The Citizen and Administrative Faults

Introduction

Over the past few decades, there has been a tremendous increase in the amount of activities that have been performed by the government. Due to this, a wide amount of powers have been awarded to government officials making the entire process more susceptible to individual grievances. Off late, the number of complaints regarding bribery, corruption, delays, negligence and nepotism have been increasing constantly. The current democratic process are not sufficient enough to deal with the volume of complaints against the Government from the Citizens. The scope to deal with a view of the judicial administration is also very less.

Sometimes the only way to solve the above-mentioned problems is to directly approach a Minister, although in case of an allegation against the minister the remedy is not clear. The Ombudsman has risen as the answer to address the wrongs of the government officials in modern countries.

Ombudsman

The Ombudsman was introduced in Sweden in 1809, and was adopted in Finland in 1919 and Denmark in 1955. It was then set up in New Zealand, a Commonwealth Country as a form of parliamentary form of government in 1962. It also exists in England. The Ombudsman is an officer of the Parliament who investigates complaints given by citizens against the government. If the complaint is justified, they help the citizens to seek remedies. The Ombudsman has high status and can investigate acts of corruption or negligent behaviour done by government officials and even ministers. The system is highly flexible. It is highly successful in all the countries that it was implemented in. It has been adapted to suit the needs and conditions of each country. For instance, the Finnish Ombudsman not only has jurisdiction over the cabinet ministers, but also possess the power to prosecute them. The Danish Ombudsman has authority over both ministers as well as judges.

Ombudsman in India

The implementation of an Ombudsman in India was highly essential. The scale of activities that is performed by the government is massive, and hence requires a substantial amount of manpower as well. Owing to this, the citizens are plagued by several issues such as bribery, negligence, maladministration, red-tapism and so on. It is also not possible to rely on just the courts for seeking justice as the system is inadequate to deal with amount of complaints received.

To address the grievances suffered, the Administrative Reforms Commission decided to establish an Ombudsman in India known as the Lokpal on the suggestion of Morarji Desai in 1966. The Commission in its report gave the following reasons for its establishments, and they are –

1. Since the Indian government is democratic, it is of the people, by the people and for the people, it has a responsibility to address the grievances of the people and find ways to solve them and satisfy the citizens.
2. The current mechanisms that exist for judicial review and parliamentary control are not sufficient and will not suffice the constant growth of government activities as well.

The Commission also gave the following principles that should be followed by the Lokpal in India –

1. He should be independent and impartial.
2. The investigations should be conducted in private and should be informal in nature.
3. The appointment should as apolitical as possible.
4. His status should be equivalent to the highest judicial functionary of the country.
5. The process should not have any judicial interference and he should have any and all extension required to obtain the necessary information required to undertake his duties.
6. He should deal with matters that are related to corruption, and injustice.
7. He should not look forward to any benefits from the executive Government for his duties.

The Lokpal is to be appointed by the President on advice of the Prime Minister in consultation of the Chief Justice of India along with the leader of the opposition of the Lok Sabha. The person is to cut off all ties to any political parties, member of Parliament and or any office of profit if he has any. His tenure will be for five years and he is eligible for reappointment. He may be removed only through the process of impeachment like the Supreme Court Judges. His status and salary is identical to that of the Chief Justice of India.

The Central Government introduced the first Lokpal Bill 1968, and further legislation was introduced in 2005. The Final Bill was passed in 2013. As of February 2018, the Indian Government is yet to appoint a Lokpal.

The Lokpal can accept complaints from anyone except the public servants. The Bill empowers the public servant to give and produce information and documents that are relevant to the investigation to the Ombudsman. The Lokpal has the power of Civil court under Civil Procedure Court, 1908 to call upon witnesses to get evidence for the purpose of an investigation.

The jurisdiction of the Lokpal extends to investigate any administrative action that was taken by a Minister, Secretary of State or State Government on the basis of a complaint by a citizen or in relation to corruption or maladministration. Although there are some exceptions to the power of the Lokpal –

1. Action relating to foreign countries and their governments
2. Actions related to the Extradition Act and Foreigners Act
3. The power to determine whether a matter can go to court or not
4. Action in relation to appointments and removals
5. Action taken for investigation of crime

While the Lokpal deals with administrative malpractice on a national scale, there has been an establishment of Lokayukta in a state-to-state basis in several states like Orissa, Maharashtra, Bengal, Rajasthan, Bihar, Uttar Pradesh and so on. The main principles of the Up Lokayukta Act, 1975 are explained hereunder.

1. The Lokayukta is to be appointed by the Governor with the consultation of the Chief Justice of the High Court and the Leader of the opposition of the Legislative Assembly.
2. The Lokayukta shall be a person who is or was a judge of the High Court or Supreme Court.
3. He shall not be a part of any political party or an office for profit.
4. His tenure extends for 5 years unless he resigns earlier or is removed for misbehavior or incapacity by the Governor.
5. His removal must be approved by at least two-thirds of the legislative assembly the state.

The Lokayukta must present an annual report on the performance of their function under the Act of Governor.

In K.K. Ramachandran Master v. The Kerala Lokayukta & Others [AIR (2007) Ker 38] a question of jurisdiction arose. The court observed that the Lokayukta has no suo moto power to conduct any investigation through letters, newspapers or reports from anonymous people or pseudonyms and must comply with the necessary procedure.

The Right to Know

All democratic governments have the aim of having an open access system so that all citizens can access all information whenever they require. Participation in the government is an integral part of a democracy and there can be no such participation unless the people know what is going on. A modern democratic state is answerable to its people. Since it is the duty of the people to elect their representatives, it is essential that they are given the necessary information about them so that they can choose the right representative. The people must be provided access to individual governmental information and not shroud them in secrecy. Openness in government results in proper check and prevents a gross misappropriation of power.

The Supreme Court of India by a liberal interpretation deduced the right to know and access information on the reasoning that concept of an open government is a direct result from the right know which is implicit in the right of freedom of speech and expression under Article 19(1)(a) of the Constitution.

For this sake, the Right to Information Act, 2005 (RTI Act) was implemented. As declared in its long title it is “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.”

The Act defined “information” under Section 2(f) as any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

The Act creates an obligation on part of the Government to provide information to the citizens of India. They can get information in regards to the public authorities, although this is not applicable in the state of Jammu and Kashmir. This legislation is unique in the sense, it is not enacted for the people to follow but rather the Government to follow. Nearly 50,000 applications are filed under this Act on a daily basis.

Central Vigilance Commission

Corruption is a rampant problem that plagues Indian society as a whole. Everywhere, citizens come face to face with their problem that relate to corruption. To deal with this, the Central Vigilance Commission was established in 1964 to deal with corruption in government departments. On the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam Committee, Nittoor Srinivasa Rau, was selected as the first Chief Vigilance Commissioner of India. The current Central Vigilance Commissioner is K. V. Chowdary

The Central Vigilance Commissioner is to be appointed by the President. He has the same tenure as as a member of the Union Public Service Commission. He may hold office for a period of 6 years or till he attains the age of 65 years, whichever is earlier. Although, through a resolution passed his period of tenure was reduced to 3 years with provisions to extend his term for not more than 2 years keeping public interest in mind. After the Commissioner has completed his period of work, he may not work for either Union or State Government, nor accept any position with a political party. The Commission is a part of the Ministry of Home Affairs, but is not subordinate to any department and has the same level of independence as that of the UPSC.

Some functions of the CVC are as follows –

1. To undertake an inquiry or cause an inquiry or investigation to be made into any transaction in which a public servant working in any organisation, to which the executive control of the Government of India extends, is suspected or alleged to have acted for an improper purpose or in a corrupt manner;
2. To tender independent and impartial advice to the disciplinary and other authorities in disciplinary cases, involving vigilance angle at different stages i.e.investigation, inquiry, appeal, review etc.;
3. To exercise a general check and supervision over vigilance and anti-corruption work in Ministries or Departments of the Govt. of India and other organisations to which the executive power of the Union extends; and
4. To chair the Committee for selection of Director (CBI), Director (Enforcement Directorate) and officers of the level of SP and above in DSPE.
5. To undertake or cause an inquiry into complaints received under the Public Interest Disclosure and Protection of Informer and recommend appropriate action.

The Commission has to submit an annual report to the Ministry of Home Affairs, mentioning the cases in which its recommendations have not been accepted.

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Authored by: Nirupama V Shankar

The Tamilnadu Dr. Ambedkar Law University

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References

1. Jain, M.P., & Jain, S.N., Principles of Administrative Law, 2008
2. Sathe, S.P., Administrative Law, 2010
3. Kesari, Dr. U.P.D., Administrative Law, 2010

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