Remedies against Mal-Administration
Anagha S
Assistant Professor
Co-operative School of Law
Remedies against mal- administration
K C Wheare, “Mal-administration is a very large subject; and
it occurs wherever social organisation exists. It is not confined
to the operations of the government or the State alone”.
Public maladministration - ‘administrative action or inaction’
resulting from ‘improper considerations or conduct’.
It have all the features of poor governance- injustice,
unreasonable delay, negligence, partiality, arbitrariness,
inefficiency, violation of law, abuse of authority,
discrimination,etc.
Courts can’t rectify many administrative errors since there are
various limitations upon judicial control over administrative
actions- not illegalities but instances of mal-administration.
This led to the need for an institution to control instances of
mal-administration- led to development of various mechanism
for addressing the issue.
Features of mal-administration
• Delay.
• Incorrect action or failure to take any action.
• Failure to follow procedures or the law.
• Failure to provide information.
• Inadequate record-keeping.
• Failure to investigate.
• Failure to reply.
• Misleading or inaccurate statements.
• Failure to abide by enabling laws.
Remedies against Mal-administration
1. The managerial approach
management-oriented reforms
aims at maximizing ‘effectiveness, efficiency and economy’.
Modern techniques of scientific management in the areas of
recruitment, promotion and functional specialization can be
utilized to tackle the managerial roots of maladministration.
2. From a legal perspective
administrative laws may be enacted to check the power of
bureaucrats particularly ‘street-level’ bureaucrats who have
frequent and direct interaction with citizens at the grassroots level
3. The political approach
emphasizes governmental openness and responsiveness, the
legislature’s assertiveness in checking any arbitrary action
committed by the state, and citizen participation in selecting their
representatives who can transfer their complaints and views to
the governing authorities
Ombudsman Remedy
given the ineffectiveness of judicial control over mal-
administration, the concept of Ombudsman was introduced in
the Scandinavian countries.
first introduced in Sweden in 1809 and then in Finland in 1919
followed by New Zealand, England (Parliamentary
Commissioner), India (Lokpal and Lokayukta) etc.
Ombudsman means ‘a delegate, agent, officer or
commissioner’.
The institution of Ombudsman serves two important purposes:
• Redressal of individual grievances arising out of
maladministration
• Making more effective legislative supervision of the
administration
Powers and duties
enquires and investigates into complaints made by citizens
against abuse of discretionary power, maladministration, or
administrative inefficiency and takes appropriate actions.
The complainant need not prove his allegation before the
Ombudsman. It is his duty to find out whether the complainant
was justified or not.
He can even initiate action suo moto.
He can grant relief to the aggrieved person as unlike the powers
of a civil court, his powers are not limited.
Status
He/She may be a judge, lawyer or a high officer and his
character, reputation and integrity are irreproachable
Appointed by parliament - not an officer in the administrative
hierarchy.
He/She is above party politics and thinks and decide
objectively. Parliament doesn’t interfere with his discharge of
the duty.
He makes a report to parliament - makes recommendations to
eliminate the causes of complaint.
Reports will be published in newspapers - wide publicity
would be given to it.
Termed as the “watchdog”, “public safety valve” against mal-
administration and the “the protector of littleman”.
Defects
It is said that institution may be successful in countries with
little population but may not be useful in populous countries
like India, US, etc since the number of complaints may be too
large for a single man to dispose of.
Success of the institution also depends on the personality of
the Ombudsman.
As per Mukherjea J, in India this institution is not suitable
since it is an “impracticable and disastrous experiment” which
will not fit into the Constitution.
Lokpal and Lokayukta
Indian Lokpal is synonymous to the institution of Ombudsman
existing in the Scandinavian countries
The term Lokpal and Lokayukta was coined by Dr. L M
Singhvi.
In 1966, the First Administrative Reforms Commission
recommended the setting up of two independent authorities- at
the central and state level, to look into complaints against
public functionaries, including MPs, etc.
first move in this direction was made by the introduction of
Lokpal and Lokayuktas Bill in 1968- Bill lapsed due to
dissolution of Lok Sabha.
Same was the case when it was reintroduced in 1971- Lok
Sabha confined the jurisdiction of the Lokpal only to the
Central Administration.
appointment of the Lokpal to be made by the President in
consultation with the Chief Justice of India and Leader of
Opposition in the Lok Sabha
Based on the 1971 Bill, several states in India enacted similar
statute
Till 2011 eight attempts were made to pass the Bill, but all met
with failure.
Commission to Review the Working of the Constitution
headed by M.N. Venkatachaliah, in 2002 recommended the
appointment of the Lokpal and Lokayuktas- also
recommended that the PM be kept out of the ambit of the
authority.
• In 2005, the Second Administrative Reforms Commission
chaired by Veerappa Moily recommended that the office of
Lokpal should be established without delay.
• In 2011, the government formed a Group of Ministers, chaired
by Pranab Mukherjee to suggest measures to tackle corruption
and examine the proposal of a Lokpal Bill.
• “India Against Corruption movement” led by Anna Hazare put
pressure on the United Progressive Alliance (UPA)
government at the Centre - resulted in the passing of the
Lokpal and Lokayuktas Bill, 2013, in both the Houses of
Parliament. It received assent from President on 1 January
2014 and came into force on 16 January 2014.
Features of Lokpal and Lokayukta Act, 2013
It seeks to establish the institution of Lokpal at the centre and
Lokayuktas at the state level- an anti-corruption roadmap for
the nation at the Centre and at the State level.
jurisdiction of lokpal includes the Prime Ministers, Ministers,
Members of Parliament and Groups A, B,C and D officers and
officials of the Central Government.
The selection of the Chairperson and the members of Lokpal
shall be through a Selection Committee consisting of the
Prime Minister, the Speaker of the Lok Sabha, the Leader of
the Opposition, the Chief Justice of India or a sitting Supreme
Court Judge nominated by the Chief Justice of India and an
eminent person nominated by the President of India.
Search Committee will assist the Selection Committee in the
process of selection.
Prime Minister has been brought under the purview of the
Lokpal with subject matter exclusions and specific process for
handling complaints against him/her.
The exclusions for PM is with respect to the international
relations, external and internal security, public order, atomic
energy and space, unless a full Bench of the Lokpal, consisting
of its chair and all members, considers the initiation of a
probe, and at least two-thirds of the members approve it. Such
a hearing should be held in camera, and if the complaint is
dismissed, the records shall not be published or made available
to anyone.
Power of superintendence and direction over any investigative
agency including the CBI for cases referred to it by the
Lokpal.
It lays down clear timelines. For preliminary enquiry, it is
three months extendable by three months. For investigation, it
is six months which may be extended by six months at a time.
For trial it is one year extendable by one year and to achieve
this, special courts are to be set up.
Enhances maximum punishment under the Prevention of Corruption
Act, 1988 from 7 to 10 years- minimum punishment under sections
7,8,9 and 12 of the Act will now be three years and the minimum
punishment under section 15 (punishment for attempt) will now be
two years.
Institutions that are financed fully or partly by the Government are
under the jurisdiction of the Lokpal, but institutions aided by the
Governments are excluded.
It contains a mandate for setting up of the institutions of Lokayukta
through enactment of law by the State Legislature within a period of
365 days from the date of commencement of this Act.
Structure of Lokpal
1. Multi-member body consisting of one chairperson and a
maximum of 8 members.
2. Person to be appointed as the chairperson of the Lokpal must
be either:
• The former Chief Justice of India; or
• The former Judge of the Supreme Court; or
3. An eminent person with impeccable integrity and outstanding
ability, who must possess special knowledge and a minimum
experience of 25 years in matters relating to:
– Anti-corruption policy;
– Public administration;
– Vigilance;
– Finance including insurance and banking;
– Law and management.
The maximum number of members must not exceed eight.
These eight members must constitute:
• Half members to be judicial members;
• Minimum 50% of the Members to be from SC/ ST/ OBC/
minorities and women.
The judicial member of the Lokpal must be either:
• A former Judge of the Supreme Court or;
• A former Chief Justice of the High Court.
The non-judicial member of the Lokpal needs to be an
eminent person with flawless integrity and outstanding ability.
Non-judicial member must possess special knowledge and an
experience of a minimum of 25 years in matters relating to:
• Anti-corruption policy;
• Public administration;
• Vigilance;
• Finance including insurance and banking;
• Law and management.
Term and appointment to the office of Lokpal
Lokpal Chairman and the Members can hold the office for a
term of 5 years or till they attain the age of 70 years,
whichever is earlier.
The members and the chairman of Lokpal are appointed by the
president on the recommendation of a selection committee.
The selection committee consists of:
• The Prime Minister of India;
• The Speaker of Lok Sabha;
• The Leader of Opposition in Lok Sabha;
• The Chief Justice of India or any Judge nominated by Chief
Justice of India;
• One eminent jurist
The Prime Minister is the Chairperson of the selection
committee
The selection of the chairperson and the members is carried
out by a search panel of at least eight persons, constituted by
the selection committee.
Lokpal Search Committee
As per the Lokpal Act of 2013, the Department of Personnel
and Training needs to create a list of candidates who are
interested to become the chairperson or members of the
Lokpal.
The list was then to be presented to the proposed eight-
member search committee.
Committee on receiving the shortlisted names, place them
before the selection panel, headed by the Prime Minister.
The selection panel has discretion in selecting the names from
the list presented.
Limitations
A much-needed change in the battle against corruption-
weapon to curtail the corruption in the entire administrative
structure of India.
Appointing committee of Lokpal consists of members from
political parties that put Lokpal under political influence.
There are no criteria to decide who is an ‘eminent jurist’ or ‘a
person of integrity’ which can be manipulated.
The Act failed to provide any kind of concrete immunity to the
whistleblowers.
The provision as to initiation of inquiry against the
complainant where the accused is found innocent, leads to
discouraging people from making complaints.
Biggest lacunae being exclusion of the judiciary from the
ambit of the Lokpal. No appeal, review or reconsideration lies
against order passed by the Lokpal.
Limitation period of 7 years to file a complaint.
LOKAYUKTA
The state equivalents of the central Lokpal.
To deal with complaints on corruption against certain public
functionaries in the states.
Maharashtra was the first state to establish Lokayukta in 1971
followed by Kerala in 1999.
The system of Lokayukta can be much more effective than an
MP or MLA due to the freedom form political affiliation and
access to departmental documents.
Salient Features of Lokayukta
Structural Variations
The structure of the lokayukta is not the same in all states.
Some states like Rajasthan, Karnataka, Andhra pradesh and
Maharashtra have created the lokayukta and as well as
upalokayukta while some other have only Lokayukta.
Appointment
The Lokayukta and Upalokayukta are appointed by the
governor of the state.
While appointing them, governor in most of the states
consults:
1. The Chief Justice of the state high court
2. The leader of the Opposition in the state legislative assembly
Qualification
Certain states prescribes judicial qualifications for the
lokayukta. Ex: Uttar Pradesh, Himachal Pradesh, Andhra
Pradesh, Gujarat, Orissa, Karnataka and Assam. While certain
others doesn’t prescribe any specific qualifications.
Tenure
The term of office fixed for lokayukta is of 5 years duration or
65 years of age, whichever comes first.
Not eligible for reappointment
Investigation
In most of the states, the lokayukta can initiate investigations
either on the basis of a complaint received from the citizen
against unfair administrative action or suo moto.
But no such power of suo moto exists for certain states like
Uttar Pradesh, Himachal Pradesh and Assam.
Central Vigilance Commission
As a part of grievance redressal machinery, the Government of
India introduced the concept of Central Vigilance Commission
in 1964.
Set up on the recommendation of K. Santhanam Committee on
Prevention of Corruption.
Role is to advise and guide the Central Government in the
field of vigilance.
They are the apex vigilance institution- free of control from
any executive authority- monitors all vigilance activity under
the Central Government and advises authorities in Central
Government organizations in planning, executing, reviewing
and reforming their vigilant work.
The Parliament enacted Central Vigilance Commission Act,
2003 conferring statutory status on CVC.
Responsible only to Parliament and submits its report to
President.
The Commission shall consist of:
• A Central Vigilance Commissioner - Chairperson;
• Not more than two Vigilance Commissioners – Members
Functions:
receives complaints on corruption or misuse of office and
recommends appropriate action.
inquire or investigate whenever a public servant (Central
Government employee) commits an offence under the
Prevention of Corruption Act, 1988.
They review the progress of those applications that are pending with
competent authorities for sanction under the Prevention of
Corruption Act, 1988.
. Central Government and its authorities are advised on matters as
they refer to CVC members
Whenever the central government makes rules and regulations
governing the vigilance and disciplinary matters relating to members
of Central Services and All-India Services, CVC is consulted.
CVC members are part of the selection committee which is
responsible to recommend the appointment of the Director of
Enforcement (ED.)
The Commission acts as an authority to receive information
that is related to suspicious transactions under the Prevention
of Money Laundering Act, 2002.
Lokpal refers complaints to CVC who initiate a preliminary
inquiry in respect of officers and officials of Groups A, B, C &
D.
The commission receives complaints under Public Interest
Disclosure and Protection of Informers’ Resolution” (PIDPI),
also called Whistleblowers’ Resolution.
It is not an investigating agency. The CVC either gets the
investigation done through the Central Bureau of Investigation
(CBI) or through chief vigilance officers (CVO) in
government offices.
Service Conditions of CVC
Appointment:
The Central Vigilance Commissioner is to be appointed by the
President of India after the recommendation of a three-
member committee which consists of:
• Prime Minister
• Minister of Home Affairs (MHA)
• Leader of Opposition in Lok Sabha
Term:
They holds office for 4 years.
Removal:
She/He can be removed or suspended from the office by the
President on the ground of misbehaviour but only after
the Supreme Court has held an inquiry into his case and
recommended action against him.
Further, they can also be removed for proved misbehaviour or
incapacity if the Supreme Court inquiry finds him guilty.
She/He can also resign by writing to the President.
Central Bureau of Investigation
established in the year 1963.
CBI is the primary investigating agency of the Indian Central
Government.
In order to overcome the bribery and corruption during World
War-II period, Govt. of British India set up the Special Police
Establishment in 1941 which could investigate and look into
the cases of bribery and corruption.
In 1943, a Special Police Force was constituted by an
ordinance of the Government and after the ordinance got
lapsed on 30th September 1946, it was replaced by the Delhi
Special Police Establishment Act, 1946.
The Central Bureau of Investigation is not a statutory or
constitutional body but derives its roots from the Delhi Special
Police Establishment Act, 1946.
Composition of CBI
There shall be a director of CBI who heads the department-
Director appointed by Union Government based on
recommendation report given by a 3 member committee
(Prime minister, leader of the opposition party in Lok Sabha,
and CJI).
There shall be Joint Directors, Deputy Inspector General, and
Superintendent of Police.
There shall be a Directorate of Prosecution, whose work will
be to look after the cases registered under the Lokpal and
Lokayuktas Act.
The union government shall also appoint persons for the rank
of SP and above to work as subordinate officers with the
Commissioners and Director.
Functions of CBI
To investigate violent crimes through an effective system and
high technology.
helps in dealing with and combating cybercrimes and social
platform crimes.
help, supervise, and support police organisations in
investigating high suspension cases.
takes up cases on the direction of High Courts and Supreme
Court as well.
investigates cases of corruption, bribery, misconduct, and
misbehaviour of union government employees. It works under
the superintendence of the Central Vigilance Commission.
CBI may also take up a case at the State government’s request
if the matter relates to public importance.
