GUJARAT NATIONAL LAW UNIVERITY, GANDHINAGAR (2022)

ADMINISTRATIVE LAW

RESEARCH PAPER
ON
MALADMINISTRATION AND ITS REMEDIES

Submitted by: Faculty Supervisor:

D. Priyadarshika, 20BBL015 Dr.Girish. R
Manvendra Singh Shekhavat, 20BBL023 Assistant Professor of Law
Semester V (Batch 2020-25) Gujarat National Law University

This Research project is submitted for the partial fulfilment of the academic requirements for the
Subject ‘Administrative law’
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ACKNOWLEDGEMENT

“History of all great works has witnessed that no great work has ever been done without
either the active or passive support a person’s surrounding or one’s close quarters”.

We express my profound gratitude to our Professor Dr. Girish . R, Assistant Professor of Law,
Gujarat National Law University, for providing us with interactive lessons on Administrative
Law that helped us immensely in understanding the relevance and importance of this topic. We
are indebted to Sir for this expert knowledge and valuable guidance. We wish to express my
sincere thanks to the IT Staff and Dr. S. Shanthakumar, Director, Gujarat National Law
University, Gandhinagar for providing all the necessary facilities like the online database for
resources for carrying out this work, through these tough times.

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TABLE OF CONTENTS

S.No. TOPIC PAGE

No.
1 ABSTRACT 4
2 INTRODUCTION 5
3 THE CONCEPT OF OMBUDSMAN 6
4 HISTORY OF OMBUDSMAN 8
5 NEED OF OMBUDSMAN IN INDIA 8
6 GENESIS OF OMBUDSMAN IN INDIA 9
7 SALIENT FEATURES OF LOKPAL AND 11
LOKAYUKTA ACT
8 STRUCTURE OF LOKPAL 12
9 JURISDICTION 12
10 POWERS OF LOKPAL 13
11 SUPERINTENDENCE OF THE FUNCTIONING OF THE 14
CBI
12 LIMITATIONS 14
13 SUGGESTIONS 15
14 THE RIGHT TO INFORMATION 16
15 ENACTMENT OF RIGHT TO INFORMATION 18
16 FEATURES OF RIGHT TO INFORMATION AND 18
WORKING PROCESS
17 EXEMPTIONS 19
18 IMPACT OF RIGHT TO INFORMATION ON 19
ADMINISTRATION
19 REDUCTION IN CORRUPTION IN THE GOVERNMENT 21
20 CENTRAL VIGILANCE COMMISSION 21
21 FORMULATION 22
22 ROLE OF FUNCTIONS 23
23 ELUCIDATION 24
24 CONCLUSION 25

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ABSTRACT

Corruption and governmental maladministration are detrimental to economic and

public prosperity. Corruption also erodes the State's authority, fosters crime and violence,
and undermines the rule of law and the basic underpinnings of a democratic society.
Corruption in India demands examination as a national concern at least on par with
secularism, stability, reservation in services, women's political empowerment, and similar
topics. A democratic system of governance is always favored over any other system due to its
reverence for fundamental concepts such as the 'rule of law' and 'fairness in administrative
operations' and its equally critical attitude towards arbitrariness and the inappropriate
exercise of authority. In such a system, effective governance is essential. However, it can only
be guaranteed if government acts and policies have features of accountability and openness.
In a bureaucratic government structure, each department may receive complaints about the
activities or inactions of administrative agencies. There will inevitably be politically sensitive
issues included among these complaints. In view of this dilemma, the importance of an
impartial grievance resolution system is unquestionably essential for obtaining remedies
against arbitrary administrative actions of the government and its agencies. This study
illuminates the numerous options open to the residents of this nation to address the
maladministration that occurs in the government as a result of corruption and poor
governance. In India, citizens have recourse to the Lokpal, the right to information, and the
Central Vigilance Commission.

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INTRODUCTION

“Nobody can define maladministration in plain terms”

~ Edmund Compton

Maladministration could be hard to define, although it is likely to be identified when it

occurs. When you broaden the scope of administration to incorporate some adjudication and
rulemaking, the potential for maladministration is also increased.1 The definition of
maladministration, however, is constrained if you assign it a narrower meaning and, in
particular, omit rulemaking and adjudication.

There is no question that it will be viewed as a case of maladministration because it was an

official activity that broke the law. This could result, for example, from a failure to uphold a
legal obligation, from actions that exceeded legal authority or from the misuse of legal authority
for purposes other than those for which it was granted. It might result from behaviour that did
not follow a legal process established by statute or by the courts in a number of judgments
meant to avoid, to the extent feasible, the use of legal authority in an arbitrary or irrational
manner.

The actions would be viewed as falling within the umbrella of conduct that constitute
maladministration and were impacted by what may be informally referred to as corruption. In
the majority of cases, this would amount to some sort of illegality, but there are some situations
in which influence may be used to persuade officials to act or not act in a situation in which
they have authority, even though it may not be immediately apparent that any illegal activity
was taking place but where it may be argued that there had been maladministration.

Maladministration may be described as “administrative action (or inaction) based on or

influenced by improper considerations or conduct. Arbitrariness, malice or bias, including
discrimination, are examples of improper considerations. Neglect, unjustifiable delay, failure
to observe relevant rules and procedures, failure to take relevant considerations into account,

1
“Mahendra Khairnar, Administrative law in India: In need of reformation, LAWYERS CLUB INDIA (March
31, 2012)https://www.lawyersclubindia.com/articles/Administrative-law-in-India-In-need-of-reformation-
4657.asp”

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failure to establish or review procedures where there is a duty or obligation on a body to do so,
are examples of improper conduct”2.

It encompasses all the characteristics of poor governance which includes injustice, inability to
perform legislative functions as per its unreasonable postponement, intent, administrative
mistake, negligence, inadequate investigation, unfair policy, inadequate investigation,
arbitrariness, partiality, inefficiency, discrimination, violation of law or regulation, abuse of
authority, and other actions frequently imposed upon the governed, either intentionally or
unintentionally, by those who govern.

A country requires a well-organized administrative structure in order to grow and develop

integrally. This structure must be focused on solving populist issues and, most significantly, be
free of corruption. Maladministration is like a termite that steadily diminishes a nation's basic
foundation and stops the administration's very structure from performing its function, which
causes a variety of barriers to a country's advancement. Corruption is the primary contributor
to this issue of maladministration. Since administrative law is a field that is always expanding,
it cannot be isolated to just one area. It does not limit itself to a single area of law and must
ultimately be present wherever the power has been abused. An effective system of
administrtion cannot avoid being accountable to the public. However, it has been claimed that
“absolute power corrupts completely”, meaning that if there is authority, there will inevitably
be misuse of it. The likelihood of administrative law impinging on a person's rights has
multiplied as administrative agencies have infiltrated every part of our life. It ultimately results
in the requirement for a suitable system that can protect a person's rights from being violated
by administrative errors. In order to defend people's rights from the State's administrative
practises and to prevent inefficiencies in the State's administrative structure, different nations
have developed the institution of “ombudsman,” which came to the aid and proven to be of
enormous value.

THE CONCEPT OF OMBUDSMAN

Essentially, an entity that is independent of the executive, legislative branch, and judicial
branch is what an ombudsman is thought to be. It is freely available to any citizen who feels
aggrieved by a decision made by an official body. If a citizen makes a sincere complaint to the

2
“Rajeev Dhavan, Engrafting the Ombudsman Idea on a Parliamentary Democracy- A comment of the Lokpal
Bill, Vol No. 19 JOURNAL OF THE INDIAN LAW INSTITUTE(1977)
https://www.jstor.org/stable/43950515#metadata_info_tab_contents
”

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Ombudsman, the latter will assume responsibility for conducting a thorough investigation on
his or her own without charging the complainant any fees or placing any burden of proof on
them. For the citizen, this is a huge benefit. This is when the speedy style of remedy
outperforms the cumbersome judicial proceedings of the courts.

When we use the phrase “Ombudsman,” a picture of someone who is above the normal man,
has good judgment and patience, and is willing to help individuals who have frequently been
subjected to unfair treatment by those who are experts in the art and craft of public
administration, comes to mind.3 However, some who are experienced about public
administration view him as a balancing factor that also makes sure the administrator is not
demoralized by spurious allegations. The Ombudsman basically has the power to examine the
administrative decisions made by the various government departments from the perspective of
the citizen's complaint.

In the Justice Report, it is said on the significance of the Ombudsman: “He is not a super
administrator to whom a person can appeal when he is content with the discretionary decision
of a public official in the hope that he may acquire a more favorable result. His main
responsibility is to look into claims of maladministration”.

The term “Ombudsman” in the context of Utility refers to a “watchdog of the administration”
or “the protection of the ordinary people”. All citizen complaints of misuse of discretionary
authority, maladministration, or ineffective administrative processes are investigated by the
Ombudsman, who then takes appropriate action. He is given quite broad authority for that
reason. He has accessibility even to the departmental records. The complainant is not required
to present any proof to support his claims before the Ombudsman.4 He has the authority to
provide the victim with relief. It is his responsibility to determine whether or not his complaint
was legitimate. He is even suo moto capable and his authority is unrestricted, unlike the
authority of a Civil Court.

3
“Mahindra Kumar Mohapatra, The Ombudsmanic Role of Legislators in an Indian State, Vol.1 No.3,
LEGISLATIVE STUDIES QUARTERLY(2006)https://www.jstor.org/stable/45198724#metadata_info
contents”
4
“Abedin, Najmul. “The ombudsman institution and conflict resolution in the contemporary third world
societies.” JOURNAL OF THIRD WORLD STUDIES 23, no. 1 (2006): 219–33.
http://www.jstor.org/stable/4519872”.

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The Lokpal and Lokayukta Act was enacted to establish Lokpal for the Union and Lokayukta
for States to perform the functions of Ombudsman in India.

HISTORY OF OMBUDSMAN

The year was 1713, and Sweden's King Charles XII was at war with Russia. In order to monitor
how the public officials were performing their duties, the King established an institution called
the “Hogsta Ombudsmannen” but in 1719, the title of this institution was altered to
“Justitiekansler,” meaning “Chancellor of Justice”.

In several Scandinavian nations, the Ombudsman system has been in place for a very long time.
The Ombudsman's primary role is to analyse the administrative decisions made by the various
government agencies from the perspective of the complaints of the public. Its jurisdiction's
boundaries have changed throughout time. For instance, the Ombudsman has authority over
the courts in Sweeden or Finland but not in Norway or Denmark. The conventional safeguards
that citizens have had against political authority have been inadequate due to the expansion of
modern government’s roles and duties and, as a result, their control over the people. Judicial
review has proven to be excessively formal and time-consuming for parliaments, in addition to
being dialatory and costly. The old Scandinavian institution of the Ombudsman has gained
fresh respect in a number of contemporary polities, chiefly due to these factors. Denmark took
the initiative in this regard by enacting a law in 1954 forming a Parliamentary Commission.
The “Parliamentary Commissioner (Ombudsman) Act, 1962” was then passed in New Zealand
in 1962.

The ombudsman institution was first widely adopted in the democratic world by Great Britain
in 1967, and it was primarily based on the report's 1961 recommendations. As the developing
nations began to take the concept of an ombudsman into consideration, Guyana became the
first developing nation to adopt it in 1966. Later, Guyana was followed by Mauritius,
Singapore, Malaysia, and India in doing the same. With very small modifications caused by
changes in the diverse historical and political systems of the respective countries, whether they
are developed or still in the early phases of growth, all of these ombudsman systems are
basically established on the same framework and premise.

NEED OF OMBUDSMAN IN INDIA

In the modern era, governments all around the world have accrued a significant degree of
discretionary power. Abusing this power has the potential to seriously endanger a person's life,

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liberty, and property. To keep up with the expanding administration's complexity, the
Ombudsman is required as one of the control mechanisms in the administrative law arsenal.

The Indian government has already taken a number of steps to combat corruption and other
problems with the public sector before establishing the Ombudsman office. The Ministry of
Home Affairs in Delhi built a Vigilance Commission office and in order to deal with unique
issues revealing a lack of public morality and ethics on the part of public employees, the Central
Government established the “Central Bureau of Investigation” and a “Special Police
Establishment”.

The fundamental cause of maladministration in our nation is corruption. Just because of

corruption, public entities are inefficient and slow-moving. Most anti-corruption organizations
lack independence. The “Central Bureau of Investigation” has been compared as a “caged
parrot” that only uses its master's voice while taking actions. Many of these organizations only
serve to provide suggestions, which are frequently ignored.There is no higher authority to
oversee the operation of these institutions. Additionally, the employees were not held
accountable for their mistakes.

The enactment of the Lokpal and Lokayukta Act was a very important step in this direction to
stop all of these dangers and threats.

GENESIS OF OMBUDSMAN IN INDIA

M.C. Setalvad, the country's former attorney general, brought up the necessity of a separate
body to investigate citizen’s complaints during the Third All India Law Conference, which
took place from August 12 to August 14, 1962. In reality, the establishment of an institution
like to an Ombudsman in India was the result of the tenacious efforts of the brilliant politician
Dr. L.M. Singhvi. He tried several times to persuade the government to create the Ombudsman
but was unsuccessful.5

Later, the then-Chief Justice of India, Shri P.B. Gajendragadkar, brought up the subject of
the Ombudsman and complimented the idea's thorough consideration as an impartial body for
the resolution of public concerns. In a conference held in October 1963, the Provincial Bar
Association of Madras approved the establishment of the Ombudsman institution. Several other

5
“Sharan, Sarojini. “ombudsman in india.” THE INDIAN JOURNAL OF POLITICAL SCIENCE 32, no. 2
(1971): 158–74. http://www.jstor.org/stable/41854435.”

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committees, including the “National Commission to Review the Working of the Constitution
(2002)” and the “Committee on Prevention of Corruption (1962)”, “Administrative Reforms
Commission of Rajasthan”, “Special Consultative Group of Parliamentary Ministers (1965)”,
“Administrative Reforms Commission (ARC) (1966 and 2007)”, and “Committee on
Prevention of Corruption (1962)”, have all advocated for the establishment of the Ombudsman
institution.

The notion of creating two different Ombudsman bodies, namely the Lokpal (people's
protector) and the Lokayukta (Commissioner of the People), was advocated by the
“Administrative Reforms Commission (ARC)”, which was established in 1966 and presided
over by the late Shri Morarji Desai. According to the ARC’s recommendation, the Lokpal was
supposed to handle complaints against government officials who were posted at the Center and
in the States, while the Lokayuktas—one in each State and one at the Center—were supposed
to handle complaints against public officials who weren't Ministers or Secretaries to the
Government.

Under the leadership of former Indian Chief Justice Shri M.N. Venkatachaliah, a new
commission known as "The National Commission to Review the Working of the Constitution"
was established in 2002. In order to attain a cleaner government, the Commission suggested
creating the Lokpal institution as a constitutional body. The Commission suggested two
things in particular—

(1) The Lokpal should be appointed, and the Constitution would require States to create the
Lokayukta institution.

(2) The Prime Minister's office should not be under the scope of the Lokpal.

Once more established in 2007, the Second Administrative Reforms Commission was presided
over by Dr. Veerappa Moily and made recommendations for constitutional amendments that
would have created the Rashtriya Lokayukta, a national Ombudsman.6 The Rashtriya
Lokayukta's duty and authority should be outlined in the Constitution, but the composition,
method of selection, and other specifics can be determined by law passed by the Parliament,
according to the Commission's recommendations. The Rashtriya Lokayukta should have

6
“Hemant More, Ombudsman, THE FACT FACTOR,( October 24, 2019)
https://thefactfactor.com/facts/law/civil_law/administrative-law/ombudsman/4268/”

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authority over all Ministers, Chief Ministers, and Members of Parliament, with the exception
of the Prime Minister.

The Lokpal Bill underwent a significant transformation in 2011 when it was enacted, ushering
in the establishment of the Lokpal institution at the federal level and the Lokayukta institution
at the state level. Another significant aspect of this bill is that it took several iterative rounds
of discussion and consulatation with all relevant parties, including the general public, before it
finally took its current shape. And it wasn't until after so many discussions and appropriate
consultations that this Act finally became effective on January 1st, 2014.

SALIENT FEATURES OF LOKPAL AND LOKAYUKTAS ACT

➢ To address the concerns of maladministration and corruption, the Lokpal and Lokayukta
Act, 2013, called for the formation of Lokpal for the Union and Lokayukta for States. These
organisations are statutory organisations with no constitutional authority. They serve as a
"ombudsman" and look into complaints of corruption against specific public officials as
well as other connected issues. In this regard, the establishment of the independent Lokpal
and Lokayukta institutions, which provides a remedy for the corruption and administrative
issues, has been a milestone event in the history of Indian politics.
➢ The Lokpal and Lokayuktas Act of 2013 stipulated that the Lokpal at the center will have
the authority to try corruption matters involving all Members of Parliament and employees
of the central government. The Lokpal performs similar duties, but the Lokayuktas work at
the state level.
➢ With sufficient protections, the office of the Lokpal and Lokayuktas handles allegations of
corruption against any public officer, including the office of the prime minister of the court.
The allegations of corruption against the government and its workers are handled by both
the Lokpal and the Lokayukta.7 In fact, they both conduct investigations and, based on the
results of those investigations, trials.8
➢ The statute makes it mandatory for each state to establish a Lokayukta and its set of powers,
but it doesn't specify how extensive those powers should be. As a result, multiple
Lokayuktas have been established, some of which have more authority than others. A

7
“Sumit and Oshoonesh Waghmare,Institution of Ombudsman – A legislative and Judicial Outlook, LAW
OCTOPUS( October 22, 2015),https://www.lawctopus.com/academike/institution-ombudsman-legislative-
outlook/#:~:text=The%20root%20cause%20of%20this%20problem%20of%20maladministration,instance%20w
here%20there%20is%20an%20abuse%20of%20power”
8
“Prapti Bhattacharya, Ombudsman in India, LEGAL DESIRE (24TH October 2004)
https://legaldesire.com/ombudsman-in-india/”

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proposal has been made to apply the Lokayukta consistently across all Indian states in order
to achieve uniformity. According to the Act, all states must establish a Lokpal and/or
Lokayukta office within a year of the Act's start date. The Lokpal, on the other hand, will
have a chairperson and a maximum of eight members, 50% of whom will be judges and
50% of whom must be women, minorities, or members of the SC/ST/OBC groups.
➢ The Lokpal Act allows for the seizure and attachment of any property obtained by a
government employee by corrupt means, and this can happen while legal action is being
taken against the official in question.
➢ All public officials must disclose their assets and liabilities, as well as those of any
dependents, according to the Lokpal Act. A Whistle Blowers Protection Act has also been
passed as an adjunct to the aforementioned Act, which in fact gives protection to any
government official who acts as a whistle blower.

STRUCTURE OF LOKPAL

The Lokpal body has one chairperson and a maximum of eight members, half of whom must
be judges and the other half from the SC, ST, OBC, minority, or female class. The President
picks the members based on the recommendations of a selection committee and search
panel that must consist of at least 8 people.

The Chief Justice of India or a judge that he or she nominates, the Speaker of the Lok Sabha,
the Leader of the Opposition in the Lok Sabha, and one distinguished jurist make up the
selection committee, which the Prime Minister chairs.9

The Chairman of Lokpal may be a former Chief Justice of India, a former Supreme Court judge,
or a well-known individual with specific knowledge and expertise spanning at least 25 years
in the fields of anti-corruption policy, public administration, diligence and surveillance, and
management, etc.10 Until the earlier of five years or the age of 70, the chairman's tenure is in
effect.

9
“Appointment of Lokpal, (2019), https://www.insightsonindia.com/2019/03/19/appointment-of-
lokpal-2/.”
10
“Dhavan, Rajeev. “engrafting the ombudsman idea on a parliamentary democracy—a comment on the lokpal
bill, 1977.” JOURNAL OF THE INDIAN LAW INSTITUTE 19, no. 3 (1977): 257–82.
http://www.jstor.org/stable/43950515.”

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JURISDICTION OF LOKPAL

➢ The Lokpal has the authority to hold the Prime Minister, Ministers, Members of Parliament,
Groups A, B, C, and D officers, and officials of the Central Government accountable for
any allegations of wrongdoing, excluding those involving corruption and those involving
security, Indian sovereignty, integrity, public order, friendly relations with other countries,
atomic energy, and space.
➢ Anyone who is or has ever been the director, manager, or secretary of a body that was
largely or entirely funded by the central government, as well as anyone else, is subject to
its jurisdiction.
➢ It also supervises and oversees CBI, and it has the authority to make orders and directions
to CBI to enhance its performance.
➢ The Lokpal's Inquiry Wing now has the authority of a civil court. As a result, it has the
authority to seize assets, revenues, and benefits obtained through dishonest means under
specific particular conditions.
➢ The Lokpal has the authority to support the dismissal, transfer, and disqualification of
public employees who are involved in allegations of corruption.”.

POWERS OF LOKPAL AS PER LOKPAL AND LOKAYUKTAS ACT

➢ It consists of the authority to supervise and direct the CBI. The investigating officer in any
case that the Lokpal has referred to the CBI is not permitted to be transferred without the
Lokpal's consent. The Lokpal has the authority to provide the CBI permission to conduct
searches and seizures as needed for cases related to certain cases.
➢ Under specific conditions, the Lokpal's Inquiry Wing will be given the authority of a civil
court, which includes the Lokpal, to seize any assets, proceeds, receipts, or benefits
obtained by the suspected corrupt individual.
➢ The Lokpal would have the authority to propose the transfer or suspension of a public
employee who is the subject of a corruption charge.
➢ Lokpal has the authority to issue any directives during the preliminary investigation to stop
anyone from destroying records.

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➢ The Lokpal while dealing with the cases arising out of the Prevention of Corruption Act,
198811 or under the Lokpal Act, if recommends, the Central Government shall constitute
Special Courts to hear and decide the cases. The time-limit for such courts to complete the
trial as per the Act, is to be within a period of one year from the date of filing of the case in
the court which may be extended for 3 months by recording in writing.
➢ However, the Act forbids the Lokpal from conducting an investigation into any allegation
leveled against the Chairperson or any Member of its own organization.

SUPERINTENDENCE OF THE FUNCTIONING OF THE CBI

The Lokpal & Lokayukta Act stipulates that the Lokpal shall have “superintendence” over the
CBI in addition to having the authority to inquire about or look into allegations that fall under
its purview against any committee. However, the lack of tools to implement the modification
recommended highlights the otiose nature of certain sections of the aforementioned Act.A
reform made to the process of choosing its Director as a result of this Act partially satisfies the
CBI's need for functional independence.Previously, the Director of the CBI was directly
appointed by a committee, which was typically dominated by the ideologies and emissaries of
the ruling government. In accordance with the Act, CBI agents who are working on matters
brought to them by the Lokpal may only be transferred with the Lokpal's consent.

The government rejected all of the recommendations made by civil society organisations and
awareness NGOs to improve the CBI's independence and investigative effectiveness in order
to include them in the Lokpal & Lokayukta Act. In order to provide complete financial and
administrative oversight of Lokpal over the CBI, proposals have been made for the budget to
be charged to the Consolidated Fund of India, the appointment and removal of senior CBI
officers to require Lokpal approval, and to make the Lokpal the receiving authority of annual
confidential reports of officers working on cases referred by the Lokpal.

LIMITATIONS

Like all other institutions in the world, the Lokpal body has flaws and shortcomings of its own.

11
“Tripathi, P. K. “lokpal: the proposed indian ombudsman.” JOURNAL OF THE INDIAN LAW INSTITUTE
9, no. 2 (1967): 135–52. http://www.jstor.org/stable/43949930”

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➢ A Lokayukta must be appointed within a year of the Lokpal act's entry into force. However,
only 16 states have thus far been successful in establishing the Lokayukta. Regarding the
appointment of Lokayukta, there are no limitations or guidelines; instead, each State's
specific norms and procedures are left in place.
➢ Although Lokpal was established to protect public institutions from political and other
forms of heinous corruption, Lokpal cannot be seen as being free from political influence
because the members of the selection committee are drawn from political parties.
➢ The membership of Lokpal's provisions is subject to easy manipulation. Because there is
no set standard for determining who qualifies as a "eminent jurist" or "a person of integrity,"
it is subject to manipulation. Additionally, there is a potential that a suitable applicant for
this job won't be selected owing to nepotism or another factor.
➢ The fundamental flaw in this arrangement is that the Lokpal has no authority over the
ultimate judiciary.
➢ As of right present, there is no legal process for someone to challenge the Lokpal's
judgment if they are not satisfied with it.
➢ The window of opportunity for complaining is constrained. Even if there are good reasons
not to file a complaint, the allegation of corruption cannot be cataloged after seven years
have passed since the alleged offense was committed, as stated in the letter of complaint.

SUGGESTIONS

➢ Lokpal and Lokayukta should be financially, administratively, and legally separate from
those they have the authority to investigate and bring legal action against.
➢ The selection of the Lokpal and Lokayukta must follow a clear set of rules that specify
who is eligible to be appointed to each position and how carefully their qualifications and
experience must be taken into account.To prevent the concentration of too much power
on someone, any one institution, or organization, there should be a number of scattered,
decentralized, or regional institutions with effective answerability mechanisms12.

“Dr.Madhubrata Mohanty, The Lokpal Act, 2013 – Still waiting for sunrise, SCC ONLINE ( August 7,
12

2018),https://www.scconline.com/blog/post/2018/08/07/the-lokpal-act-2013-still-waiting-for-the-sunrise/”

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RIGHT TO INFORMATION

“Secrecy is an instrument of conspiracy, ought never to be the system of regular

government.”

~ Jeremy Bentham

Meaningful participation of the people in public affairs constitutes democracy. A

democratically elected government must be sensitive to public opinion, which necessitates that
information be made accessible to the people.

“A Government which revels in secrecy not only acts against democratic decency but busies
itself with its own burial.”13

The “Right to Information” necessitates the engagement of citizens in the process of

governance and administration. The “Right to Information (RTI) Act” influences the people
and impacts the Indian Administration through greater transparency in the functioning of public
authorities; disclosure of information regarding government rules, regulations, and decisions,
and every public authority is required to maintain all records cataloged and indexed in a manner
and format that facilitates the information right under the act. If the Information pertains to
Government and Administration, the individual becomes engaged in good governance and
develops a self-protective and expanding character. The RTI Act permits the Indian populace
to combat governmental corruption, irregularities, and indifference. The Right to Information
encourages openness and accountability in the operations of all government agencies. In other
words, this act empowers the citizens of India to question, audit, review, scrutinize, and
evaluate government activities and decisions to ensure that they adhere to the principles of
public interest, good governance, and fairness.

ENACTMENT OF RIGHT TO INFORMATION

India has always been proud of being the world's largest democracy, but with the passage of
the Right to Information Act in 2005, it has also become a responsible, interactive, and
participatory democracy.

Information is the fundamental principle of democracy and effective government. John Adams
stated, "Remember that democracy seldom endures for very long. It quickly exhausts and

13“Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597”

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depletes itself. Never before has democracy not committed suicide." The factor that encourages
suicide is "secrecy" in the operation of government offices. Ignorance undermines democracy.

In the case of Bennett Coleman and Co v. Union of India14 in 1973, according to the majority
ruling of the Supreme Court, "Freedom of speech and expression encompasses the right of all
people to read and be informed." In 1975, during the National Emergency, the Supreme Court
of India ruled in a case that everyone had the freedom to obtain information. The 1981 court
judgment Manubhai Shah v. Life Insurance Corporation of India15 reaffirmed the point.

The Indian nation's Constitution does not officially include the right to information as a
fundamental right, however its philosophy supports such a provision. The Preamble of India's
Constitution establishes its democracy and guarantees its citizens social, economic, and
political justice, freedom of opinion, speech, and belief. This supports the conclusion that the
Indian Constitution is based on the principle of an open government. Similarly, Article 19(a) -
freedom of thought and speech - and Article 21 - right to life and personal liberty - would be
rendered redundant if the information is not freely accessible. Therefore, in India, the right to
knowledge is a fundamental human right that cannot be infringed; only reasonable restrictions
may be placed, and only for the reasons specified in Article 19(2)(I) of the Constitution. The
public domain belongs to the people, and the government is merely a trustee.

In conclusion, the basic concept at stake is the public's right to know. There have been countless
cases in favor of government transparency and information disclosure. Due to a lack of clear
regulation in this area, citizens had to approach the courts whenever they wished to assert this
right. Almost usually, courts have responded positively.

The Supreme Court of India stated that in State of Uttar Pradesh v. Raj Narain16 case,
“According to Article 19(1)(a) of the Constitution, the RTI is a fundamental right. Under the
freedom of information act of 2002, the Indian government develops a national act that
becomes legislation. This act was severely criticized for allowing an excessive number of
exemptions, not only on the standard grounds of national security and sovereignty but also for
requests that would involve a disproportionate diversion of a public authority's resources, for
which there was no cap on the fees that could be imposed and no penalties.

14“Bennett Coleman & Co v. Union of India, 1973 AIR 106: 1973 SCR (2) 757”
15
“Manubhai Shah v. Life Insurance Corporation of India, 1993 AIR 171: 1992 SCR (3) 595”
16
“State of UP v. Raj Narain, 1975 AIR 865: 1975 SCR (3) 333”

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FEATURES OF RIGHT TO INFORMATION AND WORKING PROCESS

The RTI procedure entails responding to the government's disclosure of information.

Information in any form, including records, documents, e-mail, circulars, news releases,
contracts, electronic data samples, etc. The RTI Act also covers the inspection of work, papers,
records, and their certified copies, as well as information in the form of diskettes, floppy discs,
tapes, video, cassettes, etc., or information saved in computers, etc. Each public and partial
public authority designate a Public Information Officer (PIO) and an Assistant Public
Information Officer (APIO) to provide the public with information. Anyone may submit a
written request/application for the required information to the PIO. The PIO is responsible for
providing the requested information within the specified time frame.

The application has been submitted with a ₹10 fee. The application cost is waived for SC and
ST applicants who fall below the poverty line (BPL). The RTI application does not require a
specific application, but the signed application must include the applicant's name and address,
the relevant information, and the PIO's name and position. The applicant has the right to file a
first appeal to the first appellate authority within the same public authority if the PIO fails to
process the RTI application within the prescribed time frame.

The first appellate authority is required by Section 19(1) of the RTI Act to give information
within 30 days, but the applicant is not required to comply. The applicant has the right to initiate
a second appellate appeal against the PIO with the Information Commission if the first
appellate authority failed to deliver the relevant information within the time limit. According
to the statute, the Information Commission is a quasi-judicial institution. The commission
undertake enquires as a civil court. The Commission has the right to levy a fine of ₹250.00
each day, not to exceed ₹25000.00. The RTI Act establishes two-tiered Commissions for the
federal government and the states.

EXEMPTIONS

A total of 25 government organizations are exempted from the ambit of the second schedule of
the RTI Act. These include:

• Intelligence Agencies
• Central Economic Intelligence Bureau
• Research Bodies working with the National Security Agencies
• Paramilitary Forces

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• Directorate of Enforcement
• Narcotics Control Board
• Special Service Bureau
• Police in Andaman Nicobar, Lakshadweep & Dadra & Nagar Haveli

However, these institutions must furnish information if the panel determines that the appellant's
request pertains to a case of corruption or violation of human rights.

IMPACT OF RIGHT TO INFORMATION ON ADMINISTRATION

The Right to Information is one of the most user-friendly laws. However, after more than a
decade since the Indian government passed the act in 2005, access to information remains
difficult. This act has both measurable and intangible effects on the system and the people.

The RTI Act influences individuals and the Indian Administration by promoting greater
Transparency in the functioning of public authorities: disclosure of information regarding
government rules, regulations, and decisions, and mandating that every public authority
"maintain all records duly cataloged and indexed in a manner and form that facilitates the right
to information under the Act." Public bodies are obligated to make proactive disclosures by
publishing pertinent documents. In addition, public authorities are expected to "give as much
information to the public at regular intervals via various methods of communication, including
the Internet, so that the public uses this Act to receive information as little as possible."

The RTI gives individuals with access to information. In addition, every public entity is
expected to give affected parties justifications for its administrative or quasi-judicial decisions.
Prior to the adoption of the RTI Act, it was not possible for an average citizen to obtain
information about a decision-making process, which was frequently found to be ineffective.
Therefore, it was impossible to have an open and honest discussion about matters of interest to
the general public.

Promotion of citizen-government partnership in the decision-making process: The RTI Act

establishes a framework for the promotion of citizen-government partnership in the execution
of programs for the public's welfare.

REDUCES IN CORRUPTION IN THE GOVERNMENT DEPARTMENTS

The absence of transparency and accountability promotes corruption among government

employees. As a result of the misuse of power and authority or diversion of cash for private

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purposes, investments are reduced. It fosters an atmosphere of mistrust between the people and
the administration, which hinders the growth of democratic government.

The RTI increases efficiency in policymaking, service delivery, and administrative decision-
making. It entails the selection of suitable programmes to accomplish government objectives.
Service efficiency is exemplified by the efficient delivery of services to the public, sensitivity
to public opinion, etc. Consequently, the efficiency of the government must be evaluated based
on all three aspects of efficiency. Administrative efficiency, the most essential of the three, is
conducting administration without needless delays, ulterior or corrupt intentions, and without
failing to provide justifications for varied instructions. It refers to the management of the
political system efficiently. It involves effective organization and productivity. When
necessary or inferred, natural justice principles must be observed.

According to the Corruption Perception Index, the primary sign of RTI in India is a gradual
decline in corruption (CPI). Transparency International's corruption perception index allows
us to examine the level of corruption in India, as well as the level or position of other nations,
via this ranking and score. Annually, Transparency International publishes the CPI ranking
nations. The CPI rates nations based on the perceived level of corruption in their governmental
sectors. Corruption is the misuse of power for personal benefit. Typically, it involves illegal
behaviors that are uncovered through scandals, investigations, or prosecutions.

The RTI Act has been an excellent tool for promoting administration transparency and
accountability. The majority of applicants and PIOs lack the knowledge and skills right to use
RTI correctly. As a result, not all citizens have access to government programs, public utility
services, and public distribution systems. As a result, disadvantaged populations are frequently
on the receiving end of government corruption, incompetence, and favoritism.

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CENTRAL VIGILANCE COMMISSION

“There can be no faith in government if our highest offices are excused from scrutiny —
they should be setting the example of transparency”

~ Edward Snowden

The misuse of power for personal gain by bureaucrats, politicians, government officials, and
public servants can be traced to the British regime. Before 1947, democracy was a fantasy, and
corruption was deeply rooted in the system's foundations. The Officials Secrets Act of 1923,
enacted by the British government, criminalised the disclosure of any State-related information
to the general public, hence facilitating the continuance of misdeeds.

Post-independence, the Prevention of Corruption Act 194717, The Government passed a law to
tackle the rampant corruption within the administration. Constituted in 1963, the Prevention of
Corruption Committee, popularly known as the Santhanam Committee, suggested the
establishment of a Central Vigilance Commission to monitor government activities. This was
done in response to the growing abuse of power by political personalities and government
bodies, with the intention of ensuring their correct operation.

The 2019 Corruption Perception Index published by Transparency International puts India as
the eightieth least corrupt nation out of a total of 180. The numbers paint a clear picture of the
present corruption, which is primarily attributable to government and corporate institutions.
This demonstrates the significance of a centrally coordinated statutory authority, such as the
Central Vigilance Commission, in keeping an eye on the officials and their activities, thereby
contributing to good governance.

Central Vigilance Commission is a supreme autonomous entity vested with the authority to
assess and oversee government actions to ensure an atmosphere free of corruption. 2003 saw
the enactment of the Central Vigilance Commission Act18, which gave the authority statutory
legitimacy.

FORMULATION

During the pre-independence era, the Indian government established a Special Police
Establishment in 1941 to curb corrupt activities during World War II. The Special Delhi

17“Prevention of Corruption Act, 1947”

18“Central Vigilance Commission Act, 2003”

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Establishment Act19 was enacted as a result of the persistence of these abuses even after World
War II. in 1946 with extended scope and jurisdiction. With the assent of their respective
governments, all territories and states came under its administration. The central authority
functioned under the direction of the Home Ministry.

However, its investigative authority was limited to crimes specified under the Prevention of
Corruption Act of 1947, specific provisions of the Indian Penal Code20, and sixteen other
central legislation. On the recommendations of the Santhanam Committee in 1963, this
necessitated the establishment of a centralized police authority called the Central Bureau of
Investigation. This authority now has the jurisdiction to investigate frauds involving
government agencies, passport frauds, and significant offenses involving professional groups
and organizations.

By resolution dated 11.2.1964, the Central Vigilance Commission was established in 1964 to
assist government institutions with their vigilance strategy.

In 1997, in Vineet Narain & Ors. v. Union of India & Anr21, the Supreme Court took the CBI
from the purview of the Central Government and placed it under the control of the CVC. To
guarantee an impartial investigation, the Court overturned the provision that required the
Central Government's agreement for the CBI to investigate senior officials.

The Commission was given statutory status by the 1998 ordinance that became the 2003
Central Vigilance Act22. It broadened the scope of the Commission's authority and made it the
CBI's monitoring body.

ROLE AND FUNCTIONS

In Section 8 of the Act, the Commission's CBI and vigilance-related tasks and powers are
outlined. It has the authority to oversee CBI investigations involving the commission of crimes
under the Prevention of Corruption Act of 1988 or crimes committed by public workers under
the Code of Criminal Procedure of 197323. Upon a referral from the Central Government, the
Commission may also launch an investigation into these situations if a Government or State-

19“SpecialDelhi Establishment Act, 1946”

20“Indian Penal Code, 1860”
21“Vineet Narain & Ors v. Union of India & Anr., 1 SCC 226”
22“Central Vigilance Act, 2003”
23
“Code of Criminal Procedure, 1973”

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controlled corporation employee is implicated. In addition, it has the authority to investigate

allegations that public officials have committed these violations.

It directs the CBI's operations by closely monitoring the progress of its investigations, so
ensuring that it fulfills its responsibilities. Additionally, the Commission is allowed to oversee
the administration of government departments, ministries, and enterprises. However, the
oversight should not interfere with the administration of these institutions. The Central
Government or any of its institutions may request assistance from the Commission on financial,
banking, and administrative concerns.

In Sumit Kumar v. State of West Bengal24, the Enquiry Officer issued charges against the
appellant, a member of the Indian Administrative Services. A consultation was conducted with
the State Vigilance Commission regarding the report. The Disciplinary Authority (State
Government) imposed sanctions on the appellant after deliberation. In an appeal to the Supreme
Court, the appellant argued that the conviction cannot be relied on reports of the Enquiry
Officer consulted with the State Vigilance Commission, which lacks statutory power.

The Supreme Court determined that the appellant's penalty was founded on the Disciplinary
Committee's conclusions. Consultation of the authority with the Officer of Vigilance does not
invalidate it.

The ruling drew a multitude of complaints from jurists. The jurists believed that the State's
consultation procedure breached the principles of natural justice. The State's ultimate
conclusions were influenced by the view of the Vigilance Commission, which violated the
principles of natural justice. In addition, the jurists argued that disregarding the findings
presented by the Commission would render its establishment worthless.

In R. S. Nayak v. A. R. Antulay25, the appellant filed a complaint against the then-Chief

Minister of Maharashtra that was sanctioned by the Governor (respondent). The complaints
accused the defendant of misappropriating public funds and corruption. Despite resigning on
the same date, the responder continued to serve as an MLA. The respondent argued that a
sanction under Section 6 of the PCA, 1947 is required to proceed against a public employee.

24“Sumit Kumar v. State of West Bengal, 1980 AIR 1170”

25“R S Nayak v. A R Antulay, 1984 AIR 684”

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The court was asked if an MLA could be considered a public servant under Section 21 of the
Indian Penal Code and whether sanction under Section 6 of the 1947 Act was required to
proceed against an MLA.

By reviewing the historical evolution of Section 21 and the contextual definition of "public
servant," the Supreme Court found that an MLA cannot be considered a public servant. The
court further ruled that the respondent ceased to be a public servant upon resigning from the
position of the chief minister. The provisions of Section 6 of the 1947 Act cannot be invoked
since when the violation was committed, the respondent was a public official, but he resigned
before the court was notified of it. The case was significant since it was the first time an ex-
CM was prosecuted based on a private complaint.

ELUCIDATION

Over time, the anti-corruption measures and the Central Government's efforts to increase
openness by establishing a centralized, independent apex institution have evolved. From an
executive institution established by a government resolution to a statutory authority as a result
of the CVC Act of 2003, the CVC's powers have been greatly extended. The government has
expanded the Commission's powers and authority to the extent that private sector banks are
now subject to its surveillance. Legislators and courts have addressed the difficulties
experienced by the Commission in order to promote a transparent, efficient, and corruption-
free administration. Since its inception, the Commission's powers and authority have
undergone a tremendous evolution.

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CONCLUSION

“Corruption will be out one day, however much one may try to conceal it: and the public
can as its right and duty, in every case of justifiable suspicion, call its servants to strict
account, dismiss them, sue them in a law court, or appoint an arbitrator or inspector to
scrutunize their conduct, as it likes.”

-Mahatma Gandhi (1928)

The concept of maladministration in administrative law is an interrelation between the

execution of a law by a government apparatus or an official adversely affecting the public or
private personality. Maladministration action is a behavior or action against the law that can be
viewed as an act of corruption if the act of maladministration fulfills all elements of corruption
because corruption can occur against any action of the law.

Due to the regard it accords to fundamental concepts like “rule of law” and “fairness in
administrative activities,” as well as its equally disapproving stance to arbitrariness &
unjustified exercise of authority, a democratic style of governance is always preferred to any
other system. Good governance is essential in such a system. However, it can only be
guaranteed if aspects of transparency and accountability are included in the government's
activities and policies. Every department within a bureaucratic government may receive
complaints over various administrative agencie’s activities or inactions. These complaints will
unavoidably include politically sensitive topics.

In a democratic government, it is expected that the people have adequate means to solve
problems. Since the present judicial system is not sufficient to deal with all cases of injustices,
a system that provides remedies by giving the genesis of an Ombudsman, the Right to
Information, and the formation of a Central Vigilance Commission may help in solving the
administration problems and give justice to the aggravated person. But these remedies are not
a "panacea for all the evils of bureaucracy" state. Their success depends upon the existence of
a reasonable well-administered state. These cannot cope with the situation where the
administration is riddled with patronage and corruption. Thus it is to conclude that these ways
are a great system of control but comes with an underpinning problem of its right functioning

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