LOKAYUKTA

CRIMINILOGY- IV TRIMESTER
PROJECT

SHIVANI GARG

2011 BALLB 75

Electronic copy available at: http://ssrn.com/abstract=2152061

 Contents
ACKNOWLEDGEMENTS................................................................................................................................................... 3
INTRODUCTION............................................................................................................................................................... 4
APPOINTMENT................................................................................................................................................................ 5
THE NEED....................................................................................................................................................................... 7
AUTHORITY TO PUNISH.................................................................................................................................................. 8
NEED TO GIVE MORE POWER....................................................................................................................................... 9
BIBLIOGRAPHY.............................................................................................................................................................. 13

2
 ACKNOWLEDGEMENTS

I would like to thank several people who have been pivotal in the completion of this project.
I would like to express my gratitude towards my economics professor, Professor P.K. Shukla
for his immense support. . I would also like to thank Prof. SS Singh, the director of NLIU,
Bhopal.Lastly, I would like to show my appreciation to my friends and family, without which
this project would not have been possible

3
 INTRODUCTION

The Lokayukta is an anti-corruption authority constituted at the state level. It investigates

allegations of corruption and mal-administration against public servants and is tasked with
speedy redressal of public grievances.

The origin of the Lokayukta can be traced to the Ombudsmen in Scandinavian countries.
“Ombudsman” is a Swedish word that stands for “an officer appointed by the legislature to
handle complaints against administrative and judicial action.” The Administrative Reforms
Commission, (1966-70) headed by Moraji Desai, had recommended the creation of the
Lokpal at the Centre and Lokayukta in the states. The Centre is yet to get a Lokpal. The
recommendation for appointment of Lokayuktas at the States level, as indicated in that
report, was made to improve the standards of Public Administration, by looking into
complaints against administrative actions, including cases of corruption, favouritism and
official indiscipline in administrative machinery.

The Lokayukta is created as a statutory authority with a fixed tenure to enable it to

discharge its functions independently and impartially. The person appointed is usually a
former High Court Chief Justice or former Supreme Court judge.

Members of the public can directly approach the Lokayukta with complaints of corruption,
nepotism or any other form of mal-administration against any government official.

The Lokayukta, along with the Income Tax Department and the Anti Corruption Bureau,
mainly helps people bring corruption amongst the politicians and officers in the government
service to public attention. Owing to this, many acts of the Lokayukta have not resulted in
criminal or other consequences for those charged.

Written complaints are required from complainants by the Lokayukta office for
investigation. If the complaint takes the form of an allegation, the office insists on the filing
of an affidavit. Most of the complainants received turned out to be “anonymous,
pseudonymous, and trivial in nature or not made on prescribed forms or were submitted
without affidavits. “Many did not pursue their allegations when asked to file them in an
affidavit format. Lokayuktas can either investigate the complaints using their suo motu
powers under the state Act concerned or forward them to the heads of the departments
under the scanner for action or act as a mediator between the citizen and the government
servant against whom the complaint is made.

Any person, irrespective of the fact whether he is individually affected or not, can make a
complaint in the prescribed manner to the Lokayukta, giving specific details of the case
supported by relevant documents and accompanied by an affidavit in support of the
allegations in the complaint and a fee of Rs.500/- in the form of judicial stamp. He can
participate in the proceedings before the Lokayukta. Even if a person does not have wish to
participate in the proceedings or he is not individually affected, he can give information to
the Lokayukta about corruption, abuse or misuse of power, favoritism and nepotism etc. by
the public functionary in writing or otherwise. The Lokayukta has also power to initiate an
inquiry on information received or suo motto.

A complaint or the information received in the office of Lokayukta is first scrutinized to

ascertain as to whether the same falls within the jurisdiction of Lokayukta or not? If it is
covered under the Act, an inquiry is commenced. The complainant and the concerned public
functionary can participate in the inquiry and present their case. The Lokayukta is
empowered to summon any person or document including public record. He can also
examine the witnesses on oath and issue commission for examination of witnesses.
Lokayukta can also utilize the services of any officer or investigative agency of Govt. or any
other person/agency. On the basis of inquiry, Lokayukta upon completion of inquiry, in case
the allegations are established, makes a report to the Competent Authority i.e. President,
Lt.Governor or Chief Secretary. The Competent Authority is required to intimate within
three months, the action taken or proposed to the taken.

APPOINTMENT

The Governor or the Lieutenant Governor1 shall, with the prior approval of the President
(Not necessary in all states), appointed a person to be known as the Lokayukta and one or
more persons to be known as Upalokayukta. In certain states it is mandatory to seek
approval of the Chief Justice of the High Court of that state and the Leader of the Opposition
in the Legislative Assembly. In certain states like Bihar and Uttarakhnad a Selection
Committee is also formed and the Lokayukta is based upon its recommendations. Consisting
of:

 the Chief Minister — chairperson;

 one Minister to be appointed by the Chief Minister;
 the Leader of the Opposition in the State Legislative Assembly or if there is no such
leader a person elected in this behalf by the Members of the Opposition in the State
Legislative Assembly in such manner as the Speaker may direct member;
 outgoing Lokayukta;
 two sitting Judges of the High Court to be nominated by the Chief Justice of the High
Court;

1
In the case of NCT of Delhi
  one eminent citizen of the state to be nominated by the Chief Minister in consultation
with the leader of the opposition and the Chief Justice of the High Court.

The Selection Committee can regulate its own procedure for selecting the Chairperson
and Members of the Lokayukta which shall be transparent.
 THE NEED

The existing devices for checks on elected and administrative officials have not been
effective, as the growing instances of corruption cases suggest. The Central Vigilance
Commission (C VC) is designed to inquire into allegations of corruption by administrative
officials only.

The CBI, the premier investigating agency of the country, functions under the supervision of
the Ministry of Personnel Public Grievances and Pensions (under the Prime Minister) and is
therefore not immune from political pressures during investigation. Indeed, the lack of
independence and professionalism of CBI has been castigated by the_Supreme Court often
in recent times. All these have necessitated the creation of Lokpal with its own investigating
team in earliest possible occasion.

Therefore, there is a need for a mechanism that would adopt very simple, independent,
speedy and cheaper means of delivering justice by redressing the grievances of the people.
Examples from various countries suggest that the institution of ombudsman has very
successfully fought against corruption and unscrupulous administrative decisions by public
servants, and acted as a real guardian of democracy and civil rights.

Recently, the Karntaka Lokayukta unearthed the Mining Scam. The Lokayukta Report on
illegal mining in Karnataka details the methods in which miners, government officials and
ministers colluded to defraud the government of mining revenues. The report details the
complete breakdown of democratic governance in the bellary area and uncovers the "zero
risk system", a protection and extortion racket, masterminded by G. Janardhana Reddy. The
report describes the illegal money transfers to foreign companies and tax shelters by mining
entities such as Obulapuram Mining Company, Associated Mining Company, GLA Trading
and GJR Holdings owned by the Reddy Brothers. The report tells about illegal mining,
bureaucrats-politicians-businessman nexus. Even banks and public sector companies also
participated in the loot. There are more than 100 names involved in illegal operation.
NDMC, Adani enterprise, JSW Steel are some major name in fraud list. Charges against these
companies are illegal movement of iron ore from mining yard without permits and without
paying royalties, forest encroachment, mining lease violations, overloading of trucks and
sandry violation etc. The iron ore was illegally exported to china through ports of southern
India and payment is made through more than 4000 banks account. Damage to
environment can not be calculated. This report was prepared mainly from the Income Tax
Commissionerate of Central Circle.
 AUTHORITY TO PUNISH

The Lokayukta derives it authority to punish from the same source as that of the State.
According to Beccaria’s Origin of Laws, the source is as follows:

Laws are the conditions under which men, naturally independent, united themselves in
society. Weary of living in a continual state of war, and of enjoying a liberty which became
of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the
rest in peace and security. The sum of all these portions of the liberty of each individual
constituted the sovereignty of a nation and was deposited in the hands of the sovereign, as
the lawful administrator. But it was not sufficient only to establish this deposit; it was also
necessary to defend it from the usurpation of each individual, who will always endeavour to
take away from the mass, not only his own portion, but to encroach on that of others. Some
motives therefore, that strike the senses were necessary to prevent the despotism of each
individual from plunging society into its former chaos. Such motives are the punishments
established, against the infractors of the laws. I say that motives of this kind are necessary;
because experience shows, that the multitude adopt no established principle of conduct;
and because society is prevented from approaching to that dissolution, (to which, as well as
all other parts of the physical and moral world, it naturally tends,) only by motives that are
the immediate objects of sense, and which being continually presented to the mind, are
sufficient to counterbalance the effects of the passions of the individual which oppose the
general good. Neither the power of eloquence nor the sublimest truths are sufficient to
restrain, for any length of time, those passions which are excited by the lively impressions of
present objects.

The same ideology is held by Social Contract theorists. The social contract or political
contract is a theory or model, originating during the Age of Enlightenment, that typically
addresses the questions of the origin of society and the legitimacy of the authority of the
state over the individual. Social contract arguments typically posit that individuals have
consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the
authority of the ruler or magistrate (or to the decision of a majority), in exchange for
protection of their rights. The question of the relation between natural and legal rights,
therefore, is often an aspect of social contract theory.
 NEED TO GIVE MORE POWER

While the Lokpal Bill for a Central anti-corruption watchdog is battling birth pangs and
threatens to go the Women's Reservation Bill way, the lokayukta, the state-level
ombudsman, is being slowly ground to dust by politicians.

Only 19 states have instituted the office, most of which are in a moribund state. A politically
conscious state such as Tamil Nadu, which routinely sees the Opposition levelling corruption
charges at the incumbent government, has successfully evaded it citing the federal structure
of our polity. Success stories are just a handful: Kerala, Karnataka and Uttar Pradesh. Even
there, the lokayuktas are severely hobbled by the lack of prosecution powers, basic
infrastructure and staff. In Karnataka the politicians conveniently sat on the appointment of
the Lokayukta after Justice Hegde’s activism led to the then chief minister and tourism
minister going behind bars.

 UP Lokayukta Justice (retd) N K Mehrotra on Friday recommended CBI and ED inquiry

against leader of opposition and prominent BSP leader Naseemuddin Siddiqui after
finding charges of disproportionate assets against him, his son and brother to be
true. The Lokayukta has written to Chief Minister Akhilesh Yadav in this connection.
The fact-finding by Lokayukta also holds minister guilty of 'misusing' his office for
issuing mining lease during his tenure in the former BSP government. The mining
leases were handed over to benefit six companies of his son Afzal Siddiqui.
Infact, Afzal Siddiqui has himself informed the Lokayukta that his income for three
years, the time since he started filing returns, was Rs 56 lakh while his expenditure
was more than Rs 1 crore. For one of the food processing companies in Amroha,
they had acquired three plots only on the basis of affidavits, said the Lokayukta. The
companies got lot of unsecured loans, which private companies cannot get, and had
lot of banking transactions. The government till date hasn't made up its mind on the
recommendation.
 In an order last year, Lokayukta Justice Manmohan Sarin had slammed Dikshit for
alleged misrepresentation of facts about construction of 60,000 low-cost flats in the
run up to the assembly polls.
In response to a complaint, the Lokayukta in its order has said that Dikshit had stated
that 60,000 low-cost houses were ready for allotment when they were not even
built.
The Lokayukta has recommended the President to take appropriate action against
the chief minister but the President had virtually rejected the report and asked the
concerned department of Delhi government to be careful on such issues.
  UP Lokayukta N K Mehrotra Tuesday recommended a criminal inquiry against MLA
and former sports minister Ayodhya Prasad Pal for amassing wealth disproportionate
to his known sources of income, money laundering and committing financial
irregularities in the sports department.
Pal is the eleventh minister of the erstwhile Mayawati government to be indicted by
the Lokayukta so far. In a report sent to Chief Minister Akhilesh Yadav, Mehrotra
recommended a criminal probe against Pal by any of the four investigation agencies
— namely the CBI, Enforcement Directorate, UP Vigilance Establishment or the Anti-
Corruption Organisation.
The Lokayukta also indicted Pal for using his influence as minister to grab the land of
gram sabha and forest department and assimilate it into a farmhouse owned by his
brother Rajkumar and two sons Omdutt and Ajay. The current value of the
farmhouse was estimated to be over Rs 10 crore.

 In an extraordinary judgment that must count among the sharpest indictments ever
handed out to any State government, the Gujarat High Court has upheld Governor
Kamla Beniwal's appointment of Justice R.A. Mehta as the Lokayukta over objections
by Narendra Modi and his Council of Ministers. The single judge bench of Justice
V.M. Sahai ruled that, although the Governor was otherwise required to act on the
aid and advice of the Council of Ministers, she had become obliged to exercise her
discretionary powers in this case, because it fell in the rarest of rare category where
a “spiteful” Chief Minister and his “brazen” and “irrational” Council of Ministers had
put democracy in peril by obstructing the appointment of the Lokayukta. The Gujarat
government has expectedly moved the Supreme Court against the judgment.

Going by a recent circular, it appears that senior officials of the state government are
ignorant of the powers of the Lokayukta.

In a September 28, 2011 circular, chief secretary S V Ranganath directed all departments to
consult the Lokayukta before reinstating officials who had been suspended for alleged
corruption or trapped by its sleuths. The circular says that if an official is suspended on the
recommendation of the Lokayukta police, the body’s permission is required to revoke the
order. It cited the Karnataka Civil Services (Classification, Control & Appeal) Rules, which
state that only the authority which has the power to suspend has the power to reinstate.

However, the government seems to have overlooked an order of the High Court of
Karnataka which makes it clear that the Lokayukta neither has the power to recommend
suspension nor revoke it. It also says that it is improper for a government agency to even
seek a recommendation from the Lokayukta for revocation of suspension.
The range of powers vary. In, say, Delhi, the Lokayukta inquires into allegations of
corruption, misuse of authority and wrong doings of public functionaries including Chief
Minister, Ministers and MLAs. And civil servants/bureaucrats, judiciary, police and the Delhi
Development Authority are excluded from its ambit.

There are several other important differences. Lokayuktas of Karnataka, Delhi and Madhya
Pradesh can take suo motu cognizance of the practices of corruption by public servants, but
the UP Lokayukta has to receive a complaint to initiate an inquiry. Also, while the Karnataka
Lokayukta has an investigation wing and the MP Lokayukta has the power of
superintendence over investigations, the UP Lokayukta has neither.

The Karnataka Lokayukta also has the power to initiate prosecution against any public
servant if he is satisfied that the public servant has committed a criminal offence. For this
purpose, he need not obtain the sanction of any authority. The UP Lokayukta has no such
power.

Nor are the reports of the UP Lokayukta binding on the government. In fact, there are
several instances when the state government did not take any action on the
recommendations of the Lokayukta. In such cases, the Lokayukta can only send a special
report to the governor, which the governor may table in the state Assembly.

The Karnataka Lokayukta can, after an inquiry, report to the governor or the chief minister
that a public servant should be removed from office. If this report is not rejected within
three months, it is deemed to have been accepted and the public servant is deemed to have
vacated office. Also, the Karnataka Lokayukta may issue a search warrant and authorise any
police officer not below the rank of inspector of police to conduct a search and seize the
property, document, money or other things found as a result of search. Provisions of the
Code of Criminal Procedure apply on the searches and seizures on a Lokayukta warrant and
the warrant is deemed to be a warrant issued by a court under Section 93 of the Code of
Criminal Procedure, 1973. The UP Lokayukta has no such powers.

The annual report of the UP Lokayukta office for 2010 mentions nine recommendations
given to the UP government from 2006 to 2010 regarding allegations against ministers and
legislators, but the Lokayukta office has received action taken reports of only two cases,
where recommendation were partially implemented. Seven recommendations were
pending with the government and no action-taken report was sent.

A large number of cases were regarding corruption in municipal corporations. There were
14 reports against presidents of municipal corporations or nagar panchayats. According to
the report, 11 of these were pending with the government, two were partly implemented,
while one report was fully implemented.
However, even though the Karnataka Lokayukta is bestowed with a larger ambit of power,
the situation therein is no better. Karnataka Lokayukta Santosh Hegde, known for his
crusade against corruption and the mining lobby, made a sudden decision to resign from his
post and criticised the BJP government for its "indifference to Lokayukta institution".

Announcing his decision at a crowded press conference soon after submitting his
resignation letter to governor HR Bhardwaj, the former Supreme Court judge said, "I have,
as you all knew, tendered my resignation from the post of Lokayukta to the governor with
effect from August 31, 2010.

The Haryana Lokayukta also feels that the authority should have the authority to prosecute
officers who fail to comply with its order, as it happens in the case of court orders.

At present, the Lokayukta can conduct raids and search the house of the officer against
whom the complaint of acquiring property disproportionate to his known sources of income
has been filed. But he cannot take action against the official. Though at present the
Lokayuktas in states have power to pass orders against the non-complying officials, they
can't pass orders to send the accused behind bars as it happens in the case of legal courts.
"Lokayuktas need to have more powers.

However, positive steps are being taken in this regard. According to the proposed
comprehensive changes, the institution of Lokayukta will be uniform across the country and
made a three-member body. Across all states, the Lokayukta’s office will be headed by a
retired Supreme Court judge or high court chief justice and comprise the state vigilance
commissioner and a jurist or an eminent administrator as other members.

A collegium consisting of the respective chief ministers, leaders of the Opposition and chief
justices of the high courts will appoint all the three members. This will pave the way for
scrapping the post of Upa Lokayukta. The proposed legislation will make it mandatory for
states to establish the institution of Lokayukta.

As for wider powers for the institution, the GoM, headed by Finance Minister Pranab
Mukherjee, has taken cue from a conference of lokayuktas held some time ago and the
report of the second Administrative Reforms Commission, headed by Moily. The GoM
proposal is that the proceedings before the Lokayukta should be treated as judicial
proceedings investing it with the jurisdiction, power and authority to punish for contempt of
itself as in a high court.

The jurisdiction of the ombudsman will extend only to cases of corruption involving
ministers and legislators and it should not probe general public grievances.
 BIBLIOGRAPHY

http://articles.timesofindia.indiatimes.com/2012-04-25/gurgaon/31398771_1_publi c-
servants-chief-ministers-prosecution

http://ibnlive.in.com/news/lokayukta-court-orders-on-plaint-against-sadananda-gowda-
monday/289181-60-115.html

http://indiatoday.intoday.in/story/lokpal-lokayukta-offices-lack-basic-
infrastructure/1/173027.html

http://www.deccanherald.com/content/78301/lokayukta-may-get-constitutiona l-
status.html

http://www.dnaindia.com/analysis/column_to-fight-corruption-strengthen-lokayukt a-
rti_1685388

http://www.dnaindia.com/india/report_fed-up-with-corruption-karnataka-lokayukt a-
santosh-hegde-resigns_1400381

http://www.expressindia.com/latest-news/lokayukta-lacks-teeth-cant-probe-cm/838657 /

http://www.indianexpress.com/news/a-watchdog-without-teeth/639851/0

http://www.indlaw.com/guest/DisplayNews.aspx?AEC4AE66-9649-4CBE-B80C -
263048069ACB

http://www.ndtv.com/article/india/what-is-a-lokayukta-3706 7

http://www.thehindu.com/news/states/other-states/article2470291.ec e