The Gujarat High Court is hearing an important case related to the appointment of the Lokayukta in Gujarat. The issue is whether the Governor can appoint the Lokayukta at his discretion or whether appointment can be made only upon obtaining the aid and advice of the Council of Ministers led by the Chief Minister. During the period 2006-2010, the Gujarat state government submitted names of two prospective appointees for the post of Lokayukta to the Governor. But no appointment was made during this period. On August 26, 2011 the Governor appointed retired judge R.A.Mehta as Lokayukta, whose name was not among those submitted by the state government. The Gujarat state government moved the High Court to quash the appointment on the ground that the Governor made the appointment without the aid and advice of the Council of Ministers led by the Chief Minister. Section 3 of the Gujarat Lokayukta Act, provides in part that “the Governor shall by warrant under his hand and seal, appoint a person to be known as Lokayukta”. The Governor acted under this section to make the appointment of Lokayukta. However, the state government has argued that section 3 has to be understood in light of Article 163(1) of the Constitution. Article 163(1) provides that the Governor shall be aided and advised in the exercise of his functions by a Council of Ministers with the Chief Minister at the head. Thus, as per this line of argument, the Governor violated the provision of Article 163(1) when she failed to take the aid and advice of the Council of Ministers led by the Chief Minister before exercising the function of appointing the Lokayukta. At the time of writing this post, news reports suggested that the two judges hearing the case are divided over the issue. It remains to be seen whether this issue will be referred to a larger bench. The outcome of this case could have wider implications on the constitutional role of governors if it sets guideposts on the extent to which they act independent of the advice of the council of ministers.
The Lok Pal (anti-corruption body) Bill has generated widespread interest in the past few days.
The Bill is an attempt by the government, under massive pressure due to corruption charges, to gain some of its lost ground. However, civil rights activists, including Anna Hazare, Swami Agnivesh, Kiran Bedi and Arvind Kejriwal, have termed the draft legislation as weak and demanded that fifty per cent of the members in the committee drafting the bill should be from the public.
But the common man appears to be in the dark about the scope of the proposed bill.
Here's an FAQ on the controversial bill.
What is the controversy between the government and Anna Hazare about?
Anna Hazare and other civil society activists have proposed a draft Lok Pal Bill to tackle the menace of corruption. The Prime Minister formed a sub-committee of the Group of Ministers to discuss the issue with these activists. However, these two groups were unable to reach an agreement on the provisions of the Lok Pal Bill. According to the government, the activists demanded that the government should accept the Bill drafted by them without any changes.
What steps has the government taken to enact the Lok Pal Bill?
In January 2011, the government has formed a Group of Ministers chaired by Shri Pranab Mukherjee to suggest measures to tackle corruption, including examination of the proposal of a Lok Pal Bill.
What is the purpose of the office of Lok Pal?
The office of the Lok Pal is the Indian version of the office of an Ombudsman who is appointed to inquire into complaints made by citizens against public officials. The Lok Pal is a forum where the citizen can send a complaint against a public official, which would then be inquired into and the citizen would be provided some redressal.
What are issues that have generated debate on the Lok Pal Bill?
There are diverging views on issues such as the inclusion of the office of the Prime Minister, Ministers and Members of Parliament, inclusion of judges, and powers of the Lok Pal. Some experts contend that all public officials should be accountable while others feel that the autonomy and privilege of Parliament require the Prime Minister, Ministers, and Members of Parliament to be accountable only to Parliament.
Have there been other attempts to establish the institution of Lok Pal at the central level?
Yes. The Lok Pal Bill has been introduced eight times in the Lok Sabha (1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001). However, each time the Lok Sabha was dissolved before the Bill could be passed, except in 1985 when it was withdrawn.
Have any expert commissions made recommendations on the office of Lok Pal?
Yes, a number of commissions have made various recommendations regarding the necessity of the office of the Lok Pal, its composition, powers and functions, and jurisdiction. The commissions, which dealt with the Lok Pal include the First Administrative Reforms Commission of 1966, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007. The Lok Pal Bills that were introduced were referred to various Parliamentary committees (the last three Bills were referred to the Standing Committee on Home Affairs).
What are the present laws that deal with corruption of public officials in India?
Public servants (such as government employees, judges, armed forces, and Members of Parliament) can be prosecuted for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. However, the Code of Criminal Procedure and the 1988 Act require the investigating agency (such as the CBI) to get prior sanction of the central or state government before it can initiate the prosecution process in a court.
Have the state governments been more successful in setting up bodies to redress public grievances against administrative acts?
So far 18 state governments have enacted legislation to set up the office of Lokayukta and Uplokayukta (deputy Lokayukta). The 18 states are: Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Gujarat, Jharkhand, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Uttarakhand, and Uttar Pradesh.
Which other countries have the office of the Ombudsman for grievances?
Sweden, Finland, Denmark, the Netherlands, Austria, Portugal, Spain, New Zealand, Burkina Faso and the United Kingdom are some of the countries which have the office of an Ombudsman.
The article was published on rediff.com on April 5, 2011
