India's anti-corruption ombudsman (Lokpal) slides into irrelevance

The “India Against Corruption” movement spearheaded by activist Anna Hazare in 2011 brought the entire country together on fighting for a common cause – the elimination of corruption in the government. Such was the power of the movement that it forced the hand of the Manmohan Singh-led UPA government at the Centre to pass the Lokpal and Lokayuktas Act in 2013 to make way for the creation of Lokpal (a public ombudsman).

The then CM of Gujarat Narendra Modi aptly captured the mood of the nation and promised to eliminate corruption from the corridors of all public offices in return for being voted to power in the 2014 Lok Sabha elections. Strengthening the Lokpal was one of the key mediums announced to eliminate corruption. The nation, reeling from a spate of corruption scandals and scams, gave the BJP an overwhelming majority that brought Narendra Modi into the office of the Prime Minister of India.

What is the Lokpal?

The Lokpal was established under the Lokpal and Lokayuktas Act, 2013, to inquire and investigate allegations of corruption against public servants (incl the Prime Minister, Union Minister, and MPs). It also brought within its ambit the chairpersons, members, officers, and directors of any board, corporation, society, trust, or autonomous body established by an Act of Parliament. The Lokpal comprised four judicial and four non-judicial members working under a chairperson.

Lokpal’s Achievements since 2013

Between 2013, when the Lokpal act was established and 2019, the Lokpal did not have a chairperson. In July 2018, the Supreme Court acknowledged that the BJP-government’s stand on completing the appointment process was “wholly unsatisfactory.”

In 2019-20, when the Lokpal was finally commissioned, it received 1,427 complaints. Of these, 85% were not admitted since it was found to be “outside its jurisdiction” and 6% were returned due to the complaints being filed in “incorrect format.” The complaints dropped to 110 in 2020-21 and reached a low of 30 complaints in 2021-22 (until Jul).

The declining number of complaints to Lokpal contradicted the crime rate in India which increased from 385.5 per lakh to 487.7 per lakh between 2019 and 2020.

The Lokpal has not been able to fully utilise the funds budgeted for it since 2019-20. The Lokpal was allocated Rs 101.29 crore for 2019-20, which was later revised to Rs 18.01 crore. In 2020-21, the original allocation was Rs 74.7 crore, which was revised to Rs 29.67 crore. In 2021-22, the Lokpal has been allocated Rs 39.67 crore. Of the funds spent, approximately Rs 60 crore has been spent for a permanent office for the Lokpal, all of which of course paid for by the Indian taxpayers.

In August 2021, the government in Parliament cited the declining number of complaints to the Lokpal as evidence that “there is hardly anything to complain against with regard to Modi’s government.”

According to former Union home secretary Madhav Godbole, the declining number of complaints should not be seen as a sign that corruption is declining in India, but as an indication that people seem to lack faith in the watchdog and hence don’t bother to make any complaints.

The role of the Modi government in Lokpal’s declining stature

Lokpal’s “toothless” image acquired over the years is largely attributed to the Modi government showing its absolute disregard for Lokpal. This can be surmised from the following key arguments:

• Delays in setting up the Lokpal: It took 5 years for the Modi government to appoint the chairperson of the Lokpal. As per a reply to an RTI application filed by activist Anjali Bhardwaj, Modi did not chair a single meeting of the Lokpal selection committee in the first 45 months of his government. The Department of Personnel and Training (DoPT) separately revealed that no meeting of the search committee was convened during that time either. The BJP-government claimed that since there was no Leader of Opposition (LoP) after the 2014 General Election, the committee responsible for selecting members of the Lokpal could not be constituted. This was a terribly weak argument as this ‘technicality’ could have been easily fixed by either recognising the leader of the single largest party in Opposition in the Lok Sabha as the LoP, or by amending the Lokpal law to allow the leader of the largest opposition party to be a member of the committee (as done for the selection committee of the CBI Director). The chairperson and members of the Lokpal were appointed only in March 2019 after a contempt petition was filed in the Supreme Court following the failure of the government to comply with the 2017 ruling of the court to initiate the process of making appointments.
• Appointments done by BJP loyalists: The rules state that the key judicial appointments must be done through a selection committee comprising the prime minister, speaker of Lok Sabha, leader of the opposition in Lok Sabha, the Chief Justice, or a sitting Supreme Court justice nominated by Chief Justice, and an eminent jurist. The members of the Lokpal in 2019 were selected by a truncated panel of BJP members and BJP loyalists comprising the Prime Minister, Speaker, and the then Chief Justice of India Mukul Rohatgi (as an eminent jurist). Mukul had earlier served as Attorney General of India during the BJP regime. The leader of the largest Opposition party in the Lok Sabha was invited for meetings of the selection committee as a ‘special invitee’, which he declined on grounds that it was mere tokenism as he had no say in the selection.
• Lack of transparency: There is a complete cover of secrecy around various aspects of Lokpal’s functioning. The complaints registered with the Lokpal are not made public and neither are the findings of the Lokpal which has closed most of the cases registered with it. The appointment process of the Lokpal chairman and its members, including the Central Information Commissioners is also shrouded in complete Despite a Supreme Court order to publicly share the criteria it followed to shortlist candidates for these posts, the Modi government has refused to do so.
• Keeping positions vacant: Two out of the four judicial posts in the Lokpal have been vacant since 2020. In addition, the crucial positions of director of inquiry (tasked with overseeing preliminary inquiries into corruption complaints) and director of the prosecution too are still vacant. Justice Dilip B. Bhosale, former chief justice of the Allahabad High Court, who was one of the four judicial members appointed in March 2019, resigned in just nine months lack of enough work as one of his reasons.
• Dilution of the Lokpal Act: In India, it is common for public servants to park assets in the name of family members. In 2016, the Modi government significantly diluted the Lokpal and Lokayuktas Act by removing the mandatory clause of having the public servants publicly declare the assets and liabilities of their spouses and dependent children. Instead, Modi’s government would now decide the form and manner of these declarations.

The issues surrounding the Lokpal seem eerily similar to those during the appointment of a Lokayukta (state’s equivalent of Lokpal) in Gujarat while Modi was the state Chief Minister. It took over a decade for Modi to appoint a Lokayukta in Gujarat. He removed the involvement of the Gujarat High Court Chief Justice in the appointment process by amending the Gujarat Lokayukta Act. This prompted Governor Kamla Beniwal to call it a “travesty of the institution of ombudsman”.

Lokayuktas

A Lokayukta is the state’s equivalent of Lokpal at the Centre and is riddled with the same challenges as that of the Lokpal. Just as with the Lokpal, many states have delayed the appointment of the local ombudsman. Even those that did, it made sure to disband it of all powers.

• Karnataka: The Karnataka Lokayukta had filed complaints against three chief ministers of three different political parties in the mining scam. It also acted against ministers, MLAs, and IAS officers for their involvement in corruption. However, in 2016, the Congress government transferred the investigative powers of the Lokayukta to the Anti-Corruption Bureau, which reported to the government itself.
• Kerala: It passed an ordinance that took away the powers of Lokayukta to remove an indicted public servant and made its ruling unbinding on the governor and chief minister. It designated the CM to have the final say in accepting or rejecting the Lokayukta’s verdict.
• Tamil Nadu, Maharashtra, West Bengal: The Chief Minister does not come under the purview of the Lokayukta.
• Delhi: The Lokayukta’s post has been vacant since December 2020, despite the fact that Chief Minister Arvind Kejriwal was one of the key members of the ‘India Against Corruption’ movement that gave birth to the Lokpal and Lokayuktas Act, 201
• Goa: Former Goa Lokayukta Justice Prafulla Kumar Misra said while retiring in Sep’20 that the state BJP government hadn’t taken any action on the 21 reports he had submitted as Lokayukta.
• Himachal Pradesh: There has been no Lokayukta for four years. It also amended its Lokayukta Act in Dec’21 allowing High Court judges to be appointed to the post, citing difficulty in finding suitable candidates.
• Nagaland, Odisha, and Tamil Nadu: These states appointed Lokayuktas only after 6 years since the Lokpal and Lokayuktas Act was established in 2013
• Uttarakhand: It yet doesn’t have a Lokayukta.

Views of the Transparency Activists

In the nearly three years of its existence, it’s difficult to recall even one prominent corruption case that the ombudsman has taken up.

Shailesh Gandhi, a former central information commissioner and a transparency activist, is sharp in his criticism of the Lokpal, calling it the “Jokepal” and a “senior citizen’s club with no accountability.” In his interview with Article 14, he said, “Anyone in India could dig out 100 examples of bribery every month in the government. So, why is the Lokpal not doing it?” He has even started a petition to make the Lokpal effective or disband it completely.

“The way the Lokpal has been envisaged by the government, it is not meant to succeed,” said Ashutosh, one of the most prominent faces of the Anna Hazare movement and a former AAP leader. According to him, civil society leaders are afraid that if they raise their voices, action will be taken against them.

Yogendra Yadav, one of the founding members of the Jan Lokpal movement and a former AAP leader lamented the lack of interest by the civil society that has led to the gradual weakening of Lokpal. “You need constant public pressure for these institutions to perform,” he said. And this is where the rubber meets the road. Not all reform-oriented institutions have inbuilt checks to keep them aligned to their purpose. Some require periodic judicial policing while some require to be constantly reminded of their accountability to civil society. Unless we, the common citizens, speak up and make our voice heard, ‘corruption-free India’ will remain only a slogan that we will pass on to our progeny.