant, (motive)

• (i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person,

• (ii) was actuated in the discharge of his functions as such public servant by , personal interest or improper or corrupt motives, or

• (iii) is guilty of corruption, or lack of integrity in his capacity as such, public servant

Upa-Lokayukata

• Complaints as to public officers Other than the ministers and secretary

• S. 2(d) "grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of maladministration

• What is maladministration? • (g) "maladministration" means action taken or purporting to have

been taken in the exercise of administrative functions in any case,

• (i) where such action or the administrative procedure or, practice :governing such action is unreasonable, unjust, oppressive or improperly discriminatory;-or

• (ii) where there has been negligence or undue delay in taking such action, or the administrative procedure or practice governing such action involves undue delays;

SEC8 : MATTERS NOT SUBJECT TO INVESTIGATION

• If mentioned in 3rd Schdule • Other remedy available • Inquires under Public Servant (inquiry )Act• Commissions of inquiry Act• After expiry of 12 months: Grievance• after the expiry of 3 years:Allegation• Delay can be condoned

Sec. 9

• Who can make a complaint? –Aggrieved : person aggrieved –Grievance : Any person

• How complaint can be made? By writing a letter by a person in police custody , asylum etc.

To avoid misuse

• every person who wilfully or maliciously makes any false complaint under this Act shall, on conviction, be punished with imprisonment, for a term which may extend to three years, and shall also be liable to, fine.

Procedure In investigation

• he shall forward a copy of the complaint or, in the case of any investigation which he proposes to conduct on his own motion, a statement setting out the grounds therefor, to the public servant concerned and the competent authority concerned;

• shall afford to the public servant concerned an opportunity to offer his comments on such complaint or statement; and

• Every such investigation shall be conducted. in private

• the identity of the complainant-and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during after the investigation

• Provided that, the Lokayukta or an Upa-Lokayukta may conduct any investigation relating to a matter of definite public importance in public, if he, for reasons to be recorded in writing, thinks fit to do so.

SEC 11: EVIDENCE

• may require any public servant or any other person to furnish information or produce documents relevant to the investigation,

• Lokayukta shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908

• summoning and enforcing the attendance of any person and examining him on oath ;

• requiring the discovery and production of any document;

• receiving evidence on affidavits;• requisitions any pub or copy thereof from any

Court or office-;• issuing commissions for the examination of

witnesses or documents ;• Such other matters as may be prescribed.

• Any proceeding before the Lokayukta or an Upa-Lokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code:

• Person can be punished for giving false evidence before the Lokayukta or Upa-Lokayukta

• no obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to the State Government or any public servant, whether imposed by any enactment or by any law, shall apply to the disclosure of information for the purposes of any investigation under this Act and the State Government or any public servant shall not be entitled in relation to any such investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by any enactment or by any rule of law in legal proceedings

SEC 12: REPORTS OF LOKAYUKTA AND UPA-LOKAYUKTAS

• injustice or undue hardship • shall, by a report in writing, • recommend to the public servant and the

competent authority concerned that such injustice or undue, hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.

• Competent Authority • To send report within one month stating the

action taken • If Lokayukta or Upa-Lokayukta is satisfied as to

action taken- close the matter

If not- send Special Report to Governor

Governor shall put a copy of report with an explanatory memorandum before each House of the State Legislature

SEC. 15: INTENTIONAL INSULT OR INTERRUPTION TO OR BRINGING INTO DISREPUTE, LOKAYUKTA OR UPA-LOKAYUKTA

• intentionally offers any insult, or causes any interruption to the Lokayukta or Upa-Lokayukta while the lokayukta while the Lokayukta or the Upa-lokayukta is conducting any investigation under this Act, shall on conviction be punished with simple imprisonment for a term which may extend to six months, or with fine, or both

• Whoever, by words spoken or intended to be read makes or publishes any statement or does any other act which is calculated to bring the Lokayukta or an Upa-Lokayukta into disrepute, shall on conviction be punished with simple imprisonment for a term which may extend to six months or with fine or with both.

• S. 16 Protection for action in good faith• S. 17 additional functions can be assigned

• Cases: Mishrimal Oswal V. Lokyukta MH• AIR 2005 Bombay 316

• YASHADA Web-site : information

• AIR 1985 Bombay 136• Dr. Vishwas Patil V. Lokayukta, MH

• Sec.10(6)• The conduct of an investigation under this Act

in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation

The Lokpal and Lokayukta Act 2013

• Object of the Act• An Act to provide for the establishment of a

body of Lokpal for the Union andLokayukta for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

Establishment of Lokpal Sec. 3

• Lokpal : A body • Chairperson and not exceeding eight other members

(4) The Chairperson or a Member shall not be—• (i) a member of Parliament or a member of the Legislature of any State or

Union territory;• (ii) a person convicted of any offence involving moral turptitude;• (iii) a person of less than forty-five years of age, on the date of assuming office as the Chairperson or Member, as the case may be;• (iv) a member of any Panchayat or Municipality;• (v) a person who has been removed or dismissed from the service of the Union or a State,• and shall not hold any office of trust or profit (other than his office as the

Chairperson or a• Member) or be affiliated with any political party or carry on any business or

practise any• profession and, accordingly, before he enters upon his office, a person

appointed as the

Chairperson or a Member, as the case may be, shall, if—• (a) he holds any office of trust or profit, resign

from such office; or• (b) he is carrying on any business, sever his

connection with the conduct and management of such business; or• (c) he is practising any profession, cease to

practise such profession

Term of office

• 5 years or 75 years which ever is earlier

• Sec. 11• Inquiry Wing: to inquire into offence alleged

to have been committed under the Prevention of Corrupt Act, 1988

• Sec 12• Prosecution Wing : to conduct prosecution of

public servant in relation to any complaint

Jurisdiction Sec. 14

• Prime Minister• Minister of the Union • Member of either house of parliament • Any member, employee…who is in corporations,

company, society, trust established by an Act of Parliament or wholly or partly financed or controlled by the Central Government

• Any director, manger…of society, association, or trust wholly or partly finance by the Govt. and annual income of which exceeds the amount prescribed

Procedure in respect of preliminary inquiry and investigation

• On receipt of complaint Lokpal may direct preliminary inquiry against public servant by inquiry wing or investigation

• Sec. 20 (2)

On the report given by Inquiry wing

• (a) investigation by any agency or the Delhi Special Police Establishment, as the

case may be;• (b) initiation of the departmental proceedings or any

other appropriate action• against the concerned public servants by the

competent authority;• (c) closure of the proceedings against the public

servant and to proceed against• the complainant under section 46.

Special Court Sec. 35

• To decide cases arising out of the prevention of corruption act

• Completion of trial in one year

Power of Lokpal

• May require public servant to furnish information Sec. 22

• Supervisory powers Sec. 25 in inquiry or investigation

• Power of search and seizure • Other powers of civil court• Attachment of assets sec 29 & 31 :proceeds of

corruption

Sec. 3232. (1) Where the Lokpal, while making a preliminary inquiry into allegations of corruption, is prima facie satisfied, on the basis of evidence available,—(i) that the continuance of the public servant referred to in clause (d) or clause (e) or clause (f) of sub-section (1) of section 14 in his post while conducting the preliminary inquiry is likely to affect such preliminary inquiry adversely; or(ii) such public servant is likely to destroy or in any way tamper with the evidenceor influence witnesses, then, the Lokpal may recommend to the Central Government for transfer or suspension of such public servant from the post held by him till such period as may be specified in the order.(2) The Central Government shall ordinarily accept the recommendation of the Lokpalmade under sub-section (1), except for the reasons to be recorded in writing in a case where it is not feasible to do so for administrative reasons.

• ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT

• 39. If any public servant is convicted of an offence under the Prevention of Corruption Act, 1988 by the Special Court, notwithstanding and without prejudice to any law for the time being in force, it may make an assessment of loss, if any, caused to the public exchequer on account of the actions or decisions of such public servant not taken in good faith and for which he stands convicted, and may order recovery of such loss, if possible or quantifiable, from such public servant so convicted:

• Provided that if the Special Court, for reasons to be recorded in writing, comes to the conclusion that the loss caused was pursuant to a conspiracy with the beneficiary or beneficiaries of actions or decisions of the public servant so convicted, then such loss may, if assessed and quantifiable under this section, also be recovered from such beneficiary or beneficiaries proportionately.

• Prosecution for false complaint• Period of limitation – 7 years

• Thank you