and UpaLokayuta Watchdog Agencies Rajalaxmi Joshi Asst Prof ILS Law College Why do we need Lokayukta and UpaLokayukta Traditional recourse Departmental Control Approaching the Court ID: 204348
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Lokayukta and Upa-Lokayuta -Watchdog Agencies
Rajalaxmi
Joshi
Asst. Prof. ILS Law CollegeSlide2
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 Slide3
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 Slide4
Need for Independent External to the Department
To review people’s grievances
To bring in administrative reform
OMBUDSMAN Slide5
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
Slide6
The Lokpal and Lokayukta Act,2013
Sec. 63 Establishment of
Lokayukta
Every 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
.Slide7
THE MAHARASHTRA LOKAYUKTA AND UPA-LOKAYUKTAS ACT, 1971Statutory 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
Lokayukta
Of the opposition in
Legislative Assembly Slide8
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 professionSlide9
Term of office 5 years Powers and jurisdiction? S.7 power to investigate
Lokayukta
Upa-Lokayukta
Slide10
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, Slide11
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,Slide12
complaint regardinga ‘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;Slide13
(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 servantSlide14
Upa-LokayukataComplaints as to public officers Other than the ministers and secretary Slide15
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;Slide16
SEC8 : MATTERS NOT SUBJECT TO INVESTIGATIONIf 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 Slide17
Sec. 9Who 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.Slide18
To avoid misuseevery person who wilfully
or maliciously
makes any
false complaint
under this Act shall, on conviction, be punished with
imprisonmen
t, for a term which may
extend to three years
,
and
shall also be liable to,
fine
.Slide19
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; andSlide20
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.Slide21
SEC 11: EVIDENCEmay 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, 1908Slide22
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.Slide23
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-LokayuktaSlide24
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 proceedingsSlide25
SEC 12: REPORTS OF LOKAYUKTA AND UPA-LOKAYUKTASinjustice 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.Slide26
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 LegislatureSlide27
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 bothSlide28
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.Slide29
S. 16 Protection for action in good faithS. 17 additional functions can be assigned Cases: Mishrimal
Oswal
V.
Lokyukta
MH
AIR 2005 Bombay 316
YASHADA Web-site : information Slide30
AIR 1985 Bombay 136Dr. 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 Slide31
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.Slide32
Establishment of Lokpal Sec. 3Lokpal
: A body
Chairperson and not exceeding eight other membersSlide33
(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 anyprofession and, accordingly, before he enters upon his office, a person appointed as theSlide34
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 professionSlide35
Term of office5 years or 75 years which ever is earlierSlide36
Sec. 11Inquiry 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 Slide37
Jurisdiction Sec. 14Prime MinisterMinister 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 Slide38
Procedure in respect of preliminary inquiry and investigation On receipt of complaint L
okpal
may direct preliminary inquiry against public servant by inquiry wing or investigation
Sec. 20 (2)Slide39
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.Slide40
Special Court Sec. 35To decide cases arising out of the prevention of corruption act Completion of trial in one yearSlide41
Power of LokpalMay 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 Slide42
Sec. 32
32.
(
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 evidence
or 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
Lokpal
made 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
.Slide43
ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT39. 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:Slide44
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.Slide45
Prosecution for false complaintPeriod of limitation – 7 years Slide46
Thank you