The Lokpal has been on the drawing board for nearly five decades. It will now become law if and when the President gives assent to the Bill passed by Parliament. The institution of Lokpal at the Centre along with the Lokayuktas in the states is modelled on the Swedish Ombudsman, an independent institution, which has the authority to inquire into and make reports/recommendations in regard to maladministration/malpractice at all levels of government. The government is expected to take appropriate action and also table a report in the legislature on the action taken or why the recommendation could not be accepted, generating a discussion if needed.
In short, the institution is an important supplement to the system of legislative control over the executive (in theory). The system was imported into India on the basis of the recommendation of the Administrative Reforms Commission of the early 1960s which recommended similar institutions, with the primary intent of controlling the rising incidence of corruption in administration, which was noted – even then – to be on the increase.
No uniform law
Over this period of nearly five decades, 19 states, including the National Capital Region of Delhi, have enacted the institution of Lokayukta/Lokpal under state laws at various points in time. The provisions of the legislation and powers of the Lokayukta, which could also include a Uplokayukta, vary widely from state to state, and, accordingly, it has been contended that the institution’s efficacy has also varied widely. Some observers have suggested – though not entirely rightly – that the institution of Lokayukta in Karnataka, who has the authority to investigate even a chief minister, a power Lokayuktas in many other states do not share, has been far more effective than those existing in other states. The institution of Lokayukta in Gujarat has also become the object of some controversy in recent times and even after the matter was finally decided in the Supreme Court, the post had continued to remain vacant. That the institution has come into existence in 19 states of the Indian Union has not resulted in any clear finding that states where the institution is not in existence are more corrupt. The clamour for a uniform law through the states does not take into account this ground reality.
The proposed institution of Lokpal at the Centre has been the subject of a protracted debate. Several Bills were allowed to lapse before the present Bill was passed in Parliament. The issues involved have been covered extensively in the media and need not reengage the present discussion. The limited point to be considered is whether the Lokpal as an institution will indeed be effective in our “war against corruption”.
Dr Madhav Godbole, a former union home secretary, has described these institutions as “paper tigers” and considers them ineffective in achieving the purpose for which they were created. The important difference between the Lokpal (at the Centre) and the state Lokayuktas as institutions would relate to the distinction between the powers of the President and the Governors under the Indian Constitution. Governors are accorded some discretionary powers under the Constitution and in specific laws, and are not hamstrung by the “aid and advice” of the council of ministers at least in some matters. This has also found recognition in rulings of the Supreme Court. The President has no such powers. Any doubt on the question whether he does have discretion to act independently of the “aid and advice” of the council of ministers (the idea which some of the first incumbents of that office had harboured), was set at rest by the 42nd and 44th Constitutional amendments.
Question of discretion
The President now has no “discretion” left when a council of ministers is in existence. If the Lokpal were to make an important recommendation to the President on the conduct of an individual minister or even the prime minister, the president will still be duty bound to consult the council of ministers. He simply cannot act independently. This will not only lower the prestige of the institution but will also add to the large number of “paper tigers” already allegedly in existence.
Unless, therefore, the Constitution is at least itself amended to restore the status quo ante, leaving some elbow room for the President the present exercise may turn out to be yet another waste of national time and money. What is needed is a constitutional amendment and not just ‘constitutional status’ for the Lokpal.