PARLIAMENT OF INDIA RAJYA SABHA 48
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
FORTY EIGHTH REPORT ON THE LOKPAL BILL, 2011
(PRESENTED TO THE RAJYA SABHA ON 9TH DECEMBER, 2011) (LAID ON THE TABLE OF THE LOK SABHA ON 9TH DECEMBER, 2011)
RAJYA SABHA SECRETARIAT NEW DELHI DECEMBER, 2011/AGRAHAYANA, 1933 (SAKA) Website:http://rajyasabha.nic.in E-mail:[email protected] CS (P & L)-95
PARLIAMENT OF INDIA RAJYA SABHA
DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
FORTY EIGHTH REPORT ON THE LOKPAL BILL, 2011
(PRESENTED TO THE RAJYA SABHA ON 9th DECEMBER, 2011) (LAID ON THE TABLE OF THE LOK SABHA ON 9th DECEMBER, 2011)
RAJYA SABHA SECRETARIAT NEW DELHI
DECEMBER, 2011/AGRAHAYANA, 1933 (SAKA)
CONTENTS
PAGES
1. COMPOSITION OF THE COMMITTEE ...... (i)-(ii)
2. PREFACE BY CHAIRMAN ...... (iii)-(v)
3. REPORT OF THE COMMITTEE ...... 1—141
CHAPTER 1- Introduction...... 1—4
CHAPTER 2- Committee Proceedings and Timelines ...... 5—6
CHAPTER 3- The Concept of Lokpal: Evolution and Parliamentary History ...... 7—10
CHAPTER 4- Citizens’ Charter and Grievance Redressal Mechanism ...... 11—16
CHAPTER 5- The Prime Minister: Full Exclusion Versus Degrees of Inclusion ...... 17—24
CHAPTER 6- Member of Parliament: Vote, Speech and Conduct within the House 25—28
CHAPTER 7- Lokpal and State Lokayuktas: Single Enactment and Uniform Standards 29—36
CHAPTER 8- Lower Bureaucracy: Degrees of Inclusion ...... 37—44
CHAPTER 9- False Complaints and Complainants: Punitive Measures ...... 45—47
CHAPTER 10- The Judiciary: To Include or Exclude ...... 48—53
CHAPTER 11- The Lokpal: Search and Selection ...... 54—60
CHAPTER 12- The Trinity of the Lokpal, CBI and CVC: In Search of an Equilibrium 61—79
CHAPTER 13- Constitutional Status: If, How and How Much...... 80—85
CHAPTER 14- The Jurisdictional Limits of Lokpal: Private NGOs, Corporates and Media ...... 86—96
CHAPTER 15- Supports Structures for the Lokpal: Whistle Blowers, Phone Tappers and Legal Aid/Assistance Issues ...... 97—104
CHAPTER 16- The Lokpal Miscellany: Residual Issues ...... 105—107
CHAPTER 17- Afterword: Reasons and Recommendations At a Glance ...... 108—141
4. MINUTES OF DISSENT ...... 143—171 (i) Shri Balavant alias Bal Apte, Shri Kirti Azad, Shri D.B. Chandre Gowda, Shri Arjun Ram Meghwal, Shri Harin Pathak and Shri Madhusudan Yadav ...... 145—150 (ii) Shri Ram Jethmalani ...... 151—153 (iii) Shri Ram Vilas Paswan ...... 154—155 (iv) Shri Shailendra Kumar...... 156—163 (v) Shri Prasanta Kumar Majumdar ...... 164—165 (vi) Shri Pinaki Misra...... 166—167 (vii) Adv. A Sampath ...... 168 (viii) Shri S. Semmalai...... 169 (ix) Shrimati Deepa Dasmunshi, Ms. Meenakshi Natrajan and Adv. P.T. Thomas ...... 170 (x) Shri Vijay Bahadur Singh ...... 171
5. MINUTES OF THE MEETINGS ...... 173—220
6. ANNEXURES ...... 221—589
A - The Lokpal Bill, 2011 ...... 223—276
B - A Gist of the Debate in Both the Houses of Parliament on 27th August, 2011...... 277—279
C - Comments of the Department of Personnel & Training on the suggestions contained in Memoranda received from public on the Bill ...... 280—580 D - Statement showing the Business transacted by the Committee in its sittings for the Bill...... 581—583
E - Views of Justice J.S. Verma, former Chief Justice of India on the various provisions of the Bill ...... 584—587
F - Draft of proposed Constitutional Amendment for the Lokpal and Lokayukta ...... 588—589 COMPOSITION OF THE COMMITTEE (31st August, 2010 - 30th August, 2011)
*1. Dr. Abhishek Manu Singhvi – Chairman
RAJYA SABHA 2. Shri Balavant alias Bal Apte 3. Shri Ram Jethmalani 4. Shri Parimal Nathwani 5. Shri Amar Singh 6. Shri Ram Vilas Paswan 7. Shri O.T. Lepcha /\8. Vacant @9. Vacant &10. Vacant LOK SABHA 11. Shri N.S.V. Chitthan 12. Shrimati Deepa Dasmunsi 13. Shrimati Jyoti Dhurve 14. Shri D.B. Chandre Gowda 15. Dr. Monazir Hassan 16. Shri Shailendra Kumar 17. Shrimati Chandresh Kumari 18. Dr. Kirodi Lal Meena 19. Ms. Meenakshi Natarajan 20. Shri Devji M. Patel 21. Shri Harin Pathak 22. Shri Lalu Prasad 23. Shri S. Semmalai 24. Shri Vijay Bahadur Singh 25. Dr. Prabha Kishor Taviad 26. Shri Manish Tewari 27. Shri R. Thamaraiselvan 28. Adv. P.T. Thomas (Idukki) #29. Vacant $30. Vacant %31. Vacant
* Nominated as Chairman of the Committee w.e.f. 26th July, 2011. /\ Due to passing away of Shri M. Rajasekara Murthy w.e.f. 7th December, 2010. @ Due to induction of Shrimati Jayanthi Natarajan in the Council of Ministers w.e.f. 12th July, 2011. & Due to retirement of Shri Shantaram Naik w.e.f. 28th July, 2011. # Due to resignation of Shri Arjun Munda from Lok Sabha w.e.f. 26th February, 2011. $ Due to passing away of Shri Bhajan Lal w.e.f. 3rd June, 2011. % Existing since the constitution of the Committee on 31st August, 2010.
(i) COMPOSITION OF THE COMMITTEE (Constituted on 31st August, 2011)
1. Dr. Abhishek Manu Singhvi – Chairman RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri O.T. Lepcha 9. Shri Parimal Nathwani 10. Shri Amar Singh LOK SABHA 11. Shri Kirti Azad 12. Shri N.S.V. Chitthan 13. Shrimati Deepa Dasmunsi . 14. Shri D.B. Chandre Gowda 15. Shri Shailendra Kumar 16. Shrimati Chandresh Kumari 17. Shri Prasanta Kumar Majumdar 18. Shri Arjun Ram Meghwal 19. Shri Pinaki Misra 20. Kumari Meenakshi Natarajan 21. Shri Harin Pathak 22. Shri Lalu Prasad 23. Adv. A. Sampath 24. Shri S. Semmalai 25. Shri Vijay Bahadur Singh 26. Dr. Prabha Kishor Taviad 27. Shri Manish Tewari 28. Adv. P.T. Thomas (ldukki) 29. Shri Arun Subhash Chandra Yadav 30. Shri Madhusudan Yadav *31. Vacant SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
* Existing since the constitution of the Committee on 31st August, 2011.
(ii) PREFACE BY CHAIRMAN
I consider it a singular privilege and a great pleasure to present the Forty-Eighth Report of this Committee on the Lokpal Bill, 2011. It is ironical, and even somewhat paradoxical, that corruption, an issue as old as mankind* can generate so much contemporary debate, ignite large volumes of both light and heat. The fact that corruption, which has spread like a virulent epidemic in the very genetic code of society, has been brought to the forefront of our collective consciousness in recent times, is both a compliment to all those who have crusaded for strong anti corruption measures as also a reflection of the public’s growing angst, revulsion and disgust at the proportions acquired by this disease. But no one can afford to, and no one should, ignore the basic truth that no magic wand or special button has been conceived or invented, the activation of which can eliminate or even significantly reduce this scourge within a short time. Nor can anyone be oblivious to the reality that corruption can suffer significant and tangible reduction only by a holistic and multi-pronged approach and that no single initiative in this regard can be even significantly, much less conclusively, efficacious. To ignore the fact that the Lokpal Bill operates only within the limited zone of ex-post facto, punitive or deterrent measures would be to ignore reality itself. Such punitive measures cannot be a substitute for other significant prophylactic initiatives. Corruption flourishes in the interstices of structures, mechanisms, rules, regulations and practices, which not only facilitate it but promote its multiplication like an uncontrollable hydra headed monster. It is those facilitative structures and practices which have to be attacked, if punitive and deterrent measures like the Lokpal Bill are to have any lasting impact. In a nutshell, law has to seek not only to make corruption painful and hurtful after the event, but to make corruption unnecessary, undesirable and difficult to embark upon at the inception. Indeed many of such prophylactic measures do not need legal changes but intelligent, calibrated and targeted policy changes. Similarly, even within the punitive and deterrent zone where the Lokpal initiative largely operates, support structures, ancillary provisions and related initiatives are as much, if not more important, than the Lokpal itself. Some are discussed in Chapter 15. Many other vital ones, like initiatives necessary in respect of reducing black money (both domestic and foreign), alteration of rules and practices in the realm of realty transactions, elimination of discretionary powers department-wise, focusing upon and targeting state largesse in areas like mines, contracts and so on and so forth, are not the subject matter of this Report and hence not discussed here. In the ultimate analysis, it is only a synergical and cumulative aggregation of these diverse legal and policy initiatives which can effectively attack and reduce this malignant disease. Though there are many creative initiatives and “firsts” in this Report, it is not possible to exhaustively list them. They include a specific recommendation to categorically have a statutory provision imparting genuine independence to the CBI by declaring, for the first time, that it shall not be subject, on the merits of any investigation, to either the administrative Ministry or the Lokpal. Secondly, it separates, for the first time, investigation from prosecution, thereby strengthening each and making each more professional and objective, apart from initiating for the
* In fact, Kautilya in Arthasastra, has given a detailed list, referring to not less than forty ways of embezzlement that the treasury officers in his time were used to practice. The most common of them were pratibandha or obstruction, prayoga or loan, vyavahara or trading, avastara or fabrication of accounts, pariahapana or causing less revenue and thereby affecting the treasury, upabhoga or embezzling funds for self enjoyment, and apahara or defalcation.
(iii) (iv) first time, the creation of a premier prosecution department under the Lokpal. Thirdly, the Selection Committee, for the first time, includes a joint nominee of the three major constitutional post holders. Fourthly, Lokayuktas and the Lokpal are, for the first time, sought to be subsumed under a common enactment. Fifthly, constitutional status is sought to be conferred, again for the first time, not only upon the Lokpal institution but also upon the proposed Grievances Redressal body. Sixthly, the Report recommends abolition of all sanctions, by whatever name called. Finally, the CVC is, for the first time, made responsible for the large chunk of class C employees, with a supra added reporting requirement to the Lokpal. The journey of this Committee has been most exciting and enjoyable, irrespective of the destination, as reflected in the sense of the Committee in this Report or the dissents or the eventual outcome in Parliament. The Committee held fifteen meetings over less than two and a half months between the real commencement of its proceedings on September 23, 2011 and the submission of the actual report in the second week of December, 2011. In individual terms, it interacted with 140 witnesses and its deliberations spanned approximately 40 hours. Given the contemporary context in which this Bill was referred to the Committee, as also the diverse and extremely large canvas involved, there is an understandable sense of satisfaction in having expeditiously reached the stage of submitting the Committee’s report. On an issue like this, which inevitably involves a somewhat uneasy melting pot of law, technicalities, the scrutiny of the nation, pressing exigencies of speed and time, an inevitable dose of politics and an overarching desire to be true to ones’ individual and collective consciousness, there is bound to be disagreement and dissension, sometimes even heated. But, personally, I am impressed, indeed astonished, at the high degree of convergence on a diverse number of issues which are addressed in this report and which aggregate over 25. Some may see the glass half full, in the sense of looking at the dissenting notes, but I see the glass well above half full, based on the significant and laudatory degree of convergence on diverse and contentious issues. Even where there were disagreements, only in the last couple of meetings prior to adoption (none before), they did not vitiate the extremely cordial, dignified and principled level of exchanges which have prevailed right from the inception through to the conclusion of the proceedings of this Committee. I do not think that I am guilty of any error or exaggeration when I say that the members of this Committee started this journey as relative strangers, but finished as friends. Equally, I have no doubt that each member individually, and the Committee collectively, exemplified and symbolised the Voltairian spirit that wherever they disagreed, they nevertheless upheld the right of the other person to disagree with them, even vehemently. In the end, all I can say is that we have not tried to please anyone or everyone. We have tried to be true, individually to our respective consciences and collectively to Parliament and the nation. The Report is liable to be judged kindly or harshly by some or, indeed, to be ignored by others. All one can hope for is that the detailed collection and aggregation, not only of each conclusion but of every reason and argument in support of that conclusion, summarised in one chapter (Chapter 17) will be carefully perused before judgment, casual or considered, interim or final, is passed. I would be failing in my duty if I did not express gratitude for the constructive cooperation which I have received from each member of the Committee, irrespective of convergence or chasm. The witnesses, many of them experts and very eminent, gave willingly and uncomplainingly of their time and effort and all of it, gratis. The response from the public was overwhelming as reflected in the written memoranda received. The Administrative Ministry (Ministry of Personnel) was most helpful and cooperative. Perhaps no Chairman has driven the Secretariat staff harder and longer. Both Saturdays and Sundays, especially when I dictated the Report, with long hours at the Annexe, were par for the course. Mr. Deepak Goyal, the head of my team, provided very able leadership (v) to his entire team and toiled ceaselessly whenever I entrusted anything to him. He was ably supported by Shri K.P. Singh, Shri K.N. Earendra Kumar, Ms. Niangkhannem Guite, Ms. Catherine John L., Shri D.D. Kukreti, Shri Yogendra Singh and Ms. Madhu Rajput and a whole relay chain of stenographers who willingly took eight hour dictations from me on more than three weekends. In a lighter vein, I had expressed the certainty of my belief that the Secretariat were praying and waiting for the day when I would demit office as Chairperson of this august Committee, since they had no other hope of getting respite! I would also like to place on record my deep appreciation for all the assistance and support received from everyone, not necessarily named herein, to complete this endeavour expeditiously.
In the ultimate analysis, the responsibility for all the errors rests with me, and, to a lesser extent, with the Committee which adopts the Report as reflective of the broad consensus in the Committee. The reasons for the conclusions flowing from the memoranda, depositions and internal deliberations have formed the Committee’s recommendations and are set out in detail at the end of each Chapter. This last section of each Chapter tries to argue and states the persuasive details behind each conclusion. All these end sections from each Chapter have been aggregated and reproduced in the last Chapter, Chapter 17, providing a useful and elaborate summary. All dissent notes have been appended.
DR. ABHISHEK MANU SINGHVI NEW DELHI; Chairman, December 7, 2011 Committee on Personnel, Public Grievances, Law and Justice
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CHAPTER-1
INTRODUCTION
1.1 The Lokpal Bill, 2011 was introduced* in the Lok Sabha on 4th August, 2011. It was referred§§ by the Hon’ble Chairman, Rajya Sabha to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on the 8th August, 2011 for examination and report. 1.2 The Bill (Annexure-A) seeks to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereon. 1.3 The Statement of Objects and Reasons, appended to the Bill reads as under:– “The need to have a strong and effective institution of Lokpal has been felt for quite sometime. The Administrative Reforms Commission, in its interim report on the ‘problems of Redressal of Citizens’ Grievances submitted in 1966, inter alia recommended the setting up of an institution of Lokpal at the Centre in this regard. To give effect to this recommendation of the Administrative Reforms Commission, eight Bills on Lokpal were introduced in the Lok Sabha in the past, namely in the years 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. However, these Bills had lapsed consequent upon the dissolution of the respective Lok Sabha except in the case of 1985 Bill which was withdrawn after its introduction. A need has been felt to constitute a mechanism for dealing with complaints on corruption against public functionaries in high places. In this regard, the Central Government constituted a Joint Drafting Committee (JDC) on 8th April, 2011 to draft a Lokpal Bill. Based on the deliberation and having regard to the need for establishing a strong and effective institution, of Lokpal to inqiuire into allegation of corruption against certain public functionaries, it has been decided to enact a stand alone legislation, inter alia to provide for the following matters, namely :– (i) To establish an Institution of Lokpal with a Chairperson and eight Members of which fifty per cent shall be Judicial Members; (ii) To set up Lokpal’s own Investigation Wing and Prosecution Wing with such officers and employees a felt by it to be necessary; (iii) The category of public fumctionaries against whom allegation of corruption are to be inquired into, namely:- a. a Prime Minister, after he has demitted office; b. a Minister of the Union; c. a Member of Parliament;
* Published in Gazette of India (Extraordinary) Part-II, Section 2 dated 4th August, 2011. §§ Rajya Sabha Parliamentary Bulletin Part-II (No.1937) dated 9th August, 2011.
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d. any Group “A” officer or equivalent; e. a Chairperson or member or officer equivalent to Group “A” in any body, Board, corporation, authority, company, society, trust, autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government; f. any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may be notification specify but the organizations created for religious purposes and receiving public donations would be outside the purview of the Lokpal. (iv) To provide for a mechanism to ensure that no sanction or approval under section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988, will be required in cases here prosecution is proposed by the Lokpal. (v) To confer on the Lakpal the power of search and seizures and certain powers of a Civil Court; (vi) To empower the Lokpal or any investigation officer authorized by it in this behalf to attach property which, prima facie, has been acquired by corrupt means; (vii) To lay down a period of limitation of seven years from the date of commission of alleged offence for filing the complaints before the Lokpal; (viii) To confer powers of police upon Lokpal which the police officers have in connection with investigation; (ix) To charge the expenses of Lokpal on the Consolidated Fund of 1ndia; (x) to utilize services of officers of Central or State Government with the consent of the State Government for the purpose of conducting inquiry; (xi) To recommend transfer or suspension of public servants connected with allegation of corruption; (xii) To constitute sufficient number of Special Courts as may be recommended by the Lokpal to hear and decide the cases arising out of the Prevention of Corruption Act, 1988 under the proposed enactment; (xiii) To make every public servant to declare his assets and liabilities, and in case of default or furnishing misleading information, to presume that the public servant has acquired such assets by corrupt means; (xiv) To provide for prosecution of persons who make false or frivolous or vexatious complaints. The notes on clauses explain in detail the various provisions contained in the Bill. The Bill seeks to achieve the above objects.” 1.4 In slight deviation from the normal procedure followed by Standing Committees for examination of Bills, there was a detailed discussion on the statement of the Minister of Finance on the issues relating to the setting up of the Lokpal in both the Houses of Parliament on the 27th August, 2011. These proceedings were also transmitted to the 3
Committee. The Rajya Sabha Secretariat communication dated the 30th August, 2011 in this behalf addressed to the Chairman, Standing Committee, reads as follows:– “I am directed to inform you that the Chairman, Rajya Sabha, has desired that the proceedings of the Rajya Sabha and Lok Sabha dated the 27th August, 2011 pertaining to the discussion on the statement made by the Minister of Finance on issues relating to setting up of Lokpal may be transmitted to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice for its perusal while formulating its recommendations on the Lok Pal Bill, 2011. Accordingly, a copy each of the relevant proceedings of the Rajya Sabha and Lok Sabha is enclosed for your kind perusal.” 1.5 The discussion in the two Houses of Parliament was in the backdrop of divergent views in the Joint Drafting Committee constituted by the Government for preparing a draft on the Lokpal Bill. The Committee consisted of five nominees of the Civil Society (led by Shri Anna Hazare) and five nominees of the Government. Initiating discussion in both the Houses, Hon’ble Finance Minister gave a background of the matter leading to holding of discussion in Parliament on the setting up of Lokpal. He enumerated the following six major areas of divergent views in the Joint Drafting Committee:– (i) Should one single Act be provided for both the Lokpal in the Centre and Lokayukta in the State? Would the State Governments be willing to accept a draft provision for the Lokayukta on the same lines as that of the Lokpal? (ii) Should the Prime Minister be brought within the purview of the Lokpal? If the answer is in affirmative, should there be a qualified inclusion? (iii) Should Judges of the Supreme Court and High Courts be brought within the purview of the Lokpal? (iv) Should the conduct of Members of Parliament inside Parliament, their right to speak and right to vote in the House, be brought within the purview of the Lokpal? Presently such actions of the Members of Parliament are covered by article 105(2) of the Constitution? (v) Whether Articles 311 and 320 (3) (c) of the Constitution notwithstanding members of a civil service of the Union or an All India Service or a Civil Service of a State or a person holding a civil post under the Union or State, be subject to enquiry and disciplinary action including dismissal and removal by the Lokpal and Lokayukta, as the case may be? (vi) What should be the definition of the Lokpal, and should it itself exercise quasi-judicial powers also or delegate these powers to its subordinate officers? 1.6 Apart from other issues, the following three issues were discussed in both the Houses:– (i) Whether the jurisdiction of the Lokpal should cover all employees of the Central Government? (ii) Whether it will be applicable through the institution of the Lokayukta in all States? (iii) Whether the Lokpal should have the power to punish all those who violate the ‘grievance redressal mechanism’ to be put in place? 1.7 During the discussion in Parliament, Members demonstrated serious commitment to evolve an effective mechanism to deal with the menace of corruption. The discussion covered 4 several related issues as well, besides the three specific issues referred to above. Members discussed the need to bring all classes of bureaucracy within the fold of the Lokpal while expressing apprehensions about the overburdening of the institution. Similarly, Members were concerned about preservation of the federal spirit of our Constitution. The issue of bringing the grievance redressal mechanism under the Lokpal or having a separate law for this purpose was also discussed. (A gist of the debate in both the Houses is placed as Annexure B). 1.8 In his reply to the debate, the Minister of Finance concluded in both the Houses in these words:– “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and establishment of Lokayukta in the States. I will request you to transmit the proceedings to the Department-related Standing Committee for its perusal while formulating its recommendations for a Lokpal Bill.” 1.9 The deliberations in the two Houses of Parliament gave guidance to the Committee in the accomplishment of the task assigned to it. The Committee, however, also had before it vast inputs on the subject from various sources. Recommending an appropriate legislative architecture for the purpose was a complex task for the Committee as it was to propose a solution which harmonized and married the concerns of constitutional validity, operational efficacy and consensus amongst the diverse views reflected in the Committee’s deliberations. The Members of the Committee, however, have put in their best possible efforts to deal with the essence of the opinions expressed by the House collectively. The diverse pool of knowledge of the Members, opinions of eminent experts and the suggestions received from a comprehensive and diverse cross-section of society helped the Committee to formulate solutions taking into account the aspects of functional feasibility and constitutional validity in addition to political consensus. 1.10 In order to have a broader view on the Bill, the Committee decided to invite views/ suggestions on the issue from desirous individuals/organizations. Accordingly, a press release was issued inviting views/suggestions. In response to the press release published in major English and Hindi dailies all over India on the 20th August, 2011, a number of representations/memoranda were received. The Committee received approximately 10,000 responses from different sections of society. 1.11 The Committee also forwarded 216 select memoranda from out of the ones received from the individuals/organizations to the Department of Personnel and Training for their comments thereon. A list of such memoranda along with the gist of views/suggestions contained therein and the comments of the Department of Personnel and Training thereon is placed at Annexure-C. 5
CHAPTER-2
COMMITTEE PROCEEDINGS AND TIMELINES
2.1 Though the Lokpal Bill, 2011 was referred to the Committee on August 8, 2011, it was followed immediately by a demonstration by Team Anna, a large gathering at Ramlila Maidan and a fast by Shri Anna Hazare. These events occupied the space from 16th to 28th August, 2011. 2.2 On August 27, 2011 both the Houses of Parliament discussed the issue and the proceedings were directed to be transmitted to the Standing Committee. This has been summarized in the preceding chapters read with the gist of debates annexed at Annexure B. 2.3 Barely four days thereafter, before any work could start, the Standing Committee’s term lapsed. In effect, in law and in fact, no Standing Committee of Parliament existed from August 31, 2011 till September 16, 2011. The present Committee could, therefore, become operational only after re-constitution w.e.f. September 23, 2011 when it held its second meeting. Hence, though the Committee had with great alacrity held its first meeting with Team Anna for over two hours on August 10, 2011, a day after the Bill was referred to it, it could, in effect, commence its deliberations on the Lokpal Bill, 2011 only w.e.f. September 23, 2011. The fact that the re-constitution of the Committee is always deemed to be retrospective w.e.f. the date of lapsing (August 31, 2011), does not, however, permit the actual meeting of the Committee during the period between the lapse and its actual reconstitution. 2.4 From September 23, 2011 till November 24, 2011, the Committee held 11 sittings spread over approximately 30 hours. During this period, 38 persons/organizations came before the Committee as witnesses to present their views. These included virtually every segment of society, including, lawyers and jurists, former Chief Justices of India, representative organizations like the Bar Council of India, the heads and office bearers of diverse chambers of commerce, the heads and office bearers of diverse print and visual media organizations, NGOs, members of Team Anna (on three occasions spread over approximately 8 hours), religious organizations, representative institutions from small and medium size towns across India, CBI, CVC, eminent writers, think tanks and so on and so forth. In almost all cases the witnesses were accompanied by several associates and the Committee, therefore, in all, had the presence of 140 witnesses. 2.5 The Committee held the first of its internal meetings and deliberations on November 14, 2011. It went on to meet on November 15, 24, 25, 30 and December 1 and finally met on December 7, 2011 to finalise recommendations and to adopt the Report. The. Committee is thus privileged to present this Report on December 9, 2011. A Statement showing the business transacted by the Committee in its different sittings is annexed as ANNEXURE ‘D’. 2.6 In a nut shell, therefore, this Committee could become legally operational only w.e.f. September 23, 2011 and has completed hearing witnesses on 4th November, 2011. It had its total deliberations including Report adoption spread over 14 meetings, together aggregating 40 hours within the space of ten weeks commencing from September 23, 2011 and ending December 7, 2011.
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2.7 Though not specific to this Committee, it is an established practice that all 24 Parliamentary Standing Committees automatically lapse on completion of their one year tenure and are freshly constituted thereafter. This results in a legal vacuum, each year, of approximately two to three weeks and occasionally, as in the present case, directly affects the urgent and ongoing business of the Committee. The Committee would respectfully request Parliament to reconsider the system of automatic lapsing. Instead, continuity in Committees but replacement of Members on party-wise basis would save time. 7
CHAPTER-3
THE CONCEPT OF LOKPAL : EVOLUTION AND PARLIAMENTARY HISTORY
3.1 There can be no denial of the fact that corruption has always remained a significant and highly relevant issue to be dealt with in our country. This stands corroborated from the findings of various International bodies like the World Bank, Transparency International and other organizations, which have consistently rated India quite low on this facet. Concerns have repeatedly arisen, in and out of Parliament, for putting in place appropriate mechanisms to curb corruption. But the Lokpal concept has had an interesting and chequered history in India. 3.2 The initial years following independence witnessed legislators conveying the people’s concerns to the Government over the issue of corruption through raising of questions and debates in Parliament. At that time, the scope of the debates was contextually confined to seeking information from the Government about its anti-corruption measures and to discussions regarding the formation of anti-corruption committees/agencies and vigilance bodies to put a check on corruption, but it clearly reflected the seriousness on the issue of corruption in the minds of Members. Acknowledging the need for a thorough consideration of the issue, the Government set-up a Committee under the Chairmanship of Shri K. Santhanam to review the existing instruments for checking corruption in Central Government. The Committee inter alia recommended the creation of an apex body for exercising superintendence and control over the vigilance administration. In pursuance of the recommendations of the Santhanam Committee, the Government established the Central Vigilance Commission through a Resolution on 11.02.1964. The Commission was concerned with alleged bureaucratic corruption and did not cover alleged ministerial corruption or grievances of citizens against maladministration. While laying the report on the creation of the CVC on the table of the House, the then Deputy Home Minister1, interestingly, recognized that the Commission would be overburdened if the responsibility to redress the citizens’ grievances against corruption were to be placed upon it and the Commission might, as a result, be less effective in dealing with the core problem of corruption. 3.3 While the country had been grappling with the problem of corruption at different levels including at the level of Parliament, there emerged globally, and especially in the Scandinavian countries, the concept of Ombudsman to tackle corruption and/or to redress public grievances. A proposal in this regard was first initiated in the Lok Sabha on April 3, 1963 by the Late Dr. L.M. Singhvi, MP2. While replying to it, the then Law Minister observed that though the institution seemed full of possibilities, since it involved a matter of policy, it was for the Prime Minister to decide in that regard3. Dr. L.M. Singhvi then personally communicated this idea to the then Prime Minister, Pandit Jawahar Lal Nehru who in turn, with some initial hesitation, acknowledged that it was a valuable idea which
1Statement made by the then Deputy Minister in the Ministry of Home Affairs, Smt. Maragatham Chandrasekhar in the Rajya Sabha on 16th December, 1963, Rajya Sabha Debates, Vol. XLV, No.21, P.3572. 2Lok Sabha Debates dated 3rd April, 1963, vol. XVI, P.7556-7558 3ibid., P.7590-92
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could be incorporated in our institutional framework. On 3rd November, 1963, Hon’ble Prime Minister made a statement in respect of the possibilities of this institution and said that the system of Ombudsman fascinated him as the Ombudsman had an overall authority to deal with the charges of corruption, even against the Prime Minister, and commanded the respect and confidence of all4. Resolutions, in this behalf in April, 1964 and April, 1965 were again brought in the Lower House and on both occasions, during the course of discussions, the House witnessed near unanimous agreement about the viability, utility and desirability of such an institution5. However, in his resolution, the .Member of Parliament (Dr. L.M. Singhvi) did not elaborate upon the functions/powers of the institution, but instead asked for the appointment of a Committee of Members of Parliament who would consider all the complex factors relating to this institution and would come forward with an acceptable and consensual solution. While making a statement in the House on 23rd April, 1965, Dr. L.M. Singhvi elucidated the rationale of the institution as:
“…an institution such as the Ombudsman must be brought into existence in our country. It is for the sake of securing justice and for cleansing the public life of the augean stable of corruption, real and imaginary, that such an institution must be brought into existence. It is in order to protect those in public life and those in administration itself that such an institution must be brought into existence. It is to provide an alternative to the cold and protracted formality of procedure in course of law that such an institution should be brought into existence. There is every conceivable reason today which impels to the consideration that such an institution is now overdue in our country...6”
3.3A The word Lokpal etymologically, means the “protector of the people”. Adopting the famous Lincolnian phrase, it can also be seen as a protection/protector “of the people, by the people, for the people”. The word ‘Ombudsman’, on the other hand, is rooted in the Old Norse language, essentially meaning “representative”, i.e. an official charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens. Roman Law has also had a similar counterpart viz. the “tribunition role” of a person/institution, whose role was to intercede in the political process on behalf of common citizens and in Roman times was fulfilled by elected officials.
3.4 These efforts set the stage for evolving an institution like Ombudsman in India and consequently, the idea of Lokpal surfaced in the national legislative agenda. Later, the Government appointed an Administrative Reforms Commission which in its recommendation suggested a scheme of appointing Lokpal at Centre and Lokayuktas in each State7.
3.5 Thereafter, to give effect to the recommendations of the First Administrative Reforms Commission, eight Bills were introduced in the Lok Sabha from time to time. However, all
4His initial hesitation to this idea was probably due to the Scandinavian origin of the nomenclature of the institution. In a lighter vein, he happened to ask Dr. L.M, Singhvi “To what zoo does this animal belong” and asked Shri Singhvi to indigenize the nomenclature of the institution. Dr. L.M. Singhvi then coined the term Lokpal/Lokayukta to modify the institution of Ombudsman to the Indian context (as related by Dr. L.M. Singhvi to the Chairman of this Committee). Also referred to by Mr. Arun Jaitley M.P. during the Parliament Debate on 27th August, 2011. He started the debate in the Upper House thus:- “Now, ‘Ombudsman’ was a Scandinavian concept and, coincidentally, on 3rd April, 1963, then an Independent young Member of the Lok Sabha, Dr. L.M Singhvi, in the course of his participation in a debate for having an Ombudsman in India, attempted to find out what the Indian equivalent could be, and this word ‘Lokpal’ was added to our vocabulary, the Hindi vocabulary, by Dr. L.M. Singhvi who translated this word.” 5Lok Sabha Debates dated 23rd April, 1965, p, 10839 - 40. 6Lok Sabha Debates dated 23rd April, 1965, P. 10844. It is ironic that something described as “overdue” in 1965 by the MP is being enacted in 2011. 7Problems of Redress of Citizen and Grievances, Interim Report of the First Administrative Reforms Commission, 1966. 9
these Bills lapsed consequent upon the dissolution of the respective Lok Sabhas, except in the case of the 1985 Bill which was subsequently withdrawn after its introduction. A close analysis of the Bills reflects that there have been varying approaches and shifting foci in scope and jurisdiction in all these proposed legislations. The first two Bills viz. of 1968 and of 1971 sought to cover the entire universe of bureaucrats, Ministers, public sector undertakings, Government controlled societies for acts and omissions relating to corruption, abuse of position, improper motives and mal-administration. The 1971 Bill, however, sought to exclude the Prime Minister from its coverage. The 1977 Bill, broadly retained the same coverage except that corruption was subsequently sought to be defined in terms of IPC and Prevention of Corruption. Act. Additionally, the 1977 Bill did not cover maladministration as a separate category, as also the definition of “public man” against whom complaints could be filed did not include bureaucrats in general. Thus, while the first two Bills sought to cover grievance redressal in respect of maladministration in addition to corruption, the 1977 version did not seek to cover the former and restricted itself to abuse of office and corruption by Ministers and Members of Parliament. The 1977 Bill covered the Council of Ministers without specific exclusion of the Prime Minister. The 1985 Bill was purely focused on corruption as defined in IPC and POCA and neither sought to subsume mal-administration or mis-conduct generally nor bureaucrats within its ambit. Moreover, the 1985 Bill, impliedly included the Prime Minister since it referred to the office of a Minister in its definition of “public functionary”. The 1989 Bill, restricted itself only to corruption, but corruption only as specified in the POCA and did not mention IPC. It specifically sought to include the Prime Minister, both former and incumbent. Lastly, the last three versions of the Bill in 1996, 1998 and 2001, all largely; (a) focused only on corruption; (b) defined corruption only in terms of POCA; (c) defined “public functionaries” to include Prime Minister, Ministers and MPs; (d) did not include bureaucrats within their ambit. 3.6 The Lokpal Bill, 2011 enables the Lokpal to inquire into allegations made in a complaint against a ‘public servant’. With the coining of this new term, the current Lokpal Bill, as proposed and as sent to this Committee, is distinct from the previous Bills mainly on the following counts:– • Its jurisdiction is comparatively wider as it has widened the scope of ‘public servant’ by including the bureaucracy as also institutions and associations, wholly or partly financed or controlled by the Central Government or those who are in receipt of public money. • It provides for separate investigation and prosecution wings of Lokpal. • It makes the declaration of assets by all ‘public servants’ mandatory and failure to do so liable to the presumption that such assets have been acquired by corrupt means. • It is far more detailed and more inclusive then earlier versions, with a large number of principal and ancillary provisions not found in earlier versions. 3.7 It is thus clear that the concept of the institution of Lokpal has undergone vital and important changes over time keeping in view the changing socio-economic conditions and varying nature, level and pervasiveness of corruption in society. 10
3.8 Though the institution of Lokpal is yet to become a reality at the Central level, similar institutions of Lokayuktas have in fact been setup and are functioning for many years in several States. In some of the States, the institution of Lokayuktas was set up as early as in 1970s, the first being Maharashtra in 1972. Thereafter, State enactments were enacted in the years 1981 (M.P.), 1983 (Andhra Pradesh and Himachal Pradesh), 1984 (Karnataka), 1985 (Assam), 1986 (Gujarat), 1995 (Delhi), 1999 (Kerala), 2001 (Jharkhand), 2002 (Chhattisgarh) and 2003 (Haryana). At present, Lokayuktas are in place in 17 States and one Union Territory. However, due to the difference in structure, scope and jurisdiction, the effectiveness of the State Lokayuktas vary from State to State. It is noteworthy that some States like Gujarat, Karnataka, Bihar, Rajasthan and Andhra Pradesh have made provisions in their respective State Lokayuktas Act for suo motu investigation by the Lokpal. In the State Lokayukta Acts of some States, the Lokayukta has been given the power for prosecution and also power to ensure compliance of its recommendations. However, there is a significant difference in the nature of provisions of State Acts and in powers from State to State. Approximately nine States in India have no Lokayukta at present. Of the States which have an enactment, four States have no actual appointee in place for periods varying from two months to eight years. 11
CHAPTER-4
CITIZENS’ CHARTER AND GRIEVANCE REDRESSAL MECHANISM
I. INTRODUCTION AND BACKGROUND 4.1 There has been a consistent, universal and widespread demand for creating a Public Grievances Redressal Mechanism and mandating a. Citizens Charter for all Government departments and public services in the country. This is to address grievances of the public in their dealing with public offices for issues not related to corruption but including vital issues like procrastination, inactivity, unresponsiveness etc. on the part of public functionaries. Since the Lokpal Bill 2011 drafted by the Government restricted itself to issues relating to corruption, the issue of Grievance Redressal was not included. The draft Jan Lokpal Bill presented by the team headed by Shri Anna Hazare includes the issue of grievances redressal/citizens charter to be also addressed by the institution of Lokpal. During the debate in Parliament on 27th August, 2011 on the issue of setting up of Lokpal the Citizens Charter issue was one of the key items of the agenda. The Hon’ble Minister of Finance while summing up the deliberations stated that the House agreed in principle on, inter alia, the Citizens Charter to be brought under Lokpal through appropriate mechanism. Notably the United Nations Convention on Action Against Corruption (UNCAC) does not directly mention that each signatory State should have a Citizens Charter1. II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 4.1A The memoranda received by the Committee carried the following suggestions/observations:– • The concept of Citizens’ Charter was first mooted in a White Paper entitled “The Citizens’ Charter: raising the standard” presented before the British Parliament in July, 1991. • Basic elements of Citizens’ Charter are: (i) transparency, (ii) accountability, (iii) availability of information, (iv) declared standards of service, with a promise to improve upon it and (v) an effective and efficient Grievance Redressal machinery. • Include Citizens’ Charter, Public Grievances, and Whistleblowers also in the Bill. • Citizens Charter indicating time frame for each work should be introduced and responsibility of Government officer to be fixed; should have provisions for penalties for failure to do so. • Blue Print of the proposed mechanism (i) Every citizen’s letter should be acknowledged within a week. (ii) Every citizen’s letter should be replied within a month. (iii) Every official who has public contact must wear a name badge.
1UNCAC was adopted by the United Nations General Assembly by Resolution 58/4 of 31st October, 2003 and opened up for signature at the high level political signing conference in Merida, Mexico from 9–11 December, 2003. The Convention entered into force on 14th December, 2005.
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• Grievance Redressal Mechanism must be separated from Lokpal/Lokayuktas and be modeled on RTI Act, 2005. • Slow progress of any citizen’s work to be deemed as “corruption”. • A comprehensive legal framework should be provided under the Central Law by bringing in a separate legislation under Entry 8 of List-III of Seventh Schedule of the Constitution, for the purpose of putting in place an effective Grievance Redressal Mechanism, simultaneously with the Lokpal Bill. • Needed, but in separate Bill for Central institutions and schemes, and separately for each of the States. • Statutory back up is needed to provide a time limit; service and penalty as imposed by an appellate authority with Civil Court power; and a second appellate to reviewing authority be provided. The CVC should be the monitoring agency for citizens’ charters. • Enact public service delivery law and strong grievance redressal mechanism to effectively address petty corruption in delivery of services. • United Nations Convention on Action Against Corruption (UNCAC) doesn’t directly mention that each State party should have a “citizens’ charter”. • There are many countries which included the principles of service orientation in their legislation in one or the other way. • UNCAC does not mention about who the independent body or bodies should report to.
III. SUMMARY OF DEPOSITIONS GIVEN BY WITNESSES 4.2 The Ministry of Personnel (DoPT) have, in their comments, observed as follows:– “...For redressal of public grievances, the Government proposes to bring a separate legislation before the Parliament...”. 4.3 Dr. Jayaprakash Narayan, President, Loksatta, while tendering oral evidence before the Committee, stated thus: “...There is a case for Citizens’ Charter and laws governing that. But,...it must be applicable only to the notified agencies where there are no supply constraints. This is a very important consideration because an omnibus legislation saying that there will be a Citizens’ Charter for every service is, simply, not practicable...”. 4.4 He further stated: “...Then, as far as grievances are concerned, Mr. Chairman, as I mentioned before, there will be hundreds and thousands of grievances everyday. They must not come under Lokpal and Lokayukta. They must come under a separate grievance redressal authority...” 4.5 Speaking on this issue, Shri Ashok Kumar Parija (Chairman, Bar Council of India) said:– “...The third issue is regarding citizen charter and grievances redressal. The Anna Hazare Lokpal Bill provides that each Government Department will have a citizen charter. We are of the view that we could have a different law for citizen charter and not mix it with the Lokpal...” 4.6 Shri Shekhar Singh (NCPRI) deposed before the Committee as under:– 13
“...We are not in favour of the grievance redress or citizen’s charter being under the Lokpal. But we have suggested that there ought to be a parallel institution like grievance redress commissions both at the Centre and State levels. My colleagues will give you more details on that…” 4.7 Shrimati Anjali Bhardwaj (NCPRI), while placing their views before the Committee, stated:– “...there should be a separate legislation which deals with grievance redressal, and that legislation should focus on setting up an appropriate decentralized structure for dealing with issues of grievances. We feel that grievances vkSj corruption ds dslst+ ,d lkFk esa ,d ckWMh u ns[ksA gekjs ns”k esa 1-2 fcfy;u yksx gSa vkSj lHkh ds dqN u dqN grievances gSaA vxj ,d lky esa fdlh ckWMh ds ikl ,d fcfy;u ls T;knk grievances vk tk;saxs] it will collapse under its own weight, and it will not be effective. Therefore, we feel that a separate body needs to be set up to look into the issue of grievance redress. It needs to be a decentralized body because people often have very immediate nature of grievances...” 4.8 Shri Harish Salve, Sr. Advocate, Supreme Court of India, while clarifying his view on the topic, opined thus:– “...1 do not see, Sir, in my respectful submission to you, any specific Entry of the State which would apply to the framing of a Citizens’ Charter and which would then put it squarely within the power of the Union Parliament. If you do frame a Citizens’ Charter, Sir, then certainly as an incidental power, the Union Parliament can appoint an agency to enforce that Charter. And if that incidentally encroaches on the State’s field, that is permitted by our Constitution…” 4.9 He further opined: “...What I suggest is, taking a leaf from the current Electricity Act, which we have, a structure should be created under the Union law in which States will appoint grievance redressal authorities. So, that also respects the principle of federalism. We have it already in the Electricity Act where State Commissions are appointed. So, under the Union law, you can always leave it to the State Governments to appoint their own grievance redressal authorities. You can prescribe what the collegium will be and you can prescribe as to how that collegium will appoint the grievance redressal authority but it must be left to the States...”
IV. ANALYSIS AND DISCUSSION 4.10 At this juncture, the Committee also takes note of its earlier recommendations as contained in its 29th Report on the subject “Public Grievances Redressal Mechanism” wherein the Committee had observed :– “...In support of its foregoing recommendations/observations, the Committee strongly recommends that the Public Grievance Redressal Mechanism should be envisaged in a statutory form on the line of the Right to Information Act, 2005 which would make it mandatory on all State Governments/UTs/Ministries/Departments/Organisations to pursue the grievance till their final disposal. The Committee also reiterates that like Right to Information Act in the PGRM system there should be a time limit of 30 days and provision of fine on delay should be there”. 4.11 The wide cross-section of opinion available to the Committee through memoranda and depositions overwhelmingly suggested that there was a dire need for enacting a Public Service Delivery law. Opinion was divided on whether it should be separate and distinct 14
from the Lokpal, i.e., be resident in a separate legislation or be part of the Lokpal, though the preponderant view inclined towards the former. 4.12 One of the prime reasons for this separation, as cited by various witnesses, was that the institution of Lokpal would be severely burdened and become unworkable if it also included the jurisdiction of handling public grievances. Public Grievances Redressal, fortified through ‘a Citizens Charter, would necessarily invite millions of complaints on a daily basis and it was, therefore, critical that a separate mechanism was set up more akin to the Right to Information structure. 4.13 The other major reason for keeping the Grievance Redressal Mechanism separate is that these are qualitatively different and easily severable from the issue of corruption in political and bureaucratic circles. 4.14 Citizens’ Charter would involve not only framing, but monitoring of a list of DOs and DON’Ts for the Central Government (and corresponding State Government departments) which may not at all be feasible for a single Lokpal or a single Lokayukta to handle.
V. REASONS AND RECOMMENDATIONS 4.15 The Committee believes that while providing for a comprehensive Grievance Redressal Mechanism is absolutely critical, it is equally imperative that this mechanism be placed in a separate framework which ensures speed, efficiency and focus in dealing with citizens’ grievances as per a specified Citizens’ Charter. The humongous number of administrative complaints and grievance redressal requests would critically and possibly fatally jeopardize the very existence of a Lokpal supposed to battle corruption. At the least, it would severally impair its functioning and efficiency. Qualitatively, corruption and mal-administration fall into reasonably distinct watertight and largely non-overlapping, mutually exclusive compartments. The approach to tackling such two essentially distinct issues must necessarily vary in content, manpower, logistics and structure. The fact that this Committee recommends that there must be a separate efficacious mechanism to deal with Grievance Redressal and Citizens’ Charter in a comprehensive legislation other than the Lokpal Bill does not devalue or undermine the vital importance of that subject. 4.16 Consequently the Committee strongly recommends the creation of a separate comprehensive enactment on this subject and such a Bill, if moved through the Personnel/Law Ministry and if referred to this Standing Committee, would receive the urgent attention of this Committee. Indeed, this Committee, in its 29th Report on “Public Grievance Redressal Mechanism”, presented to Parliament in October, 2008 had specifically recommended the enactment of such a mechanism. 4.17 To emphasize the importance of the subject of Citizens’ Charter and to impart it the necessary weight and momentum, the Committee is of the considered opinion that any proposed legislation on the subject: (i) should be urgently undertaken and be comprehensive and all inclusive; (ii) such enactment should, subject to Constitutional validity, also be applicable for all States as well in one uniform legislation; (iii) must provide for adequate facilities for proper guidance of the citizens on the procedural and other requirements while making requests. 15
(iv) must provide for acknowledgement of citizen’s communications within a fixed time frame; (v) must provide for response within stipulated time frame; (vi) must provide for prevention of spurious or lame queries from the department concerned to illegally/unjustifiably prolong/extend the time limit for response; (vii) must provide for clearly identifiable name tags for each employee of different Government departments; (viii) must provide for all pending grievances to be categorized subject-wise and notified on a continually updated website for each department; (ix) must provide for a facilitative set of procedures and formats, both for complaints and for appeals on this subject along the lines of the Information Commissioners system set up under the RTI; (x) must, in the event that the proposed Central law does not cover States, make strong recommendations to have similar enactments for grievance redressal/ citizen charter at each State level; (xi) may provide for exclusionary or limited clauses in the legislation to the effect that Citizen Charter should not include services involving constraints of supply e.g. power, water, etc. but should include subjects where there is no constraint involved e.g. birth certificates, decisions, assessment orders. These two are qualitatively different categories and reflect an important and reasonable distinction deserving recognition without which Government departments will be burdened with the legal obligation to perform and provide services or products in areas beyond their control and suffering from scarcity of supply. 4.18 The Committee strongly feels that the harmonious synchronization of the RTI Act and of the Citizens’ Charter and Public Grievances Redressal Mechanism will ensure greater transparency and accountability in governance and enhance the responsiveness of the system to the citizens’ needs/expectations/grievances. 4.19 Lastly, the Committee wishes to clarify that the conclusion of the Hon’ble Union Minister for Finance on the Floor of the House quoted in Para 1.8 above of the Report does not intend to direct or mandate or bind or oblige this Committee to provide for a Citizen’s Charter within the present Lokpal Bill alone. The Committee reads the quoted portion in para 1.8 above to mean and agree in principle to provide for a Citizen’s Charter/Grievance Redressal system but not necessarily and inexorably in the same Lokpal Bill. Secondly, the reference to ‘appropriate mechanism’ in para 1.8 above further makes it clear that there must be a mechanism dealing with the subject but does not require it to be in the same Lokpal Bill alone. Thirdly, the reference in para 1.8 above to the phrase ‘under Lokpal’ is not read by the Committee to mean that such a mechanism must exist only within the present Lokpal Bill. The Committee reads this to mean that there should be an appropriate institution to deal with the subject of Citizen’s Charter/Grievance redressal which would be akin to the Lokpal and have its features of independence and efficacy, but not that it need not be the very same institution i.e. present Lokpal. Lastly, the Committee also takes note of the detailed debate and divergent views of those who spoke on the Floor of both Lok Sabha and Rajya Sabha on this issue and concludes that no binding consensus or resolution to the effect that the 16
Grievances Redressal/Citizen’s Charter mechanism must be provided in the same institution in the present Lokpal Bill, has emerged. 4.20 Contextually, the issues and some of the suggestions in this Chapter may overlap with and should, therefore, be read in conjunction with Chapter 13 of this report. Though the Committee has already opined that the issue of grievance redressal should be dealt with in a separate legislation, the Committee hereby also strongly recommends that there should be a similar declaration either in the same Chapter of the Lokpal or in a separate Chapter proposed to be added in the Indian Constitution, giving the same constitutional status to the citizens grievances and redressal machinery. 4.21 This recommendation to provide the proposed Citizen Charter and Grievances Redressal Machinery the same Constitutional status as the Lokpal also reflects the genuine and deep concern of this Committee about the need, urgency, status and importance of a citizen’s charter/grievance machinery. The Committee believes that the giving of the aforesaid constitutional status to this machinery would go a long way in enhancing its efficacy and in providing a healing touch to the common man. Conclusions and recommendations in this regard made in para 13.12 (j) and (k) should be read in conjunction herein. 4.22 Furthermore, the Committee believes that this recommendation herein is also fully consistent with the letter and spirit of para 1.8 above viz. the conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above. 17
CHAPTER-5
THE PRIME MINISTER : FULL EXCLUSION VERSUS DEGREES OF INCLUSION
I. INTRODUCTION AND BACKGROUND 5.1 The issue of inclusion or otherwise of PM has received disproportionate media attention. The Committee received diverse written and oral suggestions varying from complete exclusion to deferred inclusion to partia1 inclusion (with subject matter exclusion) to inclusion subject to significant safeguards/ caveats and finally to total inclusion simpliciter. There was, however, one fascinating feature in the internal deliberations of the Committee. The intense debate and divergence during deliberations within the Committee was not over the Government versus the Jan Lokpal or some other draft but was between one group of Committee Members who strongly advocated the total, absolute and complete exclusion of PM and another group which argued for inclusion subject to a few substantive subject matter exclusions in addition to very significant and broad procedural safeguards (including a prior clearance from either a 11 member Lokpal or the full Bench of the Apex Court).
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 5.2 The memoranda received by the Committee carried the following suggestions/observations:- • Prime Minister cannot be subjected to Lokpal’s jurisdiction in a cavalier manner. • The PM should be altogether kept out of the jurisdiction of Lokpal since Parliament is the best forum we can trust to enforce integrity in the office of the PM. • Include PM in clause 2(1) (i) with certain caveats. • It is necessary to include PM within the purview of Lokpal otherwise, corrupt Ministers/Officers will get away by pleading that they had acted with the approval/ knowledge of PM. • At present, any criminal investigation into allegations made against Prime Minister are required to be investigated by CBI. Therefore, there is no problem if Lokpal investigates, instead of CBI. • Proceedings concerning Prime Minister to be in camera. • Lokpal may investigate into complaints against PM signed by 50/75/100 MPs; similar method in States for CM. • Prime Minister is primus inter pares or ‘first among equals’ in the Council of Ministers. Hence viewed from the Constitutional position, the Prime Minister gets the position of ‘keystone of the Cabinet arc’ only because he is the Head of the Council of Ministers and nothing else. There is nothing inherent in the position of Prime Minister because of which he should be given any special status, especially in matters relating to investigation of corruption.
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• Some qualification like ‘clearance from the Supreme Court’ may be introduced in the Bill to put a wall to prevent black mailing of the Prime Minister. • Proviso may be added to clause 2(1) (i) of the Bill which may read: “Personnel of Prime Minister’s Office, including Minister-in-charge shall be included within this clause.” • Any complaint against Prime Minister to be evaluated by a Full Bench of Lokpal for prima facie evidence. Once the Bench finds prima facie evidence in the complaint, it may be referred to Full Bench of the apex Court for their opinion. On positive opinion from the apex Court, Lokpal notifies the ruling dispensation of imminent inquiry proceedings with a notice of few days giving them time to re-elect a new Prime Minister. • No special treatment is needed for Chief Minister since there is provision of President’s rule at State Government level and no power vacuum is created if Chief Minister has to resign. Article 356 exists for the States, not for the Centre. • Office of PM, including the PM should be under Lokpal. However, acts regarding to national interest and public order should be excluded from the purview of Lokpal. Upon indictment, any reference for prosecution action against the PM can be taken only if the decision is endorsed by simple majority of Joint Session of Parliament. • Bill should include in its ambit, the PM in office; but with certain safeguards like enquiry only after deliberations by the Full Bench of Lokpal, in consultation with the CJI. • Complaints against PM – all such investigations shall be made in a confidential manner and in camera; if any information about material aspects is leaked out, the Investigation Officer shall be prima facie held responsible for such leakage. • If the Lokpal finds a prima facie case against the PM in any complaint against him, he shall send a detailed report to the CJI, along with all material evidence, to seek appropriate directions in the matter, and shall not proceed further to file a charge sheet against the PM, until appropriate direction to do so is given to the Lokpal by the CJI, or until the expiry of six months from the date of submission of report by the Lokpal to the CJI, in case the Lokpal does not receive any appropriate direction from the CJI. • Proviso to Clause 17(1)(a) may be added providing for inclusion of serving Prime Minister if two thirds of members of Lokpal make reference to a sanctioning Committee comprising of Vice-President, Speaker and the Leader of Opposition, Lok Sabha and if that Committee sanctions an inquiry into the conduct of the Prime Minister; and also that no such sanction of inquiry be sought or given against the Prime Minister in respect of allegations on matter to sovereignty and integrity of India and the security of the State. • Definition of “Minister” should include “Personnel of PMO, including Minister- in-charge” – All important policy matters are laid before the PM for its approval; they pass through PMO with valuable views. Exclusion of PM may protect all those persons who are privy to such decision. • The personal immunity of PM will cease after he demits office, but if inquiry/ investigation into the facts is postponed till then, valuable evidence may be lost and immediate adverse impact on the nation may not be prevented. 19
Short Global Survey* • Afghanistan – The President heads the executive and His Office is not under the law on anti-corruption, nor is the judiciary; Bhutan – Every individual residing in Bhutan, including the Prime Minister, judges and lower bureaucracy, are within ACC Bhutan’s jurisdiction; Indonesia – all included; USA – President Clinton was issued a subpoena to testify before a grand jury that was investigating him for possible federal crimes; the court ruled that President Nixon had to turn over the incriminating White House tapes, rejecting his claim of executive privilege; UK – Prime Minister is the head of Government, Prime Minister is subject to the law in the same manner as any member of the public; Korea – President is both the head of State & Head of Govt. President is subject to the Anti-corruption Act, the Public Service Ethics Act & relevant corruption provisions under the Criminal Act. However, under the constitution, the President is entitled to criminal immunity during his tenure of office except for insurrection or; Australia - All MPs, judges, magistrates, holders of judicial office are public officials within the meaning of ICAC Act. It extends to public sector agencies also except Police Force - whose corruption is investigated by the Police Integrity Commission. • Usually, the criminal investigations against Heads of Department/State would be closely linked to parliamentary investigations and legal procedures for impeachment of a sitting Head of State.
III. SUMMARY OF DEPOSITIONS GIVEN BY WITNESSES 5.3 The written comments furnished by the Department of Personnel and Training on this issue are as follows:– “…In the context of the Indian polity, the Prime Minister occupies a pivotal position in the Government’s set up. To ensure that Prime Minister is able to discharge his functions without any interference from any quarter, it is felt that the Prime Minister may be kept outside the purview of the Lokpal. However, after the Prime Minister has demitted the office, he will come within the purview of the Lokpal…” 5.4 Justice M.N. Venkatachalaiah, while placing his considered views, before the Committee, on this subject matter, opined :– “…1 have made it clear in the Constitution Review Commission Report that the Prime Minister’s Office must be kept out of it. You have no idea of what the Prime Minister’s Office is in a parliamentary democracy…” 5.5 Dr. Jayaprakash Narayan, while articulating his Party’s view on this topic, stated:– “…the Prime Minister in our Westminster model is no longer merely first among equals; the Prime Minister of the country is the leader of the nation. A very large complex federal polity like India cannot afford to have the Prime Minister go before a non-Parliamentary body and present himself or defend himself…It does not mean that the Prime Minister should not be accountable. The Prime Minister should be accountable to the Lok Sabha. That is what the Constitution envisages. Certainly, if the Lok Sabha feels that there is something seriously wrong, even the parties in power will not allow the Prime Minister to continue because it is politically not feasible and, constitutionally, the Lok Sabha must be supreme in dealing with the accountability of the Government…it also will lead to a
* As extracted from written memoranda submitted by UNDP India to the Committee. 20
potential situation where there will be roving inquiries without any substance and even if subsequently it is proved that the Prime Minister’s conduct is totally honourable, the damage will be done to the country because if the country is destabilized, if a Government is weakened, the damage is irreversible…” 5.6 He further stated:– “…Mr. Chairman, to ensure that there are very, very strong safeguards and, in those safeguards, we do not believe that judiciary should be the safeguard in protecting the Prime Minister’s institution. We believe it must be a Parliamentary body and, therefore, what we propose is that in case the Prime Minister is sought to be brought within the purview of the Lokpal’s jurisdiction, then, after Lokpal, on the basis of the prima facie evidence or the material before it, at least, two-thirds majority asks a Parliamentary Committee to sanction permission to inquire. Our humble suggestion is that committee should be a three- member committee — we could actually have a variant of that — headed by the Vice- President of India with the Speaker of the Lok Sabha as a Member and the third member being the Leader of the Opposition. Nobody can accuse this body of partisanship because, after all, these are the two high Chairs of the two Houses of the Parliament. The Leader of the Opposition cannot be accused of being partisan in favour of the Government. If anything, the Leader of the Opposition would probably be harshly critical. Perhaps, we can trust these three members to protect the dignity of the Parliament and the nation’s institutions and the privileges of the Executive branch. So, if, indeed, it is found necessary to include the Prime Minister under the jurisdiction of the Lokpal, a safeguard of that kind would probably be practical and would probably protect the interests of the country…the Prime Minister...is not merely first among equals, but he occupies a very pivotal position. There is no equivalent of Article 356 in the Government of India and the Prime Minister is not somebody who can be chosen just like that,…” 5.7 The representative of NCPRI, while advocating their views on this issue, stated that:– “…So, we have suggested three or four type of safeguards. Number one, we have said that only a full Bench of the Lokpal could recommend investigation against the Prime Minister. Number two that Bench will have to refer the matter to a full Bench of the Supreme Court. This is like a mandatory appeal to the Supreme Court which will also examine if there is sufficient evidence. Number three, the Prime Minister cannot be investigated under vicarious responsibility what somebody else has done, but only what the Prime Minister allegedly himself or herself has done. Number four, that there are certain security and other issues which would be exempt from. This…” 5.8 The views of the Bar Council of India, were expressed by its Chairman, in the following words:- “…So we want the Prime Minister out of the Lokpal. Now what we suggest is if the Prime Minister is required to be included and if there is an inquiry against the Prime Minister, let it be investigated in-camera by a bench of five-judges of the hon. Supreme Court presided by the hon. Chief Justice and five senior judges. These proceedings will be in- camera till a definite conclusion is arrived at…” 5.9 The President, Center for Policy Research while tendering oral evidence before the Committee, put forth his suggestions as under:– “…the manner in which the Prime Minister should be brought under the Lok Pal is of some importance. My own view is that I think the Lok Pal Bill, as it currently stands, gets it mostly right. It asserts the principle that the Prime Minister is not above the law, therefore, he can 21
be investigated after he demits office. But he makes due allowance for the fact that the Prime Minister is not just an expression of the sovereignty of the people, the risks of needless investigations, frivolous investigations against the Prime Minister as it were holding Government to ransom, keeping the country’s interests are not inconsiderable and, therefore, the Prime Minister should be out of the purview of the Lok Pal while he is in office…” 5.10 During his deposition before the Committee, he further observed thus:– “…Sir, I would submit, there are two models which you can look at. The UK has excessive exclusions, but it has list of exclusions. Foreign affairs and the affairs relating to the security of the State are two dear examples where, obviously, the Lokpal can have no look- in. The Hong Kong law is far narrower in its exclusions. One can debate individual items, whether they should or should not go; may be the functioning of the Prime Minister’s Office in the economic Ministries needs to be put under the Lokpal. But, outside the economic Ministries, I would suggest it would be hazardous to generally subject the Prime Minister to the jurisdiction of the Lokpal. We have to strike a balance somewhere and I think, that may be a good line to consider on which it can be divided…As far as the inclusion of the Prime Minister in the ambit of the Bill is concerned, my suggestion was on the balance in India. We must include the Prime Minister, at least, in the working of the PMO in the Economic Ministry and that include the Ministry of Finance, Ministry of Mines, Ministry of Telecommunications, the Ministry of Urban Development, Ministry of all natural resources, wherever dealing with the taxpayers’ money, wherever you are dealing with the finance must come within the purview of the Lokpal Bill…” 5.11 The representative of CII, commented on this issue as follows:– “…The first issue is the inclusion of the Prime Minister. We believe that the Prime Minister should be outside the purview of the Lokpal Bill. We also believe that he could be investigated after he demits office. The rationale for our saying this is that the Prime Minister is the head of the Government and he needs to run the Government on a day-to- day basis and anything that hampers his ability to run the Government is something which is not going to be good for the nation…” 5.12 The advocates of the Jan Lokpal Bill, expressed their views on this matter as under:– “…If any PM works for Two consecutive terms, then his works for the first few years cannot be investigated because no case earlier than seven years could be investigated…” 5.13 Shri Amod K. Kanth, while commenting on this issue, stated that:– “…Anyone who has knowledge of our Constitution and Indian laws knows that the rule of law does not exclude the Prime Minister of India at all. Only the President and the Governors have the constitutional immunity. Even today the Prime Minister can be easily investigated. In fact, to make a special provision for the Prime Minister will be a wrong suggestion…” 5.14 It is significant to note that the Second Administrative Reforms Commission, in its Fourth Report on “Ethics in Governance” had observed that:– “The Prime Minister’s unchallenged authority and leadership are critical to ensure cohesion and sense of purpose in government, and to make our Constitutional scheme function in letter and spirit. The Prime Minister is accountable to the Parliament, and on his survival, depends the survival of the Government. If the Prime Minister’s conduct is open to formal scrutiny by extra-Parliamentary authorities, then the Government’s viability is eroded and Parliament’s supremacy is in jeopardy... 22
A Prime Minister facing formal enquiry by a Lok Pal would cripple the Government. One can argue that such an enquiry gives the opportunity to the incumbent to defend himself against baseless charges and clear his name. But the fact is, one there is a formal enquiry by a Lok Pal on charges, however baseless they might be, the Prime Minister’s authority is severely eroded, and the Government will be paralysed. Subsequent exoneration of the Prime Minister cannot undo the damage done to the country or to the office of the Prime Minister. If the Prime A1inister is indeed guilty of serious indiscretions, Parliament should be the judge of the matter, and the Lok Sabha should remove the Prime Minister from office.” 5.15 During the deliberations of the Committee, one of the Members articulated his point of view as follows:–
“…çkbe-fefuLVj dh iwjh liability rks vicarious gh gSA vxj eaf=eaMy esa 20 ea=h gSa] rks çkbe-fefuLVj dksbZ foHkkx MkW;jsDVyh ugha ns[k jgs gSaA vki bldks O;kogkfjd rkSj ij dSls yk,axs\ vxj lapkj ea=ky; esa dqN xM+cM+ gqbZ] vxj isVªksy okys fefuLVj ls dqN xM+cM+ gqbZ] rks vki ;g tks vicarious dh lhy gS] bldks dSls implement djsaxs\ nwljk tc vki [kqn dg jgs gSa fd Anti-corruption Act vkSj Prevention of Corruption Act esa og covered gS] rks D;k vki ;g eglwl ugha djrs fd ;g sufficient safeguard gS\...” 5.16 Another Member of the Committee raised a pertinent concern on this topic in the following words:– “…Second was the inclusion of the Prime Minister within the ambit of the Lokpal. There are a lot of serious issues which could be national security, public order, foreign policy, even there are Ministers, for instance, the Ministers of Defence or Foreign Affairs. What do we do about them? You have your nuclear installations. You have your scientists. You have important issues. What do we do about them? Do we have them in the ambit of the Lokpal? Wouldn’t we be compromising on the security and integrity of the country?...”
V. ANALYSIS AND DISCUSSION 5.17 The issue of the Prime Minister’s inclusion or exclusion or partial inclusion or partial exclusion has been the subject of much debate in the Committee. Indeed, this has occupied the Committee’s deliberations for at least three different meetings. Broadly, the models/ options which emerged are as follows: (a) The Prime Minister should be altogether excluded, without exception and without qualification. (b) The Prime Minister should altogether be included, without exception and without qualification (though this view appears to be that of only one or two Members). (c) The Prime Minister should be fully included, with no exclusionary caveats but he should be liable to action/prosecution only after demitting office. (d) The Prime Minister should be included, with subject matter exclusions like national security, foreign affairs, atomic energy and space. Some variants and additions suggested included the addition of “national interest” and “public order” to this list of subject matter exclusions. (e) One learned Member also suggested that the Prime Minister be included but subject to the safeguard that the green signal for his prosecution must be first obtained from either both Houses of Parliament in a joint sitting or some variation thereof. 23
5.18 It may be added that so far as the deferred prosecution model is concerned, the view was that if that model is adopted, there should be additional provisions limiting such deferment to one term of the Prime Minister only and not giving the Prime Minister the same benefit of deferred prosecution in case the Prime Minister is re-elected. 5.19 In a nut shell, as far as the large number of the Members of the Committee are concerned it was only three models above viz. as specified in paras (a), (c) and (d) in para 5.17 above which were seriously proposed. 5.20 Since the Committee finds that each of the views as specified in paras (a), (c) and (d) in para 5.17 above had reasonably broad and diverse support without going into the figures for or against or into the names of individual Members, the Committee believes that, in fairness, all these three options be transmitted by the Committee as options suggested by the Committee, leaving it to the good sense of Parliament to decide as to which option is to be adopted. 5.21 It would be, therefore, pointless in debating the diverse arguments in respect of the each option or against each option. In fairness, each of the above options has a reasonable zone of merit as also some areas of demerit. The Committee believes that the wisdom of Parliament in this respect should be deferred to and the Committee, therefore, so opines.
VI. REASONS AND RECOMMENDATIONS 5.22 The issue of the Prime Minister’s inclusion or exclusion or partial inclusion or partial exclusion has been the subject of much debate in the Committee. Indeed, this has occupied the Committee’s deliberations for at least three different meetings. Broadly, the models/options which emerged are as follows:– (a) The Prime Minister should be altogether excluded, without exception and without qualification. (b) The Prime Minister should altogether be included, without exception and without qualification (though this view appears to be that of only one or two Members). (c) The Prime Minister should be fully included, with no exclusionary caveats but he should be liable to action/prosecution only after demitting office. (d) The Prime Minister should be included, with subject matter exclusions like national security, foreign affairs, atomic energy and space. Some variants and additions suggested included the addition of “national interest” and “public order” to this list of subject matter exclusions. (e) One learned Member also suggested that the Prime Minister be included but subject to the safeguard that the green signal for his prosecution must be first obtained from either both Houses of Parliament in a joint sitting or some variation thereof. 5.23 It may be added that so far as the deferred prosecution model is concerned, the view was that if that model is adopted, there should be additional provisions limiting such deferment to one term of the Prime Minister only and not giving the Prime Minister the same benefit of deferred prosecution in case the Prime Minister is re-elected. 5.24 In a nut shell, as far as the overwhelming number of Members of the Committee are concerned, it was only three models above viz. as specified in paras (a), (c) and (d) in para 5.17 above which were seriously proposed. 24
5.25 Since the Committee finds that each of the views as specified in paras (a), (c) and (d) in para 5.17 above had reasonably broad and diverse support without going into the figures for or against or into the names of individual Members, the Committee believes that, in fairness, all these three options be transmitted by the Committee as options suggested by the Committee, leaving it to the good sense of Parliament to decide as to which option is to be adopted. 5.26 It would be, therefore, pointless in debating the diverse arguments in respect of each option or against each option. In fairness, each of the above options has a reasonable zone of merit as also some areas of demerit. The Committee believes that the wisdom of Parliament in this respect should be deferred to and the Committee, therefore, so opines. 25
CHAPTER-6
MEMBERS OF PARLIAMENT : VOTE, SPEECH AND CONDUCT WITHIN THE HOUSE
I. INTRODUCTION AND BACKGROUND
6.1 Clause 17(1)(c) of the Lokpal Bill, 2011 enables the Lokpal to inquire into any matter involved in, or arising from, or connected with, any allegation of corruption made in a complaint in respect of any person who is or has been a Member of either House of Parliament. However, sub-clause (2) of this clause specifies that Lokpal shall not inquire into any matter involved in, or arising from, or connected with, any a1legation of corruption complaint against any Member of either House of Parliament in respect of anything said or vote given by him in Parliament or any Committee thereof covered under the provisions contained in clause (2) of Article 105 of the Constitution. In other words, MPs and ex-MPs fall under the jurisdiction of the Lokpal for their acts of corruption, except that their acts like speech or voting in the House cannot be inquired into by the Lokpal to the extent they are covered under Article 105(2) of the Constitution. The Committee had received detailed inputs on the issue whether the conduct of MPs in the House (in the form of speech/vote or action) should also be brought under the jurisdiction of the Lokpal.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA
6.2 Any complaint against a member of any House by Lokpal can be sent to the Presiding Officer of the House, who will, within a limited (well defined) time, either approve the inquiry to be conducted against the Member or if he wants to reject the inquiry, refer it to the Bench of SC/HC which should validate the reasons for such rejection.
6.3 To ensure independence of institutions created under the Constitution, only those acts of MPs in the House where there is a case of undue pecuniary benefit should fall under purview of Lokpal. Moreover, for prosecution of MPs, the Lokpal Prosecution/Investigative Committee/Bench should for these specific cases co-opt additional members who are MPs nominated by the Speaker of Lok Sabha and Chairman of Rajya Sabha.
6.4 Parliamentary privilege does not cover corrupt acts committed by MPs in connection with their duties in the House or otherwise. Hence, the Bill should include such corrupt practice of MPs, whether done in or outside the House.
6.5 The speech of an elected MP inside Parliament cannot be subject to the ideological prejudices of a Lokpal; the vote of an elected Member, if tainted by corruption, must be tackled by Parliament itself as per its rules and norms.
6.6 Clause 17(2) of the Bill should be deleted since there is already a decision of a Constitution bench of the Supreme Court supporting what the sub section says and hence it is not necessary to repeat it in the Bill.
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II. SUMMARY OF DEPOSITIONS GIVEN BY WITNESSES 6.7 The Ministry of Personnel (DoPT) in its comments furnished to Committee clarified the issue in the following terms:– ‘’...It is a matter for examination whether the inquiry by the Lokpal in respect of anything said or vote given by a Member of Parliament would fall under the category ‘proceedings before a court of law’. If so, the MPs would certainly have to be kept outside the purview of the Lokpal…” 6.8 Chairman of Bar Council of India placed the views of the Bar Council over this issue before the Committee as follows: “....Now so far as conduct of MPs within the Parliament is concerned, our view is they should be excluded from the purview of the Lokpal. What we believe is that conduct of MPs within Parliament should be excluded from the purview of the Lokpal Bill considering the constitutional provisions in respect of privileges of Members in Parliament. However, in terms of Article 105 (3) of the Constitution, the powers, privileges and immunities of each House of Parliament and of the Members and the Committees of each House should be defined by Parliament by a separate law dealing with the subject…” 6.9 The President, Centre for Policy Research, while making a presentation before the Committee, emphasized that Constitutional protection given to MPs need not be changed. He put forward his views as:– “...Now, about inclusion of Members of Parliament, my own view is that the protection provided to the Members of Parliament under article 105 (2)(iii) should be sacrosanct. I think for what you say on the floor of the House and the votes and so forth, there is a reason for that constitutional protection and that should remain…” 6.10 Shri Harish Salve while placing his considered views before the Committee, on this subject matter, opined as follows:– “...Article 105 is extremely clear. The control over the Parliament must lie within the Parliament. As much as the control within the Courts lie with the Presiding Officers, as much as nobody from outside Court can tell me what to say in the Court, nobody from outside Parliament can tell any parliamentarian how to behave and what to say in the Parliament, and that is far too precious a virtue for us to sacrifice or compromise. But, Sir, do take this occasion to clear up one terrible aberration that has come into our law. Where article 105 applies, there is complete immunity. But, Sir, please clarify that the immunity of article 105 is not a half-way house; the bribe taker is protected and the bribe giver is subjected to scrutiny of the law. That judgment needs to be corrected. If it is established that somebody has taken a bribe to vote in Parliament in a particular way, with the sanction of the Speaker, because Supreme Court read that in, that can be put on a statutory basis, and if the Speaker of the House considers it appropriate, it is a matter which can be put within the domain of the Lokpal for the investigation. And, once the Speaker of the House, which means once the House, feels that it is a fit case for the Lokpal, then this artificial divide between the bribe giver and the bribe taker must go…” 6.11 President of CII while apprising the Committee of his views/comments on the issue, observed as follows:– “...The next issue is MPs action inside the Parliament. We believe that the existing arrangement should continue. The Privileges Committee should take care of the MPs’ action inside the Parliament. If there is any lacuna in the functioning of the Privileges Committee 27
or if the Privileges Committee is lacking any teeth in the manner in which it can act, I believe that needs to be looked at and that needs to be strengthened…” 6.12 Shri Shekhar Singh of NCPRI while tendering oral evidence before the Committee, put forth his suggestions as under:– “...Let the matter stays as it is though we are not in agreement with what we understand to be the implications of the Supreme Court Order on this matter. We feel that that has gone beyond what the Constitution envisages. So, we would like a position which is strictly in keeping with the Constitutional position. But we would like the Parliament to consider whether it itself wants to review this position especially in the light of some of the past occurrences and, maybe, relax it in a way in which public feel that there is a greater answerability of the MPs even when they are in Parliament…” 6.13 Dr. Jayaprakash Narayan during his presentation before the Committee, elucidated upon the issue as follows:– “As far as Members of Parliament are concerned, article 105(2), the present Bill makes a specific provision of that; I think, it is section 17 (2), if I am not mistaken. Sir, protection of privileges of Members of Parliament for their conduct in the House, what they say, what they believe, and what documents they furnish, that is absolutely inviolable. That is sacrosanct, including their vote…Sir until that is undone, for the lower courts of the Country, the judgment of the Supreme Court is final and binding, and therefore there cannot be any prosecution of a Member of Parliament on grounds of corruption for an act committed in the House. Our view is that these two things must be delinked–the act committed in the House and the corruption, i.e., receiving illegal gratification in order to do a certain thing or not to do in Parliament, in the interest of the Parliament and its dignity. That has to happen only through the Supreme Court pronouncement because Supreme Court has already held; or, it can happen by a law. Parliament and institutions of Constitution are increasingly under attack and now if the Parliament takes this stand, it will actually undermine Parliamentary democracy and the Constitution. Therefore, very humbly, we submit that this must be delinked and section 17 (2) must be deleted…”
IV. ANALYSIS AND DISCUSSION 6.14 From the constitutional perspective, it is quite clear that irrespective of demands, personal preferences, opinions or public perception, it is not possible to prosecute MPs for corruption related acts or omissions so long as such conduct is relatable either to their vote in the House and/or to their speech in the House and/or to publication thereof. The bar of Article 105 is complete and absolute and unless there is a constitutional amendment, the issue cannot be considered further. 6.15 As regards conduct of MPs, both sitting and former, in respect of allegations of corruption not related to their vote/speech/conduct in the House, the Lokpal Bill already mandates coverage under section 17(1)(c). 6.16 There appears to be no consensus among the Committee Members or, indeed among political parties to the effect that Article 105 be deleted or substantially or marginally modified to erode or deprive MPs of this immunity. Such an enterprise would lead to avoidable confusion and certain and inordinate delay involving a constitutional amendment without even minimal consensus. Thus as far as Article 105 is concerned, there being united opposition regarding protecting the privilege of MPs and preservation of the essence of 28
Article 105, it is recommended that the exception or clarification contained in section 17 (2) of the Lokpal Bill be retained. 6.17 There is a perception that conduct of MPs in the House is not subject to any monitoring or sanction. In this context it is critical to underscore that Article 105 does not provide MPs immunity or protection from disciplinary proceedings or sanctions initiated and conducted by the Parliament itself. As an illustration the cash for questions scam in this year led to the expulsion of 11 Members from different political parties. Their appeal to the Supreme Court challenging their expulsion was also rejected by the Supreme Court1. There is a weighty body of opinion in our country which thinks that this is the way it should be and that for vote, speech or action within Parliament, accountability must be demanded from and owed to Parliament itself and not to external policing bodies like Lokpal. 6.18 Even the Jan Lokpal Bill as presented by the team headed by Shri Anna Hazare proposed that investigations into affairs of the Members of Parliament should be permissible, subject to Article 105 of the Constitution. They, however, contend that Article 105 of the Indian Constitution does not seek to immunize corrupt vote, corrupt speech and corrupt action within the House. Alternatively, they contend that if Article 105 is read to granting immunity to vote, speech or conduct involving corruption, then Article 105 must necessarily be amended.
V. REASONS AND RECOMMENDATIONS 6.19 The Committee strongly feels that constitutional safeguards given to MPs under Article 105 are sacrosanct and time-tested and in view of the near unanimity in the Committee and among political parties on their retention, there is no scope for interfering with these provisions of the Constitution. Vote, conduct or speech within the House is intended to promote independent thought and action, without fetters, within Parliament. Its origin, lineage and continuance is ancient and time-tested. Even an investigation as to whether vote, speech or conduct in a particular case involves or does not involve corrupt practices, would whittle such unfettered autonomy and independence within the Houses of Parliament down to vanishing point. Such immunity for vote, speech or conduct within the Houses of Parliament does not in any manner leave culpable MPs blameless or free from sanction. They are liable to and, have, in the recent past, suffered severe parliamentary punishment including expulsion from the Houses of Parliament, for alleged taking of bribes amounting to as little as Rs. 10,000/- for asking questions on the floor of the House. It is only external policing of speech, vote or conduct within the House that Article 105 frowns upon. It leaves such speech, vote and conduct not only subject to severe intra-parliamentary scrutiny and action, but also does not seek to affect corrupt practices or any other vote, speech or conduct outside Parliament. There is absolute clarity and continued unanimity on the necessity for this limited immunity to be retained. Hence, speculation on constitutional amendment in this regard is futile and engenders interminable delay. 6.20 Consequently, the existing structure, mechanism, text and context of clauses 17 (1) (c) and 17 (2) in the Lokpal Bill 2011 should be retained.
1See the judgement of five judges Constitutional bench headed by Chief Justice Y.K. Sabharwal in Raja Rampal Vs. The Hon’ble Speaker, Lok Sahha and Ors. dated l0th January, 2007. 29
CHAPTER-7
LOKPAL AND STATE LOKAYUKTAS : SINGLE ENACTMENT AND UNFORM STANDARDS
I. INTRODUCTION AND BACKGROUND
7.1 Keeping in mind the federal structure of our country and the need to cover all public functionaries, either at the Centre or at the States under a corruption watchdog, it has long been proposed that while there would be a Lokpal for the Centre, there must be Lokayuktas for each State. The difference in terminology is merely to demarcate the Centre – State distinction, albeit the roles perfonned by the Lokpal and Lokayukta in their respective jurisdictions would be similar. Over a period of time some States have enacted legislations creating the office of the Lokayukta. Their evolution at the State level has been briefly adverted to in para 3.8 above. While some of these States have institutions which developed roots in that State, other States have not succeeded in realizing their own legislative mandate. Still others do not still have Lokayuktas, either on account of absence of legislation2 or due to unfulfilled vacancy3. Currently about 17 States and one Union Territory have Lokayukta enactments with huge variance in their jurisdiction, powers, scope, function and mandate. The standards applied to identifying offences, investigations, prosecution and penalties differ from State to State. Therefore there has been a huge clamor for universal standards and an omnibus umbrella enactment to cover all States as also the Union. However, considering the federal structure of the Constitution and the split of powers between Centre and State, there has been a debate about the constitutional feasibility of such an omnibus enactment.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA
7.2 Lokayuktas needed in States.
7.3 This Bill should also incorporate a separate chapter on Lokayukta in each State and local ombudsman in each city/district under the Lokayuktas. Lokayuktas may be empowered on the lines of Lokpal and CVC as in the case of Central Government.
7.4 Set up strong Lokayuktas in the States within the frame work of the Constitution. 7.5 Lokpal needs to be a Constitutional authority, like the ECI or CAG rather than a statutory body, so that it has higher levels of legitimacy.
7.6 The DoPT, in its written comments on the issue, has stated:– “...The Bill seeks to provide Lokpal at the Centre and it may constitute Benches which shall ordinarily sit at New Delhi [Clause 19]. At State level, the concerned State Government has to consider setting of Lokayuktas.”
2Nine States and six UTs do not have institution of Lokayukta 3Presently, post of Lokayukta is vacant in four States which have Lokayukta enactment.
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7.7 The proponents of the Jan Lokpal Bill, in their written submission, have opined thus:– “...Similar provisions for Lokayuktas in the States to deal with public servants of respective State will have to be incorporated in this Bill. 18 States already have Lokayuktas. However, they are all very different from each other in terms of powers, jurisdictions etc. They have proved ineffective in checking corruption due to critical deficiencies in most of these legislations. Other States do not have any Lokayuktas. Therefore, it is urged that through the same Act, a uniform institution of Lokayukta should be set up in each State on the same lines as Lokpal at the Centre…”
III. SUMMARY OF DEPOSITIONS GIVEN BY WITNESSES 7.8 The representatives of NCPRI placed their views before the Committee as under:– “...The first comment is that we were disappointed that in the Government Lokpal Bill there was no mention that there will be a corresponding Lokayuktas at the State level. It is our belief that the Parliament is competent to legislate despite the fact that there have been debates to the contrary on a Bill which includes both the Lokpal at the Centre and the Lokayukta at the State level. We have given our reasoning…” 7.9 Dr. Jayaprakash Narayan, while voicing his opinion on this issue, stated:– “...I am going to argue that the Lokayukta must be mandatorily created and the law must be under article 253.” 7.10 The CVC, in its written submission to the Committee, observed that:– “At present, there are multiple agencies and bureaus in the States and the focus in addressing anticorruption matter in the States needs to be more organized. The Commission receives a large number of complaints relating to matters of State Governments and the Commission has no jurisdiction over the State mechanisms of Lokayuktas in the States on the lines of Lok Pal should be established within the frame work of our Constitution.” 7.11 Justice J.S. Verma came forward with the following opinion on the issue of going in for an onmibus federal legislation to set up Lokayuktas in the States. The opinion of Justice Verma which covers the aspect of the constitutionality of the proposed move also, reads as follows:– “…Article 253 of the Constitution confers the legislative competence needed to implement the UN Convention, which has been signed and ratified by India. It is relevant to highlight that Article 6 of the convention enshrines a specific obligation for member states to establish bodies that present corruption…The directive principle of State policy in Article 51 (c), as a principle fundamental in governance is available as an aid. There is, therefore, no need to look for any additional support for the legislative competence of the Parliament to legislate on the subject for the whole territory of India. In addition, it would not be out of place to mention that the failure to take effective steps with respect to the establishment of such institutions could lead to India being considered to be in breach of its obligations under international law, which must obviously be avoided at all costs...... Similarly, for ‘combating corruption’ in a more effective manner a uniform legislation enacted by the Union Parliament by invoking Article 253 can provide for the Lokpal and the Lokayuktas...... The Parliamentary central enactment made by invoking Article 253 would be constitutionally valid, such legislative competence in the Union Parliament being expressly 31
provided as a part of the constitutional scheme, consistent with the nature of federalism created by the Constitution…” 7.12 Justice J.S. Verma, while placing his considered views before the Committee, stated:– “…But we are trying to say not a single word except to provide a declaration that there could be a Constitutional body and once this Constitution Amendment Bill is passed so that it becomes a part of the Constitution. Then, there are several other implications which have got to be taken note of. This is something which cannot be ordinarily amended like an ordinary statute by some simple majority. It would be difficult. Secondly, if it becomes a basic feature and, therefore, a part of the basic structure which personally, I think, my friend agrees, ultimately it will become a part of the indestructible basic structure of the Constitution which any kind of change in the political equations or formulations, it would be beyond amending power even of Parliament. Article 253 of the Constitution clearly provides that for the purpose of implementing an international treaty convention, etc., the Parliament is entitled to enact for the whole or any part of the territory. We have already a precedent. The Protection of Human Rights Act,1993 was enacted by the Parliament. We deal with not only the Constitution and the National Human Rights Commission but also the State Human Rights Commission: It is for the whole. My preference would be for a federal legislation because that is something which will ensure uniformity. The State would be involved only in making the appointment…” 7.13 The deposition of Dr. Jayaparakash Narayan on this issue was as under:– “…That is the reason why we believe that a Lokayukta institution is absolutely necessary under Article 253, not under Article 252 with due respect. And, the Chief Minister must be brought under the purview of Lokpal, but not under Lokayukta ideally…” 7.14 The Committee takes note of the opinion of Shri Harish Salve in this regard:– “…We cannot sacrifice federalism because a group of people do not have faith in the State Governments. If the law is to come in that form, then it cannot, in my respectful opinion, apply to the States. The States in Entry 41 List-II of the Constitution have the right to regulate their own services as any employer should. If the States have to govern themselves, it must be under their own law…” 7.15 In its written memorandum submitted to the Committee, CHRI has opined: “…So a single law providing for both Lokpal and Lokavuktas can be enacted by Parliament under multiple fields mentioned in List Ill. As the scheme of division of powers mentioned in Articles 246 and 254 of the Constitution gives preeminence to laws made by Parliament [except under certain circumstances spelt out in Article 254(2)] this law will prevail over all other existing laws relating to the working of Lokayuktas. A law made by Parliament will ensure uniformity in the systems established for combating corruption throughout the country…The proposed Lokayukta will have the power to recommend dismissal or other penalties against corrupt officers of the State Public services only in the context of a corruption-related matter brought before it. The proposed law does not seek to empower the Lokayukta to exercise such powers routinely in the manner of State Governments. Such incidental encroachment on any field contained in list II is permissible under this rule of interpretation. As the central purpose of the proposed Lokpal/Lokayukta legislation is not the regulation of the State Public Services but combating corruption, the courts are no likely to strike it down on the ground of lack of legislative competence.” 32
7.16 On the issue whether the Bill would also be entitled to repeal the existing Lokayukta enactments, the considered view of Justice J.S. Verma was:– “...Once the Union Parliament enacts the Central legislation by invoking Article 253 for the whole territory of India, the existing State legislations relating to the Lokayuktas being repugnant to it shall be void, by virtue of Article 254(1)…” 7.17 The Ministry of Law (Department of Legal Affairs) expressed their views in the following terms, on the issue under examination:– “It may be stated in this regard that while examining the draft note for the Cabinet regarding Lokpal Bill, 2011, this Department has already opined that the subject matter of the Draft Bill is relatable to Entry 1 and 2 of List III i e. Concurrent List of the Seventh Schedule to the Constitution, As such the Parliament as well as Legislative Assemblies have legislative competence over the subject. Further, as the proposed Bill would extend to the whole of India, the constitution of Investigation wing having powers of Police for the purpose of investigation of offences punishable under the Prevention of Corruption Act, 1988 (Clauses 12 & 13 of the Draft Bill) and the establishment of Prosecution Wing (Clause 15 of the Draft Bill) may likely to affect the powers of the States, as “Police” and “Public Order” are the subjects which find place as Entry 1 and 2 respectively in the List II i.e. State List of the Seventh Schedule to the Constitution. Therefore, an enactment by the Parliament on the subject to provide for State Lokayuktas in Lok Pal Bill, 2011, may not only amount to encroachment upon the jurisdiction of the States but would also affect the federal structure of the Constitution. Besides the aforesaid, under the proposed Bill, no sanction or approval would be required under Section 197 of the Code of Criminal Procedure, 1973 or Section 19 of the Prevention of Corruption Act, 1988 where prosecution is proposed by Lokpal (Clause 26 of the Draft Bill). This may also be against the concept of the protection presently available to the public servants. Under Article 253 of the Constitution the Parliament can enact with respect to any subject (including State subjects) for the purpose of implementing any treaty or agreement or convention with any other country or countries or any decision made at any international conference or body. But the enactment by Parliament, if any, under Article 253 would also be within the ambit of the constitution. Regarding the Constitutionality of including State Lokayuktas in the Lokpal Bill, 2011, the Parliament may consider to enact a model law for the States.” 7.18 Shri Rajeev Dhawan, Sr. Advocate, Supreme Court of India while placing his views before the Committee, stated thus:– “…Bringing Lokayuktas under the Bill may be unconstitutional. It is certainly anti-federal. Let the states decide what they want and how their chief Ministers should be toppled…”
IV. ANALYSIS AND DISCUSSION 7.19 There are many advantages to having the Lokayukta provisions in the same federal enactment. Uniformity is the most important, since there is no reason why a public servant in one State should be prosecutable on different standards than a public servant in an adjoining State with the federal Lokpal Act enunciating a possible third standard, all in the same country. 7.20 However, the main issue which arises is ensuring constitutional validity of such an onmibus federal enactment. This can be approached from two routes, both cumulative, and not in the alternative. 33
7.21 Firstly, Article 253 of the Constitution provides a strong constitutional basis for such an enactment, since the Lokpal Act is admittedly being included pursuant to the UN Convention on Corruption, now ratified by India. This view has been endorsed by some noted jurists and witnesses, whose opinion is with the Committee4 (Annexure E). There is also a precedent in an earlier parliamentary enactment viz. the Protection of Human Rights Act, 1986 which was enacted under Article 253 power to implement the UN Convention for the Protection of Human Rights. This Act provided for setting up of both the National Human Rights Commission and for establishment of State Human Rights Commissions. 7.22 Secondly, the Lokpal Act deals with criminal/penal action against public servants including application of the IPC and the CrPC, both of which are covered under List III, entries 1 & 2. The Lokpal Bill also touches upon the issue of administration of justice specifically covered under Entry 11 A of List III. 7.23 In view of the above, the Committee is of the view that Parliament is fully empowered under either Article 253 and/or Entries 1, 2 and 11A of List III to enact an all India legislation providing for both Lokpal at the Centre and Lokayukta in each State. 7.24 As regards the status of existing State Lokayuktas Acts, Article 254 of the Constitution provides that State laws shall be void to the extent of repugnancy with Parliamentary law. States do have the option of over-riding Parliamentary supremacy in List-III by making State amendments with Presidential assent. The Committee therefore feels that there would be no constitutional hurdle in providing a comprehensive and single legislation for both the Lokpal and the Lokayuktas.. 7.25 The Lokpal Bill will have to include additional chapters in order to prescribe provisions applicable for Lokayuctas in the States which will adopt the Lokpal provisions, mutatis mutandis, for the States.
V. REASONS AND RECOMMENDATIONS 7.26 The Committee finds merit in the suggestion for a single comprehensive federal enactment dealing with Lokpal and State Lokayuktas. The availability of uniform standards across the country is desirable; the prosecution of public servants based upon widely divergent standards in neighboring states is an obvious anomaly. The Committee has given its earnest attention to the constitutional validity of a single enactment subsuming both the Lokpal and Lokayukta and concludes that such an enactment would be not only desirable but constitutionally valid, inter alia because, (a) The legislation seeks to implement the UN Convention on Corruption ratified by India. (b) Such implementing legislation is recognized by Article 253 and is treated as one in List III of the 7th Schedule. (c) It gets additional legislative competence, inter-alia, individually or jointly under Entries 1, 2 and 11A of List-III. (d) A direct example of provision for National Human Rights Commission and also for State Human Rights Commissions in the same Act is provided in the Protection of the Human Rights Act, 1986 seeking to implement the UN Convention for the Protection of Human Rights.
4See, inter alia, opinion of former Chief Justice of India/Hon’ble Mr. Justice J.S. Verma dated 4th November, 2011. 34
(e) Such Parliamentary legislation under Article 253, if enacted, can provide for repealing of State Lokayukta Acts; subject, however, to the power of any State to make State specific amendments to the federal enactments after securing Presidential assent for such State specific amendments. 7.27 Additionally, it is recommended that the content of the provisions dealing with State Lokayuktas in the proposed Central/federal enactment must be covered under a separate chapter in the Lokpal Bill. That may be included in one or more chapters possibly after Chapter II and before Chapter III as found in the Lokpal Bill 2011. The entire Lokpal Bill 2011 would have to incorporate necessary changes and additions, mutatis mutandis, in respect of the State Lokayukta institutions. To give one out of many examples, the Selection Committee would be comprised of the State Chief Minister, the Speaker of the Lower House of the State, the Leader of Opposition in the Lower House, the Chief Justice of the High Court and a joint nominee of the State Election Commissioner, the State Auditor General and State PSC Chairman or, where one or more of such institutions is absent in the State, a joint nominee of comparable institutions having statutory status within the State. 7.28 All these State enactments shall include the Chief Minister within their purview. The Committee believes that the position of the State Chief Minister is not identical to that of the Prime Minister. The arguments for preventing instability and those relating to national security or the image of the country do not apply in case of a Chief Minister. Finally, while Article 356 is available to prevent a vacuum for the post of Chief Minister, there is no counterpart constitutional provision in respect of the federal Government. 7.29 Article 51 (c) of the Directive Principles of State Policy enjoining the federation to “foster respect for international law and treaty obligations...” must also be kept in mind while dealing with implementing legislations pursuant to international treaties, thus providing an additional validating basis for a single enactment. 7.30 The Committee recommends that the Lokpal Bill, 2011 may be expanded to include several substantive provisions which would be applicable for Lokayuktas in each State to deal with issues of corruption of functionaries under the State Government and employees of those organizations controlled by the State Government, but that, unlike the Lokpal, the state Lokayuktas would cover all classes of employees. 7.31 The Committee recommends that if the above recommendation is implemented the Lokpal Bill 2011 may be renamed as “Lokpal and Lokayuktas Bill 2011” 7.32 The Committee believes that the recommendations, made herein, are fully consistent with and implement, in letter and spirit, the conclusions of the Minister of Finance on the floor of the Houses in respect of establishment of Lokayuktas in the States, as quoted in para 1.8 above. The Committee is conscious of the fact that the few States which have responded to the Secretariat’s letter sent to each and every State seeking to elicit their views, have opposed a uniform Central federal Lokpal and Lokayukta Bill and, understandably and expectedly, have sought to retain their powers to enact State level Lokayukta Acts. The Committee repeats and reiterates the reasons given hereinabove, in support of the desirability of one uniform enactment for both Lokpal and Lokayuktas. The Committee also reminds itself that if such a uniform Central enactment is passed, it would not preclude States from making any number of State specific amendments, subject to prior Presidential 35
assent, as provided in the Indian Constitution. The Committee, therefore, believes that it has rightly addressed the two issues which arise in this respect viz. the need and desirability for a uniform single enactment and, secondly, if the latter is answered in the affirmative, that such a uniform enactment is Constitutionally valid and permissible. 7.33 Since this report, and especially this chapter, recommends the creation of a uniform enactment for both Central and State Lokayuktas, it is reiterated that a whole separate chapter (or, indeed, more than one chapter) would have to be inserted in the Lokpal Bill of 2011 providing for State specific issues. Secondly, this would have to be coupled with mutatis mutandis changes in other parts of the Act to accommodate the fact that the same Act is addressing the requirement of both the federal institution and also the State level institution. 7.34 Furthermore, each and every chapter and set of recommendations in this report should also be made applicable, mutatis mutandis, by appropriate provisions in the Chapter dealing with State Lokayuktas. 7.35 Although it is not possible for this Committee to specifically list the particularised version of each and every amendment or adaptation required to the Lokpal Bill, 2011 to subsume State Lokayuktas within the same enactment, it gives below a representative non-exhaustive list of such amendments/adaptations, which the Government should suitably implement in the context of one uniform enactment for both Lokpal and Lokayuktas. These include: (a) Clause 1 (2) should be retained even for the State Lokayukta provisions since State level officers could well be serving in parts of India other than the State concerned as also beyond the shores of India. (b) The Chief Minister must be included within the State Lokayukta on the same basis as any other Minister of the Council of Ministers at the State level. Clause 2 of the 2011 Bill must be amended to include Government servants at the State level. The competent authority in each case would also accordingly change e.g. for a Minister of the Council of Minister, it would be the Chief Minister; for MLAs, it would be the presiding officer of the respective House and so on and so forth. The competent authority for the Chief Minister would be the Governor. (c) As regards Clause 3, the only change would be in respect of the Chairperson, which should be as per the recommendation made for the Lokpal. (d) As regards the Selection Committee, the issue at the Lokayukta level has already been addressed above. (e) References in the Lokpal context to the President of India shall naturally have to be substituted at the Lokayukta level by references to the Governor of the State. (f) The demarcation of the criminal justice process into five broad areas from the initiation of complaint till its adjudication, as provided in Chapter 12, should also apply at the State Lokayukta level. The investigative agency, like the CEI, shall be the anti-corruption unit of the State but crucially, it shall be statutorily made independent by similar declarations of independence as already elaborated in the discussion in Chapter 12. All other recommendations in Chapter 12 can and should be applied mutatis mutandis for the Lokayukta. 36
(g) Similarly, all the recommendations in Chapter 12 in respect of departmental inquiry shall apply to the Lokayukta with changes made, mutatis mutandis, in respect of State bodies. The State Vigilance Commission/machinery would, in such cases, discharge the functions of the CVC. However, wherever wanting, similar provisions as found in the CVC Act buttressing the independence of the CVC shall be provided. (h) The recommendations made in respect of elimination of sanction as also the other recommendations, especially in Chapter 12, relating to Lokpal, can and should be applied mutatis mutandis in respect of Lokayukta. (i) Although no concrete fact situation exists in respect of a genuine multi- State or inter-State corruption issue, the Committee opines that in the rare and unusual case where the same person is sought to be prosecuted by two or more State machineries of two or more Lokayuktas, there should be a provision entitling the matter to be referred by either of the States or by the accused to the Lokpal at the federal level, to ensure uniformity and to eliminate turf wars between States or jurisdictional skirmishes by the accused. (j) As already stated above, the coverage of the State Lokayukta, unlike the Lokpal, would extend to all classes of employees, including employees of state owned or controlled entities. 37
CHAPTER-8
LOWER BUREAUCRACY : DEGREES OF INCLUSION INTRODUCTION AND BACKGROUND
8.1 The current provisions of the Lokpal Bill 2011 [section 17 (1) (d)] include, inter alia, only Group A officers or equivalent, (serving or has served) from amongst the Public Servants defined in section 2 (c) of the Prevention of Corruption Act 1988. The central bureaucracy is broadly classified into Groups A, B, C and D – such categories being drawn on the lines of decision making power and remuneration. While Group A includes almost all officers from the rank of Section Officer and above, Group C and D form the very lower rungs of the bureaucracy including posts of attendants, clerks, senior clerks, stenos, peons, drivers et al. On a broad estimate, as of 2010, Group A officers comprise about 80,000 in number and Group B officers comprise about 1.75 Lakhs. Group C and D on the other hand are about 28 Lakhs in number. This classification and categorization may be different from State to State and will therefore have to be addressed separately in respect of the State bureaucracy. The debate revolved around the extent of inclusion of the bureaucracy within the ambit of the Lokpal particularly in the context of the humongous numbers which the Lokpal may have to handle as well as the speed, efficiency and workability of the Lokpal institution. It is important to emphasize at this stage that the aforesaid Group A and B numbers of approximately 2.56 1akhs excludes the substantial numbers of Group A and B or equivalent officers in all public sectors or all entities owned or controlled by the Central Government and, more significantly, the entire Railways and P&T departments, for which the figures are not readily available. However, all such categories are subsumed under the Lokpal.
SUMMARY OF SUGGESTION/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 8.2 The major points raised in the memoranda received by the Committee, on this topic are: • Include lower level of public and private functionaries in the Bill. • The word Group “A” service and equivalent needs wider definition. (i) CVC to be strengthened (ii) CVC to cover Public Servants other than Group “A” Officers; and (iii) State Vigilance Commissions to be created in each State. • All the big cases of corruption involve various ranks simultaneously. So, dividing public servants into two categories will frustrate the investigations and help the corrupt. • Single directive that protected JS and seniors have scuttled investigations. • Lokpal’s direct jurisdiction be limited to those as provided in the present Bill. • Strengthen CVC making it part of Lokpal with specific jurisdiction to deal with officials below Joint Secretary rank but above a certain rank. • Vigilance Organisations in each agencies will deal with all the Ministerial staff.
37 38
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES 8.3 The Chairman, Bar Council of India opined thus:– “...One, confine the Lokpal to investigate into allegations of corruption against Central Ministers and higher officers in the Government, not below the rank of Joint Secretaries. Limit it at that so far as the Lokpal is concerned. In the alternative, have different benches to hear different kinds of cases…” 8.4 One of the witnesses who appeared before the Committee, stated as under:– “...My view is that the lower bureaucracy should not come under the ambit of the Lokpal, one for very practical reason which is that then the Lokpal itself will become a gigantic bureaucracy and a gigantic bureaucracy superintending another gigantic bureaucracy is not a recipe for efficiency You need a separate mechanism for local bureaucracy....” 8.5 Shri B. Muthuraman, while placing the views of CII before the Committee, stated:– “...We believe that all bureaucracy should be included under the Lokpal, but we also think it may become an unworkable proposition from the point of view of numbers. So, if for the first few years, let us say 3 to 5 years, Lokpal should restrict itself only to higher bureaucracy and after it settles down and starts functioning well, then you can add lower level bureaucracy....” 8.6 The DoPT, in its written comments, has stated :– “...The provisions made in clause 17 of the Bill appear to be adequate. If lower bureaucracy and other institutions suggested by the author are also brought within the purview of the Lokpal, it will over burden the Lokpal…” 8.7 Shri Shekhar Singh (NCPRl) stated as follows :– “…Therefore, we have argued that for ‘B’ and ‘C’ and ‘D’ officers complaints under the Prevention of Corruption Act must first be to the police or Anti-Corruption Bureaus which are under the elected Governments…So, it is a system similar to the High Court system where there is going to be territorial jurisdiction and any Central Government officer wherever he or she is posted a complaint will rest with the local police there. They would be prepared in keeping with, for example, the CBI manual, a protocol of investigation and if that protocol is violated, then, a complainant or anybody can move the Up- Lokayukta or the Up-Lokpal where the complainant is located and then they can examine it and take over the investigation. After they have accepted and taken over the investigation they are not only obliged to complete that investigation but they are also obliged to fix the responsibility and if need be take action against that Investigating Officer who did not perform his or her job and, therefore, the matter had to be taken over. So what we are thinking of is an interlocking responsibility so that pressure builds up on the State Governments to make sure that they do their job and everything does not come to this independent body. …we were also disappointed that there were many categories of public servants who were left out from the Government Lokpal Bill. First of all, the Judges or higher judiciary was left out and we are of the view that whereas the higher judiciary should not be part of the Lokpal, but simultaneously there should be a strengthened Judicial Accountability Bill which covers this…” 8.8 Shri P.S. Bawa, Transparency International India placed before the Committee, their views as:– 39
“…Our contention is that Grade ‘A’ is not defined in any law. It is a sort of a financial categorization of Grade ‘A’, ‘B’ and ‘C’ officers. This criterion, based on the salary, is not a correct criterion. Therefore, this defies the equality clause in the Constitution where justice is to be delivered to everybody and everybody is equal before law. We feel that the Bill should cover all public servants irrespective of their being category a, b, c, or whatever it is…” 8.9 One of the Members of the Committee, opined in this regard as:–
“…,d QksFkZDykl dk deZpkjh gS] QksFkZ Dykl dk rks djI”ku ls dksbZ ysuk-nsuk gh ugha gSA Who are the people covered under fourth class? It includes the Peon and the lady tks ikuh fiykus okyh ckbZ gS ;k fQj lQkbZ deZpkjh gSa] ,sls yksx QksFkZ Dykl esa vkrs gSaA What kind of scope he is getting in his life to get involved in corruption? ysfdu mls Hkh yksdk;qDr esa j[kus ds fy, dgk tk jgk gSA eku yhft, esjh dkyksuh esa lQkbZ deZpkjh lQkbZ djus ugha vk;k] pwafd eSa vij Dykl dk gwa] blfy, eSaus ,Iyhds”ku dj nh fd ;g vkneh dke djus ds fy, ugha vk;k] blfy, bls fudkyk tk,A blesa nks&rhu ckrsa gSa] viuh bTtr cukus esa vkSj bZekunkjh ls dke djus esa ljdkjh deZpkfj;ksa dks lkyksa yx tkrs gSaA…” 8.10 Dr. Jayaprakash Narayan, while speaking on this issue, stated thus:– “We believe the LokPal should not cover everybody; it must cover only the high functionaries, both political and bureaucratic. The CVC, directly or indirectly, takes charge of others. In fact, that addresses the problem of lower bureaucracy. There is no single body that can deal with 20 million employees in this country at the State and national levels. Even at the national level alone, there are about 6 million plus employees. If you include the public sector undertakings, maybe it is actually a million more or so. You will have tens of thousands of petitions everyday...” 8.11 The Central Vigilance Commissioner, while deposing before the Committee, stated thus:– “…There is a basic difference. This is a question why disciplinary action has been taken against Government servants. In my presentation, 1 tried to explain why all other people are covered only under the Prevention of Corruption Act whereas only Government servants they are there. They are covered under the departmental disciplinary rules. Under the departmental disciplinary rules, under lower standards of proof also they get dismissed. So, basically the entire bureaucracy is handled under the departmental rules. It is only in selected cases that Prevention of Corruption Act is done. If you bring the entire people under the Prevention of Corruption Act, firstly, the courts will get clogged. There will be no action taken; and the standards of proof that would be required would be much higher…if you follow an investigation which is there in the courts is not a desirable mechanism for this thing, because what is important for civil servants is if there is a corruption, action should be swift and fast and the outcome should be certain. That is only possible in disciplinary inquiries which finish between one or two years whereas if you put them under the PC Act, this will go on and on for years and the senior officers will escape the net…”
IV. ANALYSIS AND DISCUSSION 8.12 Any Lokpal would be approximately a 7 or 9 or 11 member body and it would be virtually impossible for any such body to cover all the 30 lakh employees of Central Government spread over categories ‘A’ to ‘D’. (excluding Railways, PSUs, P&T etc., also covered under Classes A and B.) 40
8.13 The object is to create a new body i.e. the Lokpal, which, unlike the pre-existing bodies, is far more efficacious and swift. That objective would obviously be defeated if humungous numbers are added to this coverage. 8.14 The impression that inclusion of Group ‘A’ plus ‘B’ involves exclusion of large sections of the bureaucracy must be dispelled. Though in terms of number, the aggregation of Groups ‘C’ and ‘D’ is an overwhelming percentage of total Central Government employees, Group ‘A’ and Group ‘B’ include the entire class above the supervisory level. Effectively this means that virtually all Central Government employees at the Section Officer level and above would be included. It is vital to emphasize that this demarcation has to be viewed in functional terms and status, since it gives such categories significant decision making power in contra-distinction to mere numbers and necessarily subsumes a major chunk of medium and big ticket corruption. 8.15 The current, contemporary context has been one of anger and dissatisfaction mainly with corruption in the higher echelons, whether of the bureaucracy or of the political class. A majority of Committee Members expressed the opinion that while inclusion of Class C and D would unnecessarily overburden the Lokpal as also create a mechanism and avenue for exploitation of economically weaker sections, inclusion of Group B would not do much damage or obstruction to the speed, efficiency and functioning of the Lokpal. 8.16 The Committee has therefore considered including Group B officers as well within the ambit of the Lokpal. 8.17 The Committee would like to clarify that Group C and D officers or government employees are already within the purview of the Prevention of Corruption Act and therefore not outside the ambit of investigation and prosecution. In the proposed recommended regime (as is being suggested by this Committee) the existing fetters of section 19 of the Prevention of Corruption Act (prior sanction) would be removed for all classes. If this be so, there would be an equally robust mechanism for addressing complaints against Group C and D officers as well.
V. REASONS AND RECOMMENDATIONS 8.18 The Committee, therefore, recommends: (a) That for the Lokpal at the federal level, the coverage should be expanded to include Group A and Group B officers but not to include Group C and Group D. (b) The provisions for the State Lokayuktas should contain similar counterpart reference, for purposes of coverage, of all similar categories at the State level which are the same or equivalent to Group A and Group B for the federal Lokpal. Though the Committee was tempted to provide only for enabling power for the States to include the State Lokayuktas to include the lower levels of bureaucracy like groups ‘C’ and ‘D’ at the State level, the Committee, on careful consideration, recommends that all the groups, including the lower bureaucracy at the State level and the groups equivalent with ‘C’ and ‘D’ at the State level should also be included within the jurisdiction of State Lokayuktas with no exclusion. Employees of state owned or controlled entities should also be covered. (c) The Committee is informed by the DoPT that after the Sixth Pay Commission Report, Group-D has been/will be transposed and sub-merged fully in Group-C. In other words, after the implementation of the Sixth Pay Commission Report, 41 which is already under implementation, Group-D will disappear and there will be only Group-C as far as the Central Government employees are concerned.
(i) Consequently, Group-C, which will shortly include the whole of Group-D will comprise a total number of approximately 30 lakhs (3 million) employees. Though the figures are not fully updated, A+B classes recommended for inclusion by this Committee would comprise just under 3 lakhs employees. With some degree of approximation, the number of Railway employees from group A to D inclusive can be pegged at about 13½ lakhs (as on March, 2010). If Central Government PSUs are added, personnel across all categories (Group A, B, C and D as existing) would be approximately an additional 15 lakhs employees. Post and Telegraph across all categories would further number approximately 4½ lakhs employees. Hence the total, on the aforesaid basis (which is undoubtedly an approximation and a 2010 figure) for Group A to D (soon, as explained above, to be only Group-C) + Railways + Central PSUs + Post and Telegraph would be approximately 63 lakhs, or at 2011 estimates, let us assume 65 lakhs i.e. 6.5 million.
(ii) On a conservative estimate of one policing officer per 200 employees (a ratio propounded by several witnesses including team Anna), approximately 35000 employees would be required in the Lokpal to police the aforesaid group of Central Government employees (including, as explained above, Railways, Central PSUs, P&T etc.). This policing is certainly not possible by the proposed nine member Lokpal. The Lokpal would have to spawn a bureaucracy of at least 35000 personnel who would, in turn, be recruited for a parallel Lokpal bureaucracy. Such a mammoth bureaucracy, till it is created, would render the Lokpal unworkable. Even after it is created, it may lead to a huge parallel bureaucracy which would set in train its own set of consequences, including arbitrariness, harassment and unfair and illegal action by the same bureaucracy which, in the ultimate analysis would be nothing but a set of similar employees cutting across the same A, B and C categories. As some of the Members of the Committee, in a lighter vein put it, one would then have to initiate a debate on creating a super Lokpal or a Dharampal for the policing of the new bureaucracy of the Lokpal institution itself.
(ii-a) The Committee also notes that as far as the Lokpal institution is concerned; it is proposed as a new body and there is no such preexisting Lokpal bureaucracy available. In this respect, there is a fundamental difference between the Lokpal and Lokayuktas, the latter having functioned, in one form or the other in India for the last several decades, with a readily available structure and manpower in most parts of India.
(iii) If, from the above approximate figure of 65 lakhs, we exclude C and D categories (as explained earlier, D will soon become part of C) from Central Government, Railways, PSUs, Post and Telegraph etc., the number of A and B categories employees in these departments would aggregate approximately 7.75 lakhs. In other words, the aggregate of C and D employees in these classes aggregate approximately 57 or 58 lakhs. The Committee believes that this figure of 7.75 or 8 lakhs would be a more manageable, workable and desirable figure for the Lokpal institution, at least to start with. 42
(iv) The impression that inclusion of Group ‘A’ and ‘B’ alone involves exclusion of large sections of the bureaucracy, must be dispelled. Though in terms of number, the aggregation of Groups ‘C’ and ‘D’ is an overwhelming percentage of total Central Government employees, Groups ‘A’ and ‘B’ include the entire class above the supervisory level. Effectively, this means that virtually all Central Government employees at the Section Officer level and above would be included. It is vital to emphasize that this demarcation has to be viewed in functional terms, since it gives such categories significant decision making power in contra-distinction to mere numbers and necessarily subsumes a major chunk of medium and big ticket corruption. (v) Another misconception needs to be clarified. There is understandable and justifiable anger that inclusion of Group C and D would mean exclusion of a particular class which has tormented the common man in different ways over the years viz. Tehsildar, Patwari and similarly named or equivalent officers. Upon checking, the Secretariat has clarified that these posts are State Government posts under gazette notification notified by the State Government and hence the earlier recommendation of this Committee will enable their full inclusion. (vi) We further recommend that for the hybrid category of Union Territories, the same power be given as is recommended above in respect of State Lokayuktas. The Committee also believes that this is the appropriate approach since a top heavy approach should be avoided and the inclusionary ambit should be larger and higher at the state level rather than burdening the Lokpal with all classes of employees. (vii) As of now, prior to the coming into force of the Lokpal Act or any of the recommendations of this report, Group C and D officers are not dealt with by the CVC. Group C & D employees have to be proceeded against departmentally by the appropriate Department Head, who may either conduct a departmental enquiry or file a criminal corruption complain against the relevant employee through the CBI and/or the normal Police forces. The Committee now recommends that the entire Group C & D, (later only Group C as explained above) shall be brought specifically under the jurisdiction of the CVC. In other words, the CVC, which is a high statutory body of repute and whose selection process includes the Leader of the Opposition, should be made to exercise powers identical to or at least largely analogous, in respect of these class C and class D employees as the Lokpal does for Group A and B employees. The ultimate Lokpal Bill/Act should thus become a model for the CVC, in so far as Group C & D employees are concerned. If that requires large scale changes in the CVC Act, the same should be carried out. This would considerably strengthen the existing regime of policing, both departmentally and in terms of anti-corruption criminal prosecutions, all Group C & D employees and would not in any manner leave them either unpoliced or subject to a lax or ineffective regime of policing. (viii) Furthermore, this Committee recommends that there would be broad supervisory fusion at the apex level by some appropriate changes in the CVC Act. The CVC should be made to file periodical reports, say every three months, to the Lokpal in respect of action taken for these class C 43
and D categories. On these reports, the Lokpal shall be entitled to make comments and suggestions for improvement and strengthening the functioning of CVC, which in turn, shall file, appropriate action taken reports with the Lokpal. (ix) Appropriate increase in the strength of the CVC manpower, in the light of the foregoing recommendations, would also have to be considered by the Government. (x) The Committee also feels that this is the start of the Lokpal institution and it should not be dogmatic and inflexible on any of the issues. For a swift and efficient start, the Lokpal should be kept slim, trim, effective and swift. However, after sometime, once the Lokpal institution has stabilized and taken root, the issue of possible inclusion of Group C classes also within the Lokpal may be considered. This phase-wise flexible and calibrated approach would, in the opinion of this Committee, be more desirable instead of any blanket inclusion of all classes at this stage. (xi) Another consideration which the Committee has kept in mind is the fact that if all the classes of higher, middle and lower bureaucracy are included within the Lokpal at the first instance itself, in addition to all the aforesaid reasons, the CVC’s role and functioning would virtually cease altogether, since the CVC would have no role in respect of any class of employee and would be reduced, at best, to a vigilance clearance authority. This would be undesirable in the very first phase of reforms, especially since the CVC is a high statutory authority in this country which has, over the last half century, acquired a certain institutional identity and stability along with conventions and practices which ought not to be uprooted in this manner. (d) All provisions for prior sanction/prior permission, whether under the CrPC or Prevention of Corruption Act or DSPE Act or related legislation must be repealed in respect of all categories of bureaucrats/government servants, whether covered by the Lokpal or not, and there should consequently be no requirement of sanction of any kind in respect of any class or category of officers at any level in any Lokpal and Lokayukta or, indeed, CVC proceedings (for non Lokpal covered categories). In other words, the requirement of sanction must go not only for Lokpal covered personnel but also for non-Lokpal covered personnel i.e. class ‘C’ and ‘D’ (Class D, as explained elsewhere, will eventually be submerged into Class ‘C’). The sanction requirement, originating as a salutary safeguard against witch hunting has, over the years, as applied by the bureaucracy itself, degenerated into a refuge for the guilty, engendering either endless delay or obstructing all meaningful action. Moreover, the strong filtering mechanism at the stage of preliminary inquiry proposed in respect of the Lokpal, is a more than adequate safeguard, substituting effectively for the sanction requirement. (e) No doubt corruption at all levels is reprehensible and no doubt corruption at the lowest levels does affect the common man and inflicts pain and injury upon him but the Committee, on deep consideration and reconsideration of this issue, concluded that this new initiative is intended to send a clear and unequivocal message, first and foremost, in respect of medium and big ticket corruption. Secondly, this Committee is not oblivious to the fact that jurisdiction to cover 44
the smallest Government functionary at the peon and driver level (class C largely covers peons, assistants, drivers, and so on, though it does also cover some other more “powerful” posts) may well provide an excuse and a pretext to divert the focus from combating medium and big ticket corruption to merely catching the smaller fry and building up an impressive array of statistical prosecutions and convictions without really being able to root out the true malaise of medium and big ticket corruption which has largely escaped scrutiny and punishment over the last 60 years. (f) The Committee also believes that the recommendations in respect of scope of coverage of the lower bureaucracy, made herein, are fully consistent with the conclusions of the Minister of Finance on the floor of the Houses, as quoted in para 1.8 above of this Report. Firstly, the lower bureaucracy has been, partly, brought within the coverage as per the recommendations above and is, thus, consistent with the essence of the conclusion contained in para 1.8 above. Secondly, the Committee does not read para 1.8 above to meet an inevitable and inexorable mandate to necessarily subsume each and every group of civil servant (like Group ‘C’ or Group ‘D’, etc.). Thirdly, the in principle consensus reflected in para 1.8 would be properly, and in true letter and spirit, be implemented in regard to the recommendations in the present Chapter for scope and coverage of Lokpal presently. Lastly, it must be kept in mind that several other recommendations in this Report have suggested substantial improvements and strengthening of the provisions relating to policing of other categories of personnel like C and D, inter alia, by the CVC and/or to the extent relevant, to be dealt with as Citizens’ Charter and Grievance Redressal issues. 45
CHAPTER-9
FALSE COMPLAINTS AND COMPLAINANTS : PUNITIVE MEASURES
I. INTRODUCTION AND BACKGROUND 9.1 There is a genuine fear that the institution of the Lokpal, while empowering the common citizen, would also create avenues for false and frivolous complaints by persons against those officials whose decisions are either not palatable or generate cases where complaints are actuated by animosity or external agenda and ulterior motives. It is for this reason that provisions relating to false complaints were provided in the Lokpal Bill 2011 (sections 49 and 50). The provision stipulates punishment for not less than 2 years and upto 5 years and a fine not less than Rs.25,000/- and upto Rs. 2 Lakhs for false, frivolous or vexatious complainants. This was seen as overbearing and disproportionately high and it was felt that it may act as a huge deterrent and possibly a virtual de facto bar to people seeking to make complaints to the Lokpal. The debate therefore revolved around both defining the scope of the nature of complaints (false or frivolous or vexatious or malicious) which would be penalized as also the amount of fine or punishment.
II. SUMMARY OF SUGGESTIONS/ OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 9.2 The memoranda received by the Committee carried the following suggestions/observations:– • Second Proviso to clause (g) of 17 (1) – that a free citizen of this nation would be subjected to ‘responsibility’ without any power of a Public Servant – ‘liability, without ‘right’ – and to ‘culpability’ without an ‘overt’ act is simply preposterous. • Punishment in case of “mala-fide and false complaints with malicious intent” only. • Fine not less than Rs.5000/-, but which may extend to Rs.1 lakh. • In case of frivolous/vexations complaint against an SC/ST functionary, relevant clauses under the SCs and STs (Prevention of Atrocities Act), 1989 also need to be invoked and needs mention in the Lokpal Bill. • Monetary penalties to those who make frivolous complaints and such penalties to be deposited in the PM Relief Fund.
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES 9.3 Shri Shekhar Singh (NCPRI), while speaking on this issue, stated:– “…we are very against, and this I think we have much debated, the penalties’ clause that has been put into the Bill where somebody who files, what is called, a frivolous or a vexatious complaint, gets a higher level of punishment than somebody who is judged as being corrupt. Our problems are two. One is that it is very difficult to define what is ‘frivolous’ and ‘vexatious’. And secondly, that this is sort of a punishment will deter even genuine complaint makers. We have suggested, drop ‘frivolous’ and ‘vexatious’; say ‘malicious’ or where you have a malign intent and reduce the punishment to a fine…”
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9.4 One of the Members of the Committee, observed as follows:–
“…When a complaint is made, it is a frivolous complaint or a false complaint, immediately it will appear in the media. dksbZ xyr daIysaV djrk gS] tSls gh yksdk;qDr ds lkeus og daIysaV tk,xh] pkgs os pqus gq, yksx gksa ;k ihNs cSBs gq, yksx gksa vFkok ;gka ds igys iafDr okys yksx gksa] vki lc tkurs gSa fd gekjk lkoZtfud thou rhl&rhl iSarhl&iSarhl lky dk gksrk gSA ;gka tks yksx cSBs gSa] os Hkh 40] 45 ;k 50 lky iqjkus yksx gSaA eSa Lo; 36 lky ls yxkrkj pquko thrrk vk;k gwa] esjh ifCyd ykbQ dks Hkh 45 lky gks x,A eku yhft, geus fdlh dk;Z ds fy, ctV ugha fn;k] fdlh us ikuh dh Vadh ds fy, ctV ekaxk] geus ugha fn;k] cl fQj D;k gS] ,d daIysaV dj nks] iwjs ehfM;k esa ge Nk tk,axs] gekjh 40&45 lky dh esgur csdkj gks tk,xhA ysfdu vki dgrs gSa fd ml vkneh dks dqN ltk ugha dh tk,] flQZ 5000 #i;s Qkbu djds NksM+ fn;k tk,] ;g dgka rd mfpr gksxk\…”
9.5 PRS Legislative Research, in its written memorandum, has opined:–
False and Frivolous Complaint :–
“…Issue: Penalty may act as deterrent
[Clause 49(1)] Any person making false and frivolous or vexatious complaints shall be penalized with two to five years of jail and fine of Rs.25,000 to Rs.2 lakh.
The penalty amount may act a deterrent for people to complain against a public official. Other legislations have different penalties for similar offences. For example, in the Public Interest Disclosure Bill, 2010 (now pending in Parliament), a false complaint carries a penalty of imprisonment upto 2 years and fine of upto Rs.30,000.4 The Indian Penal Code states that any person who gives false information shall be punishable with a prison term of upto six months or a fine of upto Rs.1,000 or bath.5 The Judicial Standards and Accountability Bill, 2010 (pending in Parliament), on the other hand, prescribes a higher penalty for frivolous or vexatious complaints. A person making frivolous or vexatious complaints can be penalized by rigorous imprisonment of up to five years and fine of up to five lakh rupees.6 The Standing Committee, while examining that Bill, has recommended that the quantum of punishment should be diluted and “in any case, it should not exceed the punishment provided under the Contempt of Court Act” (which is six months imprisonment and a fine of Rs.2,000).
IV. ANALYSIS AND DISCUSSION
9.5A There is no doubt that the penalty for false and frivolous complaints should not be such a huge deterrent that it stops even genuine complainants from approaching the Lokpal. There has to be a harmonious balance which needs to be drawn out between prevention of false complaints and a consequent penalty and that of not prescribing a deterrent so great that it renders the institution and function of the Lokpal nugatory.
9.5B This Committee discussed in detail similar provisions while dealing with the Judicial Standards and Accountability Bill in its Report submitted on August 30, 2011. It deliberated upon the issue as to now to strike this balance and concluded that the punishment ought not to be more than what is prescribed in the Contempt of Courts Act. This is an apposite benchmark considering that the Lokpal also effectively deals with administration of justice. 47
V. REASONS AND RECOMMENDATIONS 9.6 It cannot be gain said that after the enormous productive effort put in by the entire nation over the last few months for the creation of a new initiative like the Lokpal Bill, it would not and cannot be assumed to be anyone’s intention to create a remedy virtually impossible to activate, or worse in consequence than the disease. The Committee, therefore, starts with the basic principle that it must harmoniously balance the legitimate but competing demands of prevention of false, frivolous complaints on the one hand as also the clear necessity of ensuring that no preclusive bar arises which would act as a deterrent for genuine and bona fide complaints. 9.7 The Committee sees the existing provisions in this regard as disproportionate, to the point of being a deterrent. 9.8 The Committee finds a convenient analogous solution and therefore adopts the model which the same Committee has adopted in its recently submitted report on Judicial Standards and Accountability Bill, 2010 presented to the Rajya Sabha on August 30, 2011. 9.9 In para 18.8 of the aforesaid Report, the Committee, in the context of Judicial Standards and Accountability Bill, 2010 said: “The Committee endorses the rationale of making a provision for punishment for making frivolous or vexatious complaints. The Committee, however, expresses its reservation over the prescribed quantum of punishment both in terms of imprisonment which is up to 5 years and fine which is up to 5 lakh rupees. The severe punishment prescribed in the Bill may deter the prospective complainants from coming forward and defeat the very rationale of the Bill. In view of this, the Committee recommends that Government should substantially dilute the quantum of the punishment so as not to discourage people from taking initiatives against the misbehaviour of a judge. In any case, it should not exceed the punishment provided under the Contempt of Court Act. The Government may also consider specifically providing in the Bill a proviso to protect those complainants from punishment/penalty who for some genuine reasons fail to prove their complaints. The Committee, accordingly, recommends that the Bill should specifically provide for protection in case of complaints made ‘in good faith’ in line with the defence of good faith available under the Indian Penal Code.” 9.10 Consequently, in respect of the Lokpal Bill, the Committee recommends that, in respect of false and frivolous complaints:– (a) The punishment should include simple imprisonment not exceeding six months; (b) The fine should not exceed Rs.25000; and (c) The Bill should specifically provide for protection in case of complaints made in good faith in line with the defence of good faith available under the Indian Penal Code under Section 52 IPC. 48
CHAPTER-10
THE JUDICIARY : TO INCLUDE OR EXCLUDE
I. INTRODUCTION AND BACKGROUND 10.1 There has been public clamor for laying down standards for the Judiciary and creating an efficient, workable and effective mechanism for ensuring accountability of Judiciary including, in particular, effective and efficient mechanisms for criminal prosecution for corruption practiced by judicial officers and the higher judiciary. Currently the process of removal of any Judge of the Supreme Court or the High Court involves a tedious and virtually unimplementable procedure of impeachment as per the Constitution. This has been widely seen as being, by itself, an ineffective deterrent for capricious or corrupt conduct by any member of the judiciary. The debate around this issue was centered on whether the Judiciary should be made accountable to an institution like the Lokpal or whether it should, as one of the three wings of the country enjoy virtual immunity in respect of criminal prosecution for corrupt practices.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 10.2 Judges of higher judiciary not to be under Lokpal jurisdiction. 10.3 The jurisdiction of Lokpal should be limited to cover only the following:- (i) All MPs, including PM and Ministers; (ii) All other Constitutional and top statutory office holders (excluding President, VP and those of judiciary) under Gol; and (iii) Officers of the rank of JS and above in the GoI and its PSUs and other organisations. (iv) The existing institutions and laws should continue to deal with the corruption in GoI at other levels. 10.4 A National Judicial Commission headed by the Vice President, and with Prime Minister, Speaker, Law Minister, Leaders of Opposition in both Houses, and Chief Justice (Chief Minister and Chief Justice of concerned High Court in case of High Court judges) should be constituted for judicial appointments and oversight; and the Judicial Standards and Accountability Bill should be enacted into law. Both together will address issues relating to higher judiciary. 10.5 Subordinate Judiciary is under the control of the High Court under Article 235, and that should remain so. 10.6 Functional independence of judiciary should be ensured; but criminal legislation, conflicts of interest regulations, income and asset disclosure laws and ethical codes should apply to the judiciary as well as other public officials. 10.7 Amending the Judicial Accountability and Standards Bill, that is currently before the Parliament, to ensure that the judiciary is also made effectively and appropriately
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accountable, without compromising its independence from the executive or the integrity of its functions.
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES
10.8 Justice J.S. Verma, in his presentation before the Committee, very categorically expressed his views over the issue in the following words: “…That is my view for consideration. Now, so far as Judiciary is concerned, well, as I see it, the Constitution itself, as initially framed, treats the Judiciary separately and not only the higher judiciary but even the subordinate judiciary…”
10.9 Shri Jayaprakash Narayan expressed his detailed views on all related aspects to the issue of inclusion of the judiciary within the ambit of Lokapl. He put forward his views as: “…Firstly, we believe that judiciary cannot be a part of Lokpal’s jurisdiction for a variety of reasons. Eminent jurist like you and many other members with deep experience and insights know too well the reasons. The Supreme Court and the High courts not only have the Constitutional authority but they are also held in high esteem in this country. Whenever there is a crisis in this country, we always depend on these High Courts. For instance, Babri Masjid demolition issue, or, the reservation issue, or, contentious issues like reservation, etc. which are fragmenting our country. We, ultimately, depend on the Courts to bring some sense and some balance. And, if that Court’s authority is in any way undermined, that will do immense damage to the country…
…The Government’s draft Bill which is now before the Parliament has envisaged that inquiry into misconduct or allegations against the members of the Lokpal will be entrusted to a Bench of the Supreme Court. If in turn, the Lokpal institution is to inquire into the misconduct, if any, or the corruption of the judges, it will certainly not be a very healthy thing. Of course, finally, already because of a variety of pronouncements in judiciary, the Constitution, to some extent, has been diluted. The Constitution-makers never envisaged that judiciary will be completely away from the purview of the Parliament and the Executive of the country. Unfortunately, after the judges’ case judgment, the judiciary has taken over more or less and, now, if you further dilute it and make an extra-Parliamentary statutory institution control the way the judiciary functions, at least, to this extent, that will undermine the constitutional structure even further. It is not desirable at all… …Now, it does not mean that judiciary must be unaccountable. Judiciary must be held to account. Right now before the Parliament there is a Bill pending, the Judicial Standards and Accountability Bill which, as we all know, now creates a permanent mechanism for inquiry into judges’ conduct, not an ad hoc mechanism, and also codifies the judicial code of conduct and makes any violation of that a matter of an inquiry and, if that law is enacted and with that a National Judicial Commission comes into place amending articles 124 (2) and 124(5), in effect, it will be a constitutional amendment, then, together, they will take care of the problem of judicial accountability in the higher judiciary because both appointments and removals as we envisage, if the Parliament approves, will be with the National Judicial Commission headed by the Vice-President of India, with the Prime Minister, with the Leader of the Opposition and the Judiciary...
10.10 Shri Jayaprakash Narayan also elaborated upon the issue of inclusion of subordinate judiciary within the ambit of the Lokpal. He refuted the idea and expressed his views as follows:– 50
“…About the lower judiciary, Mr. Chairman, article 235 is very clear; the High Court has complete authority and, time and again, in States like Maharashtra, and if I am not mistaken, Rajasthan, West Bengal, High Courts have exercised the jurisdiction very effectively, weeded out the corrupt lower judiciary members and that must be retained as it is. Therefore, there is no case for an extra-judicial body, apart from the National Judicial Commission, to go into matters of judicial accountability…” 10.11 The advocates of the Jan Lokpal Bill, while appearing before the Committee, expressed their views on this issue as follows: “…The judiciary may be brought under the purview of anti-corruption system through a separate Bill to be introduced simultaneously, provided the Judicial Conduct Commission so set up is also independent of the Government as well as the judiciary and has the power of investigating and prosecuting judges for corruption The Judicial Standards and Accountability Bill of the Government does not deal with criminal investigation of judges, nor does it set up an independent committee..... 10.12 Shri Harish Salve, Senior Advocate, in his presentation before the Committee, floated a unique idea to create a collegium which would deal with the appointment of the Members of the Lokpal along with the selection of judges in higher judiciary. He made his point as follows: “…There is a crying need for accountability in the judiciary. They cannot be put under the Lokpal but, at the same time, there has to be some machinery. One very important area is the appointment of judges; and, I submit, Sir, this is a golden opportunity for this Committee to set up a collegium, which today may appoint a Lokpal but tomorrow can be extended to appointment of Judges. Why should we not have one collegium for appointment to these offices? You don’t need separate collegium. Whether it has the Prime Minister — as it possibly must, whether it has the Leader of Opposition – as it possibly must, whether it has the Speaker of the House – may be or may not be; whether it has the Chief Justice – as it possibly must; you add these people, and, you add a few people and say how they are to be selected. If they are good people to appoint a Lokpal, tomorrow, you will have a strong case to say that they are good enough to appoint of Supreme Court judges. So, I submit, Sir, when you are drafting this bit of the law, please have in mind that you are creating somebody as important or depending on the structure of the law more important than a Supreme Court judge. Please create a collegium, which is appropriate for that appointment, and, you would have killed two birds with one stone. You would have laid the foundation and solved half the problem of the judicial accountability…” 10.13 Representatives of the Business Associations who appeared before the Committee also did not favour the idea to include the judiciary under the purview of Lokpal. They put forward their views over the issue as under: 10.14 The President, CII said:– “…We believe that Lokpal should not cover Judiciary. We believe that we should strengthen the existing Judicial Standards and Accountability Bill, 2010 in the Parliament. I understand that there is a Bill in the Parliament and we believe that that Bill needs to be re-looked and strengthened. We also believe that the Judiciary needs to be helped to perform better through setting up more courts, more infrastructure, more application of technology and also promote arbitration. The rationale for all this is that we believe that independence of the Judiciary should be maintained. The Judiciary needs to be kept separate because if the linkage between the Judiciary and the Lokpal, cases will be going there. If it covers the Judiciary, the Lokpal will become entirely unwieldy. We don’t see any need for it…” 51
10.15 The President, ASSOCHAM opined:– “…judiciary should be kept out of this Bill because the independence of judiciary is very important and it is very important that this independence be maintained, and, today, lj] gekjk tks lafo/kku gS] daLVhV~;w”ku gS] it provides for checks and balances. So, I think, we have to ensure that those checks and balances remain…” 10.16 The Vice-President, FICCI stated:– “…Judicial Accountability Bill should be independent of the Lokpal Bill. We believe that the judiciary’s independence should be undermined, but, at the same time, it is very necessary to have a Judicial Accountability Bill and we believe that it should be a parallel legislation to the Lokpal Bill and again I am going into a fundamental principal that justice delayed is justice denied. So, whenever we talk about judicial accountability, simultaneously we must also be talking about judicial reforms to ensure that the time aspect of handling cases is addressed.....” 10.17 Shri Jayaprakash Narayan, while making his presentation before the Committee, dwelt at length on this aspect. He stated as follows:– “…as you know the 1973 judgment of the Supreme Court in the Kesavananda Bharati case held that the basic features of the Constitution are inviolable and the court has the ultimate power to decide what the basic features are. There is a real danger that the Supreme Court may hold that any inclusion of higher courts’ judges in the jurisdiction of the Lokpal or Lokayukta is violative of the basic features of the Constitution. It mayor may not be violative but once the court says so, you know the implications, Mr. Chairman. I don’t think India at this point of time should have a confrontation between the Parliament and the higher judiciary. We as a country cannot afford that…” 10.18 Likewise, Justice J.S. Verma while appearing before the Committee, opined that the issue of inclusion of judiciary within the ambit of Lokpal needs to be examined in the light of the scheme of the Constitution. He was of the view that not only the higher judiciary but even the subordinate judiciary need not be brought under the Lokpal, the issue of accountability of these institutions should be determined in accordance with the spirit of the Constitution. He put forward his expert opinion thus:– “…Article 50 clearly provides and mandates separation of Judiciary from the Executive. Article 235... But I am speaking from my own experience as a Judge and the former CJI. Article 235 gives control over subordinate judiciary and also the High Courts, there is no one else. In the case of the higher judiciary, the Parliament comes in as the ultimate authority. And according to the law which was made in 1968 or any other law, you will have a body but the final word would be of the Parliament, not of a few individuals as such. Then, you cannot discuss the conduct of any High Court or Supreme Court Judge, those are articles 121 and 211 in the State Legislature or Parliament except on a motion for removal…”
IV. ANALYSIS AND DISCUSSION 10.19 The opinions received by this Committee were almost unanimous in recommending that the Judiciary be kept out of the ambit of the Lokpal. However, it was equally strongly opined that the judiciary must be regulated and made accountable by a separate mechanism. 10.20 Previously in this year, such a mechanism was mooted by the Government through the Judicial Standards and Accountability Bill, 2010 which was also referred to this very 52
Committee. This Committee has already submitted a report on that Bill and suggested various modifications. However, it is a common ground that the said Judicial Accountability Bill does not seek to address judicial corruption at all and an independent mechanism for appointment of Judges also needs to be created. The Committee takes serious note and cognizance of these sentiments and wishes to place its recommendations as below.
V. REASONS AND RECOMMENDATIONS 10.21 The Committee recommends: (i) The Judiciary, comprising 31 odd judges of the Apex Court, 800 odd judges of the High Courts, and 20,000 odd judges of the subordinate judiciary are a part of a separate and distinct organ of the State. Such separation of judicial power is vitally necessary for an independent judiciary in any system and has been recognized specifically in Article 50 of the Indian Constitution. It is interesting that while the British Parliamentary democratic system, which India adopted, has never followed the absolute separation of powers doctrine between the Legislature and the Executive, as, for example, found in the US system, India has specifically mandated under its Constitution itself that such separation must necessarily be maintained between the Executive and the Legislature on the one hand and the Judiciary on the other. (ii) Such separation, autonomy and necessary isolation is vital for ensuring an independent judicial system. India is justifiably proud of a vigorous (indeed sometimes over vigorous) adjudicatory judicial organ. Subjecting that organ to the normal process of criminal prosecution or punishment through the normal courts of the land would not be conducive to the preservation of judicial independence in the long run. (iii) If the Judiciary were included simpliciter as suggested in certain quarters, the end result would be the possible and potential direct prosecution of even an apex Court Judge before the relevant magistrate exercising the relevant jurisdiction. The same would apply to High Court Judges. This would lead to an extraordinarily piquant and an untenable situation and would undermine judicial independence at its very root. (iv) Not including the Judiciary under the present Lokpal dispensation does not in any manner mean that this organ should be left unpoliced in respect of corruption issues. This Committee has already proposed and recommended a comprehensive Judicial Standards and Accountability Bill which provides a complete in-house departmental mechanism, to deal with errant judicial behavior by way of censure, warning, suspension, recommendation or removal and so on within the judicial fold itself. The Committee deprecates the criticism of the Judicial Standards and Accountability Bill as excluding issues of corruption for the simple reason that they were never intended to be addressed by that Bill and were consciously excluded. (v) As stated in para 21 of the report of this Committee on the Judicial Standards and Accountability Bill, the Committee again recommends, in the present context of the Lokpal Bill, that the entire appointment process of the higher judiciary needs to be revamped and reformed. The appointment process cannot be allowed and should not be allowed to continue in the hands of a self- appointed common law mechanism created by judicial order operating since the 53
early 1990s. A National Judicial Commission must be set up to create a broad- based and comprehensive model for judicial appointments, including, if necessary, by way of amendment of Articles 124 and 217 of the Indian Constitution. Without such a fundamental revamp of the appointment process at source and at the inception, all other measures remain purely ex-post facto and curative. Preventive measures to ensure high quality judicial recruitment at the entrance point is vital. (vi) It is the same National Judicial Commission which has to be entrusted with powers of both transfer and criminal prosecution of judges for corruption. If desired, by amending the provisions of the Constitution as they stand today, such proposed National Judicial Commission may also be given the power of dismissal/removal. In any event, this mechanism of the National Judicial Commission is essential since it would obviate allegations and challenges to the validity of any enactment dealing with judges on the ground of erosion or impairment of judicial independence. Such judicial independence has been held to be part of the basic structure of the Indian Constitution and is therefore unamendable even by way of an amendment of the Indian Constitution. It is for this reason that while this Committee is very categorically and strongly of the view that there should be a comprehensive mechanism for dealing with the trinity of judicial appointments, judicial transfers and criminal prosecution of judges, it is resisting the temptation of including them in the present Lokpal Bill. The Committee, however, exhorts the appropriate departments, with all the power at its command, to expeditiously bring a Constitutional Amendment Bill to address the aforesaid trinity of core issues directly impinging on the judicial system today viz. appointment of high quality and high caliber judges at the inception, non-discriminatory and effective transfers and fair and vigorous criminal prosecution of corrupt judges without impairing or affecting judicial independence. (vii) The Committee finds no reason to exclude from the conclusions on this subject, the burgeoning number of quasi-judicial authorities including tribunals as also other statutory and non-statutory bodies which, where not covered under category ‘A’ and ‘B’ bureaucrats, exercise quasi-judicial powers of any kind. Arbitrations and other modes of alternative dispute resolution should also be specifically covered in this proposed mechanism. They should be covered in any eventual legislation dealing with corruption in the higher judiciary. The Committee notes that a large mass of full judicial functions, especially from the High Courts has, for the last 30 to 40 years, been progressively hived off to diverse tribunals exercising diverse powers under diverse statutory enactments. The Committee also notes that apart from and in addition to such tribunals, a plethora of Government officials or other persona designata exercise quasi judicial powers in diverse situations and diverse contexts. Whatever has been said in respect of the judiciary in this chapter should, in the considered opinion of this Committee, be made applicable, with appropriate modifications in respect of quasi-judicial bodies, tribunals and persons as well. 54
CHAPTER-11
THE LOKPAL : SEARCH AND SELECTION
I. INTRODUCTION AND BACKGROUND 11.1 The institution of the Lokpal is being mooted and created for ensuring that the scourge of corruption is punitively attacked and that honesty, transparency and probity imbue public and private life to the highest extent and degree possible. The selection of the Lokpal, therefore, has to be at the highest levels and has to achieve the selection of the best and the brightest at the entry point. Section 4 (1) of the Lokpal Bill prescribes a Selection Committee while section 4 (3) provides that the Selection Committee may, if it considers necessary for the purpose of preparing a Panel to be considered for such appointment, constitute a Search Committee. There have been many permutations and combinations suggested by the witnesses for the Selection and/or the Search Committee.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 11.2 The major points raised in the memoranda received by the Committee, on this topic are: • Strength of Government in Lokpal should not exceed half the total strength. • Membership of Lokpal – 50% for women, 25% from SC/ST, 20% from minorities proposed. • Need for representation for women, minority community, SC/ST/OBC in Lokpal. • The representation of SC/ST/OBCs/DTs/NTs and religious minorities in Lokpal and Lokayuktas suggested. • Representation for SCs, STs, BCs including BCs of religious minorities need in Lokpal. • Need to avoid ex-politicians and MPs as members of Lokpal and specific exclusion to be added in Chapter-II Clause 4. • Need to add exclusions for individuals who have any charge-sheet or investigation pending against them or who have been prosecuted for any offence/malpractice. • There should be a minimum age criterion for membership of Lokpal – 45 years. • Selection should have at least four independent members from public life, but who are not serving any function of Government/judiciary but can be retired SC judges, Magsasay award winners, Directors or IIT, IIM, ISI, IIS or Bharat Ratna awardees. No need for MPLOP in the Selection Committee • Persons in active politics must not be appointed as Lokpal. • Lokpal may be appointed as per norms applicable to HC judges and CVC. • There is no justification for the provision which states that all previous Chairpersons of Lokpal will be members of the Selection Committee. Over time, this will give undue
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weight age to retired Lokpals and create an exclusive club of Lokpals accountable only to themselves. In no other constitutional office, is there provision to select the successor. • Any person who has received an award, recognition/monetary purse from a foreign Govt./institution/foundation, should not be appointed to Lokpal office. • Any person who has been associated with an international body that interferes in the internal affairs of other nations, such as Amnesty International, Human Rights Watch etc. should not be appointed to Lokpal office. • Any person/NGO that has received funds from a foreign organization/person to do advocacy in his/her home country, such as promoting GM seeds, should not be appointed to Lokpal office. • NRIs should not be appointed to Lokpal Office. • A person of Indian origin, who is no longer a citizen of India, should not be appointed to Lokpal office. • Out of the Members as provided in Section 4, two nominees i.e. one prominent jurist and one person of prominence in public life may be chosen by the Members of Lokpal collectively and not by Central Government. • Clause 3(2)(c) be inserted to provide the CVC and two Vigilance Commissioners to function as Ex-officio Members of the Lokpal. • CVC Chairman and Members be made Ex-officio Members of Lokpal and they may be appointed or removed in the manner of Members of Lokpal. • CVC should be made an Ex-officio Member of the Lokpal as recommended by second ARC. • The concept of ‘person of eminence in public life’ is a vague and ambiguous expression which may lead to avoidable controversies. • Those in the age group of 55-70/65 years should be considered for appointment as Chairpersons/Members of Lokpal in view of maturity and experience required. • Lower age limit should be fixed as 60 years. • Chairperson of Lokpal – male and female for alternate terms; Members – 50% women. • Tenure – 6 years; 1/3rd to retire every two years. • In order to provide stability to the institution of Lokpal, “no person who does not have less than two years to serve as Chairman or Member of Lokpal, shall be considered for appointment to the post of such Chairman/Member.” • Selection Committee should have representation from disadvantaged sections of the society – Chairperson of National Womens’ Commission, Chairperson of SC/ST Commission and Chairperson of National Commission of Minorities. • There must be a balance between the Government, the opposition and the judiciary in the Selection Committee. • Selection process should be aired live. • NRIs may also be made members of the Selection Committee. 56
• Has recommended public participation in appointment process. • Undue weightage to Govt. in Selection Committee; Cabinet Minister and person of eminence can be done away with ‘eminent jurist’ at (h) may better be nominated by CJI. The remaining 7 Members should be enough to propose a suitable panel and governmental influence be reduced to minimum. • There must be a Search Committee for recommending names of Chairperson and Members of Lokpal. • Search Committee should be mandatory for appointment of Chairperson and Members of Lokpal.
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES 11.3 Shri Shekhar Singh (NCPRI) stated as follows:– “...the selection process and selection committee of the Government Lokpal Bill. It prescribes 11 members in the selection committee. A majority of them are either from the Government or, from the ruling party, or, nominated by the Government. So, we feel that is not fair. We are suggesting a very simple selection committee of three members the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Judge of the Supreme Court nominated by the Chief Justice of India. Why a Judge and mot the Chief Justices? This is being done so that there is no complication when an appeal or a writ petition goes to the Supreme Court. It could be another composition, but it must be a composition which is not biased towards either the Government or any other party, the ruling party etcetera etcetera…” He further stated:– “…It is our experience that these high-powered Selection Committees of Prime Ministers and Leaders of Opposition do not have the time to actually go out and search who could be a good candidate. In effect, what happens in such situations, and we have seen it in other cases, which I will not mention, but you are familiar, is that the dealing Department of the Government actually decides who is going to become the Chief Lokpal, who is, going to become the Lokpal, by the names that they nominate. Therefore, we feel that the Search Committee is very critical and the Search Committee should be mandatory…” 11.4 Shri Barish Salve opined thus:– “…I completely share the perception that unless there is perceptible inclusiveness, the institution will not enjoy the kind of public respect and public support which needs to enjoy and that is one of the major problems with our judiciary…” 11.5 Shri Udit Raj, while appearing before the Committee, said :– “…In this context, we request that the representation of the SCs/STs. Backwards and minorities should be ensured not only at the committee level but also at the level of the search and selection process. Of course, ‘probable I candidates will be selected by the search and selection committee. But whatever may be the final decision, eventually, out of those probable candidates there would be members and the Chairman of the Committee…” 11.6 The DoPT, in its written comments, has stated:– “…In the light of the duties and responsibilities of the Lokpal, it is felt that a person with judicial background would be more suitable to hold the position of Chairman of Lokpal…” 57
IV ANALYSIS AND DISCUSSION 11.7 The central principle which should dictate the composition of the Selection Committee is that the Committee should, in logistics and deliberations, be manageable; compact and representative without being unwieldy. 11.8 The Lokpal Bill, 2011 contemplates a very large Selection Committee which mayor may not appoint a Search Committee. The Jan Lokpal Bill also contemplates a large Selection Committee and an even larger Search Committee. 11.9 The Selection Committee should be kept reasonably compact to enable swift functioning. It should also be representative. Consequently, a Selection Committee comprising of all the three organs of State viz. the Prime Minister (as head of the Executive), the Speaker of Lok Sabha (as Head of the Lower House) and the Chief Justice of India (as head of the Judiciary), as also the Leader of the Opposition in the Lower House would be a good starting point. The fifth Member of the Selection Committee should be an eminent Indian qualified by all adjectives in clause 4(1)(i) of the Lokpal Bill, 2011 but should be a single nominee, collectively and conjointly, of the following/designated constitutional bodies, viz. CAG, CEC, UPSC Chairman with such nominee having a term of a maximum of five years. This would be a compact five-member body and would have inputs and representations from all relevant sections of the society and Government. 11.10 There should, however, be a proviso in Clause 4(3) to the effect that a Search Committee shall comprise at least seven Members and shall ensure representation 50 per cent to Members of SC’s and/or STs and/or Other Backward Classes and/or Minorities and/or Women or any category or combination thereof. Though there is some merit in the suggestion that the Search Committee should not be mandatory since, firstly, the Selection Committee may not need to conduct any search and secondly, since this gives a higher degree of flexibility and speed to the Selection Committee, the Committee, on deep consideration, finally opines that the Search Committee should be made mandatory. The Committee does so, in particular, in view of the high desirability of providing representation in the Search Committee as stated above which, this Committee believes, cannot be effectively ensured without the mandatory requirement to have a Search Committee. It should, however, be clarified that the person/s selected by the Search Committee shall not be binding on the Selection Committee and secondly, that, where the Selection Committee rejects the recommendations of the Search Committee in respect of any particular post, the Selection Committee shall not be obliged to go back to the Search Committee for the same post but would be entitled to proceed directly by itself. 11.11 Over the years, there has been growing concern in India that the entire mass of statutory quasi judicial and other similar tribunal bodies or entities have been operated by judicial personnel i.e. retired judges, mainly of the higher judiciary viz. the High Courts and the Supreme Court. 11.12 There is no doubt that judicial training and experience imparts not only a certain objectivity but a certain technique of adjudication which, intrinsically and by training, is likely to lead to greater care and caution in preserving principles like fair play, natural justice, burden of proof and so on and so forth. Familiarity with case law and knowledge of sometimes intricate legal principles is naturally available in retired judicial personnel of the higher judiciary. 11.13 However, when new and nascent structures are being contemplated it is necessary not to fetter or circumscribe the discretion of the appointing authority. The latter is certainly entitled to appoint judges, and specific exclusion of judges is neither contemplated nor being 58
provided. However, to consider, as the Lokpal Bill 2011 does, only former Chief Justices of India or former judges of the Supreme Court as the Chairperson of the Lokpal would be a totally uncalled for and unnecessary fetter. The Committee, therefore, recommends that clause 3(2) be suitably modified not to restrict the Selection Committee to selecting only a sitting or former Chief Justice of India or judge of the Supreme Court as Chairperson of the Lokpal.
11.14 A similar change is not suggested in respect of Members of the Lokpal and the existing provision in clause 3 (2) (b) read with clause 19 may continue. Although the Committee does believe that it is time to consider tribunals staffed by outstanding and eminent Indians, not necessarily only from a pool of retired members of the higher judiciary, the Committee feels hamstrung by the Apex Court decision in L. Chandra Kumar Vs. Union of India 1997 (3) SCC 261 which has held and has been interpreted to hold that statutory tribunals involving adjudicatory functions must not sit singly but must sit in benches of two and that at least one of the two members must be a judicial member. Hence, unless the aforesaid judgment of the Apex Court in L. Chandra Kumar Vs. Union of India is reconsidered, the Committee refrains from suggesting corresponding changes in, clause 3 (2) (b) read with clause 19, though it has been tempted to do so.
11.15 There is merit in the suggestion that clause 3 (4) of the Lokpal 2011 be further amended to clarify that a person shall not be eligible to become Chairperson or Member of Lokpal if:
(a) He/she is a person convicted of any offence involving moral turpitude;
(b) He/she is a person less than 45 years of age, on date of assuming office as Chairperson or Member of Lokpal;
(c) He/she has been in the service of any Central or State Government or any entity owned or controlled by the Central or State Government and has vacated office either by way of resignation, removal or retirement within the period of 12 months prior to the date of appointment as Chairperson or Member of Lokpal.
11.16 In clause 9 (2), the existing provision should be retained but it should be added at the end of that clause, for the purpose of clarification, that no one shall be eligible for re-appointment as Chairperson or Member of the Lokpal if he has already enjoyed a term of five years.
11.17 The Committee has already recommended in para 11.10 above appropriate representation on the Search Committee of certain sections of society who have been historically marginalized. The Committee also believes that although the institution of Lokpal is a relatively small body of nine members and specific reservation cannot and ought not to be provided in the Lokpal institution itself, there should be a provision added after clause 4 (5) to the effect that the selection committee and the search committee shall make every endeavour to reflect the diversity of India by including the representation, as far as practicable, of historically marginalized sections of the society on the Lokpal Bill like SCs/ STs, OBCs/minorities and women.
V. REASONS AND RECOMMENDATIONS
11.18 To ensure flexibility, speed and efficiency on the one hand and representation to all organs of State on the other, the Committee recommends a Selection Committee comprising:– 59
(a) The Prime Minister of India- as Head of the Executive. (b) The Speaker Lok Sabha, as Head of the Legislature. (c) The Chief Justice of India-as Head of the Judiciary. (d) The Leader of the Opposition of the Lower House. (e) An eminent Indian, selected as elaborated in the next paragraph. N.B.: functionaries like the Chairman and Leader of the Opposition of the Upper House have not been included in the interests of compactness and flexibility. The Prime Minister would preside over the Selection Committee. 11.19 The 5th Member of the Selection Committee in (e) above should be a joint nominee selected jointly by the three designated Constitutional bodies viz., the Comptroller and Auditor General of India, the Chief Election Commissioner and the UPSC Chairman. This ensures a reasonably wide and representative degree of inputs from eminent Constitutional bodies, without making the exercise too cumbersome. Since the other Members of the Selection Committee are all ex-officio, this 5th nominee of the aforesaid Constitutional bodies shall be nominated for a fixed term of five years. Additionally, it should be clarified that he should be an eminent Indian and all the diverse criteria, individually, jointly or severally, applicable as specified in Clause 4 (1) (i) of the Lokpal Bill 2011 should be kept in mind by the aforesaid three designated Constitutional nominators. 11.20 There should, however, be a proviso in Clause 4(3) to the effect that a Search Committee shall comprise at least seven Members and shall ensure representation 50 per cent to Members of SC’s and/or STs and/or Other Backward Classes and/or Minorities and/or Women or any category or combination thereof. Though there is some merit in the suggestion that the Search Committee should not be mandatory since, firstly, the Selection Committee may not need to conduct any search and secondly, since this gives a higher degree of flexibility and speed to the Selection Committee, the Committee, on deep consideration, finally opines that the Search Committee should be made mandatory. The Committee does so, in particular, in view of the high desirability of providing representation in the Search Committee as stated above which, this Committee believes, cannot be effectively ensured without the mandatory requirement to have a Search Committee. It should, however, be clarified that the person/s selected by the Search Committee shall not be binding on the Selection Committee and secondly, that, where the Selection Committee rejects the recommendations of the Search Committee in respect of any particular post, the Selection Committee shall not be obliged to go back to the Search Committee for the same post but would be entitled to proceed directly by itself. 11.20(A)Over the years, there has been growing concern in India that the entire mass of statutory quasi judicial and other similar tribunals; bodies or entities have been operated by judicial personnel i.e. retired judges, mainly of the higher judiciary viz. the High Courts and the Supreme Court. 11.20(B)There is no doubt that judicial training and experience imparts not only a certain objectivity but a certain technique of adjudication which, intrinsically and by training, is likely to lead to greater care and caution in preserving principles like fair play, natural justice, burden of proof and so on and so forth. Familiarity with case law and knowledge of intricate legal principles, is naturally available in retired judicial personnel of the higher judiciary. 60
11.20(C)However, when a new and nascent structure like Lokpal is being contemplated, it is necessary not to fetter or circumscribe the discretion of the appointing authority. The latter is certainly entitled to appoint judges to the Lokpal, and specific exclusion of judges is neither contemplated nor being provided. However, to consider, as the Lokpal Bill 2011 does, only former Chief Justices of India or former judges of the Supreme Court as the Chairperson of the Lokpal would be a totally uncalled for and unnecessary fetter. The Committee, therefore, recommends that clause 3(2) be suitably modified not to restrict the Selection Committee to selecting only a sitting or former Chief Justice of India or judge of the Supreme Court as Chairperson of the Lokpal. 11.20(D)A similar change is not suggested in respect of Members of the, Lokpal and the existing provision in clause 3 (2) (b) read with clause 19 may continue. Although the Committee does believe that it is time to consider tribunals staffed by outstanding and eminent Indians, not necessarily only from a pool of retired members of the higher judiciary, the Committee feels hamstrung by the Apex Court decision in L. Chandra Kumar Vs. Union of India 1997 (3) SCC 261 which has held and has been interpreted to hold that statutory tribunals involving adjudicatory functions must not sit singly but must sit in benches of two and that at least one of the two members must be a judicial member. Hence, unless the aforesaid judgment of the Apex Court in L. Chandra Kumar Vs. Union of India is reconsidered, the Committee refrains from suggesting corresponding changes in clause 3 (2) (b) read with clause 19, though it has been tempted to do so. 11.20(E)There is merit in the suggestion that clause 3 (4) of the Lokpal 2011 be further amended to clarify that a person shall not be eligible to become Chairperson or Member of Lokpal if: (a) He/she is a person convicted of any offence involving moral turpitude; (b) He/she is a person less than 45 years of age, on date of assuming office as Chairperson or Member of Lokpal; (c) He/she has been in the service of any Central or State Government or any entity owned or controlled by the Central or State Government and has vacated office either by way of resignation, removal or retirement within the period of 12 months prior to the date of appointment as Chairperson or Member of Lokpal. 11.20(F)In clause 9 (2), the existing provision should be retained but it should be added at the end of that clause, for the purpose of clarification, that no one shall be eligible for re-appointment as Chairperson or Member of the Lokpal if he has already enjoyed a term of five years. 11.20(G)The Committee has already recommended appropriate representation on the Search Committee, to certain sections of society who have been historically marginalized. The Committee also believes that although the institution of Lokpal is a relatively small body of nine members and specific reservation cannot and ought not to be provided in the Lokpal institution itself, there should be a provision added after clause 4 (5) to the effect that the Selection Committee and the Search Committee shall make every endeavour to reflect, on the Lokpal institution, the diversity of India by including the representation, as far as practicable, of historically marginalized sections of the society like SCs/STs, OBCs, minorities and women. 61
CHAPTER-12
THE TRINITY OF THE LOKPAL, CBI AND CVC : IN SEARCH OF AN EQUILIBRIUM
I. INTRODUCTION AND BACKGROUND 12.1 The large body of opinion as available through the witnesses and the memoranda received, clearly suggested that existing institutions, including CBI and CVC should be strengthened. They also said that merely creating fresh ones without eradicating the ills which plagued existing structures, would not have the desired effect. The proposed concept of the Lokpal is, in essence, a monitoring body (with or without investigative/prosecuting powers, as the case may be) for offences under the Prevention of Corruption Act, 1988. The substantive law of POCA is largely not under change: what is desirable is a powerful and efficacious body to go after corruption. Therefore it is appropriate to reassess the roles played by the existing institutions i.e. CBI and CVC which already have investigative/prosecuting powers under the 1988 Act. The major thorn which seems to have created years of dissatisfaction with the system relates to the monitoring of the CBI by the government and the fetters imposed by section 6 A (single directive) of the DSPE Act and section 19 of the POCA Act, in addition to S. 197 IPC. Their effect on independent and autonomous investigation and prosecution has been felt to be adverse and counter productive. Absent such and other weaknesses, there would perhaps be no objection to retaining these institutions and in fact strengthening them to a point where they work in tandem with the new Lokpal – creating a powerful Trinity, with mutual checks and balances to increase the quality and efficacy of both investigation and prosecution, while avoiding excessive fusion of power in one body alone. The opinions received relating to the roles of CBI and CVC, as well as the overall proposed structure of the Lokpal, are discussed below.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 12.2 The major points raised in the memoranda received by the Committee, on this topic are: • It would not be prudent to take over the entire anti-corruption division of CBI. Instead, the Lokpal should set up its own investigation and prosecution wing, taking senior officers on deputation basis to get rid of those who fail to deliver. • Investigation and Prosecution Wing should consist of officers who have never faced any departmental enquiry or charged of any offence. • I&P Wing should consist of persons representing communities of Muslim, Hindu, Christians and Dalits. • Officers of I&P should declare their assets on joining and every year, till relinquishment of office and discrepancy ought to be dealt in accordance with law. • Economic Offences Wing of CBI cannot be separated from the Anti-Corruption Wing as the two are inter woven. Therefore, they should not be split; rather, there is need to bring the Enforcement Directorate also under the same umbrella.
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• It should be made binding on CBI to register and investigate a case if recommended by the Lokpal. • With regard to placing of CBI and other investigating agencies under Lokpal, it is suggested that once the persons from such agencies are affiliated to Lokpal, they should not be posted back to their parent organizations as a measure to safeguard their service interests/career. • Bring CVC and Anti-Corruption Wing of CBI under Lokpal. • The personnel for the departmental anti-corruption/vigilance wings must be selected by Lokpal on inter-departmental basis and not intra-departmental basis. They must function under Lokpal only, with duty to report details to Lokpal monthly. • The anti-corruption division should be merged as a administrative arm of Lokpal and suitable amendments should be made to exclude these from the direct control of the Government which has been the consistent criticism of the DSPE. • Section 6A of DSPE Act, 1946 may be repealed. • Appoint independent prosecutors to prosecute all corruption, money laundering and benami cases. • Strengthening of anti-corruption agencies and their infrastructure and manpower, taking into account the best international practices. • DSPE Act be so amended that no sanction for inquiry or investigation or prosecution is needed. • Confer more administrative and functional autonomy to the CBI. • Since the anti-corruption agencies oversee Government operations and provide oversight over the offences of corruption, there is an emerging consensus that the anti- corruption body/bodies should report to the Parliament (through parliamentary committees). However, experience also shows that to be effective, legislatures require such resources as a technically competent staff, strong committees, budgetary independence and significant bureaucratic oversight powers. • There hardly exist any anti-corruption institutions in the world that report to the Supreme Court. • Experiences show that it may not matter much whether an anti-corruption agency is reporting to the executive or Parliament or the SC so long as it’s operational independence is guaranteed. • Amend Section 197 of CrPC and Section 19 of PCA so as to provide for ordering of prosecution by CVC/Lokpal and not by the Government. • CBI be split in two separate agencies; for cases relating to corruption, money laundering and Benami properties, CBI may be accountable to CVC only. • Bring Enforcement Directorate under CVC. • All prosecutors with respect to anti-corruption cases should be under the Lokpal. • Regarding confiscation of properties of corrupt public servants, a law needs to be enacted at the earliest on the lines of Corrupt Public Servants (Forfeitures of Property) Bill drafted by the Law Commission. 63
• Benami Transactions (Prohibition) Bill, 2011 needs to be enacted/amended immediately to ensure action against corrupt public servants.
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES 12.3 The Committee takes note of the submission made by Justice J.S. Verma, while tendering his considered advice before the Committee:–- “…When CBI and CVC are mentioned, they could be appointed by the same law as members of the body. You could consider the same process for their appointment,’…it is over time you gain experience, If you are going to have a more effective procedure for appointment of Lokpal, then the same should apply also for the CBI Director and CVC. Why not consider they to be ex-officio members of the Lokpal just as in the case of National Human Rights Commission you have Chairman and others as ex-officio members. You could think of that system…” 12.4 Dr. Jayaparakash Narayan, during his deposition before the Committee, stated :– “…my humble appeal is, the Central Vigilance Commission and the CVC Act must be retained with certain modifications. One, the CVC members, including the Chairperson should be made, in addition to their functions under the CVC Act, ex-officio members of the Lok Pal institution so that they have the institutional authority and there will be total seamless integration of functioning. But, in addition to being members of the Lok Pal, the CVC must function under the CVC Act, and exercise all the functions of the CVC Act. It has three advantages. Therefore, the autonomy that we seek, the independence and the insulation of the crime investigation, particularly in respect of matters of corruption on economic offences from the political executive and partisan politics, that will be achieved by merely retaining that but strengthening and giving autonomy to the Vigilance Commission. Therefore, the autonomy that we seek, the independence and the insulation of the crime investigation, particularly in respect of matters of corruption on economic offences from the political executive and partisan politics, that will be achieved by merely retaining that but strengthening and giving autonomy to the Vigilance Commission. Therefore, destruction of the Vigilance Commission or blind merger or repeal of the CVC Act would be retrogressive steps because we have to achieve many more things, apart from merely creating an institution called Lok Pal or Lokayukta. Mr. Chairman, Sir, we must go all the way. We must ensure a real and full autonomy but with accountability to all anti-corruption investigative agencies in all matters of corruption. Even as we ensure that there is no need for a roving enquiry, there is no under-mining of the morale of those in the Government. That should be accomplished, if (a) Section 6(a) of the Delhi Special Police Establishment Act is repealed; (b) the executive orders, if any, in the States, in respect of the ACB, similar orders but by an executive order, they apply in State also, they all must go by a specific statutory provision,(c) that sanction of prosecution, probably, there is a case for prior vetting before prosecuting. In such a case, we urge two safeguards. One is, let the CVC be the sanctioning authority because that is envisaged to be an independent authority; that is an authority with deep administrative experience and institutional strength, we can trust that authority. However, before sanctioning prosecution against high officials, the CVC can be asked to write to the Government, indicating what they are going to do. In case the Government of the day, at the State level, in the case of the Lokayukta, and at the national level, in the case of the CVC, has very compelling reasons why a prosecution should not be sanctioned, sometimes, 64
there may be national security considerations that the authorities may not be aware of; sometimes, there may be some other compelling national interest issues, in which case, the Government will have to then record the reasons in writing and communicate to the CVC, and the CVC will take a final decision on the basis of the Government’s inputs…but there may be instances where the actions of an individual, even if they are seemed to be corrupt in the ordinary law of the land, they are, in a specific context of the national security, necessary and, therefore, the Government believes that the balance of convenience lies not in prosecuting but in denying prosecution. But the CVC must be the final authority. With such safeguards, if the CVC is given the power to sanction prosecution at the national level, in case of the States, the Lokayukta is given the power to sanction prosecution that will suffice. Lokpal or CVC must be empowered to appoint independent prosecutors because prosecution after all is really a quasi judicial function. It is not something to be trifled with through political interference or partisanship. Investigation, evidence gathering is really an independent thing of the politics of the day. It is entirely based on evidence. It has importance as judicial functioning…the Lokpal should have a team of investigators, that eventually can be decided but that must be more to go into some of the cases that Lokpal will directly go into because of the sensitivity and complexity of the cases or for a preliminary examination before CBI takes over investigation and prosecution in the large measure…” 12.5 The Chairman of the Bar Council of India, while placing their views before the Committee, said:– “…The Anti-corruption Wing of the CBI should be separated and made completely autonomous. Now, accountability mechanisms can be evolved through a Committee. Like the Lokpal, the CAG, the CVC and the CBI should have its own prosecution wing. The Director of CBI and other key officials should be appointed by a Committee, a broad Committee, similar to the one which almost appoints the Lokpal…” 12.6 Dr. Bhanu Pratap Mehta, while deposing before the Committee, said:– “…What to matter for institutions is who writes your confidential report, who determines the structure of promotion and so forth by bringing it under the Lokpal, you actually change that entire culture which currently exists in the CBI. So, my own submission is that to peg the CBI to report to this. The CVC, as I said, the CVC Act could be amended to make it a kind of supervisory body for the lower bureaucracy…” 12.7 The views of the representatives of CII were as follows:– “…We also believe, as a recommendation, that the Director of the CBI and the Director of the CVC should be made members of the Lokpal in order to promote a collaborative behaviour in terms of ensuring that investigations are done quickly and one agency helps the other agency and so on…” 12.8 Shri Amod K. Kanth, while placing his views before the Committee, said:– “…Sir, according to our suggestion, the CBI will remain accountable only to Lokpal. The accountability of the CBI, so far as its anti-corruption wing is concerned, can remain only with the Lokpal. Accountability in other matters can remain with the Government also because there are different kinds of matters…” 12.9 The views of NCPRI in this regard were that:– “…we have said specifically, in the medium to long term, we would much prefer an independent prosecution body along the lines, for example, which is in the UK and it is 65
keeping with a Supreme Court order to the effect. We would also much prefer in the long term, medium to long term not having both prosecution and investigation both in the same body…” 12.10 The Central Vigilance Commissioner, while elucidating upon the role played by CVC, stated thus:–-
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If you want a definitive recommendation, I would suggest that we should go by the recommendations of the Second Administrative Reforms Commission which says that CVC should be made an ex-officio member of the Lokpal. CVC is not an investigating agency. It is an integrity institution responsible for coordinating the superintendence of vigilance administration. It does not do investigation. So, this misperception that the CVC does the investigation itself is not there…”. 12.11 The Committee also takes into account the arguments put forth by the Director, CBI on this issue:– “…The Government Lokpal Bill says, give the Lokpal a fresh or a new anti-corruption investigating agency. Our thinking is that we are an anti-corruption body. We have always been an anti-corruption body right from its inception. The primary focus of the CBI has always been anti-corruption work. That is our forte and that is our expertise. So, why should the anti-corruption work be taken out of the CBI?... …Sir, because it being an investigating agency, there has to be a proper command and control system.. And it can only be the Director; you cannot have ten members of the Lokpal giving directions...... Sir, CVC also is general superintendence. Therefore, we are saying that if you have a Lokpal, the general superintendence can transfer to the Lokpal.. You can’t have so many bodies for superintendence. It is a choice... …I would also like to point out that it is not so simple to create a separate agency. People say to create a separate agency. It is not so simple to create a separate agency. To create an agency it is going to, take you ten or fifteen years. What would happen then is that there would be nobody looking after anti-corruption. The CBI would be out of anti- corruption and you will be trying to set up a new agency which will be equally ineffective. So, your basic anti-corruption movement would be a non--starter unless you have the CBI in its complete present structure totally involved in whatever architecture you would be proposing…” 12.12 The Committee notes that the opinion of Dr. Jayaprakash Narayan placed before the Committee on this matter, is quite similar:– “…It cannot be a separate parallel body fully dealing with all cases of investigation. That simply is not possible. For 64 years we could not build a CBI which has more than 2000 investigative officers. To think that tomorrow overnight you can build an agency with some 66
50000 investigators, it is not realistic. We must utilize the existing strength and expand it and bring more expertise and more technology and more manpower, more resources to CBI and make it strong, effective and accountable rather than deplete existing institutions…So, some kind of a provision in the law also will be helpful subject to the caveat in States Lokayuktas but at the national level as we submitted earlier the CVC is fully capable of handling it with the changes that we proposed. But the CBI must be strengthened and Section 6A of the Delhi Police Establishment Act must go and the relaxation given to Lokpal institution in respect of prosecution must apply to all cases…” 12.13 The considered view of Shri Harish Salve was that:– “…Sir, I have, with great respect, strong views about subjecting the working of the CBI in its investigative area to any kind of interference. The Code of Criminal Procedure confers sole jurisdiction on the judicial system, principally the Magistracy, to oversee investigations and that is where, Sir, in my respectful submission, this power must continue to lie... …As for the decision whether or not to prosecute, we must follow the system; we have two mistakes in our law. In America, as you know, it is the District Attorney’s Office or the State Attorney General’s office, or, at the federal level, it is the Attorney Level or the Solicitor General’s office, which takes a final call on whether or not to press charges. In India, some judgements have taken the view that the police cannot even consult the Public Prosecutor which, according to me, is wrong. Many times, especially, in complex corporate crimes or in Prevention of Corruption crimes, you may end up filing charge sheets which fail because you got the law wrong. Now, the CBI must have a powerful Public Prosecutorial Wing…” 12.14 The Chairman of the Committee, while voicing his opinion on this issue, stated:– “…The CBI for all its faults has expertise in investigation. If you are going to give investigation to Lokpal without investigative wing, so you will have to have existing wing. However the CEI without its anti-corruption wing is left with nothing and their stature goes…” 12.15 One of the Members of the Committee highlighted a problem area in this regard as:– “…The problem arises when CVC wants sanction against higher bureaucracy but the sanction is not granted normally. Even when it is granted, the time taken is far too long as a result the accused bureaucrat continues to exercise the authority…” 12.16 The Committee, while examining the crucial role played by CBI, gave serious thought and consideration to the written submission made by CBI that: “…Since the Government has introduced Lokpal Bill and has proposed creating a separate investigation Wing for the Lokpal, CBI is of the view that rather than creating new investigation Wing, CBI should be utilized for investigation of cases referred by Lokpal… However, the relationship between CBI and Lokpal should be similar to the superintendence over CBI presently exercised by the CVC in the manner as laid down under Sec. 8 (1) (b) of the CVC Act… The CBI would like to work in close associationship with the Lokpal with Director CBI as Ex-officio member of Lokpal…CBI will continue to exercise the police powers to take final decision after completion of investigation of a case and file police report in the competent court and intimate Lokpal as well in the matters referred by it. The relationship between CBI and Lokpal should be similar to the superintendence over CBI presently exercised by the CVC in the manner as laid down under Sec. 8 (1) (b) of the CVC Act...CBI is of the view that it is capable to take care of all the matters referred for investigation by the Lokpal and there is no need for a separate Investigation Wing of Lokpal. However, the manpower and other resources will need to be augmented to cater to this additional workload…CBI is of the view that it should not be bifurcated and should 67
be granted full functional autonomy... Keeping in view the Lokpal Bill, already introduced by the Government in the Parliament, which inter alia envisages creation of a separate Investigation Wing for looking into corruption cases, it was proposed by CBI that as investigation of Anti-corruption cases is the primary activity of CBI and CBI has evolved itself into a premier investigation agency of the country over 70 years of its existence, there is no need for creation of a new agency in Lokpal for investigation of anti-corruption cases. The CBI is capable of taking care of all the matters referred for investigation by the Lokpal, if it is created. Looking into professional competence, credibility of CBI, it should be made an integral though independent component of any Anti-corruption apparatus to fight corruption. To ensure full functional autonomy, it has been proposed to make Director CBI, an Ex-officio member of the Lokpal. However, the Lokpal may exercise general superintendence over CBI for PC Act cases referred by it through Director CBI as its Ex-officio member in a similar manner as being done by the CVC under the CVC Act…” 12.17 With regard to the Prosecution Wing, CBI has submitted that: “…A proposal for creation of 907 posts has been sent in 2008 to Department of Personnel Training to strengthen the Prosecution Wing of CBI…Director of Prosecution of CBI is the officer borne on the cadre of Ministry of Law, Justice & Legal Affairs. He is the head of Prosecution Wing of CBI. In addition to this, three Additional Legal Advisors who are also on the strength of department of Legal Affairs, Ministry of Law, Justice & Legal Affairs, work for CBI…LA of CBI does not have veto power. Director, CBI seeks his legal opinion in important cases. However, the same is not binding on the Director, CBI.” 12.18 The Committee also took into account the opinion of CVC in this matter, the major points of which are as under: • CVC should remain the Premier Integrity Institution to address the corruption and it should have jurisdiction over the higher bureaucracy. • Lokpal and CVC should work in close cooperation. Mechanism need to be developed for effective coordination. • Amend suitably Section 6(a) of DSPE Act for according prior approvals to CBI under PC Act. • CVC should be empowered to grant sanction for prosecution in cases of Government Servants. • CVC’s advice should be binding on the appointing authorities in respect of cases of lower officials under PC Act. • Adequate autonomy to CVC on the lines of UPSC and C&AG. • Amend CVC Act providing for the Government Departments to explain the reasons to the Parliament for non-acceptance of CVC advice. • Lokpal should focus on political corruptions involving Ministers, MPs and Higher Civil Servants who have connived in the grand political corruption which is difficult to curb with existing mechanism. • The existing structure of vigilance administration should not be disturbed. 12.19 The CVC has further stated that: “…The Committee while exercising its superintendence over DSPE (CBI) holds regular review monthly meetings with Director, CBI The following matters are reviewed during the meetings:– 68
• Complaints referred by Commission to CBI for investigation and reports • Review of cases of requests made for sanction of prosecution by CBI and pending with concerned administrative authorities. • Matters relating to proposals of vigilance clearance referred to CBI for record check etc. • Cases registered during the month under PC Act. • Pendency of cases under investigation and trial under PC Act. • Long delayed cases of PC Act under investigations. • Administrative issues and manpower position and steps of address the same. • Specific issues of concern, if any, in discharging its functions under DSPE Act. 12.20 Besides above, the appointments, promotions, extension of tenure or otherwise, for posts of Superintendent of Police and above in CBI are recommended to the Government in the meeting of the Committee headed by the Central Vigilance Commissioner as and when required. 12.21 A separate chapter covering the superintendence over the functioning of the CBI is also included in the Commission’s Annual report... “…Prime-facie complaints containing serious allegations received by the Commission are forwarded to concerned CVOs of the CBI for in depth investigation and submission of reports. In addition, the CVO of the various organizations also investigate allegations contained in complaints received at their end. CBI also registers cases for investigation based on their source information. On receipt of investigation reports from the CVOs or the CBI recommending further course of action, the Commission examines the reports and thereafter tenders its first stage advice. As per information, around 60% of such investigation reports have ended in closure of the cases as the allegations were not found substantiated and also not found serious enough to proceed further for any departmental action. Further, there are cases where the allegations leveled turn out to be baseless, motivated and vexatious which may also be the reason for closure of cases after investigation. In a significant number of complaints relating to grievances, the issues get redressed. As regards reasons for the rate of around 60% closure of the allegations at first stage advice it may be mentioned that evidence gathering of corruption issues generally being a post-mortem exercise is a difficult task. Once incidents of corrupt practice are committed, the investigations basically focus on the documents and files only…”
IV. ANALYSIS AND DISCUSSION 12.22 The basic objective of a new Lokpal initiative is or at least should be to create an autonomous, independent investigative and prosecution wing for corruption in bureaucracy and the political class. 12.23 The basic elements of policing corruption are: • Receiving and screening of complaints • Preliminary investigation of complaint • Full/final further investigation 69
• Prosecution • Adjudication and punishment • Departmental action 12.24 Presently, all these functions and powers (except departmental action) are centered with the CBI subject to ministerial intervention at some levels. For States where there is no CBI the State police (frequently called Anti-corruption Bureau) does the job. 12.25 As far as departmental action is concerned, the CBI has no role and the CVC exercises full power but can only make non-binding recommendations for departmental action which is to be ultimately taken by the concerned department. 12.26 The aforesaid summary of the system shows an undesirable, inefficient and conflicted fusion of investigative and prosecutorial powers. It has also attenuated independence and autonomy in practice. If a new mechanism like the Lokpal is being created for a large part of bureaucratic and political class, the undesirable features of the existing system must be necessarily addressed. 12.27 The proposed solution (i) Make Lokpal, for the subjects it covers, in-charge of receiving complaints and doing a detailed preliminary inquiry through its own internal inquiry wing. (ii) Referring to the CBI (a separate statutory body) for detailed investigation must remain, as today, if the preliminary inquiry stage has been crossed as per the Lokpal. (iii) Have the CBI be subjected only to the general superintendence of the Lokpal, similar to that to which it is subjected today under the CVC Act. During the actual detailed investigation by CBI, the merits of the investigation cannot be gone into by either the Lokpal or the administrative Ministry. The analogy here would be the same as applied to the present Court monitored criminal investigations (courts can also exercise only supervisory power but they cannot interfere in the contents or merits of the investigation). (iv) After investigation by the CBI for the Lokpal covered persons/offences is over, the matter would revert to a special prosecutorial wing of the Lokpal which would conduct the entire prosecution in an appropriate Court presently called the CBI Special Judge but could then be called the Lokpal Special Judge. (v) Adjudication, punishment and appellate recourse would continue to be covered by the normal existing law except that the numbers of the Special Judges would have to be increased dramatically to achieve quick results. (vi) For all the non-Lokpal covered persons/offences, the existing CBI controlled investigation and prosecution system would continue with logistical infrastructural strengthening. (vii) There can be no question of sanction for the Lokpal covered persons. In practise, the provisions of single directive and sanction have worked as a huge delaying tactic by vested interests over the years and have frustrated prosecutions. (viii) For the Lokpal covered persons/offences, the entire power of recommendation for departmental action would be taken ayvay from the CVC and entrusted to the Lokpal whose recommendations shall be binding (the Lokpal Bill, 2011 already so provides). At worst, an alternative check can be provided by saying that the department is bound 70
by the Lokpal recommendations unless, for reasons to be recorded in writing by a person of the rank of not less than Minister of State, the conclusions of the Lokpal are rejected. (ix) For those persons not covered by the Lokpal, the CVC would retain jurisdiction (though this Committee does recommend that the CVC’s recommendations should be binding unlike the present situation where very few departmental actions actually take place on the recommendations of the CVC). 12.28 The aforesaid would also obviate the current criticism of both the Lokpal Bill and the Jan Lokpal Bill which appear to fuse investigation, prosecution, superintendence and departmental recommendation into one body, though the Jan Lokpal Bill does it to a far higher and unacceptable degree than the Lokpal Bill. 12.29 Indeed, since India has been talking of an independent structure for a fairly long time, the proposed structure herein would commence a culture of Chinese wall demarcations between investigation and prosecution, the former with the CBI and the latter with the Lokpal in so far as the Lokpal covered persons are concerned. It is true that there would be teething problems for some time due to lack of coordination between investigative and prosecution wings. But this insulation of investigation and prosecution has been considered desirable for many years and we have frequently lamented the absence of this demarcation in India, as operationally present in the USA and UK. Over a short period of time, an independent Directorate of Public Prosecution (DPP) culture is hoped to emerge and considerably strengthen the quality of investigation and impart far greater objectivity to the prosecution process. 12.30 Lastly, the advantage of this model would be that: (i) The CBI’s apprehension, not entirely baseless, that it would then become a Hamlet without a Prince of Denmark if its Anti-Corruption Wing was hived off to the Lokpal would be taken care of. (ii) It would be unnecessary to make CBI or CVC a Member of the Lokpal body itself. (iii) The CBI would not be subordinate to the Lokpal nor its espirit de corps be adversely affected; it would only be subject to general superintendence of Lokpal. It must be kept in mind that the CBI is an over 60 year old body, which has developed a certain morale and espirit de corps, a particular culture and set of practices, which should be strengthened and improved, rather than merely subsumed within a new or nascent institution, which is yet to take roots. Equally, the CEI, while enhancing its autonomy and independence, cannot be left on auto pilot. (iv) The CVC would retain a large part of its disciplinary and functional role for non Lokpal personnel and misconduct and would also not be subordinate to the Lokpal. 12.31 Consequently, it is suggested that the aforesaid structure reasonably harmonizes and creates the necessary equilibrium for the insependence and harmonised functioning of the so-called Trinity viz. Lokpal, CBI and CVC, with neither obliterating, superseding or weakening the other. It also advocates the strengthening of existing institutions, the creation of a new culture of professional investigation insulated from inception and a distinctly professional prosecution department.
V. REASONS AND RECOMMENDATIONS 12.32 (A) Whatever is stated hereinafter in these recommendations is obviously applicable 71
only to Lokpal and Lokayukta covered personnel and offences/misconduct, as already delineated in this Report earlier, inter alia, in Chapter 8 and elsewhere. (B) For those outside (A) above, the existing law, except to the extent changed, would continue to apply. 12.33 This Chapter, in the opinion of the Committee, raises an important issue of the quality of both investigation and prosecution; the correct balance and an apposite equilibrium of 3 entities (viz. Lokpal, CBI and CVC) after creation of the new entity called Lokpal; harmonious functioning and real life operational efficacy of procedural and substantive safeguards; the correct balance between initiation of complaint, its preliminary screening/inquiry, its further investigation, prosecution, adjudication and punishment; and the correct harmonization of diverse provisions of law arising from the Delhi Special Police Establishment Act, the CVC Act, the proposed Lokpal Act, the IPC, CrPC and the Prevention of Corruption Act. It is, therefore, a somewhat delicate and technical task. 12.34 The stages of criminal prosecution of the Lokpal and Lokayukta covered persons and officers can be divided broadly into 5 stages, viz. (a) The stage of complaint, whether by a complainant or suo motu, (b) the preliminary screening of such a complaint, (c) the full investigation of the complaint and the report in that respect, (d) prosecution, if any, on the basis of the investigation and (e) adjudication, including punishment, if any. 12.35 The Committee recommends that the complaint should be allowed to be made either by any complainant or initiated suo motu by the Lokpal. Since, presently, the CBI also has full powers of suo motu initiation of investigation, a power which is frequently exercised, it is felt that the same power of suo motu proceedings should also be preserved for both the CBI and the Lokpal, subject, however, to overall supervisory jurisdiction of the Lokpal over the CBI, including simultaneous intimation and continued disclosure of progress of any inquiry or investigation by the CBI to the Lokpal, subject to what has been elaborated in the next paragraph. 12.36 Once the complaint, through any party or suo motu has arisen, it must be subject to a careful and comprehensive preliminary screening to rule out false, frivolous and vexatious complaints. This power of preliminary inquiry must necessarily vest in the Lokpal. However, in this respect, the recommendations of the Committee in para 12.36(1) should be read with this para. This is largely covered in clause 23 (1) of the Lokpal Bill, 2011. However, in this respect, the Lokpal would have to be provided, at the inception, with a sufficiently large internal inquiry machinery. The Lokpal Bill, 2011 has an existing set of provisions (Clauses 13 and 14 in Chapter III) which refers to a full-fledged investigation wing. In view of the structure proposed in this Chapter, there need not be such an investigation wing but an efficacious inquiry division for holding the preliminary inquiry in respect of the complaint at the threshold. Preliminary inquiry by the Lokpal also semantically distinguishes itself from the actual investigation by the CBI after it is referred by the Lokpal to the CBI. The pattern for provision of such an inquiry wing may be similar to the existing structure as provided in Chapter III of the Lokpal Bill, 2011 but with suitable changes made, mutatis mutandis, and possible merger of the provisions of Chapter VII with Chapter III. 12.36 (A)The Committee is concerned at the overlap of terminology used and procedures proposed, between preliminary inquiry by the Lokpal as opposed to investigation by 72
the investigating agency, presently provided in Clause 23 of the Lokpal Bill. The Committee, therefore, recommends: (a) that only two terms be used to demarcate and differentiate between the preliminary inquiry to be conducted by the Lokpal, inter alia, under Chapters VI and VII read with Clause 2(1)(e) as opposed to an investigation by the investigating agency which has been proposed to be the CBI in the present report. Appropriate changes should make it clear that the investigation (by the CBI as recommended in this report), shall have the same meaning as provided in Clause 2 (h) of the Cr.P.C whereas the terms “inquiry” or “preliminary investigation” should be eschewed and the only two terms used should be “preliminary inquiry” (by the Lokpal) on the one hand and “investigation” (by the CBI), on the other. (b) the term preliminary inquiry should be used instead of the term inquiry in clause 2(1)(e) and it should be clarified therein that it refers to preliminary inquiry done by the Lokpal in terms of Chapters VI and VII of the Lokpal Bill, 2011 and does not mean or refer to the inquiry mentioned in Section 2(g) of the Cr.P.C. (c) the term “investigation” alone should be used while eschewing terms like “preliminary investigation” and a similar definitional provision may be inserted after Clause 2(1)(e) to state that the term investigation shall have the same meaning as defined in Clause 2(h) of the Cr.P.c. (d) Similar changes would have to be made in all other clauses in the Lokpal Bill, 2011, one example of which includes Clause-14. 12.36 (B) There are several parts of Clause 23 of the 2011 Bill, including Clauses 23(4), 23(5), 23(6), 23(9) and 23(11) which require an opportunity of being heard to be given to the public servant during the course of the preliminary inquiry i.e. the threshold proceedings before the Lokpal in the sense discussed above. After deep consideration, the Committee concludes that it is unknown to criminal law to provide for hearing to the accused at the stage of preliminary inquiry by the appropriate authority i.e. Lokpal or Lokayukta in this case. Secondly, the preliminary inquiry is the stage of verification of basic facts regarding the complaint, the process of filtering out false, frivolous, fictitious and vexatious complaints and the general process of seeing that there is sufficient material to indicate the commission of cognizable offences to justify investigation by the appropriate investigating agency. If the material available in the complaint at the stage of its verification through the preliminary inquiry is fully disclosed to the accused, a large part of the entire preliminary inquiry, later investigation, prosecution and so on, may stand frustrated or irreversibly prejudiced at the threshold. Thirdly, and most importantly, the preliminary inquiry is being provided as a threshold filter in favour of the accused and is being entrusted to an extremely high authority like the Lokpal, created after a rigorous selection procedure. Other agencies like the CBI also presently conduct preliminary inquiries but do not hear or afford natural justice to the accused during that process. Consequently the Committee recommends that all references in Clause 23 or elsewhere in the Lokpal Bill, 2011 to hearing of the accused at the preliminary inquiry stage should be deleted. 12.36 (BB) Since the Committee has recommended abolition of the personal hearing process before the Lokpal during the preliminary inquiry, the Committee deems it 73
fit and proper to provide for the additional safeguard that the decision of the Lokpal at the conclusion of the preliminary inquiry to refer the matter further for investigation to the CBI, shall be taken by a Bench of the Lokpal consisting of not less than 3 Members which shall decide the issue regarding reference to investigation, by a majority out of these three. 12.36 (C) Naturally, it should also be made clear that the accused is entitled to a full hearing before charges are framed. Some stylistic additions like referring to the charge sheet “if any” (since there may or may not be a chargesheet) may also be added to Clause 23(6). Consequently, Clauses like 23(7) and other similar clauses contemplating proceedings open to public hearing must also be deleted. 12.36 (D) Clause 23(8) would have to be suitably modified to provide that the appropriate investigation period for the appropriate investigating agency i.e. CBI in the present case, should normally be within six months with only one extension of a further six months, for special reasons. Reference in Clause 23(8) to “inquiry” creates highly avoidable confusion and it should be specified that the meanings assigned to inquire and investigate should be as explained above. 12.36 (E) The Committee also believes that there may be several exigencies during the course of both preliminary inquiry and investigation which may lead to a violation of the 30 days or six months periods respectively specified in Clause 27(2) and 23(8). The Committee believes that it cannot be the intention of the law that where acts and omissions by the accused create an inordinate delay in the preliminary inquiry and/or other factors arise which are entirely beyond the control of the Lokpal, the accused should get the benefit or that the criminal trial should terminate. For that purpose it is necessary to insert a separate and distinct provision which states that Clauses 23(2), 23(8) or other similar time limit clauses elsewhere in the Lokpal Bill, 2011, shall not automatically give any benefit or undue advantage to the accused and shall not automatically thwart or terminate the trial. 12.36 (F) Clause 23(10) also needs to be modified. Presently, it states in general terms the discretion to hold or not to hold preliminary inquiry by the Lokpal for reasons to be recorded in writing. However, this may lead to allegations of pick and choose and of arbitrariness and selectivity. The Committee believes that Clause 23(10) should be amended to provide for only one definition viz., that preliminary inquiry may be dispensed with only in trap cases and must be held in all other cases. Even under the present established practice, the CBI dispenses with preliminary inquiry only in a trap case for the simple reason that the context of the trap case itself constitutes preliminary verification of the offence and no further preliminary inquiry is necessary. Indeed, for the trap cases, Section 6 A (ii) of the Delhi Special Police Establishment Act, 1946 also dispenses with the provision of preliminary inquiries. For all cases other than the trap cases, the preliminary inquiry by the Lokpal must be a non-dispensable necessity. 12.36 (G) Clause 23(11) also needs to be modified/deleted since, in this Report, it is proposed that it is the CBI which conducts the investigation which covers and includes the process of filing the charge sheet and closure report. 12.36 (H) Similarly, Clause 23 (12) (b) would have to be deleted, in view of the conclusion hereinabove regarding the absence of any need to provide natural justice to the accused at the stage of preliminary inquiry. Clause 23(14) is also unusually widely worded. It does not indicate as to whom the Lokpal withhold records from. 74
Consequently that cannot be a general blanket power given to the Lokpal to withhold records from the accused or from the investigating agency. Indeed, that would be unfair, illegal and unconstitutional since it would permit selectivity as also suppress relevant information. The clause, therefore, needs to be amended. 12.36 (I) The case of the Lokpal initiating action suo motu, requires separate comment. In a sense, the preliminary inquiry in the case of a Lokpal suo motu action becomes superfluous since the same body (i.e. Lokpal) which initiates the complaint, is supposed to do a preliminary inquiry. This may, however, not be as anomalous as it sounds since even under the present structure, the CBI, or indeed the local police, does both activities i.e. suo motu action as also preliminary screening/inquiry. The Committee was tempted to provide for another body to do preliminary inquiry in cases where the Lokpal initiates suo motu action, but in fact no such body exists and it would create great multiplicity and logistical difficulty in creating and managing so many bodies. Hence the Committee concludes that in cases of suo motu action by Lokpal, a specific provision must provide that that part of the Lokpal which initiates the suo motu proposal, should be scrupulously kept insulated from any part of the preliminary inquiry process following upon such suo motu initiation. It must be further provided that the preliminary inquiry in cases of suo motu initiation must be done by a Lokpal Bench of not less than five Members and these should be unconnected with those who do the suo motu initiation. 12.37 These recommendations also prevent the Lokpal from becoming a single institution fusing unto itself the functions of complainant, preliminary inquirer, full investigator and prosecutor. It increases objectivity and impartiality in the criminal investigative process and precludes the charge of creating an unmanageable behemoth like Lokpal, while diminishing the possibility of abuse of power by the Lokpal itself. 12.38 These recommendations also have the following advantages: (i) The CBI’s apprehension, not entirely baseless, that it would become a Hamlet without a Prince of Denmark if its Anti-Corruption Wing was hived off to the Lokpal, would be taken care of. (ii) It would be unnecessary to make CBI or CVC a Member of the Lokpal body itself. (iii) The CBI would not be subordinate to the Lokpal nor its espirit de corps be adversely affected; it would only be subject to general superintendence of Lokpal. It must be kept in mind that the CBI is an over 60 year old body, which has developed a certain morale and espirit de corps, a particular culture and set of practices, which should be strengthened and improved, rather than merely subsumed or submerged within a new or nascent institution, which is yet to take root. Equally, the CBI, while enhancing its autonomy and independence, cannot be left on auto pilot. (iv) The CVC would retain a large part of its disciplinary and functional role for non Lokpal personnel and regarding misconduct while not being subordinate to the LokpaI. However, for Lokpal covered personnel and issues, including the role of the CBI, the CVC would have no role. (v) Mutatis mutandis statutory changes in the Lokpal Bill, the CVC and the CBI Acts and in related legislation, is accordingly recommended. 75
12.39 After the Lokpal has cleared the stage for further investigation, the matter should proceed to the CBI. This stage of the investigation must operate with the following specific enumerated statutory principles and provisions: (A) On the merits of the investigation in any case, the CBI shall not be answerable or liable to be monitored either by the Administrative Ministry or by the Lokpal. This is also fully consistent with the established jurisprudence on the subject which makes it clear that the merits of the criminal investigation cannot be gone into or dealt with even by the superior courts. However, since in practise it has been observed in the breach, it needs to be unequivocally reiterated as a statutory provision, in the proposed Lokpal Act, a first in India. (B) The CBI shall, however, continue to be subject to the general supervisory superintendence of the Lokpal. This shall be done by adding a provision as exists today in the CVC Act which shall now apply to the Lokpal in respect of the CBI. Consequently, the whole of the Section 8 (1) (not Section 8 (2) ) of the CVC Act should be included in the Lokpal Bill to provide for the superintendence power of the Lokpal over the CBI. 12.40 Correspondingly, reference in Section 4 of the Delhi Special Police Establishment Act to the CVC would have to be altered to refer to the Lokpal. 12.41 At this stage, the powers of the CBI would further be strengthened and enhanced by clarifying explicitly in the Lokpal Bill that all types of prior sanctions/terms or authorizations, by whatever name called, shall not be applicable to Lokpal covered persons or prosecutions. Consequently, the provisions of Section 6 (A) of the Delhi Special Police Establishment Act, Section 19 of the Prevention of Corruption Act and Section 197 of the IPC or any other provision of the law, wherever applicable, fully or partially, will stand repealed and rendered inoperative in respect of Lokpal and Lokayukta prosecutions, another first in India. Clause 27 of the Lokpal Bill, 2011 is largely consistent with this but the Committee recommends that it should further clarify that Section 6 A of the DSPE Act shall also not apply in any manner to proceedings under the proposed Act. The sanction requirement, originating as a salutary safeguard against witch hunting has, over the years, as applied by the bureaucracy itself, degenerated into a refuge for the guilty, engendering either endless delay or obstructing all meaningful action. Moreover, the strong filtering mechanism at the stage of preliminary inquiry proposed in respect of the Lokpal, is a more than adequate safeguard, substituting effectively for the sanction requirement. Elsewhere, this Report recommends that all sanction requirements should be eliminated even in respect of non Lokpal covered personnel. 12.42 The previous two paragraphs if implemented, would achieve genuine and declared statutory independence of investigation for the first time for the CBI. 12.43 The main investigation, discussed in the previous few paragraphs, to be conducted by the CBI, necessarily means the stage from which it is handed over to the CBI by the Lokpal, till the stage that the CBI files either a chargesheet or a closure report under Section 173 of the CrPC. However, one caveat needs to be added at this stage. The CBI’s chargesheet or closure report must be filed after the approval by the Lokpal and, if necessary, suitable changes may have to be made in this regard to Section 173 Cr PC and other related provisions. 12.44 The aforesaid independence of the CBI is reasonable and harmonizes well with the supervisory superintendence of the Lokpal in the proposed Lokpal Bill, which is now 76
exercised by CVC under Section 8 (1) of the CVC Act. The Committee recommends the above provision, suitably adapted to be applicable in the relationship between the Lokpal and the CBI. 12.45 The next stage of the criminal process would go back to the Lokpal with full powers of prosecution on the basis of the investigation by the CBI. The following points in this respect are noteworthy: • Clause 15 in Chapter IV of the Lokpal Bill, 2011 already contains adequate provisions in this regard and they can, with some modifications, be retained and applied. • The Committee’s recommendations create, again for the first time, a fair demarcation between independent investigation and independent prosecution by two distinct bodies, which would considerably enhance impartiality, objectivity and the quality of the entire criminal process. • It creates, for the first time in India, an independent prosecution wing, under the general control and superintendence of the Lokpal, which, hopefully will eventually develop into a premium, independent autonomous Directorate of Public Prosecution with an independent prosecution service (under the Lokpal institution). The Committee also believes that this structure would not in any manner diminish or dilute the cooperative and harmonious interface between the investigation and prosecution processes since the former, though conducted by the CBI, comes under the supervisory jurisdiction of the Lokpal. 12.46 The next stage is that of adjudication and punishment, if any, which shall, as before, be done by a special Judge. The Committee considers that it would be desirable to use the nomenclature of ‘Lokpal Judge’ (or Lokayukta Judge in respect of states) under the new dispensation. However, this is largely a matter of nomenclature and existing provisions in the Lokpal Bill, 2011 in Chapter IX are adequate, though they need to be applied, with modifications. 12.47 The aforesaid integrates all the stages of a criminal prosecution for an offence of corruption but still leaves open the issue of departmental proceedings in respect of the same accused. 12.48 The Committee agrees that for the Lokpal covered personnel and issues, it would be counter-productive, superfluous and unnecessary to have the CVC to play any role in departmental proceedings. Such a role would be needlessly duplicative and superfluous. For such matters, the Lokpal should be largely empowered to do all those things which the CVC presently does, but with some significant changes, elaborated below. 12.49 Clauses 28 and 29 of the Lokpal Bill are adequate in this regard but the following changes are recommended: (i) The Lokpal or Lokayukta would be the authority to recommend disciplinary proceedings for all Lokpal or Lokayukta covered persons. (ii) The CVC would exercise jurisdiction for all non Lokpal covered persons in respect of disciplinary proceedings. (iii) The CBI would similarly continue to exercise its existing powers under the CVC’s superintendence for all non Lokpal personnel and proceedings. 77
(iv) Departmental action must, as the law today stands, comply with the over arching mandate of Article 311 of the Indian Constitution. Dissatisfaction or objection to the practical operation of Article 311, fully understandable and indeed justifiable, does not permit or impel us to ignore the existence of Article 311, until altered. If there is consensus outside the Committee on amending Article 311, it must be amended as elaborated and recommended by the Committee in paragraph 12.49. However, absent such a consensus, the passage of the Lokpal Bill need not be held up on that account and hence the present report makes recommendations on the basis of the continuance of Article 311. If, however, it is amended as per paragraph 12.49, the proposed Lokpal Act can easily be modified to reflect such changes. (v) It may also be remembered that the Lokpal itself does not conduct the departmental proceedings. For the law to provide for Lokpal to conduct the entire departmental proceedings itself, would be to put a humungous and unworkable burden on the institution. (vi) Therefore, the power to take departmental action whether in the case of bureaucrats or in the case of Ministers as provided in Clauses 28 and 29 of the Lokpal Bill 2011, are largely appropriate. (vii) The Committee is informed that suspension of a delinquent officer during his criminal prosecution is virtually automatic in practice. However, the Committee feels the need to emphasize that a specific provision be added in Chapter VII making it clear that once any bureaucrat (viz. group A or group B officer) as covered in the proposed Lokpal Bill is under investigation and the Lokpal makes a recommendation that such a person be suspended, such suspension should mandatorily be carried out unless, for reasons to be recorded in writing by a majority out of a group of 3 persons not below the rank of Ministers of State belonging to the Ministries of Home, Personnel and the relevant administrative Ministry of the delinquent officer, opine to the contrary. Such suspension on Lokpal recommendation does not violate Article 311 in any manner. Refusal by the aforesaid Committee of three provides a check and balance qua possibly unreasonable Lokpal recommendations. The reference is to three high functionaries of three Ministries and not to the Administrative Ministry alone since it is frequently found in practice that the Administrative Ministry’s responses alone may seek to preserve the status quo on account of vested interests arising from the presence of the delinquent officer in that Administrative Ministry. (viii) There cannot be a counterpart suspension provision in respect of MPs or Ministers or the like, but an explicit clause may be added to the existing Clause 29 that the Presiding Officer of the relevant House in the case of MPs and Prime Minister in the case of a member of the Council of Ministers shall record a note in writing indicating the action being taken in regard to the Lokpal’s recommendations or the reasons for not taking such action. (ix) Wherever otherwise applicable, in respect of the details of the departmental inquiry, the provisions of Article 311 would, unless altered and subject to Paras D above and 12.49 below, continue to apply. 12.50 The Committee strongly pleads and recommends that the provisions of Article 311 require a close and careful re-look to ensure that reasonable protection is given to 78
bureaucrats for the independent and fair discharge of their functions but that the enormous paraphernalia of procedural rules and regulations which have become a major obstacle in the taking of genuine and legitimate departmental action against delinquent officers, be eliminated. The Committee notes with concern and with growing apprehension that serious and high level/big ticket corruption has increased exponentially since independence at all levels in the Lokpal proposed categories of personnel. In particular, bureaucratic corruption has been relatively ignored or underplayed in the context of the excessive media and civil society focus on political corruption, coupled with the doctrine of civil service anonymity, which this country imported from our former colonial masters. Hence, the substantial modification of Article 311 or, indeed, its replacement by a much lesser statutory (not constitutional counterpart) should be taken up and implemented at the earliest. It may be added that what requires to be looked into is not the mere text of Article 311 but the context which has grown around it, through an undesirably large number of statutory and non-statutory rules, procedures and regulations coupled with huge common law jurisprudence over the last 6 decades. It is universally believed that the aforesaid has, in practice, converted Article 311, from a reasonable and salutary safeguard to a haven for those indulging in mal- administration and/corruption with no fear of consequences and the certainty of endless delay. The fact that Article 311 had been given constitutional and not mere statutory status is also responsible for its largely unchanged character over the last six plus decades.
12.51 Though not strictly within the purview of the Lokpal Bill 2011 itself, the Committee also recommends that CVC’s advice in respect of departmental action to be taken by the relevant department in case of non-Lokpal covered personnel must, by a suitable amendment to the CVC Act, be made binding to the extent that, unless for reasons to be recorded by a majority out of the same joint group as aforesaid, comprising 3 persons not below the rank of Ministers of State belonging respectively to the Ministries of Home Affairs, Personnel and the Administrative Ministry to which the delinquent officer belongs, states that CVC advice be not followed, such CVC advice shall be binding.
12.52 The Committee has deliberated long and hard on whether it can or should go to the extent of suggesting changes in the selection procedure of the CBI chief. Presently, the CBI chief is appointed by the Government on the recommendation of a Committee consisting of the CVC as Chairperson, Vigilance Commissioner, Secretary, Government of India in the Ministry of Home Affairs and Secretary of the Administrative Ministry (in this case the Ministry of Personnel) [see Section 4A of the Delhi Special Police Establishment Act, 1946]. Section 8 (2) of the 1946 Act further provides for a mandatory input in the selection of a new. Director to be made by the outgoing Director and also enjoins upon the Committee, in Section 8 (3), to make recommendations for a panel of officers on the basis of seniority, integrity and experience in the investigation of anti-corruption cases, necessarily belonging to the Indian Police Services.
12.53 Interestingly, Section 4 C of the same 1946 Act provides for the same Committee to make recommendations for all appointments as also extension or curtailment of tenure of all officers above the level of Superintendent of Police in the CBI.
12.54 It is thus clear that it is not correct to suggest that the Central Government has absolute discretion in appointing the CBI Director. After the Vineet Narain vs. Union 79
of India judgment* by the Apex Court, significant changes were brought into the Delhi Special Police Establishment Act, 1946. In 2003 (by Act 45 of 2003) providing for the aforesaid independent and autonomous regime for selection and appointment of CBI Director. The Central Vigilance Commissioner who heads the selection and recommendation process is itself a high statutory authority under a separate enactment called the Central Vigilance Commission Act of 2003 which, in turn in Section 4, obliges the Government to appoint the CVC on the basis of a recommendation of a high powered Committee comprising the Prime Minster, the Home Minister and the leader of opposition in the Lok Sabha. It is, therefore, erroneous to brush aside the existing system as merely involving absolute power/ discretion to select Government favourites as CBI Director. 12.55 Furthermore, the Committee believes that it would neither be proper nor desirable for the Committee to go into and suggest fundamental statutory alterations to the procedure for selection and appointment of CBI Director, which appears, nowhere, directly or indirectly, to be a subject referred for the consideration of this Committee. Collateral recommendations of this nature by a side wind should, in the opinion of this Committee, be avoided, especially since significant statutory changes have been brought in with respect to the appointment of the CBI Director less than 8 years ago.
* 1996(2) scc 199. 80
CHAPTER-13
CONSTITUTIONAL STATUS : IF, HOW AND HOW MUCH
I. INTRODUCTION AND BACKGROUND 13.1 On 26th August, 2011, Shri Rahul Gandhi, Member of Parliament, in the course of his speech in the Lok Sabha, strongly advocated constitutional status to the institution of Lokpal. He said:– “An effective Lokpal law is only one element in the legal framework to combat corruption. The Lokpal institution alone cannot be a substitute for a comprehensive anti-corruption code. A set of effective laws is required. Laws that address the following critical issues are necessary to stand alongside the Lokpal initiative: Government funding of elections and political parties; transparency in public procurement; proper regulation of sectors that fuel corruption like land and mining.... We speak of a statutory Lokpal but our discussions cease at the point of its accountability to the people and the risk that it might itself become corrupt. Madam Speaker, why not elevate the debate? Let us make it further and fortify the Lokpal Bill by making it a constitutional body like the Election Commission of India. I feel the time has come for us to seriously consider this idea. Madam Speaker, laws and institutions are not enough. A representative, inclusive and accessible democracy is central to fighting corruption. Individuals have brought our country great gains. They have galvanized the people in the cause of freedom and development. However, we must not weaken the democratic process. This process is often lengthy and lumbering. But it is so in order to be inclusive and fair”.1 13.2 The suggestion set off an intense debate on the subject. Many argued that the giving of constitutional status to the Lokpal would immensely enhance its stature. Doubts and questions were, however, raised about its feasibility and, more importantly, the possible inherent details involved in the process of giving constitutional status. The debate was carried on at several levels and fora including, within Parliament and in the Press, in this Parliamentary Committee and in diverse sections of civil society. The Committee also received specific inputs on the subject from diverse sources. This chapter discusses pros and cons and makes final recommendations in this regard.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 13.3 The major points raised in the memoranda received by the Committee are:- • Lokpal needs to be a constitutional authority, like the ECI or CAG rather than a statutory body, so that it has higher stature and increased legitimacy. • As the ECI has powers to transfer officers which it deems would hinder the conduct of free and fair elections, the Lokpal should also have complete powers to transfer officers who would be prejudicial to the case and Government ‘should’ comply with the same. Hence, Lokpal should be a constitutional authority in these regards.
1Statement made by Shri Rahul Gandhi in the Lok Sabha on 26th August, 2011.
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III. SUMMARY OF DEPOSITIONS GIVEN BY WITNESSES 13.4 Justice J.S. Verma, while placing his considered views before the Committee, stated:– “…But we are trying to say not a single word except to provide a declaration that there could be a constitutional body and once this Constitution Amendment Bill is passed so that it becomes a part of the Constitution. Then, there are several other implications which have got to be taken note of. This is something which cannot be ordinarily amended like an ordinary statute by some simple majority. It would be difficult. Secondly, if it becomes a basic feature and, therefore, a part of the basic structure which personally, I think, my friend agrees, ultimately it will become a part of the indestructable basic structure of the Constitution which any kind of change in the political equations or formulations, it would be beyond amending power even of Parliament. Article 253 of the Constitution clearly provides that for the purpose of implementing an international treaty, convention, etc., the Parliament is entitled to enact for the whole or any part of the territory. We have already a precedent. The Protection of Human Rights Act, 1993 was enacted by the Parliament, We deal with not only the Constitution and the National Human Rights Commission but also the State Human Rights Commission. It is for the whole…” 13.5 The Chairman, Bar Council of India, while speaking on this topic, observed:– “…our view is this should be a constitutional body in line with the Election Commission. The structure, functions and jurisdictions may be left to be provided by a parliamentary legislation like the one we have presently. Our first submission would be, please make it a constitutional body…” 13.6 Shri Shanti Bhushan, while appearing before the Committee, said:– “…My first point is about the constitutional amendment. We have no objection in this regard. In fact, we would welcome a constitutional amendment to give a constitutional status to the Lokpal, subject to two conditions. One, Mr. Seshan had suggested a Bill which would have involved ratification by fifty per cent of the State Assemblies because it was altering the legislative list. It is not required in this case. No alteration in the legislative list is required. Therefore, it must be ensured – if that is going to be constitutional amendment Bill- that it will be passed by the Parliament itself without the requirement of being sent to the State Legislative Assemblies. Of course, it will have to be ensured, and I have no doubt, that two-third majority of those present and voting would be available, particularly after the Uttarakhand experiment. When Uttarakhand, where all the major parties are present, has already put their seal of approval on all these provisions, 1 don’t see any difficulty with the political parties, here, at the Centre, also endorse all these suggestions. One thing more, it should not be a mere skeleton Bill. If it has to be a constitutional amendment Bill, it should not merely provide that State Legislatures and the Lok Sabha would be competent to enact a Bill. The constitutional amendment Bill must itself make all the provisions so that as soon as the constitutional amendment Bill is adopted all the provisions – the powers of the Lokpal, the functions of the Lokpal, the authority of the Lokpal – get passed by this constitutional amendment alone. There is no problem in doing it. It can be done and it should be done…” 13.7 Justice M.N. Venkatachaliah and Justice J.S. Verma, in the memorandum submitted to the Committee, has enumerated the advantages of making the Lokpal as a constitutional body, as follows :– 82
1. “The demand is for a “strong” body against corruption. The strongest body that can be created by law is a body established under the Constitution. A purely statutory body will be weaker than a Constitutional body for the following reasons. 2. The independence of the proposed anti-corruption body (on matters such as its mandate, powers, appointment and removal, functions and accountability), will be more secure and tamper proof if entrenched in the Constitution than if placed in an ordinary legislation. A simple majority can amend ordinary laws. Constitutional provisions may be amended only by constitutional amendment (2/3rd majority of those voting plus, in specified cases, approval of 50% of State legislatures). 3. A constitutional body will protected from challenges in a court of law that its mandate, powers and functions are in conflict with the Constitution or with any other statute- Constitution provisions establishing a constitutional body may be challenged only on the ground that it is in conflict with the “basic structure” of the Constitution. 4. A Constitutional amendment will provide a basis for a unified and comprehensive national statutory frame-work for combating corruption at the national, state and local level. This would not be possible in an ordinary legislation become Parliament may generally enact ordinary legislation only on subjects within the Union and Concurrent Lists. However, when Parliament amends the Constitution it is not “making law” - it is exercising “constituent power”; exercise of constituent power is not restricted to the Union list or barred from matter in the State list. In this particular case it may be possible for Parliament to make law on matters in the State list on the basis that it is doing so to implement India’s obligations under the UN Convention Against Corruption. This may, however, be subject to challenge and will require all provisions to be based on obligations under the UN Convention, directly or indirectly. 5. As a matter of practical reality, experience shows that constitutional bodies enjoy greater immunity from extraneous influences than statutory bodies. Courts are more vigilant in protection the independence of these bodies. 6. Again as a practical matter, Constitutional bodies enjoy higher status than bodies established under statutes. A proposal to establish a statute against corruption betrays a lack of the highest level of commitment to the issue. 7. Constitutional provisions set out the most important normative concerns of society. By establishing a Constitutional body to fight corruption, this country will be establishing its civilizational commitment to uphold probity in public life.” 13.8 The written note submitted by Justice J.S. Verma states as under:– “…a constitutional amendment would not attract the Proviso to Sub-Article (2) of Article 368 of the Constitution, and, therefore, it would not require ratification by the States… As would be evident on a plain reading of Article 368(2), the only requirement is for it to be passed by the majority of total membership of each House and by a majority of not less than two-thirds of members present and voting. With the unanimous demand in the people supported by unanimity of all political parties in the Parliament to constitute a strong Lokpal/Lokayuktas, there can be no doubt of unanimous support for a constitutional body, which would obviously be the strongest visualized in the constitutional scheme. Once the constitutional amendment is made, it 83
would become a part of the indestructible ‘basic structure’, immune from any future attempt to erode its status. The exercise for the accompanying consequent legislation providing the details dealing with the contentious issues can continue simultaneously, since it must follow to complete the process. There is no occasion to doubt the sincerity of the commitment and resolve of the people and the political will in this behalf Therefore, there can be no risk of any delay in this method. The directive principle of State policy in Article 51 (c), as a principle fundamental in governance is available as an aid. (Article 51 states: “The State shall endeavour to... (c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another...“.) There is, therefore, no need to look for any additional support for the legislative competence of the Parliament to legislate on the subject for the whole territory of India.”
IV. ANALYSIS AND DISCUSSION 13.9 Two former Chief Justices of India gave detailed evidence and submitted drafts of the proposed constitutional amendments. The obvious advantage of giving constitutional status to the Lokpal institution would be, firstly, that its status would be immeasurably enhanced; secondly, existence or essence of the institution would not be liable to be tinkered with as a mere statutory enactment would be liable to be dealt with; thirdly, it would entrench certain basic principles and ideas and protect them from the vicissitudes of transient majorities, thereby making them more sacrosanct and; fourthly, the moral and legal effect of the Lokpal decisions would carry considerable enhanced legitimacy and moral and legal authority as a constitutional body. 13.10 The argument regarding possibility of delay was not real or, in, any case, not substantial. Those desirous of having an effective Lokpal institution could hardly complain that it was being given constitutional status. The constitutional amendment could be introduced not only in theory but in practice on the very same day as the Lokpal (Statutory Bill) is introduced in Parliament and there was no reason to suppose that the Constitutional Amendment Bill would not be passed on the same day and the same time as the statute. Indeed, it would be difficult to conceive of a situation as to any political party opposing the constitutional amendment while supporting; in principle, the creation of Lokpal through a statute. 13.11 Shri Shanti Bhushan’s suggestion that if there has to be constitutional amendment, virtually the entire Bill must be put within the Constitution, was felt both unnecessary and impracticable. The constitutional provisions are supposed to contain immutable principles or deals with basic principles not intended to be subject to frequent change. It will be self- defeating to transpose the entire Lokpal as a constitutional amendment to the Constitution itself, and that would considerably diminish its flexibility, apart from being impractical and totally unnecessary.
V. REASONS AND RECOMMENDATIONS
13.12 The Committee, therefore, recommends:– (a) The institution of Lokpal must be given constitutional status by inserting into the Constitution by way of constitutional amendment certain basic principles about the Lokpal and leaving the details in the new proposed statute on which this Committee is opining. 84
(b) One practical, reasonable and legally valid model would be for the Government to consider the model and set of provisions asked for by the Committee and presented in the evidence to the Committee as a draft constitutional amendment by two former Chief Justices of India. That draft is enclosed herewith as Annexure ‘F’ and is self-explanatory. (c) This constitutional amendment does not require ratification by not less than half of the State Legislatures since it does not seek to make any change in any of the provisions listed in the second proviso to Article 368 (2) of the Indian Constitution. (d) The constitutional amendment should, as reflected in the enclosed Annexure ‘F’ be a set of basic principles for the Lokpal as also provide for the basic set up of the Lokayuktas. Both these provisions, proposed in the enclosed draft, propose Part XV A and Articles 329(C) and 329(D), as enabling, empowering and permissive provisions and authorize and empower the appropriate legislature to make proper laws, mutatis mutandis, for Lokpal at the Centre and for Lokayuktas at the State. (e) Such a constitutional status would not only considerably enhance the stature, legal and moral authority of the Lokpal institution but would make interference and tinkering in these basic principles not subject to the vicissitudes of ordinary or transient majorities. Over a period of time, it is likely that these principles would develop into a set of immutable principles and, possibly, even become part of basic structure of the Constitution rendering the existence of the Lokpal and its basic features un-amendable even by a constitutional amendment. (f) Apprehensions regarding delay are misplaced. The constitutional amendment bill would be much shorter than the statutory bill for the new proposed Lokpal and can be passed on the same day and at the same time as the latter, though by a different majority. It is inconceivable that while parties are in favour of the institution of Lokpal in principle, as a statutory body, parties would not agree with equal alacrity for the passage of a constitutional amendment bill. (g) The suggestion that the entire statutory bill should be transposed as a constitutional amendment into the Constitution is untenable and impracticable. That would eliminate flexibility and would require a constitutional amendment for the smallest future change. Moreover, the Constitution does not and is not intended to provide for nitty gritty operational details. It should be and is intended to be a declaration of general and basic principles which, in turn, enable and empower formal Legislation, which in turn would take care of the details. (h) An easy or casual repeal or the entire Lokpal scheme would not be possible once it is constitutionally entrenched. (i) Similarly, there would be no option for the federal or State Legislatures not to have a Lokpal or a Lokayukta at all since the constitutional mandate would be to the contrary. (j) Contextually, the issues and some of the suggestions in this Chapter may overlap with and should, therefore, be read in conjunction with Chapter 7 of this report. Though the Committee has already opined in Chapter 4 of this Report here that the issues of grievance redressal should be dealt with in a separate 85
legislation, the Committee hereby also strongly recommends that there should be a similar declaration either in the same Chapter of the Lokpal or in a separate Chapter proposed to be added in the Indian Constitution, giving the same’ constitutional status to the citizens grievances and redressal machinery. (k) This recommendation also reflects the genuine and deep concern of this Committee about the need, urgency, status and importance of a citizen’s charter/ grievance machinery and the Committee believes that the giving of the aforesaid constitutional status to this machinery would go a long way in enhancing its efficacy and in providing a healing touch to the commonman. (l) Furthermore, the Committee believes that this recommendation herein is also fully consistent with the letter and spirit of para 1.8 above viz. the conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above. 86
CHAPTER-14
THE JURISDICTIONAL LIMITS OF LOKPAL : PRIVATE NGOs, CORPORATES AND MEDIA
I. INTRODUCTION AND BACKGROUND 14.1 There was an intense debate in the Committee on whether to include purely private NGOs, corporations, corporate entities and media under the institution of Lokpal being proposed in this Report and, if so, to what extent and, if not, why not. 14.2 A large number of Members, cutting across party lines, felt that the proposed Bill on the Lokpal pending before this Committee would, at best, be a partial and incomplete measure since it did not police and regulate in respect of corruption, large segments of society, especially private NGOs, corporate entities and media. It was felt that for the last six decades, the focus had been only on policing and regulating the political classes and, to a lesser extent, the bureaucracy, in respect of issues relating to corruption. It was strongly believed that a substantial slice of society should not be excluded from such regulatory purview and that the entire gamut of ‘private’ corruption (in the sense of corruption not involving the political class or bureaucrats) with all its attendant features and facets, is also required to be dealt with by an effective legal regime.
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA 14.3 The memoranda received by the Committee carried the following suggestions/observations:– • Since media is the fourth pillar of democracy, it should be brought under the purview of Lokpal. • The aspect of paid news should also be covered under the Lokpal Bill. • Office bearers of NGOs and movements that do not receive any Government funds cannot be treated as “public servants”. • Jurisdiction of Lokpal should be extended to societies/associations/trusts that are constituted for religious purposes. • Large corporate houses & activities of corporate lobbyists should be brought under the scanner of Lokpal. • PSUs should be brought under the ambit of Lokpal. • Only Government supported NGOs to be brought under Lokpal. • Consequent tangible & intangible losses to the nation should also be included under the Bill. • Powerful media houses, NGOs, corporate bodies, organizations & institutions, because of their clout and their ability to manipulate public opinion in a way that suits their
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interests need to be dealt separately & effectively when an individual complaints against them for the corrupt practices employed by them. By including them in the ambit of a legislation like Lokpal, a common man will be provided with a level playing field to take on the might of these bodies engaged in corrupt practices, just as it would provide people the same to take on the might of the State. • Only NGOs and firms that are funded by Govt. should be brought within the purview of Lokpal. • All NGOs, with which any public servant is associated in their management, should be brought under the ambit of Lokpal Bill and “acts of corruption” in the definition clause should include the acts of omissions and omissions of public servants, in relation to management of any society/trust/any other institution, with which such public servant may be associated in its management. • The fundamental right to establish an independent association should not be curbed; otherwise a lot of useful activity of the citizen for social benefit would be curtailed. Further, ‘annual income’ criterion is arbitrary and violates Article 14 of the constitution. • Second proviso to clause (g) of S.17 (1) is repugnant to good conscience and morality. A free citizen would be subjected to ‘responsibility’ without any ‘power’ of a public servant – ‘liability’ without rights and ‘culpability’ without an overt act is prepositions. The proviso should be deleted. • On the matter of covering the private sector, proposal is that PCA may be amended appropriately to include ‘Where any private body, corporation or profit seeking entity receives from any public authority any concession or dispensation, including but not restricted to licences, subsidies, contracts, orders, quotas, allocations, clearances, grants, etc, that is in violation of the law or of any prevailing rules, it would be deemed to have indulged in corrupt practices unless it can show that it was unreasonable to expect the corporation to know that a law or rule had been violated’. • Corporate Corruption (a) Provide for adequate punitive power in Lokpal Bill and the PC Act to address corporate corruption. (b) Definition of corruption be enlarged as per the recommendations of Fourth Report of Second ARC. (c) Increase the punishment for such offences including collusive bribery on the lines of recommendations of Fourth Report of the Second ARC. • Corruption by Private Party and Issue of recovery (a) Fourth Report of the Second Administrative Reforms Commission has a unique suggestion in the form of a civil recovery law for fraud, which seeks to recover 5 times the amount of loss to the govt. exchequer caused by private parties. This suggestion models itself on the unique law in the USA, called the false claims Act/Lincoln Law. Not only does this law make the private party which has committed the fraudulent act disgorge 3 times the damage to the exchequer, but also legal costs, and the costs of investigation. In this law, public servants cannot be tried; only private parties that knowingly over-bill the govt. or deny revenue to the govt, or make false statements/certification to achieve the same end. It is not a criminal, but a civil statute, so it does not require mens rea or quid pro quo; only a ‘preponderance of evidence’, that the defendant acted 88
‘knowingly’ to defraud the government Since the objective of the law is not to prove criminal guilt, but to make civil recoveries, and deter other fraudulent actions, this reduction in the burden of proof makes sense. The law was borne amidst heightened corruption during the American civil war, and due to its success, has been made stronger today with amendments and supporting legislation. One of the key aspects of this law is the concept of quit am. This concept allows private citizens to approach a civil court and file claims on behalf of the government If the fraud is proven, the citizen/whistleblowers stand to gain upto 30% of the recoveries. (b) The five times recovery of loss should be combined with banning of any business with any aim of the Government of India for a period of five years. If the company being investigated and tried in a civil court, is co-operative and admits to wrong-doing as the civil suit is initiated, it should be allowed to settle for damages not less than three times the loss to the .exchequer and can escape the ban on business. Such civil recovery procedures become thereby equal to the civil service/parliamentary disciplinary procedures as an intermediary punishment whether or not a case is made for criminal offence under the PCA. Furthermore, any violations of agreements with the government in terms of acquisition of land/ granting of subsidized government land/Government subsidies, such as private hospitals that have obtained subsidized land and not treated poor patients for free should also be subject to recoveries/damages under our version of the False Claims Act. • Windfall Profits Tax Act:- In the UK, when North Sea oil was privatized, there was a windfall profit to the private company because of unexpected rise in global oil prices. Though the transaction was transparent and not tainted by corruption, a law was enacted to recover windfall profits from monopoly and use of natural resources, which are the nation’s asset. A similar law could be enacted to recover windfall profits on account of monopoly like mines and minerals, or scarce and irreplaceable spectrum. In such a law, the citizens could be empowered to fight qui-tam suits as in case of False Claims Act. Such a legal provision, along with mandatory competitive bidding for allocation of scarce national resources will significantly curb corruption. 14.4 The DoPT’s comments in this regard is :– “...As regards the corruption by Corporate/MNCs and paid news of both print and electronic media are concerned, it is stated that the scope of the Lokpal is to enquire into the complaints of the alleged corruption against certain public functionaries. If MNCs and Media are also to be covered under the Lokpal, in that case, the definition of the public servant would be required to be modified to include such entities. In order to tackle corruption by private parties, which include MNC and media, Ministry of Home Affairs, in consultation with the States, is already examining amendment to the IPC. However, Clause 17(3) of the Bill provide that the Lokpal may inquire into any act or conduct of any person other than those referred to in sub-section (1) of Clause 17, is such person is associated with the allegation of corruption under the Prevention of Corruption Act, 1988. The Government has also introduced Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations, Bill, 2011 in the Lok Sabha. As far as the conduct of MPs on the floor of the House is concerned, they are already subject to Ethics Committee of the respective House, and it would be desirable if the matter is left to the respective House for appropriate action in this regard. For Media and Press, it is felt that a separate mechanism, perhaps under the Press Council of India, may be required. The NGOs receiving Government funds or donations are covered..... 89
…It is felt that the organisations who are receiving grants etc. from the Government should be covered. Similarly, the NGOs which are getting donations from the public, are also getting tax relief thereby, they are also indirectly funded by the Government, it is felt that those organisations which are set up other than for religious purposes and are receiving public donations, should come within the ambit of the Lokpal…” 14.5 The comments of CVC this regard are :– “…While most of our anti-corruption efforts are focused more on the demand side of corruption i e. punishing the public servants (the receiver of bribes) there is a need to effectively address the equally culpable supply side (the bribe-givers) of corruption. United Nationals Convention Against Corruption (UNCAC) and the Anti-corruption laws in most of the countries focused more on penalising active bribery i.e. payment of bribes, largely involving the private sector. The U.K. Bribery Act, 2010 as well as the Foreign Corrupt Practices Acts of the USA has strong provisions to punish companies who not only involve in corrupt practices but also companies failing to prevent corruption. Therefore, there is a need to introduce strong regulatory frame-work for preventing and punishing corporate corruption. Lok Pal could be best suited to address such supply side corporate corruption and suitable amendments to the Lok Pal Bill and the PC Act should be made expeditiously…” 14.6 Shri Pratap Bhanu Mehta, in his written memorandum, has stated:– “…The State has to balance to competing considerations. On the one hand, it has to ensure that any organization that is funded by the State is subject to proper accountability. On the other hand, it must not make civil society subject to pervasive State scrutiny and control in a way that impinges on their autonomy. In this light while I7(f) seems reasonable. 17(g) gives State a very wide latitude. It would be advisable to retain 17(f) and drop 17 (g). 17 (g) is also discriminatory. It allows the State to scrutinize any organization that receives public donations. But at the same time, it exempts private companies that might “charge” for conducting the very same activity. 17 (g) also would apply to political parties. It is not clear if is desirable to treat political parties as if they are the State. The sense in which a private citizen or an NGO can be corrupt needs to be defined. Offences in the Prevention of Corruption Act relate to taking or abetting the taking of gratification. What counts as an offence for a private citizen of NGO? Embezzlement etc. are covered by a variety of laws. For example, there is a real danger that in case of research organizations for instance, the State could simply rule that a particular position taken by a research organization constitutes an act of corruption merely on account of who funded it. This worry may also apply to institutions covered under 17 (f). So in the absence of any clear definition of corruption for in the case of private citizens, there is real danger of the Act posing a threat to valuable freedoms in civil society. In light of the above —- and for other practical considerations —- it will be advisable to keep NGO’s out of the purview of the Lokpal. They are subject to other accountability mechanisms…”
III. SUMMARY OF DEPOSITION GIVEN BY THE WITNESSES 14.7 Dr. Jayaprakash Narayan stated as under:– 90
“…Then, Mr. Chairman, there are issues relating to corporates and NGOs. We cannot ignore them altogether. There are, obviously, some philosophical issues and also practical issues. The philosophical issue being rights cannot exist against non-governmental organizations, individuals or corporates. The second class of corruption is “collusive corruption.” It is broadly defined as collusion between a public servant and a private entity or an individual to defraud the public exchequer or the public resources. It may be mines, it may be land or it may be some other natural resource. Therefore, this distinction must be kept in mind. In those cases, we argued that penalty must be substantially higher and more importantly, the burden of proof must be shifted. If there is a prima facie evidence, it is for the party accused to prove that there was no collusion. In fact, even in case of the Prevention of Corruption Act, the Supreme Court argued that once a property is accumulated, there is a prima facie evidence. It is for the corrupt public servant to prove that that was not corruptly acquired. Therefore, the burden of proof must be shifted. I know that there will be some concern from many jurists and others because in this country, we have taken the burden of proof issue very seriously. Therefore, if corporates come under this umbrella of collusive corruption and shifting the burden of proof, that will take care of the problem….” 14.8 He further stated:– “…Then, about NGOs and civil society organizations, I believe, corruption is not limited to those in Government alone. There are plenty outside who are equally culpable and, therefore, wherever a civil society organization takes any substantial assistance of the Government – Mr. Chairman, I am emphasizing the words ‘substantial assistance from the Government’ – then they must be definitely brought under the Prevention of Corruption Act. Sir, it is time that the NGOs are made accountable on issues like from where they receive their money, how do they utilize that money etc. If they want to be a part of India’s governance, and, they have become a part of India’s governance, then, they must share the accountability with other institutions of governance…” 14.9 Shri Shekhar Singh (NCPRI) was of the following view:– “…Let us retain what is in the Prevention of Corruption Act, which says that any NGO which gets Government funding comes under the purview. But we have gone further. We have said it at the end of our note, that we must amend the Prevention of Corruption Act and bring both the corporate sector and the NGO by doing the following. And what we have suggested is that section 12 of the Prevention of Corruption Act talks about abetment to an offence under the Prevention of Corruption Act. What we have suggested is that every time an NGO or a corporate sector gets a licence, an order, a clearance or any sort of dispensation form the Government, which is in violation of the rules or laws, it would be assumed that corrupt practices have been indulged in and would, therefore, be considered an abetment…” 14.10 One of the Members of the Committee stated thus:–
“…bUgha dks liksVZ djrs gq, eSa ;g dguk pkgrk gwa fd Hkz’Vkpkj dh xaxks=h rc ls c<+h gS] tc ls çkbosV lSDVj dks lc txgksa ij [kksyk x;k gSA pwafd xouZesaV lSDVj esa tc rd ekeyk Fkk] rc rd fdlh u fdlh :i esa og daVªksy gksrk jgrk Fkk] ysfdu tc ls çkbosV lSDVj [kqy x;k gS] rks vkius flood gate [kksy fn;k] vc vki f[kM+dh dks can djds ugha j[k ldrs gSaA vc /khjs-/khjs xouZesaV lSDVj [kRe gksrk tk jgk gSA tks 91
90 ijlsaV gS] og rks xouZesaV ls ckgj dk gSA eq>s vkt rd vk”p;Z gks jgk gS fd ;s tks corporate houses gSa] tgka lcls T;knk djI”ku gS] tgka ,d iSls ds cnys esa gtkj djksM+ #i, ls de dh ckr ugha gksrh gS] rks vki blesa dkjiksjsV gkmlst dks tksM+us dk dke D;ksa ugha djrs] ehfM;k dks tksM+us dk dke D;ksa ugha djrs\…” 14.11 The following observation was made by another Member of the Committee:– “…The second question is that the entire draft that you have mentioned appears to be that politicians at all levels, as also the bureaucracy, alone are responsible for corruption. Now, politicians and the bureaucracy on the one hand and excluding them is the entire civil society. This is absolutely fallacious for the very simple reason that, after all, wherefrom is the bureaucracy coming. The bureaucracy is coming from amongst the civil society. Who are contesting the elections? Wherefrom the Ministers, the Prime Minister are coming? So, why is there distinction between the civil society and the so-called non civil society, namely, the bureaucracy and the Parliamentarians or the legislators or the Ministers alone? This is a kind of trade off. If civil society is not corrupt, wherefrom the Ministers are bringing the money to get into corruption? If civil society is not involved in corruption, wherefrom the bureaucracy is bringing the money?...” 14.12 Shri Prashant Bhushan, while appearing before the Committee, stated thus:–
“…djI”ku dh definition vxj vki Prevention of Corruption Act esa ns[ksa] mlesa dgk x;k gS fd ;fn blesa dksbZ ljdkjh laLFkk ;k ljdkjh vf/kdkjh involved gS rks mlh dks corruption ekuk gSA bldk ;g eryc ugha gS fd dksbZ futh laLFkk ;k dksbZ futh vkneh fraud ugha dj ldrk] cheating ugha dj ldrk] rks yksx fraud Hkh djrs gSa] cheating Hkh djrs gSa vkSj fØeuy fel-,çksfç,”ku Hkh djrs gSaA mldks Prevention of Corruption Act esa corruption ugha ekuk x;k gS] unless dh og fdlh ljdkjh laLFkk ;k ljdkjh vf/kdkjh dks ?kwl nsrs gSa ;k Hkz’V djrs gSaA tgka rd ljdkjh vf/kdkjh ftl corruption esa involved gSa] ;kuh fd vxj dksbZ çkbosV dEiuh ;k dksbZ NGO fdlh ljdkjh vf/kdkjh ;k laLFkk dks Hkz’V djrk gS] rks og rks yksdiky ds nk;js esa gh vk,xkA
…vxj dksbZ çkbosV laLFkk ;k ,u-th-vks-] fdlh nwljs vkneh] eku yhft, dh dksbZ çkbosV laLFkk gS] mldk tks Vªstjj gS ;k eSustj gS] mlus ml laLFkk ds iSls dk xcu dj fy;k rks bldks djI”ku ugha dgk tkrk] bldks ÝkWM ;k fel-,çksfç,”ku dgk tkrk gSA D;ksafd blesa ljdkj buoksYo ugha gS] blfy, blds fy, tks ukWeZy ljdkjh laLFkk gS] iqfyl ;k vkSj dksbZ tks Hkh laLFkk gS] og mldh rgdhdkr dj ldrh gS…” 14.13 A Member of the Committee said thus :– “…tc dksbZ VsaMj çkslsflax esa vkrk gS] rks mlds fy, tks ljdkjh iSlk ysxk] mldks ltk feysth vkSj VsaMfjax çkslsl esa tks dkWiksZjsV gkml buoksYoM gS] mldks ltk ugha feysxhA…” 14.14 Shri J.B. Mohapatra, while deposing before the Committee, said:– “…Third proviso to clause 17 says that religious trusts, associations of persons, or societies are not be regarded as public servants for this purpose. Now, proviso below clause 17(1)(g) says that religious trusts are not be proceeded against under the Lokpal Act. Now, look at clause 17(3), it says that any person other than mentioned in clause 17(1) can be proceeded against. There is a contradiction and my view is that if religious trusts are exempt from the Lokpal Bill, tomorrow, other charitable institutions like hospitals, education institutions, 92
etc. will also come. When the CRPC, CPC or the Income Tax Act do not exonerate these kinds of religious charities from being proceeded against, why give an exemption in the Lokpal Bill?...” 14.15 Speaking on this issue, the representative of PRS Legislative Research opined as fol1ows:– “…I would just like to point out that clause 17 (1) (g) says that the Bill includes not only NGOs, it also includes any association of persons. This would include companies; it would include unregistered groups, etc., which have obtained donations from the public. The Bill also deems all officers, Directors, etc. or such groups as public servants. If we look back at certain other laws, the Offences and Prevention of Corruption Act, 1988, we will find that they are restricted to taking of gratification, which is bribe, by a public servant in his official capacity. To me, it is not clear, how an officer of a private trust or a society can be accused of corruption. He can be accused of embezzlement; he can be accused of various other crimes, but how does such a person, who is taking donation from the public, actually, causes loss to the exchequer, which is what we narrowly define as ‘corruption’. If we look at the IPC, ‘public servant’ is defined in section 21. There are 11 different categories of persons which are included in the definition. If you look at them together, it, essentially, includes any person who is in the service or pay of the Government or a local authority, a corporation established by law or a Government company and receives a fee or commission for the performance of public duties. So, in some sense, if we take the IPC as a guidance to determine who should be determined a public servant, one could conclude that anyone who performs the function of the State, directly or indirectly, and is compensated by the exchequer for performing a public duty is the person that Section 21 of the IPC covers as ‘public servant’; it does not cover anyone else. Under the RTI Act too, the definition of ‘public authority’ includes the NGOs which receive Government funding: it does not include other donations…” 14.16 The representatives of ABVP, while tendering oral evidence before the Committee, stated :– Ckkdh DykWt 17 ¼,Q½ esa VªLV ds ckjs esa ;k ,u-th-vkst- ds ckjs esa fy[kk x;k gSA ml esa igyk uacj gS ljdkj }kjk lgk;rk çkIr laLFkk,a] ml dk ge leFkZu djrs gSaA mls j[kk tkuk pkfg, vkSj ml ds ckjs esa tks Hkh amount of grant ljdkj r; djsxh] og mlh le; r; fd;k tk ldrk gSA ge bl esa nks vkSj çdkj ds ,u-th-vkst- dks tksM+uk pkgrs gSa - ,d] tks fons”kksa ls /ku çkIr djrs gSaA nwljs] tks dkWiksZjsV vkSj futh daifu;ksa donations ysrs gSaA Hkys gh NksVk donation u j[ksa blfy, eSa lq>ko ds rkSj ij dg jgk gwa fd tks lkykuk 5 djksM+ ls T;knk donation ysrs gSaA cM+s&cM+s ,u-th- vkst- gSa tks ljdkj ds fu.kZ;ksa dks çHkkfor djrs gSaA ;g eqík cgqr egRoiw.kZ gSA blfy, tc rd ge fu.kZ;ksa dks çHkkfor djus okys economic sources dks catch ugha djsaxs rc rd djI”ku ugha #d ldrk gSA blfy, dkWiksZjsV daifu;ksa o futh {ks= ls donation ysus okyh laLFkkvksa ds fy, 5 djksM+ ls Åij ysus okyh laLFkkvksa dh fyfeV j[ksa vkSj mu dks bl esa t:j “kkfey fd;k tkuk pkfg,A ckdh yksdiky fcy esa tks vU; NksVs&eksVs VªLV vkSj nqfu;k Hkj ds yksxksa dks “kkfey fd;k x;k gS] eq>s yxrk gS fd ml çko/kku dks gVk nsuk pkfg,Adsoy rhu çdkj ds gh VªLV bl esa j[ks tkus pkfg, - tks ljdkjh donation ysus okys gSa] fons”kksa ls /ku ysus okys gSa vkSj çkbosV daifu;ksa ls ,d fuf”pr amount ls vf/kd ysus okys gSaA ckdh bl dk nk;jk ugha c<+kuk pkfg, vU;Fkk fQj ;g dksbZ dke gh ugha dj ik,xk vkSj bl dk misuse gh gksus dh laHkkouk gSA 93
IV. ANALYSIS AND DISCUSSION 14.16A A large number of Members, cutting across party lines, felt that the proposed Bill on the Lokpal pending before this Committee would be a partial and incomplete measure since it did not police and regulate in respect of corruption, large segments of society, especially private NGOs, corporate entities and media. It was felt that for the last six decades, the focus had been only on policing and regulating the political classes and, to a lesser extent, the bureaucracy, in respect of issues relating to corruption, It was strongly believed that a substantial slice of society should not be excluded from such regulatory purview and that the entire gamut of “private corruption” in the sense of corruption not involving the political class or bureaucrats with all its attendant features and facets, is also required to be dealt with by an effective legal regime. 14.17 There is no doubt that corruption is neither the exclusive preserve nor the special privilege nor the unique entitlement of only the political or bureaucratic classes. Nor anyone can justify exclusionary holy cows, supposedly immunized, exempted or put outside the purview of a new and vigorous anti-corruption monitoring, investigation and prosecution regime as the proposed new Lokpal Bil1 seeks to create. If corruption is rampant in a country like India, it permeates and pervades every nook and cranny of society and is certainly not restricted to the political or bureaucratic classes. Indeed, while no specific statistical data are available, it may not be at all inconceivable that, in quantification terms, the degree of corruption in the non-political/non-bureaucratic private sector, in the aggregate, is far higher than in the realm of political and bureaucratic classes alone. Therefore, in principle, non- application of the proposed Lokpal Bill to all such classes does not appear to be justifiable. 14.18 In this connection, the very recent UK Bribery Act, 2010, is both interesting and instructive. Drafted in a completely non-legalistic manner, format and language, this Act seeks to criminalize corruption everywhere and anywhere, i.e. in the public and private sectors in UK, in Governmental and non-Governmental sectors, by UK citizens abroad, by non-UK citizens acting in UK and in the entire gamut of private and individual transactions in addition to covering dealings in the private sector, intra-private sector, intra-public sector, in Government and private interface and in every other nook and cranny of society. 14.19 Despite the above and despite the simplicity and attractiveness of an all inclusive approach, the latter must yield to exigencies of logistics, operational efficacy and pragmatism. Since this is the nation’s first experiment with a Lokpal institution, it would amount to starry-eyed idealism to recommend the blanket inclusion of every segment of society under the jurisdiction of an omnipotent and omniscient Lokpal. Such comprehensive inclusion is entirely understandable and may be logically more justifiable in principle, but, in the final opinion of the Committee, must await several years of evolution of the Lokpal institution and a corpus of experiential and practical lessons as also the wisdom of a future generation of Parliamentarians. 14.20 As far as the proposed dispensation is concerned, the only available dividing and demarcating line between the complete inclusion and partial exclusion of entities from the jurisdiction of the Lokpa1 would have to be some test of Government ownership and/or control and/or size of the entity concerned. In this regard, clauses 17 (1) (f) and (g) of the Lokpa1 Bill, 2011 are relevant. Clause 17 (1) (f) applies the Lokpa1 jurisdiction mainly to office-bearers of every society, A.o.P. or trust, registered or not, but wholly or partially financed or aided by the Government, subject to being above some specified annual income minima. Clause 17 (1) (g), similarly, applies the Lokpal to office-bearers of every society, A.o.P, or trust, receiving donations from the public, again subject to an annual income minima to be specified by the Central Government. 94
14.20A After deep consideration, the Committee believes and recommends that these clauses should be merged and expanded to provide for the following coverage/jurisdiction of the Lokpal: (a) The Lokpal jurisdiction should apply to each and every institution/entity, by whatever name called, owned or controlled by the Central Government, subject, however, to an exclusionary minima, where the ownership or control of the Central Government de minimis. Such minima would have to be specified and the power of such specification should be given to the Central Government by notification; (b) Additionally, all entities/institutions, by whatever name called, receiving donations from the public above a certain minima, liable to be specified by the Central Government, should be included, as also all entities/institutions receiving donations from foreign sources in the terms and context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs.l0 lakh per year, should be covered, whether or not, controlled by the Government. This is largely as per existing clause 17 (1) (g), except for the addition of the foreign donation recipient facet; (c) It should be clarified that this coverage shall apply, as also stated above, to every entity and institution, by whatever name called, be it corporate, society, trust, A.o.P., partnership, sole proprietorship, LLP or any other, registered or not. It should also be made clear that the approach is functional or ownership or size based and not based on nomenclature; (d) It is thus clear that corporates, media or NGOs should and would be covered only to the above extent and not otherwise. 14.21 Despite the foregoing elaborations and ‘lament’ regarding exclusion of large slices of society from the Lokpal regime, it must not be forgotten that all persons, whether private, individual, and totally non-Governmental, are already necessarily covered as abettors, co- conspirators, inciters and givers or recipients or bribes in terms of clause 17 (3) of the Lokpal Bill, 2011. It may, however, be further clarified suitably in inclusive and not exhaustive terms in clause 17 (3) that the phrase ‘if such person is associated with the allegation of corruption,” should include abettors, bribe-givers, bribe-takers, conspirators and all other persons, directly or indirectly, involved in the act or omission relating to corruption within which all other persons and entities in clause 17 are subsumed. The word “associated” presently used is too general and vague. 14.21A The Committee further recommends that clause 17 (3) should be explicitly clarified to the effect that the abettor, conspirator or person associated, in any manner, directly or indirectly, with the corruption allegation, shall not only be included but be fully liable to investigation, prosecution and punishment and that the proviso to clause 17 (3) shall be limited only to proposed action to be taken ‘in case of a person serving in the affairs of a State’ and not qua anyone else.
V. REASONS AND RECOMMENDATIONS 14.22 There is no doubt that corruption is neither the exclusive preserve nor the special privilege nor the unique entitlement of only the political or bureaucratic classes. Nor can anyone justify exclusionary holy cows, supposedly immunized, exempted or put outside the purview of a new and vigorous anti-corruption monitoring, investigation and prosecution regime as the proposed new Lokpal Bill seeks to create. If corruption is rampant in a country like India, it permeates and pervades every nook and cranny of society and is certainly not restricted to the political or bureaucratic 95
classes. Indeed, while no specific statistical data are available, it may not be at all inconceivable that, in quantum terms, the degree of corruption in the non-political/ non-bureaucratic private sector, in the aggregate, is far higher than in the realm of political and bureaucratic classes alone. Therefore, in principle, non-application of the proposed Lokpal Bill to all such classes does not appear to be justifiable. 14.23 In this connection, the very recent UK Bribery Act, 2010, is both interesting and instructive. Drafted in a completely non-legalistic manner, format and language, this Act seeks to criminalize corruption everywhere and anywhere, i.e. in the public and private sectors in UK, in Governmental and non-Governmental sectors, by UK citizens abroad, by non-UK citizens acting in UK and in the entire gamut of private and individual transactions in addition to covering dealings in the private sector, intra-private sector, intra-public sector, in Government and private interface and in every other nook and cranny of society. 14.24 Despite the above and despite the simplicity and attractiveness of an all inclusive approach, the latter must yield to exigencies of logistics, operational efficacy and pragmatism. Since this is the nation’s first experiment with a central Lokpal institution, it would amount to starry-eyed idealism to recommend the blanket inclusion of every segment of society under the jurisdiction of an omnipotent and omniscient Lokpal. Such comprehensive inclusion is entirely understandable and may be logically more justifiable in principle, but, in the final opinion of the Committee, must await several years of evolution of the Lokpal institution and a corpus of experiential and practical lessons as also the wisdom of a future generation of Parliamentarians. 14.25 As far as the proposed dispensation is concerned, the only available dividing and demarcating line between the complete inclusion and partial exclusion of entities from the jurisdiction of the Lokpal would have to be some test of Government ownership and/or control and/or size of the entity concerned. In this regard, clauses 17 (1) (f) and (g) of the Lokpal Bill, 2011 are relevant. Clause 17 (1) (f) applies the Lokpal jurisdiction mainly to office-bearers of every society, A.o.P. or trust, registered or not, but wholly or partially financed or aided by the Government, subject to being above some specified annual income minima. Clause 17 (1) (g), similarly, applies the Lokpal to office-bearers of every society, A.o.P. or trust, receiving donations from the public, again subject to an annual income minima to be specified by the Central Government. 14.25A After deep consideration, the Committee believes and recommends that these clauses should be merged and expanded to provide for the following coverage/jurisdiction of the Lokpal: (a) The Lokpal jurisdiction should apply to each and every institution/entity by whatever name called, owned or controlled by the Central Government, subject, however, to an exclusionary minima, where the ownership or control of the Central Government de minimis. Such minima would have to be specified and the power of such specification should be given to the Central Government by notification; (b) Additionally, all entities/institutions, by whatever name called, receiving donations from the public above a certain minima, liable to be specified by the Central Government should be included. In addition, as also all entities/ institutions receiving donations from foreign sources in the terms and context 96
of the Foreign Contribution Regulation Act (FCRA) in excess of Rs.10 lakh per year, should be covered, whether or not, controlled by the Government. This is largely as per existing clause 17 (1) (g), except for the addition of the foreign donation recipient facet; (c) It should be clarified that this coverage shall apply, as also stated above, to every entity and institution, by whatever name called, be it corporate, society, trust, A.o.P., partnership, sole proprietorship” LLP or any other, registered or not. It should also be made clear that the approach is functional or ownership based or size based and not based on nomenclature; (d) It is thus clear that corporates, media or NGOs should and would be covered only to the above extent and not otherwise; 14.26 Despite the foregoing elaborations and ‘lament’ regarding exclusion of large slices of society from the Lokpal regime, it must not be forgotten that all persons, whether private, individual, and totally non-Governmental, are already necessarily covered as abettors, co-conspirators, inciters and givers or recipients or bribes in terms of clause 17 (3) of the Lokpal Bill, 2011. It may, however, be further clarified suitably in inclusive and not exhaustive terms in clause 17 (3) that the phrase “if such person is associated with the allegation of corruption”, should include abettors, bribe-givers, bribe-takers, conspirators and all other persons, directly or indirectly, involved in the act or omission relating to corruption within which all other persons and entities in clause 17 are subsumed. The word “associated” presently used is too general and vague. 14.26A The Committee further recommends that clause 17 (3) should be explicitly clarified to the effect that the abettor, conspirator or person associated, in any manner, directly or indirectly, with the corruption allegation, shall not only be included but be fully liable to investigation, prosecution and punishment and that the proviso to clause 17 (3) shall be limited only to proposed action to be taken ‘in case of a person serving in the affairs of a State’ and not qua anyone else. 97
CHAPTER-15
SUPPORT STRUCTURES FOR LOKPAL : WHISTLE BLOWERS, PHONE TAPPERS AND LEGAL AID/ASSISTANCE ISSUES
I. INTRODUCTION AND BACKGROUND 15.1 Three issues have been clubbed together in this chapter. Two of them – whistleblower protection and special phone tapping power for the Lokpal – find no mention in the Lokpal Bill, 2011. The issue of legal assistance/aid is provided for in clause 56 of the 2011 Bill. Certain quarters, especially Team Anna have advocated insertion of whistleblower protection for complainants in respect of Lokpal jurisdiction and for empowering the Lokpal to tap phones without the need of any prior reference to or prior authorization from any other entity. Finally, some quarters have also opposed the provision of what they consider to be automatic legal aid to alleged corrupt accused under the Lokpal jurisdiction. 15.2 Phone tapping
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA • Phone tapping/interceptions etc. shall be done only with the permission of Home Secretary to safeguard privacy of citizens. • Presently, almost 32 investigative and intelligence agencies have powers to tap telephones. However, they need permission from Home Secretary to do that. Lokpal will be an independent agency. If it were to obtain permission from Home Secretary, the information would get leaked and the entire operation would become in fructuous. Moreover, that would also compromise the functional autonomy of the Lokpal. Therefore, we propose that Lokpal Bench should have powers to allow phone tapping rather than they having to obtain permission from Home Secretary. • For the purposes of investigation of offences related to acts of corruption, the appropriate Bench of the Lokpal shall be deemed to be designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885. • Recorded conversion, sting operation etc. should be made admissible. • No need for special powers to intercept telephones since even Deputy SP can do that by recording his reason in station diary kept in ACB units.
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES 15.2.A While placing his views before the Committee, Shri Prashant Bhushan stated thus:
97 98
“...Today, under the rules made under the Indian Telegraph Act, it is only the Home Secretary which has the power to grant permission to tap telephone. The power to tap telephone is an essential power of investigation, particularly investigation for corruption. Very often, the evidence for detecting that corruption is taking place comes only from tapped telephone conversations. Unless the Lokpal has independent power, it cannot depend on the Government or the Home Secretary to allow tapping of telephones. This Lokpal is being constituted as a very high-level authority. Therefore, of course, the permission to tap should be given by the bench. Therefore, the amendment that we are suggesting is, not by any officer of the Lokpal but only by a bench of the Lokpal. The bench can permit the tapping. This bench is a far safer authority than the Home Secretary apart from being independent. Therefore, we have said, “For the purpose of investigation of offences related to acts of corruption, the appropriate bench of the Lokpal shall be deemed to be the designated authority under section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, etc…” 15.2.B Shri Arvind Kejriwal stated as under:– “...A wrong impression is being created as if a new power is being sought to be given to tap telephones, tSls fd ge dksbZ u;h ikoj nsus dh ckr dj jgs gksaA yksdiky ds ikl VsyhQksu dks VSi djus dh ikoj rks gksxh gh under other laws, ysfdu vkt mUgsa gkse lsØsVªh ls ijfe”ku ysuh iM+sxhA gkse lsØsVªh ls ijfe”ku ysus dk eryc ;g gS fd lkjh pht+ksa dk [kqyklk gks x;kA There is a conflict of interest, ogk¡ ls information lc dks divulge gks tk,xhA blfy, ;g independent gksuk pkfg,A ge dksbZ u;h ikoj nsus dh ckr ugha dj jgs gSa] cfYd ge dsoy ;g suggest dj jgs gSa fd rather than permission being given by the Home Secretary the permission should be given by the bench of the Lokpal…” 15.3 Protection of whistleblowers
II SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA • Anonymous complaints should be investigated indiscreetly and if found substantial, should be proceeded further. • Whistleblowers’ Bill needs to be revamped and made applicable to all institutions. • In case of anonymous complaints, in case of verifiable & specific information about misconduct/corruption, the case shall not be rejected. • Lokpal, being an independent body, should have a duty to provide protection to whistleblowers against physical and professional victimization. • False Claims Act :- In the US, an innovative law has been in operation for long. In its modern from, the False Claims Act is a federal law that empowers any citizen or whistle-blower to file a suit in a federal court for any loss sustained by the government in any public procurement or contract or service delivery. The loss could be in terms of price even if the price was determined by competitive bidding (for instance, the bid price being higher than that offered to the best customer by the company or supplier), or quality, or environmental or social damage. Such a qui-tam litigation by those who are not affiliated with the government to file suits on behalf of the government can be pursued by the Attorney General, or the litigator himself. The Court is empowered in a summary civil procedure to compute the loss suffered by the exchequer or the public, and has the authority to impose a penalty of three times the loss suffered. The qui-tam litigator receives a portion (usually 15 – 25 per cent) of any recovered damages. Claims 99
under the law have typically involved healthcare, military, or other government spending programmes. The government has recovered nearly $ 22 billion under the False Claims Act between 1987 (after significant 1986 amendments) and 2008. Hundreds of citizens and organizations are thus empowered and incentivized to fight against corruption. Such a law should be considered for enactment in India with appropriate institutional mechanisms to make the law operational. 15.4 The proponents of Jan Lokpal Bill, in their written note submitted to the Committee, has proposed the following amendment in the instant Bill: (1) “Whistleblower” means any person, who provides information about corruption in a public authority or is a witness or victim in that case or who faces the threat of (i) professional harm, including but not limited to illegitimate transfer, denial of promotion, denial of appropriate perquisites, departmental proceedings, discrimination or (ii) physical harm, or (iii) is actually subjected to any harm; because of either making a complaint to the Lokpal under this Act, or for filing an application under the Right to Information Act, 2005 or by any other legal action aimed at preventing or exposing corruption or mal-governance. (2) Any public official or any other person having information of any corruption in any public authority would be encouraged to send the information confidentially to the Lokpal; and it shall be the duty of the Lokpal to get an inquiry made into such information and if necessary get an investigation made under the Prevention of Corruption Act. (3) It shall be the duty of the Lokpal to provide full protection to whistleblowers from any physical harm or administrative harassment. Identity of such whistleblowers shall also be protected if the whistleblower so desires. (4) For achieving this objective it shall be competent for the Lokpal to give suitable direction to any security agencies for providing security as well as to any other authority to ensure that no harassment is caused to such whistleblower. (5) Orders under this section shall be passed expeditiously and in any case within a month of receipt of complaint. Immediate action will be taken in cases involving a threat of physical victimization. (6) The investigations in complaints by whistleblowers facing physical or professional victimization shall be fast tracked and completed within three months of receipt of the same.”
III. SUMMARY OF DEPOSITIONS GIVEN BY THE WITNESSES 15.4A Shrimati Anjali Bhardwaj opined as under: “...Sir, I will just put forth what NCPRI has proposed on the Whistleblower Protection Bill because we feel that this is very closely linked to the whole issue of corruption and people who are blowing whistle on corruption. We have already deposed before the Standing Committee which was dealing with the whistleblower protection issue. Quite a few of the suggestions that we had put forth were already included by the Standing Committee. But there are just two things which I want to flag which have not really been 100
included. The first one is, expanding the definition of a whistleblower. vHkh tks ekStwnk provisions gSa] vHkh ikfyZ;kesaV ds lkeus tks Whistleblower Protection Bill gS] mlesa dsoy vkxZukbts”ku ds vanj tkss Whistleblowers gSa] muds çksVsD”ku dh ckr gSA gesa ;g yxrk gS fd ftl rjg ls RTI users tks djI”ku dks ,Dlikst+ djus ds fy, RTI ,Iyhds”kal Mky jgs gSa] mudks /kefd;ka feyh gSa vkSj dbZ txgksa ij mu ij geys Hkh gq, gSa rFkk fiNys 2 lkyksa essa 18 yksxksa ls T;knk yksxksa dh ekSrsa gks pqdh gSaA We feel that they should also be included under the ambit of the Whistleblower Protection Bill. It should, therefore, not just be limited to people working in organizations, it should also extend to common citizens. Sir, I will just put forth what NCPRI has proposed on the Whistleblower Protection Bill because we feel that this is very closely linked to the whole issue of corruption and people who are blowing whistle on corruption. We have already deposed before the Standing Committee which was dealing with the whistle blower protection issue. Quite a few of the suggestions that we had put forth were already included by the Standing Committee. But there are just two things which I want to flag which have not really been included. The first one is, expanding the definition of a whistleblower. vHkh tks ekStwnk provisions gSa] vHkh ikfyZ;kesaV ds lkeus tks Whistleblower Protection Bill gS] mlesa dsoy vkxZukbts”ku ds vanj tks Whistleblowers gSa] muds çksVsD”ku dh ckr gSA gesa ;g yxrk gS fd ftl rjg ls RTI users tks djI”ku dks ,Dlikst+ djus ds fy, RTI ,Iyhds”kal Mky jgs gSa] mudks /kefd;ka feyh gSa vkSj dbZ txgksa ij mu ij geys Hkh gq, gSa rFkk fiNys 2 lkyksa esa 18 yksxksa ls T;knk yksxksa dh ekSrsa gks pqdh gSaA We feel that they should also be included under the ambit of the Whistleblower Protection Bill. It should, therefore, not just be limited to people working in organizations, it should also extend to common citizens. The second point is that we feel that wherever a complainant, who is trying to expose corruption, or is making a complaint on the issue of corruption, is being threatened, that issue must be dealt with by the Government on a priority basis. In fact, one of the suggestions that has come up in the Central Information Commission is that wherever an information seeker is being targeted, then, the Government will take every step possible to in fact, put out that information immediately in the public domain on its own, and that, we feel, should be something of a principle that could be adopted in the Whistleblowers’ Protection Bill as well…” 15.4.B. Shri Prashant Bhushan stated as follows:– “...Then, as regards victimization of a whistleblower or a witness, for example, if a Government Servant for mala fide reasons deliberately suspends a whistleblower, an officer who is a whistleblower who makes a complaint to the Lokpal saying that this corruption is going on in his department and that whistle blower is suspended by the person who is involved in that corruption, then, that victimization should also be considered to be an act of corruption. Then, the next amendment is about whistleblower protection. This is also very important, actually. It is said that whistleblower protection ds fy, there is some Bill in the offing. There is a proposed Bill on Whistleblower Protection. You see, what we feel is that so far as the whistleblower protection for corruption is concerned, where the complaints are being made to the Lokpal, the power to protect that person, that whistleblower must vest with the Lokpal. eryc ;g gS fd vxj ml dks dksbZ complaint vkrh gS] from some 101
whistleblower, vkSj ml complainant dks] ml whistleblower dks victimize fd;k tkrk gS] either by physical threats or by administrative harassment, ml dks suspend dj fn;k tkrk gS] oxSjg rc mls çksVsDV djus dh ikWoj yksdiky ds ikl gksuh pkfg,A That means, he should have the power to give him physical protection and to protect hirn from administrative harassment…” 15.4.C. Shri Arvind Kejriwal opined as follows:
“…eSa bl esa cgqr strongly request d:axk fd tks whistleblower dk nwljk fcy vk jgk gS] if this Committee can recommend withdrawal of that Bill because ml fcy esa lh-oh-lh- dks vFkkWfjVh cuk;k gS for whistleblower protection. vc lh-oh-lh- ds ikl fdlh dks çksVsDV djus dh u rks fjlkslsZl gSa] u ikWolZ gSaA The CVC is an advisory body…” 15.4.D. Shrimati Kiran Bedi was of the following opinion:–
“…vxj ;g whistleblower dks dkuwu esa Mky fn;k tk,] rks blls cgqr djI”ku [kRe gks tk,xh] D;ksafd fMikVZesaV ds van#uh O;fDr dks ftruk ekywe gksrk gS fd mldk fMikVZesaV D;k dj jgk gS] bruk ckgj ds vkneh dks ugha ekywe gksrkA An insider has much more information and authentic information and would even have evidence of the note sheets, of the orders, of the conversations which you never know. Now with this reward scheme, including the whistleblower and giving them protection under the Lokpal, would be very effective in prevention, not only in detection, in prevention. This section reads like that. ‘Any public official or any other person having information of any corruption in any public authority would be encouraged to send the information confidentiality to the Lokayukta and it shall be the duty of the Lokayukta to get an inquiry made into such information and if necessary get investigation made under the Prevention of Corruption Act, 1988. Lokayukta may issue necessary orders to provide protection to the whistleblowers from any physical harm or administrative harassment. Identity of such whistleblowers shall also be protected if the whistleblower so desires. For achieving this objective, it shall be competent for the Lokayukta to give suitable direction to the Government for providing security as well as to other authorities to ensure no harassment is caused to such whistleblowers. Orders under this section shall be passed expeditiously; it is a time limit of fifteen days. Investigation complaints by whistleblowers facing physical or professional victimization…’ underlining the words, ‘professional victimization’, ‘shall be fast tracked and completed within three months of the receipt.’ ftl fnu yksdiky esa ;g DykWt vk x;k] vanj ds fMikVZesaV esa djI”ku ml fnu ls can gks tk,xh] ;k cM+s Mj ds gksxh] ,ohMsal vk tk,xk] çksVsD”ku feysxh vkSj djI”ku esa fçosa”ku vk,xhA...” Legal aid provisions
II. SUMMARY OF SUGGESTIONS/OBSERVATIONS RECEIVED THROUGH WRITTEN MEMORANDA • The provision for giving legal assistance under clause 56 against a person against whom a complaint has been made and there being no provision for providing defence assistance to the complainant is arbitrary and will encourage corruption. • It has been suggested that where the accused is finally found guilty of any of the charges made against him by the special court provided for in the Act, and subject to 102
further appeals, the accused would be required to refund the total cost of the assistance so provided. In exceptional circumstances where the Lokpal so determines that the recovery of such dues might result in unwarranted hardship to the accused or his family, the amount can be adjusted against confiscation of property as specified under sections 33 and 34.
IV. ANALYSIS AND DISCUSSION:– 15.6 The Committee has deliberated upon the so called Whistleblower Bill 2010 (known more fully as the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2011) and submitted a detailed report in this regard on August 10, 2011. That report is under the active consideration of the Government of India for eventual transformation into appropriate legislation. The Committee believes that the concern for providing appropriate protection, physical and otherwise, to complainants or whistleblowers, is reasonable and legitimate, since apprehensions in respect of life, liberty, standard of living, job safety and security of self and family would constitute the greatest deterrent to free and frank disclosure of wrong doing. 15.7 However, as explained herein below in the next section, there may be no need to enact a separate law or to make elaborate provisions in the proposed Lokpal Bill, in view of the recommendations already made in respect of the pending Bill in respect of whistleblowers. 15.8 The Committee notes that there is an elaborate existing procedure, now operative for many years, with periodic improvements and refinements, in respect of the power, authorization, manner and mode of phone tapping. The Committee notes the existing checks and balances which have been operative for many years since phone tapping has been a power frequently exercised by diverse authorities for the last several years, well before the Lokpal regime was contemplated in the contemporary context. Phone tapping has, thus being used, by agencies as diverse as CBI, Enforcement. Directorate, Directorate of Revenue Intelligence and host of other agencies. None of them, however, have had a power to decide to do so on their own, which is now being sought for the new proposed Lokpal. The Committee’s recommendations in the next section are based on this awareness. 15.9 The Committee notes the language and terms of clause 56 and especially the phrase “legal assistance”. The Committee’s interpretation of clause 56 is different, from not only that of Team Anna, but also several interpretations given at various times in the press. The Committee’s recommendations in this regard in the next section also constitute a clarification of the interpretative confusion in regard to clause 56.
V. REASONS AND RECOMMENDATIONS 15.10 As regards the whistleblower issue, this Committee has made a detailed recommendation on the subject on August 10,2011 in respect of the Bill referred to it. That Bill and the Committee’s recommendation are under the active decision making process of the Government of India for eventual translation into law. 15.11 The Committee recommends that the Whistleblowers Bill (Bill No. 97 of 2010) referred to the Committee, with the changes already recommended by the Committee in respect of that Bill (in the Committee’s report dated August 10, 2011), be implemented into law simultaneously and concurrently with the Lokpal Bill. In that case, only one provision needs to be inserted in the Lokpal Bill to the effect that safeguards and machinery provided elaborately in the proposed whistleblowers Bill, as opined upon by the Committee, would be applicable, mutatis 103
mutandis to the Lokpal Bill. In particular, the Committee notes that clauses 10, 11, 12 and 13 of the aforesaid Whistleblowers Bill, provide a fairly comprehensive fasciculus of provisions providing safeguards against victimization, protection of witnesses and other persons, protection of identity of complainant and power to pass interim orders. The Whistleblowers Bill also sets up a competent authority and provides for several other related provisions to make the functioning of that authority efficacious and to enhance the efficiency, potency and vigour of the safeguards intended to be provided to a whistleblower. The proposed provision in the Lokpal Bill should act as a cross referencing, breach of which should activate the related/ applicable provisions of the Whistleblower Bill and render them applicable to all Lokpal proceedings, as if set out in the Lokpal Bill, 2011. 15.12 Naturally, one of the main adaptations of the whistleblowers Bill for Lokpal proceedings would be that the competent authority in respect of Lokpal covered persons and offences would be the Lokpal and references in the Whistleblowers Bill to CVC or other entities would be rendered inoperative for purposes of Lokpal personnel and officers. 15.13 If, however, the aforesaid Whistleblower Bill, along with the recommendations of this Committee in that regard, are not enacted into law by the Government of India, co-terminously and simultaneously with the Lokpal Bill, then this Committee recommends the creation of some safeguards, in substance and essence, by the addition of a whole new chapter and certain provisions in the proposed Lokpal Bill. However, those provisions in the Lokpal Bill would be largely an adaptation of the same provisions of the whistleblowers Bill, especially clauses 10 to 13 of the whistleblowers Bill, while, as explained above, making the Lokpal the competent authority for such whistleblower issues. 15.14 As regards phone tapping, the Committee emphasizes and underlines the basic reality that phone tapping by regulatory and policing agencies has been prevalent in India for several years and the rules and regulations in that regard have undergone periodic refinement and amendment. Currently the regime of phone tapping is governed by Indian Telegraph Act and Rules read with the judgments of the Supreme Court inter alia in People Union for Civil Liberties Vs. Union of India (1997) 1 SCC 301. The Committee believes that there is no reason, sufficiently strong, to suggest that this substantive law should be altered in respect of Lokpal proceedings. 15.15 Phone tapping has been resorted to, inter alia, by agencies as diverse as CBI, Enforcement Directorate, Directorate of Revenue Intelligence and others, under the aforesaid regime of the Act., Rules and the Supreme Court mandated principles. In all such cases, the Committee is not aware of any situation where any of these agencies are entitled to suo motu, on their own, without separate authorization, and in secrecy, initiate or continue phone tapping. There is, therefore, no reason as to why the proposed Lokpal institution should also not be subjected to the same regime and mechanism. To provide for inherent and separate power in the Lokpal institution in this regard, would also create an excessive and undesirable concentration of powers, would frequently involve a conflict of interest between preliminary inquiry, investigation and prosecution and would disturb the equilibrium of all investigative agencies for the past several years with established practices in respect of phone tapping issues. Indeed, the Committee notes that in other parts of this Report (Chapter 12), the CBI is the principal investigating agency and, therefore, its powers of phone tapping must continue as they exist today. 104
15.16 As regards legal aid/assistance, the Committee concludes that clause 56 as framed does not intend to and should not be read to be a mandate for provision of automatic legal aid for every accused in a Lokpal proceeding. Clause 56, by any fair reading, and in the opinion of this Committee, is only intended to provide legal assistance by way of legal representation to the accused in any case before the Lokpal eg:- a preliminary inquiry. Firstly, the Committee does not read this to mean automatic monetary or fiscal assistance or by way of lawyers’ fees for the accused. Secondly, the Committee believes that this was intended to and recommended so that it should be explicitly clarified that it permits the use of, or appearance by a legal practitioner, where the accused asks for one in Lokpal proceedings eg:- a preliminary inquiry. In any event, elsewhere in this Report we have recommended deletion of the concept of hearing an accused during preliminary inquiry. If that is done away with, no issue would arise of legal practitioners appearing. In any case, they are entitled to appear in all later stages including trial. Finally, it should be clarified that clause 56 does not intend to abrogate or dilute or attenuate any other provision of law under where, by virtue of those provisions of law, the accused may be entitled to a monetary/fiscal legal aid or assistance. 105
CHAPTER-16
THE LOKPAL MISCELLANY : RESIDUAL ISSUES
I. INTRODUCTION 16.1. As we come to the end, a number of ostensibly unconnected issues are dealt with in this Chapter. Neither their lack of connection to each other nor the use of the words ‘miscellany or residual’ should diminish or undermine their significance. However, since memoranda and witnesses have not spoken with any degree of particularization on many of these specific issues, this introductory section is followed straightaway by the section on reasons and recommendations. 16.2 These issues include the necessity of specifying that the special judge adjudicating Lokpal offences should have powers to deal with and conduct adjudication under all other statutes; the scope and coverage, if any, in respect of offences done by a former public servant as opposed to serving public servant; issues relating to form and manner of removal of Lokpal and the form and manner of initiating suo motu complaints by the Lokpal institution and so on and so forth.
II. REASONS AND RECOMMENDATIONS 16.3 Although it is implicit in the Lokpal Bill, 2011, the Committee believes that to obviate all doubts and to prevent any jeopardy to ongoing trials, the proposed Lokpal should have a specific provision categorically applying Section 4 (3) of the POCA to Lokpal proceedings, to enable the special judge or Lokpal judge to try any other offence, where connected, other than those covered by the Lokpal Act. 16.4 Clause 17 (1) in most of its sub-clauses, including (b), (c), (d) and so on, specifically refers to a current/serving as also a former public servant (e.g. “Minister, MP, bureaucrat, etc. both past and present). 16.5 The Committee has seen the substantive provisions of POCA and it appears to be clear that the POCA, which shall continue to be the substantive law applicable to Lokpal trials and proceedings, seeks to render culpable and punish only official acts done by public servants. Be that as it may, the Committee is of the opinion that a specific provision should be inserted in Clause 17 clarifying and specifying that reference to present and former public servants only means that they can be prosecuted whether in or not in office, but only for acts/omissions done while they were in office and not for allegedly fresh acts/omissions after ceasing to hold office. 16.6 The Committee finds that clause 8 and especially clause 8 (1) of the Lokpal Bill, 2011 has struck the right balance and does not need any fundamental changes. It is intended to strengthen the independence and autonomy of the Lokpal by not making it easy to initiate complaints against Lokpal for the Lokpal’s removal. The Committee, however, recommends an addition to clause 8 (1)(iii), to allay and obviate the apprehension expressed in some quarters, that the process to remove the Lokpal cannot be initiated, under the sub-clause, if the President (which
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essentially means the Central Government) refuses to refer the complaint against the Lokpal. The Committee feels that this apprehension would be adequately taken care of by providing in clause 8 (1)(iii) that where the President does not refer a citizen’s complaint against the Lokpal to the Apex Court, the President (i.e. the Central Government) shall be obliged to record reasons for the same and to furnish those reasons to the complainant within a maximum period of 3 months from the date of receipt of the complaint. The Committee feels that this process, including the transparency involved in recording these reasons and the attendant judicial review available to the complainant to challenge such reason/refusal, contains an adequate check and balance on this subject. 16.6A Additionally, the Committee recommends that Clause 8(1)(iv) be added in the existing Lokpal Bill, 2011 to provide, specifically, that anyone can directly approach the apex court in respect of a complaint against the Lokpal (institution or individual member) and that such complaint would go through the normal initial hearing and filter as a preliminary matter before the normal bench strength as prescribed by the Supreme Court Rules but that, if the matter is admitted and put for final hearing, the same shall be heard by an apex court bench of not less than 5 members. It is but obvious that other consequential changes will have to be made in the whole of Section 8 to reflect the addition of the aforesaid Clause 8(1)(iv). 16.7 Clause 21 of the Lokpal Bill, 2011 needs a re-look. In its present form, it appears to empower the Lokpal Chairperson to intervene and transfer any pending case from one Bench to another, which appears to include the power of transfer even while a case is under consideration of the Lokpal bench on the merits. This un- circumscribed power would seriously impair the objectivity and autonomy of Lokpal Benches, especially at the stage of preliminary inquiry which is a crucial filtering mechanism. It also appears to be inconsistent with normal principles of jurisprudence which seriously frown upon interference even by the Chief Justice in a pending judicial matter before another Bench. The way out would be to delete this provision and to provide for transfer only in exceptional cases where, firstly, strong credible allegations are brought to the forefront in respect of the functioning of any particular Lokpal Bench and secondly, the decision to transfer is taken by not only the entire Lokpal institution sitting together, but also including the Members of the Bench from which the matter is sought to be transferred. 16.8 As regards punishment under the Prevention of Corruption Act for a person convicted of different offences relating to corruption, it is noteworthy that the Prevention of Corruption Act prescribes, as it now stands, punishment not less than six months which may extend to five years for various offences involving public servant taking gratification in Sections 7, 8, 9, 10 and also Section 11 which deals with public servant obtaining valuable thing without consideration. Section 12 of POCA dealing with the abetment prescribes the same as six months to five years range of punishment. On the other hand, for offences of criminal misconduct by public servant, the prescribed punishment is not less than one year, extendable upto seven years in Section 13 while Section 14 prescribes punishment of not less than two years extendable to seven years. Section 15 prescribes the punishment for offences referred to in clause C or clause D of 5.13(i) which has no lower limit but a maximum of three years. Additionally, all these provisions empower the imposition of fine. 107
16.9 Diverse representations from diverse quarters have suggested an enhancement of punishment, with diverse prescriptions of quantum of sentence, including life imprisonment. After deep consideration, the Committee finds it prudent to strike a balanced, reasonable middle ground. A sudden, dramatic and draconian enhancement is, in the opinion of the Committee, undesirable. The Committee cannot ignore the inherent fallibility of mankind and if fallibility is inherent in every system, draconian and extreme punishment, even in a few cases of wrongful conviction, would be undesirable. 16.9A Taking a holistic view, the Committee is of the opinion that: (a) In the cases of Sections 7, 8, 9 and the like, the range from six months to five years should the substituted by imprisonment not less than three years which may extend to not more than seven years. (b) In the Sections 13 and 14 category of cases providing for a range to one year to seven years, the Committee suggests enhancement, in the case of Section 13 offences, to a minimum of four years and a maximum of ten years while for Section 14, the Committee suggests a minimum of five years and a maximum of ten years. (c) For Section 12 which presently prescribes six months to five years, the aforesaid of minimum three and maximum of seven years shall apply whereas for Section 15 which presently prescribes zero to three years, the range should be very minimum from two to maximum five years. (d) Additionally, wherever applicable, there should be a general provision, cutting across Sections, creating a power of full confiscation of assets, proceeds, receipts and benefits, by whatever name called, arising from corruption by the accused. This provision should be properly drafted in a comprehensive manner to cover diverse situations of benefit in cash or kind, which, to the maximum extent possible, should fully be liable to confiscation. 16.10 Although this issue has been discussed in other parts of this Report, for the sake of clarity, the Committee clarifies that there should be 3 specific and important time limits in the final enactment viz. firstly, the period of 30 days extendable once by a further period of 60 days for preliminary inquiry by the Lokpal; secondly, for completion of investigation by the investigating agency, within 6 months with one further extension of 3 months and thirdly, for completion of trials, within one year with one further extension of 6 months. 16.11 The Committee finds no basis for and no reason to retain the last proviso to clause 17(1)(g) which appears to be overbroad and altogether exempts from the Lokpal Bill, 2011 any entity, simply because it is constituted as a new religious entity or meant to be constituted as an entity for religious purposes. This proviso should be deleted, otherwise this exception would virtually swallow up the entire rule found in the earlier parts of clause 17. 16.12 As regards clause 51 of the Lokpal Bill, 2011, the Committee recommends that the intent behind the clause be made clear by way of an Explanation to be added to the effect that the clause is not intended to provide any general exemption and that “good faith” referred to in clause 52 shall have the same meaning as provided in section 52 of the IPC. 108
CHAPTER-17
AFTERWORD : REASONS AND RECOMMENDATIONS AT A GLANCE
Committee Proceedings and Timelines
1. In a nutshell, therefore, this Committee could become legally operational only w.e.f. September 23, 2011 and has completed hearing witnesses on 4th November, 2011. It had its total deliberations including Report adoption spread over 14 meetings, together aggregating 40 hours within the space of ten weeks commencing from September 23, 2011 and ending December 7, 2011. [Para 2.6.] 2. Though not specific to this Committee, it is an established practice that all 24 Parliamentary Standing Committees automatically lapse on completion of their one year tenure and are freshly constituted thereafter. This results in a legal vacuum, each year, of approximately two to three weeks and occasionally, as in the present case, directly affects the urgent and ongoing business of the Committee. The Committee would respectfully request Parliament to reconsider the system of automatic lapsing. Instead, continuity in Committees but replacement of Members on party-wise basis would save time. [Para 2.7.]
The Concept of Lokpal: Evolution and Parliamentary History 3. A proposal in this regard was first initiated in the Lok Sabha on April 3, 1963 by the Late Dr. L.M. Singhvi, MP2. While replying to it, the then Law Minister observed that though the institution seemed full of possibilities, since it involved a matter of policy, it was for the Prime Minister to decide in that regard3. Dr. L.M. Singhvi then personally communicated this idea to the then Prime Minister, Pandit Jawahar Lal Nehru who in turn, with some initial hesitation, acknowledged that it was a valuable idea which could be incorporated in our institutional framework. On 3rd November, 1963, Hon’ble Prime Minister made a statement in respect of the possibilities of this institution and said that the system of Ombudsman fascinated him as the Ombudsman had an overall authority to deal with the charges of corruption, even against the Prime Minister, and commanded the respect and confidence of a1l4. [Para 3.3]
2Lok Sabha Debates dated 3rd April, 1963, vol. XVI, P.7556-7558. 3ibid., P.7590-92. 4His initial hesitation to this idea was probably due to the Scandinavian origin of the nomenclature of the institution. In a lighter vein, he happened to ask Dr. L.M. Singhvi “To what zoo does this animal belong” and asked Shri Singhvi to indigenize the nomenclature of the institution. Dr. L.M. Singhvi then coined the term Lokpal/Lokayukta to modify the institution of Ombudsman to the Indian context (as related by Dr. L.M. Singhvi to the Chairman of this Committee). Also referred to by Mr. Arun Jaitley, M.P. during the Parliament Debate on 27th August, 2011. He started the debate in the Upper House thus:- “Now, ‘Ombudsman’ was a Scandinavian concept and, coincidentally, on 3rd April, 1963, then an Independent young Member of the Lok Sabha, Dr. L.M. Singhvi, in the course of his participation in a debate for having an Ombudsman in India, attempted to find out what the Indian equivalent could be, and this word ‘Lokpal’ was added to our vocabulary, the Hindi vocabulary, by Dr. L.M. Singhvi who translated this word.”
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4. Thereafter, to give effect to the recommendations of the First Administrative Reforms Commission, eight Bills were introduced in the Lok Sabha from time to time. However, all these Bills lapsed consequent upon the dissolution of the respective Lok Sabhas, except in the case of the 1985 Bill which was subsequently withdrawn after its introduction. A close analysis of the Bills reflects that there have been varying approaches and shifting foci in scope and jurisdiction in all these proposed legislations. The first two Bills viz. of 1968 and of 1971 sought to cover the entire universe of bureaucrats, Ministers, public sector undertakings, Government controlled societies for acts and omissions relating to corruption, abuse of position, improper motives and mal-administration. The 1971 Bill, however, sought to exclude the Prime Minister from its coverage. The 1977 Bill broadly retained the same coverage except that corruption was subsequently sought to be defined in terms of IPC and Prevention of Corruption Act. Additionally, the 1977 Bill did not cover mal- administration as a separate category, as also the definition of “public man” against whom complaints could be filed did not include bureaucrats in general. Thus, while the first two Bills sought to cover grievance redressal in respect of maladministration in addition to corruption, the 1977 version did not seek to cover the former and restricted itself to abuse of office and corruption by Ministers and Members of Parliament. The 1977 Bill covered the Council of Ministers without specific exclusion of the Prime Minister. The 1985 Bill was purely focused on corruption as defined in IPC and POCA and neither sought to subsume mal-administration or mis-conduct generally nor bureaucrats within its ambit. Moreover, the 1985 Bill impliedly included the Prime Minister since it referred to the office of a Minister in its definition of ‘public functionary”. The 1989 Bill restricted itself only to corruption, but corruption only as specified in the POCA and did not mention IPC. It specifically sought to include the Prime Minister, both former and incumbent. Lastly, the last three versions of the Bill in 1996, 1998 and 2001, all largely; (a) focused only on corruption; (b) defined corruption only in terms of POCA; (c) defined “public functionaries” to include Prime Minister, Ministers and MPs; (d) did not include bureaucrats within their ambit. [Para 3.5] 5. Though the institution of Lokpal is yet to become a reality at the Central level, similar institutions of Lokayuktas have in fact been set up and are functioning for many years in several States. In some of the States, the institution of Lokayuktas was set up as early as in 1970s, the first being Maharashtra in 1972. Thereafter, State enactments were enacted in the years 1981 (M.P.), 1983 (Andhra Pradesh and Himachal Pradesh), 1984 (Karnataka), 1985 (Assam), 1986 (Gujarat), 1995 (Delhi), 1999 (Kerala), 2001 (Jharkhand), 2002 (Chhattisgarh) and 2003 (Haryana). At present, Lokayuktas are in place in 17 States and one Union Territory. However, due to the difference in structure, scope and jurisdiction, the effectiveness of the State Lokayuktas vary from State to State. It is noteworthy that some States like Gujarat, Karnataka, Bihar, Rajasthan and Andhra Pradesh have made provisions in their respective State Lokayuktas Act for suo motu investigation by the Lokpal. In the State Lokayukta Acts of some States, the Lokayukta has been given the power for 110
prosecution and also power to ensure compliance of its recommendations. However, there is a significant difference in the nature of provisions of State Acts and in powers from State to State. Approximately nine States in India have no Lokayukta at present. Of the States which have an enactment, four States have no actual appointee in place for periods varying from two months to eight years. [Para 3.8]
Citizens’ Charter and Grievance Redressal Mechanism 6. The Committee believes that while providing for a comprehensive Grievance Redressal Mechanism is absolutely critical, it is equally imperative that this mechanism be placed in a separate framework which ensures speed efficiency and focus in dealing with citizens’ grievances as per a specified Citizens’ Charter. The humongous number of administrative complaints and grievance redressal requests would critically and possibly fatally jeopardize the very existence of a Lokpal supposed to battle corruption. At the least, it would severally impair its functioning and efficiency. Qualitatively, corruption and mal-administration fall into reasonably distinct watertight and largely non-overlapping, mutually exclusive compartments. The approach to tackling such two essentially distinct issues must necessarily vary in content, manpower, logistics and structure. The fact that this Committee recommends that there must be a separate efficacious mechanism to deal with Grievance Redressal and Citizens’ Charter in a comprehensive legislation other than the Lokpal Bill does not devalue or undermine the vital importance of that subject. [Para 4.15] 7. Consequently the Committee strongly recommends the creation of a separate comprehensive enactment on this subject and such a Bill, if moved through the Personnel/Law Ministry and if referred to this Standing Committee, would receive the urgent attention of this Committee. Indeed, this Committee, in its 29th Report on “Public Grievance Redressal Mechanism”, presented to Parliament in October, 2008 had specifically recommended the enactment of such a mechanism. [Para 4.16] 8. To emphasize the importance of the subject of Citizens’ Charter and to impart it the necessary weight and momentum, the Committee is of the considered opinion that any proposed legislation on the subject: (i) should be urgently undertaken and be comprehensive and all inclusive; (ii) such enactment should, subject to constitutional validity, also be applicable for all States as well in one uniform legislation; (iii) must provide for adequate facilities for proper guidance of the citizens on the procedural and other requirements while making requests; (iv) must provide for acknowledgement of citizen’s communications within a fixed time-frame; (v) must provide for response within stipulated time-frame; (vi) must provide for prevention of spurious or lame queries from the department concerned to illegally/unjustifiably prolong/extend the time limit for response; (vii) must provide for clearly identifiable name tags for each employee of different Government departments; (viii) must provide for all pending grievances to be categorized subject-wise and notified on a continually updated website for each department; 111
(ix) must provide for a facilitative set of procedures and formats, both for complaints and for appeals. on this subject – along the lines of the Information Commissioners system set up under the RTI;
(x) must, in the event that the proposed Central law does not cover states, make strong recommendations to have similar enactments for grievance redressal/ citizen charter at each State level;
(xi) may provide for exclusionary or limited clauses in the legislation to the effect that Citizen Charter should not include services involving constraints of supply e.g. power, water, etc. but should include subjects where there is no constraint involved e.g. birth certificates, decisions, assessment orders. These two are qualitatively different categories and reflect an important and reasonable distinction deserving recognition without which Government departments will be burdened with the legal obligation to perform and provide services or products in areas beyond their control and suffering from scarcity of supply. [Para 4.17]
9. The Committee strongly feels that the harmonious synchronization of the RTI Act and of the Citizens’ Charter and Public Grievances Redressal Mechanism will ensure greater transparency and accountability in governance and enhance the responsiveness of the system to the citizens’ needs/expectations/grievances. [Para 4.18]
10. Lastly, the Committee wishes to clarify that the conclusion of the Hon’ble Union Minister for Finance on the Floor of the House quoted in Para 1.8 above of the Report does not intend to direct or mandate or bind or oblige this Committee to provide for a Citizen’s Charter within the present Lokpal Bill alone. The Committee reads the quoted portion in para 1.8 above to mean and agree in principle to provide for a Citizen’s Charter/Grievance Redressal system but not necessarily and inexorably in the same Lokpal Bill. Secondly, the reference to ‘appropriate mechanism’ in para 1.8 above further makes it clear that there must be a mechanism dealing with the subject but does not require it to be in the same LokpaI Bill alone. Thirdly, the reference in para 1.8 above to the phrase ‘under Lokpal’ is not read by the Committee to mean that such a mechanism must exist only within the present Lokpal Bill. The Committee reads this to mean that there should be an appropriate institution to deal with the subject of Citizen’s Charter/Grievance redressal which would be akin to the Lokpal and have its features of independence and efficacy, but not that it need not be the very same institution i.e. present Lokpal. Lastly, the Committee also takes note of the detailed debate and divergent views of those who spoke on the Floor of both Lok Sabha and Rajya Sabha on this issue and concludes that no binding consensus or resolution to the effect that the Grievances Redressal/Citizen’s Charter mechanism must be provided in the same institution in the present Lokpal Bill, has emerged. [Para 4.19]
11. Contextually, the issues and some of the suggestions in this Chapter may overlap with and should, therefore, be read in conjunction with Chapter 13 of this report. Though the Committee has already opined that the issue of grievance redressal should be dealt with in a separate legislation, the Committee hereby also strongly recommends that there should be a similar declaration either in the same Chapter of the Lokpal or in a separate Chapter proposed to be added in the Indian Constitution, giving the same constitutional ‘status to the citizens grievances and redressal machinery. [Para 4.20] 112
12. This recommendation to provide the proposed Citizen Charter and Grievances Redressal Machinery the same Constitutional status as the Lokpal also reflects the genuine and deep concern of this Committee about the need, urgency, status and importance of a citizen’s charter/grievance machinery. The Committee believes that the giving of the aforesaid constitutional status to this machinery would go a long way in enhancing its efficacy and in providing a healing touch to the common man. Conclusions and recommendations in this regard made in para 13.12 (j) and (k) should be read in conjunction herein. [Para 4.21] 13. Furthermore, the Committee believes that this recommendation herein is also fully consistent with the letter and spirit of para 1.8 above viz. the conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above. [Para 4.22]
The Prime Minister: Full Exlusion Versus Degrees of Inclusion 14. The issue of the Prime Minister’s inclusion or exclusion or partial inclusion or partial exclusion has been the subject of much debate in the Committee. Indeed, this has occupied the Committee’s deliberations for at least three different meetings. Broadly, the models/options which emerged are as follows: (a) The Prime Minister should be altogether excluded, without exception and without qualification. (b) The Prime Minister should altogether be included, without exception and without qualification (though this view appears to be that of only one or two Members). (c) The Prime Minister should be fully included, with no exclusionary caveats but he should be liable to action/prosecution only after demitting office. (d) The Prime Minister should be included, with subject matter exclusions like national security, foreign affairs, atomic energy and space. Some variants and additions suggested included the addition of “national interest” and “public order” to this list of subject matter exclusions. (e) One learned Member also suggested that the Prime Minister be included but subject to the safeguard that the green signal for his prosecution must be first obtained from either both Houses of Parliament in a joint sitting or some variation thereof. [Para 5.22] 15. It may be added that so far as the deferred prosecution model is concerned, the view was that if that model is adopted, there should be additional provisions limiting such deferment to one term of the Prime Minister only and not giving the Prime Minister the same benefit of deferred prosecution in case the Prime Minister is re-elected. [Para 5.23] 16. In a nut shell, as far as the overwhelming number of Members of the Committee are concerned, it was only three models above viz. as specified in paras (a), (c) and (d) in para 5.17 above which were seriously proposed. [Para 5.24] 17. Since the Committee finds that each of the views as specified in paras (a), (c) and (d) in para 5.17 above had reasonably broad and diverse support without going into the figures for or against or into the names of individual Members, the Committee believes that, in fairness, all these three options be transmitted by the Committee as options suggested by the Committee, leaving it to the good sense of ‘Parliament to decide as to which option is to be adopted. [Para 5.25] 113
18. It would be, therefore, pointless in debating the diverse arguments in respect of each option or against each option. In fairness, each of the above options has a reasonable zone of merit as also some areas of demerit. The Committee believes that the wisdom of Parliament in this respect should be deferred to and the Committee, therefore, so opines. [Para 5.26]
Members of Parliament: Vote, Speech and Conduct within the House 19. The Committee strongly feels that constitutional safeguards given to MPs under Article 105 are sacrosanct and time-tested and in view of the near unanimity in the Committee and among political part on their retention, there is no scope for interfering with these provisions of the Constitution. Vote, conduct or speech within the House is intended to promote independent thought and action, without fetters, within Parliament. Its origin, lineage and continuance is ancient and time-tested. Even an investigation as to whether vote, speech or conduct in a particular case involves or does not involve corrupt practices, would whittle such unfettered autonomy and independence within the Houses of Parliament down to vanishing point. Such immunity for vote, speech or conduct within the Houses of Parliament does not in any manner leave culpable MPs blameless or free from sanction. They are liable to and, have, in the recent past, suffered severe parliamentary punishment including expulsion from the Houses of Parliament, for alleged taking of bribes amounting to as little as Rs. 10,000/- for asking questions on the floor of the House. It is only external policing of speech, vote or conduct within the House that Article 105 frowns upon. It leaves such speech, vote and conduct not only subject to severe intra-parliamentary scrutiny and action, but also does not seek to affect corrupt practices or any other vote, speech or conduct outside Parliament. There is absolute clarity and continued unanimity on the necessity for this limited immunity to be retained. Hence, speculation on constitutional amendment in this regard is futile and engenders interminable delay. [Para 6.19] 20. Consequently, the existing structure, mechanism, text and context of clauses 17 (1) (c) and 17 (2) in the Lokpal Bill 2011 should be retained. [Para 6.20]
Lokpal and State Lokayuktas: Single Enactment and Uniform Standards 21. The Committee finds merit in the suggestion for a single comprehensive federal enactment dealing with Lokpal and State Lokayuktas. The availability of uniform standards across the country is desirable; the prosecution of public servants based upon widely divergent standards in neighboring States is an obvious anomaly. The Committee has given its earnest attention to the constitutional validity of a single enactment subsuming both the Lokpal and Lokayukta and concludes that such an enactment would be not only desirable but constitutionally valid, inter-alia because, (a) The legislation seeks to implement the UN Convention on Corruption ratified by India. (b) Such implementing legislation is recognized by Article 253 and is treated, as one in List III of the 7th Schedule. (c) It gets additional legislative competence, inter-alia, individually or jointly under Entries 1, 2 and 11A of List-III. (d) A direct example of provision for National Human Rights Commission and also for State Human Rights Commissions in the same Act is provided in the 114
Protection of the Human Rights Act 1986 seeking to implement the UN Convention for the Protection of Human Rights. (e) Such Parliamentary legislation under Article 253, if enacted, can provide for repealing of State Lokayukta Acts; subject, however, to the power of any State to make State specific amendments to the federal enactments after securing Presidential assent for such State specific amendments. [Para 7.261] 22. Additionally, it is recommended that the content of the provisions dealing with State Lokayuktas in the proposed central/federal enactment must be covered under a separate chapter in the Lokpal Bill. That may be included in one or more chapters possibly after Chapter II and before Chapter III as found in the Lokpal Bill 2011. The entire Lokpal Bill 2011 would have to incorporate necessary changes and additions, mutatis mutandis, in respect of the State Lokayukta institutions. To give one out of many examples, the Selection Committee would be comprised of the State Chief Minister, the Speaker of the Lower House of the State, the Leader of Opposition in the Lower House, the Chief Justice of the High Court and a joint nominee of the State Election Commissioner, the State Auditor General and State PSC Chairman or, where one or more of such institutions is absent in the State, a joint nominee of comparable institutions having statutory status within the State. [Para 7.27] 23. All these State enactments shall include the Chief Minister within their purview. The Committee believes that the position of the State Chief Minister is not identical to that of the Prime Minister. The argument for preventing instability and those relating to national security or the image of the country do not apply in case of a Chief Minister. Finally, while Article 356 is available to prevent a vacuum for the post of Chief Minister, there is no counterpart constitutional provision in respect of the federal Government. [Para 7.28] 24. Article 51 (c) of the Directive Principles of State Policy enjoining the federation to “foster respect for international law and treaty obligations…” must also be kept in mind while dealing with implementing legislations pursuant to international treaties, thus providing an additional validating basis for a single enactment. [Para 7.29] 25. The Committee recommends that the Lokpal Bill, 2011 may be expanded to include several substantive provisions which would be applicable for Lokayuktas in each State to deal with issues of corruption of functionaries under the State Government and employees of those organizations controlled by the State Government, but that, unlike the Lokpal, the state Lokayuktas would cover an classes of employees. [Para 7.30] 26. The Committee recommends that if the above recommendation is implemented the Lokpal Bill, 2011 may be renamed as “Lokpal and Lokayuktas Bill, 2011” [Para 7.31] 27. The Committee believes that the recommendations, made herein, are fully consistent with and implement, in letter and spirit, the conclusions of the Minister of Finance on the floor of the Houses in respect of establishment of Lokayuktas in the States, as quoted in para 1.8 above. The Committee is conscious of the fact that the few States which have responded to the Secretariat’s letter sent to each and every State seeking to elicit their views, have opposed a uniform Central federal Lokpal and Lokayukta Bill and, understandably and expectedly, have sought to retain their powers to enact State level Lokayukta Acts. The Committee repeats and reiterates the reasons given hereinabove, in support of the desirability of one uniform 115
enactment for both Lokpal and Lokayuktas. The Committee also reminds itself that if such a uniform Central enactment is passed, it would not preclude States from making any number of State specific amendments, subject to prior Presidential assent, as provided in the Indian Constitution. The Committee, therefore, believes that it has rightly addressed the two issues which arise in this respect viz. the need and desirability for a uniform single enactment and, secondly, if the latter is answered in the affirmative, that such a uniform enactment is Constitutionally valid and permissible. [Para 7.32] 28. Since this report, and especially this chapter, recommends the creation of a uniform enactment for both Central and State Lokayuktas, it is reiterated that a whole separate chapter (or, indeed, more than one chapter) would have to be inserted in the Lokpal Bill of 2011 providing for State specific issues. Secondly, this would have to be coupled with mutatis mutandis changes in other parts of the Act to accommodate the fact that the same Act is addressing the requirement of both the federal institution and also the State level institution. [Para 7.33] 29. Furthermore, each and every chapter and set of recommendations in this report should also be made applicable, mutatis mutandis, by appropriate provisions in the Chapter dealing with State Lokayuktas. [Para 7.34] 30. Although it is not possible for this Committee to specifically list the particularised version of each and every amendment or adaptation required to the Lokpal Bill, 2011 to subsume State Lokayuktas within the same enactment, it gives below a representative non-exhaustive list of such amendments/adaptations, which the Government should suitably implement in the context of one uniform enactment for both Lokpal and Lokayuktas. These include: (a) Clause; 1 (2) should be retained even for the State Lokayukta provisions since State level officers could well be serving in parts of India other than the State concerned as also beyond the shores of India. (b) The Chief Minister must be included within the State Lokayukta on the same basis as any other Minister of the Council of Ministers at the State level. Clause 2 of the 2011 Bill must be amended to include Government servants at the State level. The competent authority in each case would also accordingly change e.g. for a Minister of the Council of Minister, it would be the Chief Minister; for MLAs, it would be the presiding officer of the respective House and so on and so forth. The competent authority for the Chief Minister would be the Governor. (c) As regards Clause 3, the only change would be in respect of the Chairperson, which should be as per the recommendation made for the Lokpal. (d) As regards the Selection Committee, the issue at the Lokayukta level has already been addressed above. (e) References in the Lokpal context to the President of India shall naturally have to be substituted at the Lokayukta level by references to the Governor of the State. (f) The demarcation of the criminal justice process into five broad areas from the initiation of complaint till its adjudication, as provided in Chapter 12, should also apply at the State Lokayukta level. The investigative agency, like the CBI, shall be the anti-corruption unit of the State but crucially, it shall be statutorily made independent by similar declarations of independence as already elaborated in the 116
discussion in Chapter 12. All other recommendations in Chapter 12 can and should be applied mutatis mutandis for the Lokayukta. (g) Similarly, all the recommendations in Chapter 12 in respect of departmental inquiry shall apply to the Lokayukta with changes made, mutatis mutandis, in respect of State bodies. The State Vigilance Commission/machinery would, in such cases, discharge the functions of the CVC. However, wherever wanting, similar provisions as found in the CVC Act buttressing the independence of the CVC shall be provided. (h) The recommendations made in respect of elimination of sanction as also the other recommendations, especially in Chapter 12, relating to Lokpal, can and should be applied mutatis mutandis in respect of Lokayukta. (i) Although no concrete fact situation exists in respect of a genuine multi- State or inter-State corruption issue, the Committee opines that in the rare and unusual case where the same person is sought to be prosecuted by two or more State machineries of two or more Lokayuktas, there should be a provision entitling the matter to be referred by either of the -States or by the accused to the Lokpal at the federal level, to ensure uniformity and to eliminate turf wars between States or jurisdictional skirmishes by the accused. (j) As already stated above, the coverage of the State Lokayukta, unlike the Lokpal, would extend to all classes of employees, including employees of state owned or controlled entities. [Para 7.35]
Lower Bureaucracy: Degrees of Inclusion 31. The Committee, therefore, recommends (a) That for the Lokpal at the federal level, the coverage should be expanded to include Group A and Group B officers but not to include Group C and Group D. (b) The provisions for the State Lokayuktas should contain similar counterpart reference, for purposes of coverage, of all similar categories at the State level which are the same or equivalent to Group A and Group B for the federal Lokpal. Though the Committee was tempted to provide only for enabling power for the States to include the State Lokayuktas to include the lower levels of bureaucracy like groups ‘C’ and ‘D’ at the State level, the Committee, on careful consideration, recommends that all the groups, including the lower bureaucracy at the State level and the groups equivalent with ‘C’ and ‘D’ at the State level should also be included within the jurisdiction of State Lokayuktas with no exclusion. Employees of state owned or controlled entities should also be covered. (c) The Committee is informed by the DoPT that after the Sixth Pay Commission Report, Group-D has been/will be transposed and sub-merged fully in Group-C. In other words, after the implementation of the Sixth Pay Commission Report, which is already under implementation, Group-D will disappear and there will be only Group-C as far as the Central Government employees are concerned. (i) Consequently, Group-C, which will shortly include the whole of Group-D will comprise a total number of approximately 30 lakhs (3 million) employees. Though the figures are not fully updated, A+B classes recommended for inclusion by this Committee would comprise just under 117
3 lakhs employees. With some degree of approximation, the number of Railway employees from group A to D inclusive can be pegged at about 13½ lakhs (as on March 2010). If Central Government PSUs are added, personnel across all categories (Group A, B, C and D as existing) would be approximately an additional 15 lakhs employees. Post and Telegraph across all categories would further number approximately 4½ lakhs employees. Hence the total, on the aforesaid basis (which is undoubtedly an approximation and a 2010 figure) for Group A to D (soon, as explained above, to be only Group-C) + Railways + Central PSUs + Post and Telegraph would be approximately 63 lakhs, or at 2011 estimates, let us assume 65 lakhs i.e. 6.5 million.
(ii) On a conservative estimate of one policing officer per 200 employees (a ratio propounded by several witnesses including Team Anna), approximately 35000 employees would be required in the Lokpal to police the aforesaid group of Central Government employees (including, as explained above, Railways, Central PSUs, P&T etc.). This policing is certainly not possible by the proposed nine member Lokpal. The Lokpal would have to spawn a bureaucracy of at least 35000 personnel who would, in turn, be recruited for a parallel Lokpal bureaucracy. Such a mammoth bureaucracy, till it is created, would render the Lokpal unworkable. Even after it is created, it may lead to a huge parallel bureaucracy which would set in train its own set of consequences, including arbitrariness, harassment and unfair and illegal action by the same bureaucracy which, in the ultimate analysis would be nothing but a set of similar employees cutting across the same A, B and C categories. As some of the Members of the Committee, in a lighter vein put it, one would then have to initiate a debate on creating a super Lokpal or a Dharampal for the policing of the new bureaucracy of the Lokpal institution itself.
(iia) The Committee also notes that as far as the Lokpal institution is concerned, it is proposed as a new body and there is no such preexisting Lokpal bureaucracy available. In this respect, there is a fundamental difference between the Lokpal and Lokayuktas, the latter having functioned, in one form or the’ other in India for the last several decades, with a readily available structure and manpower in most parts of India.
(iii) If, from the above approximate figure of 65 lakhs, we exclude C and D categories (as explained earlier, D will soon become part of C) from Central Government, Railways, PSUs, Post and Telegraph etc., the number of A and B categories employees in these departments would aggregate approximately 7.75 lakhs. In other words, the aggregate of C and D employees in these classes aggregate approximately 57 or 58 lakhs. The Committee believes that this figure of 7.75 or 8 lakhs would be a more manageable, workable and desirable figure for the Lokpal institution, at least to start with.
(iv) The impression that inclusion of Group ‘A’ and B alone involves exclusion of large sections of the bureaucracy must be dispelled. Though in terms of number, the aggregation of Groups ‘C’ and ‘D’ is an overwhelming percentage of total Central Government employees, Groups ‘A’ and B include the entire class above the supervisory level. Effectively, this means 118
that virtually all Central Government employees at the Section Officer level and above would be included. It is vital to emphasize that this demarcation has to be viewed in functional terms, since it gives such categories significant decision making power in contra-distinction to mere numbers and necessarily subsumes a major chunk of medium and big ticket corruption.
(v) Another misconception needs to be clarified. There is understandable and justifiable anger that inclusion of Group C and D would mean exclusion of a particular class which has tormented the common man in different ways over the years viz. Tehsildar, Patwari and similarly named or equivalent officers. Upon checking, the Secretariat has clarified that these posts are State Government posts under gazette notification notified by the State Government and, hence, the earlier recommendation of this Committee will enable their full inclusion.
(vi) We further recommend that for the hybrid category of Union Territories, the same power be given as is recommended above in respect of State Lokayuktas. The Committee also believes that this is the appropriate approach since a top heavy approach should be avoided and the inclusionary ambit should be larger and higher at the state level rather than burdening the Lokpal with all classes of employees.
(vii) As of now, prior to the coming into force of the Lokpal Act or any of the recommendations of this report, Group C and D officers are not dealt with by the CVC. Group C & D employees have to be proceeded against departmentally by the appropriate Department Head, who may either conduct a departmental enquiry or file a criminal corruption complaint against the relevant employee through the CBI and/or the normal Police forces. The Committee now recommends that the entire Group C & D, (later only Group C as explained above) shall be brought specifically under the jurisdiction of the CVC. In other words, the CVC, which is a high statutory body of repute and whose selection process includes the Leader of the Opposition, should be made to exercise powers identical to or at least largely analogous, in respect of these class C and class D employees as the Lokpal does for Group A and B. employees. The ultimate Lokpal Bill/Act should thus become a model for the CVC, in so far as Group C & D employees are concerned. If that requires large scale changes in the CVC Act, the same should be carried out. This would considerably strengthen the existing regime of policing, both departmentally and in terms of anti-corruption criminal prosecutions, all Group C & D employees and would not in any manner leave them either unpoliced or subject to a lax or ineffective regime of policing.
(viii) Furthermore, this Committee recommends that there would be broad supervisory fusion at the apex level by some appropriate changes in the CVC Act. The CVC should be made to file periodical reports, say every three months, to the Lokpal in respect of action taken for these class C and D categories. On these reports, the Lokpal shall be entitled to make comments and suggestions for improvement and strengthening the functioning of CVC, which in turn, shall file, appropriate action taken reports with the Lokpal. 119
(ix) Appropriate increase in the strength of the CVC manpower, in the light of the foregoing recommendations, would also have to be considered by the Government.
(x) The Committee also feels that this is the start of the Lokpal institution and it should not be dogmatic and inflexible on any of the issues. For a swift and efficient start, the LokpaI should be kept slim, trim, effective and swift. However, after sometime, once the Lokpal institution has stabilized and taken root, the issue of possible inclusion of Group C classes also within the Lokpal may be considered. This phase-wise flexible and calibrated approach would, in the opinion of this Committee, be more desirable instead of any blanket inclusion of all classes at this stage.
(xi) Another consideration which the Committee has kept in mind is the fact that if all the classes of higher, middle and lower bureaucracy are included within the Lokpal at the first instance itself, in addition to all the aforesaid reasons, the CVC’s role and functioning would virtually cease altogether, since’ the CVC would have no role in respect of any class of employee and would be reduced, at best, to a vigilance clearance authority. This would be undesirable in the very first phase of reforms, especially since the CVC is a high statutory authority in this country which has, over the last half century, acquired a certain institutional identity and stability along with conventions and practices which ought not to be uprooted in this manner.
(d) All provisions for prior sanction/prior permission, whether under the CrPC or Prevention of Corruption Act or DSPE Act or related legislation must be repealed in respect of all categories of bureaucrats/government servants, whether covered by the Lokpal or not, and there should consequently be no requirement of sanction of any kind in respect of any class or categories of officers at any level in any Lokpal and Lokayukta or, indeed, CVC proceedings (for non-Lokpal covered categories). In other words, the requirement of sanction must go not only for Lokpal covered personnel but also for non-Lokpal covered personnel i.e. class ‘C’ and ‘D’ (Class D, as explained elsewhere, will eventually be submerged into Class ‘C’). The sanction requirement, originating as a salutary safeguard against witch hunting has, over the years, as applied by the bureaucracy itself, degenerated into a refuge for the guilty, engendering either endless delay or obstructing all meaningful action. Moreover, the strong filtering mechanism at the stage of preliminary inquiry proposed in respect of the Lokpal, is a more than adequate safeguard, substituting effectively for the sanction requirement.
(e) No doubt corruption at all levels is reprehensible and no doubt corruption at the lowest levels does affect the common man and inflicts pain and injury upon him but the Committee, on deep consideration and reconsideration of this issue, concluded that this new initiative is intended to send a clear and unequivocal message, first and foremost, in respect of medium and big ticket corruption. Secondly, this Committee is not oblivious to the fact that jurisdiction to cover the smallest Government functionary at the peon and driver level (class C largely covers peons, assistants, drivers, and so on, though it does also cover some other more “powerful” posts) may well provide an excuse and a pretext to divert the focus from combating medium and big ticket corruption to merely 120
catching the smaller fry and building up an impressive array of statistical prosecutions and convictions without really being able to root out the true malaise of medium and big ticket corruption which has largely escaped scrutiny and punishment over the last 60 years. (f) The Committee also believes that the recommendations in respect of scope of coverage of the lower bureaucracy, made herein, are fully consistent with the conclusions of the Minister of Finance on the floor of the Houses, as quoted in para 1.8 above of this Report. Firstly, the lower bureaucracy has been, partly, brought within the coverage as per the recommendations above and is, thus, consistent with the essence of the conclusion contained in para 1.8 above. Secondly, the Committee does not read para 1.8 above to meet an inevitable and inexorable mandate to necessarily subsume each and every group of civil servant (like Group ‘C’ or Group ‘D’, etc.). Thirdly, the in principle consensus reflected in para 1.8 would be properly, and in true letter and spirit, be implemented in regard to the recommendations in the present Chapter for scope and coverage of Lokpal presently. Lastly, it must be kept in mind that several other recommendations in this Report have suggested substantial improvements and strengthening of the provisions relating to policing of other categories of personnel like C and D, inter alia, by the CVC and/or to the extent relevant, to be dealt with as Citizens’ Charter and Grievance Redressal issues. [Para 8.18}
False Complaints and Complainants : Punitive Measures 32. It cannot be gainsaid that after the enormous productive effort put in by the entire nation over the last few months for the creation of a new initiative like the Lokpal Bill, it would not and cannot be assumed to be anyone’s intention to create a remedy virtually impossible to activate, or worse in consequence than the disease. The Committee, therefore, starts with the basic principle that it must harmoniously balance the legitimate but competing demands of prevention of false, frivolous complaints on the one hand as also the clear necessity of ensuring that no preclusive bar arises which would act as a deterrent for genuine and bona fide complaints. [Para 9.6] 33. The Committee sees the existing provisions in this regard as disproportionate, to the point of being a deterrent. [Para 9.7] 34. The Committee finds a convenient analogous solution and therefore adopts the model which the same Committee has adopted in its recently submitted report on Judicial Standards and Accountability Bill, 2010 presented to the Rajya Sabha on August 30, 2011. [Para 9.8] 35. In para 18.8 of the aforesaid Report, the Committee, in the context of Judicial Standards and Accountability Bill, 2010 said : “The Committee endorses the rationale of making a provision for punishment for making frivolous or vexatious complaints. The Committee, however, expresses its reservation over the prescribed quantum of punishment both in terms of imprisonment which is up to 5 years and fine which is up to 5 lakh rupees. The severe punishment prescribed in the Bill may deter the prospective complainants from coming forward and defeat the very rationale of the Bill. In view of this, the Committee recommends that Government should substantially dilute the quantum of the punishment so as not to discourage people from taking initiatives against the misbehaviour of a judge. In any case, it should not exceed the punishment provided under the Contempt of Court Act. The 121
Government may also consider specifically providing in the Bill a proviso to protect those complainants from punishment/penalty who for some genuine reasons fail to prove their complaints. The Committee, accordingly, recommends that the Bill should specifically provide for protection in case of complaints made ‘in good faith’ in line with the defence of good faith available under the Indian Penal Code.” [Para 9.9] 36. Consequently, in respect of the LokpaI Bill, the Committee recommends that, in respect of false and frivolous complaints, : (a) The punishment should include simple imprisonment not exceeding six months; (b) The fine should not exceed Rs.25000; and (c) The Bill should specifically provide for protection in case of complaints made in good faith in line with the defence of good faith available under the Indian Penal Code under Section 52 IPC. [Para 9.10]
The Judiciary: To Include or Exclude
37. The Committee recommends: (i) The Judiciary, comprising 31 odd judges of the Apex Court, 800 odd judges of the High Courts, and 20,000 odd judges of the subordinate judiciary are a part of a separate and distinct organ of the State. Such separation of judicial power is vitally necessary for an independent judiciary in any system and has been recognized specifically in Article 50 of the Indian Constitution. It is interesting that while the British Parliamentary democratic system, which India adopted, has never followed the absolute separation of powers doctrine between the Legislature and the Executive, as, for example, found in the US system, India has specifically mandated under its Constitution itself that such separation must necessarily be maintained between the Executive and the Legislature on the one hand and the Judiciary on the other.
(ii) Such separation, autonomy and necessary isolation is vital for ensuring an independent judicial system. India is justifiably proud of a vigorous (indeed sometimes over vigorous) adjudicatory judicial organ. Subjecting that organ to the normal process of criminal prosecution or punishment through the normal courts of the land would not be conducive to the preservation of judicial independence in the long run.
(iii) If the Judiciary were included simpliciter as suggested in certain quarters, the end result would be the possible and potential direct prosecution of even an apex Court Judge before the relevant magistrate exercising the relevant jurisdiction. The same would apply to High Court Judges. This would lead to an extraordinarily piquant and an untenable situation and would undermine judicial independence at its very root.
(iv) Not including the Judiciary under the present Lokpal dispensation does not in any manner mean that this organ should be left unpoliced in respect of corruption issues. This Committee has already proposed and recommended a comprehensive Judicial Standards and Accountability Bill which provides a complete in-house departmental mechanism, to deal with errant judicial behavior by way of censure, warning, suspension, recommendation or removal and so on within the judicial fold itself. The Committee deprecates the criticism of the 122
Judicial Standards and Accountability Bill as excluding issues of corruption for the simple reason that they were never intended to be addressed by that Bill and were consciously excluded. (v) As stated in para 21 of the report of this Committee on the Judicial Standards and Accountability Bill, to this report, the Committee again recommends, in the present context of the Lokpal Bill, that the entire appointment process of the higher judiciary needs to be revamped and reformed. The appointment process cannot be allowed and should not be allowed to continue in the hands of a self- appointed common law mechanism created by judicial order operating since the early 1990s. A National Judicial Commission must be set up to create a broad- based and comprehensive model for judicial appointments, including, if necessary, by way of amendment of Articles 124 and 217 of the Indian Constitution. Without such a fundamental revamp of the appointment process at source and at the inception, all other measures remain purely ex-post facto and curative. Preventive measures to ensure high quality judicial recruitment at the entrance point is vital. (vi) It is the same National Judicial Commission which has to be entrusted with powers of both transfer and criminal prosecution of judges for corruption. If desired, by amending the provisions of the Constitution as they stand today, such proposed National Judicial Commission may also be given the power of dismissal/removal. In any event, this mechanism of the National Judicial Commission is essential since it would obviate allegations and challenges to the validity of any enactment dealing with judges on the ground of erosion or impairment of judicial independence. Such judicial independence has been held to be part of the basic structure of the Indian Constitution and is, therefore, unamendable even by way of an amendment of the Indian Constitution. It is for this reason that while this Committee is very categorically and strongly of the view that there should be a comprehensive mechanism for dealing with the trinity of judicial appointments, judicial transfers and criminal prosecution of judges, it is resisting the temptation of including them in the present Lokpal Bill. The Committee, however, exhorts the appropriate departments, with all the power at its command, to expeditiously bring a Constitutional Amendment Bill to address the aforesaid trinity of core issues directly impinging on the judicial system today viz. appointment of high quality and high calibre judges at the inception, non-discriminatory and effective transfers and fair and vigorous criminal prosecution of corrupt judges without impairing or affecting judicial independence. (vii) The Committee finds no reason to exclude from the conclusions on this subject, the burgeoning number of quasi-judicial authorities including tribunals as also other statutory and non-statutory bodies which, where not covered under category ‘A’ and ‘B’ bureaucrats, exercise quasi-judicial powers of any kind. Arbitrations and other modes of alternative dispute resolution should also be specifically covered in this proposed mechanism. They should be covered in any eventual legislation dealing with corruption in the higher judiciary. The Committee notes that a large mass of full judicial functions, especially from the High Courts has, for the last 30 to 40 years, been progressively hived off to diverse tribunals exercising diverse powers under diverse statutory enactments. The Committee also notes that apart from and in addition to such tribunals, a plethora of Government officials or other persona designata exercise quasi 123
judicial powers in diverse situations and diverse contexts. Whatever has been said in respect of the judiciary in this chapter should, in the considered opinion of this Committee, be made applicable, with appropriate modifications in respect of quasi-judicial bodies, tribunals and persons as well. [Para 10.21]
The Lokpal : Search and Selection 38. To ensure flexibility, speed and efficiency on the one hand and representation to all organs of State on the other, the Committee recommends a Selection Committee comprising:– (a) The Prime Minister of India- as Head of the Executive. (b) The Speaker Lok Sabha- as Head of the Legislature. (c) The Chief Justice of India-as Head of the Judiciary. (d) The leader of the Opposition of the Lower House. (e) An eminent Indian, selected as elaborated in the next paragraph. N.R: functionaries like the Chairman and Leader of the Opposition of the Upper House have not been included in the interests of compactness and flexibility. The Prime Minister would preside over the Selection Committee. [Para 11.18] 39. The 5th Member of the Selection Committee in (e) above should be a joint nominee selected jointly by the three designated Constitutional bodies viz., the Comptroller and Auditor General of India, the Chief Election Commissioner and the UPSC Chairman. This ensures a reasonably wide and representative degree of inputs from eminent Constitutional bodies, without making the exercise too cumbersome. Since the other Members of the Selection Committee are all ex-officio, this 5th nominee of the aforesaid Constitutional bodies shall be nominated for a fixed term of five years. Additionally, it should be clarified that he should be an eminent Indian and all the diverse criteria, individually, jointly or severally, applicable as specified in Clause 4 (1) (i) of the Lokpal Bill, 2011 should be kept in mind by the aforesaid three designated Constitutional nominators. [Para 11.19] 40. There should however, be a proviso in Clause 4(3) to the effect that a Search Committee shall comprise at least seven Members and shall ensure representation 50 per cent to Members of SC’s and/or STs and/or Other Backward Classes and/or Minorities and/or Women or any category or combination thereof. Though there is some merit in the suggestion that the Search Committee should not be mandatory since, firstly, the Selection Committee may not need to conduct any search and secondly, since this gives a higher degree of flexibility and speed to the Selection Committee, the Committee, on deep consideration, finally opines that the Search Committee should be made mandatory. The Committee does so, in particular, in view of the high desirability of providing representation in the Search Committee as stated above which, this Committee believes, cannot be effectively ensured without the mandatory requirement to have a Search Committee. It should, however, be clarified that the person/s selected by the Search Committee shall not be binding on the Selection Committee and secondly, that, where the Selection Committee rejects the recommendations of the Search Committee in respect of any particular post, the Selection Committee shall not be obliged to go back to the Search Committee for the same post but would be entitled to proceed directly by itself. [Para 11.20] 124
41. Over the years, there has been growing concern in India that the entire mass of statutory quasi judicial and other similar tribunals, bodies or entities have been operated by judicial personnel i.e. retired judges, mainly of the higher judiciary viz. the High Courts and the Supreme Court. [Para 11.20(A)] 42. There is no doubt that judicial training and experience imparts not only a certain objectivity but a certain technique of adjudication which, intrinsically and by training, is likely to lead to greater care and caution in preserving principles like fair play, natural justice, burden of proof and so on and so forth. Familiarity with case law and knowledge of intricate legal principles, is naturally available in retired judicial personnel of the higher judiciary. [Para 11.20(B)] 43. However, when a new and nascent structure like Lokpal is being contemplated, it is necessary not to fetter or circumscribe the discretion of the appointing authority. The latter is certainly entitled to appoint judges to the Lokpal, and specific exclusion of judges is neither contemplated nor being provided. However, to consider, as the Lokpal Bill, 2011 does, only former Chief Justices of India or former judges of the Supreme Court as the Chairperson of the Lokpal would be a totally uncalled for and unnecessary fetter. The Committee, therefore, recommends that clause 3(2) be suitably modified not to restrict the Selection Committee to selecting only a sitting or former Chief Justice of India or judge of the Supreme Court as Chairperson of the Lokpal. [Para 11.20(C)] 44. A similar change is not suggested in respect of Members of the Lokpal and the existing provision in clause 3 (2) (b) read with clause 19 may continue. Although the Committee does believe that it is time to consider tribunals staffed by outstanding and eminent Indians, not necessarily only from a pool of retired members of the higher judiciary, the Committee feels hamstrung by the Apex Court decision in L. Chandra Kumar Vs. Union of India 1997 (3) SCC 261 which has held and has been interpreted to hold that statutory tribunals involving adjudicatory functions must not sit singly but must sit in benches of two and that at least one of the two members must be a judicial member. Hence, unless the aforesaid judgment of the Apex Court in L. Chandra Kumar Vs. Union of India is reconsidered, the Committee refrains from suggesting corresponding changes in clause 3 (2) (b) read with clause 19, though it has been tempted to do so. [Para 11.20(D)] 45. There is merit in the suggestion that clause 3 (4) of the Lokpal Bill, 2011 be further amended to clarify that a person shall not be eligible to become Chairperson or Member of Lokpal if: (a) He/she is a person convicted of any offence involving moral turpitude; (b) He/she is a person less than 45 years of age, on date of assuming office as Chairperson or Member of Lokpal; (c) He/she has been in the service of any Central or State Government or any entity owned or controlled by the Central or State Government and has vacated office either by way of resignation, removal or retirement within the period of 12 months prior to the date of appointment as Chairperson or Member of Lokpal. [Para 11.20(E)] 46. In clause 9 (2), the existing provision should be retained but it should be added at the end of that clause, for the purpose of clarification, that no one shall be eligible for re-appointment as Chairperson or Member of the Lokpal if he has already enjoyed a term of five years. [Para 11.20(F)] 125
47. The Committee has already recommended appropriate representation on the Search Committee, to certain sections of society who have been historically marginalized. The Committee also believes that although the institution of Lokpal is a relatively small body of nine members and specific reservation cannot and ought not to be provided in the Lokpal institution itself, there should be a provision added after clause 4 (5) to the effect that the Selection Committee and the Search Committee shall make every endeavour to reflect, on the Lokpal institution, the diversity of India by including the representation, as far as practicable, of historically marginalized sections of the society like SCs/STs, OBCs, minorities and women. [Para 11.20(G)] 48. As regards clause 51 of the Lokpal Bill, 2011, the Committee recommends that the intent behind the clause be made clear by way of an Explanation to be added to the effect that the clause is not intended to provide any general exemption and that “good faith” referred to in clause 52 shall have the same meaning as provided in section 52 of the IPC. [Para 11.20(H)]
The Trinity of the Lokpal, CBI and CVC: In Search of an Equilibrium 49. (A) Whatever is stated hereinafter in these recommendations is obviously applicable only to Lokpal and Lokayukta covered personnel and offences/misconduct, as already delineated in this Report earlier, inter alia, in Chapter 8 and elsewhere. (B) For those outside (A) above, the existing law, except to the extent changed, would continue to apply. [Para 12.32] 50. This Chapter, in the opinion of the Committee, raises an important issue of the quality of both investigation and prosecution; the correct balance and an apposite equilibrium of 3 entities (viz. Lokpal, CBI and CVC) after creation of the new entity called Lokpal;. harmonious functioning and real life operational efficacy of procedural and substantive safeguards; the correct balance between initiation of complaint, its preliminary screening/inquiry, its further investigation, prosecution, adjudication and punishment; and the correct harmonization of diverse provisions of law arising from the Delhi Special Police Establishment Act, the CVC Act, the proposed Lokpal Act, the IPC, CrPC and the Prevention of Corruption Act. It is, therefore, a somewhat delicate and technical task. [Para 12.33] 51. The stages of criminal prosecution of the Lokpal and Lokayukta covered persons and officers can be divided broadly into 5 stages, viz. (a) The stage of complaint, whether by a complainant or suo motu, (b) the preliminary screening of such a complaint, (c) the full investigation of the complaint and the report in that respect, (d) prosecution, if any, on the basis of the investigation and (e) adjudication, including punishment, if any. [Para 12.34] 52. The Committee recommends that the complaint should be allowed to be made either by any complainant or initiated suo motu by the LokpaI. Since, presently, the CBI also has full powers of suo motu initiation of investigation, a power which is frequently exercised, it is felt that that the same power of suo motu proceedings should also be preserved for both the CBI and the Lokpal, subject, however, to overall supervisory jurisdiction of the Lokpal over the CBI, including simultaneous intimation and continued disclosure of progress of any inquiry or investigation by the CBI to the Lokpal, subject to what has been elaborated in the next paragraph. [Para 12.35] 126
53. Once the complaint, through any party or suo motu has arisen, it must be subject to a careful and comprehensive preliminary screening to rule out false, frivolous and vexatious complaints. This power of preliminary inquiry must necessarily vest in the Lokpal. However, in this respect, the recommendations of the Committee in para 12.36(I) should be read with this para. This is largely covered in clause 23 (1) of the Lokpal Bill, 2011. However, in this respect, the Lokpal would have to be provided, at the inception, with a sufficiently large internal inquiry machinery. The Lokpal Bill, 2011 has an existing set of provisions (Clauses 13 and 14 in Chapter III) which refers to a full-fledged investigation wing. In view of the structure proposed in this Chapter, there need not be such an investigation wing but an efficacious inquiry division for holding the preliminary inquiry in respect of the complaint at the threshold. Preliminary inquiry by the Lokpal also semantically distinguishes itself from the actual investigation by the CBI after it is referred by the Lokpal to the CBI. The pattern for provision of such an inquiry wing may be similar to the existing structure as provided in Chapter III of the Lokpal Bill, 2011 but with suitable changes made, mutatis mutandis, and possible merger of the provisions of Chapter VII with Chapter III. [Para 12.36] 54. The Committee is concerned at the overlap of terminology used and procedures proposed, between preliminary inquiry by the Lokpal as opposed to investigation by the investigating agency, presently provided in Clause 23 of the Lokpal Bill. The Committee, therefore, recommends: (a) that only two terms be used to demarcate and differentiate between the preliminary inquiry to be conducted by the Lokpal, inter-alia, under Chapters VI and VII read with Clause 2(1)(e) as opposed to investigation by the investigating agency which has been proposed to be the CBI in the present report. Appropriate changes should make it clear that the investigation (by the CBI as recommended in this report), shall have the same meaning as provided in Clause 2 (h) of the Cr.P.C whereas the terms “inquiry” or “preliminary investigation” should be eschewed and the only two terms used should be “preliminary inquiry” ( by the Lokpal) on the one hand & “investigation” (by the CBI), on the other. (b) the term preliminary inquiry should be used instead of the term inquiry in clause 2(1)(e) and it should be clarified therein that it refers to preliminary inquiry done by the Lokpal in terms of Chapters VI and VII of the Lokpal Bill, 2011 and does not mean or refer to the inquiry mentioned in Section 2(g) of the Cr.P.C. (c) the term “investigation” alone should be used while eschewing terms like “preliminary investigation” and a similar definitional provision may be inserted after Clause 2(1)(e) to state that the term investigation shall have the same meaning as defined in Clause 2(h) of the Cr.P.C. (d) Similar changes would have to be made in all other clauses in the Lokpal Bill, 2011, one example of which includes Clause-14. [Para 12.36(A)] 55. There are several parts of Clause 23 of the 2011 Bill, including Clauses 23(4), 23(5), 23(6), 23(9) and 23(11) which require an opportunity of being heard to be given to the public servant during the course of the preliminary inquiry i.e. the threshold proceedings before the Lokpal in the sense discussed above. After deep consideration, the Committee concludes that it is unknown to criminal law to provide for hearing 127
to the accused at the stage of preliminary inquiry by the appropriate authority i.e. Lokpal or Lokayukta in this case. Secondly, the preliminary inquiry is the stage of verification of basic facts regarding the complaint, the process of filtering out false, frivolous, fictitious and vexatious complaints and the general process of seeing that there is sufficient material to indicate the commission of cognizable offences to justify investigation by the appropriate investigating agency. If the material available in the complaint at the stage of its verification through the preliminary inquiry is fully disclosed to the accused, a large part of the entire preliminary inquiry, later investigation, prosecution and so on, may stand frustrated or irreversibly prejudiced at the threshold. Thirdly, and most importantly, the preliminary inquiry is being provided as a threshold filter in favour of the accused and is being entrusted to an extremely high authority like the Lokpal, created after a rigorous selection procedure. Order agencies like the CBI also presently conduct preliminary inquiries but do not hear or afford natural justice to the accused during that process. Consequently the Committee recommends that all references in Clause 23 or elsewhere in the Lokpal Bill, 2011 to hearing of the accused at the preliminary inquiry stage should be deleted. [Para 12.36(B)] 56. Since the Committee has recommended abolition of the personal hearing process before the Lokpal during the preliminary inquiry, the Committee deems it fit and proper to provide for the additional safeguard that the decision of the Lokpal at the conclusion of the preliminary inquiry to refer the matter further for investigation to the CBI, shall be taken by a Bench of the Lokpal consisting of not less than 3 Members which shall decide the issue regarding reference to investigation, by a majority out of these three. [Para 12.36.(BB)] 57. Naturally it should also be made clear that the accused is entitled to a full hearing before charges are framed. Some stylistic additions like referring to the charge sheet “if any” (since there may or may not be a chargesheet) may also be added to Clause 23(6). Consequently, Clauses like 23(7) and other similar clauses contemplating proceedings open to public hearing must also be deleted. [Para 12.36(C)] 58. Clause 23(8) would have to be suitably modified to provide that the appropriate investigation period for the appropriate investigating agency i.e. CBI in the present case, should normally be within six months with only one extension of a further six months, for special reasons. Reference in Clause 23(8) to “inquiry” creates highly avoidable confusion and it should be specified that the meanings assigned to inquire and investigate should be as explained above. [Para 12.36(D)] 59. The Committee also believes that there may be several exigencies during the course of both preliminary inquiry and investigation which may lead to a violation of the 30 days or six months periods respectively specified in Clause 27(2) and 23(8). The Committee believes that it cannot be the intention of the law that where acts and omissions by the accused create an inordinate delay in the preliminary inquiry and/ or other factors arise which are entirely beyond the control of the Lokpal, the accused should get the benefit or that the criminal trial should terminate. For that purpose it is necessary to insert a separate and distinct provision which states that Clauses 23(2), 23(8) or other similar time limit clauses elsewhere in the Lokpal Bill, 2011, shall not automatically give any benefit or undue advantage to the accused and shall not automatically thwart or terminate the trial. [Para 12.36(E)] 60. Clause 23(10) also needs to be modified. Presently, it states in general terms the discretion to hold or not to hold preliminary inquiry by the Lokpal for reasons to be 128
recorded in writing. However, this may lead to allegations of pick and choose and of arbitrariness and selectivity. The Committee believes that Clause 23(10) should be amended to provide for only one definition viz., that preliminary inquiry may be dispensed with only in trap cases and must be held in all other cases. Even under the present established practice, the CBI dispenses with preliminary inquiry only in a trap case for the simple reason that the context of the trap case itself constitutes preliminary verification of the offence and no further preliminary inquiry is necessary. Indeed, for the trap cases, Section 6 A (ii) of the Delhi Special Police Establishment Act, 1946 also dispenses with the provision of preliminary inquiries. For all cases other than the trap cases, the preliminary inquiry by the Lokpal must be a non dispensable necessity. [Para 12.36(F)] 61. Clause 23(11) also needs to be modified/deleted since, in this Report, it is proposed that it is the CBI which conducts the investigation which covers and includes the process of filing the charge sheet and closure report. [Para 12.36(G)] 62. Similarly Clause 23 (12) (b) would have to be deleted, in view of the conclusion hereinabove regarding the absence of any need to provide natural justice to the accused at the stage of preliminary inquiry. Clause 23(14) is also unusually widely worded. It does not indicate as to whom the Lokpal withhold records from. Consequently that cannot be a general blanket power given to the Lokpal to withhold records from the accused or from the investigating agency. Indeed, that would be unfair, illegal and unconstitutional since it would permit selectivity as also suppress relevant information. The clause, therefore, needs to be amended. [Para 12.36(H)] 63. The case of the Lokpal initiating action suo motu, requires separate comment. In a sense, the preliminary inquiry in the case of a Lokpal suo motu action becomes superfluous since the same body (i.e. Lokpal) which initiates the complaint, is supposed to do a preliminary inquiry. This may, however, not be as anomalous as it sounds since even under the present structure, the CBI, or indeed the local police, does both activities i.e. suo motu action as also preliminary screening/inquiry. The Committee was tempted to provide for another body to do preliminary inquiry in cases where the Lokpal initiates suo motu action, but in fact no such body exists and it would create great multiplicity and logistical difficulty in creating and managing so many bodies. Hence the Committee concludes that in cases of suo motu action by Lokpal, a specific provision must provide that that part of the Lokpal which initiates the suo motu proposal, should be scrupulously kept insulated from any part of the preliminary inquiry process following upon such suo motu initiation. It must be further provided that the preliminary inquiry in cases of suo motu initiation must be done by a Lokpal Bench of not less than five Members and these should be unconnected with those who do the suo motu initiation. [Para 12.36(I)] 64. These recommendations also prevent the Lokpal from becoming a single institution fusing unto itself the functions of complainant, preliminary inquirer, full investigator and prosecutor. It increases objectivity and impartiality in the criminal investigative process and precludes the charge of creating an unmanageable behemoth like Lokpal, while diminishing the possibility of abuse of power by the Lokpal itself. [Para 12.37] 65. These recommendations also have the following advantages: (i) The CBI’s apprehension, not entirely baseless, that it would become a Hamlet without a Prince of Denmark if its Anti-Corruption Wing was hived off to the Lokpal, would be taken care of. 129
(ii) It would be unnecessary to make CBI or CVC a Member of the Lokpal body itself. (iii) The CBI would not be subordinate to the Lokpal nor its espirit de corps be adversely affected; it would only be subject to general superintendence of Lokpal. It must be kept in mind that the CBI is an over 60 year old body, which has developed a certain morale and espirit de corps, a particular culture and set of practices; which should be strengthened and improved, rather than merely subsumed or submerged within a new or nascent institution, which is yet to take root. Equally, the CBI, while enhancing its autonomy and independence, cannot be left on auto pilot. (iv) The CVC would retain a large part of its disciplinary and functional role for non Lokpal personnel and regarding misconduct while not being subordinate to the Lokpal. However, for Lokpal covered personnel and issues, including the role of the CBI, the CVC would have no role. (v) Mutatis mutandis statutory changes in the Lokpal Bill, the CVC and the CBI Acts and in related legislation, is accordingly recommended. [Para 12.38] 66. After the Lokpal has cleared the stage for further investigation, the matter should proceed to the CBI. This stage of the investigation must operate with the following specific enumerated statutory principles and provisions: (A) On the merits of the investigation in any case, the CBI shall not be answerable or liable to be monitored either by the Administrative Ministry or by the Lokpal. This is also fully consistent with the established jurisprudence on the subject which makes it clear that the merits of the criminal investigation cannot be gone into or dealt with even by the superior courts. However, since in practise it has been observed in the breach, it needs to be unequivocally reiterated as a statutory provision, in the proposed Lokpal Act, a first in India. (B) The CBI shall, however, continue to be subject to the general supervisory superintendence of the Lokpal. This shall be done by adding a provision as exists today in the CVC Act which shall now apply to the Lokpal in respect of the CBI. Consequently, the whole of the Section 8 (1) (not Section 8 (2) ) of the CVC Act should be included in the Lokpal Bill to provide for the superintendence power of the Lokpal over the CBI. [Para 12.39] 67. Correspondingly, reference in Section 4 of the Delhi Special Police Establishment Act to the CVC would have to be altered to refer to the Lokpal. [Para 12.40] 68. At this stage, the powers of the CBI would further be strengthened and enhanced by clarifying explicitly in the Lokpal Bill that all types of prior sanctions/terms or authorizations, by whatever name called, shall not be applicable to Lokpal covered persons or prosecutions. Consequently, the provisions of Section 6 (A) of the Delhi Special Police Establishment Act, Section 19 of the Prevention of Corruption Act and Section 197 of the IPC or any other provision of the law, wherever applicable, fully or partially, will stand repealed and rendered inoperative in respect of Lokpal and Lokayukta prosecutions, another first in India. Clause 27 of the Lokpal Bill, 20ll is largely consistent with this but the Committee recommends that it should further clarify that Section 6 A of the DSPE Act shall also not apply in any manner to proceedings under the proposed Act. The sanction requirement, originating as a 130
salutary safeguard against witch hunting has, over the years, as applied by the bureaucracy itself, degenerated into a refuge for the guilty, engendering either endless delay or obstructing all meaningful action. Moreover, the strong filtering mechanism at the stage of preliminary inquiry proposed in respect of the Lokpal, is a more than adequate safeguard, substituting effectively for the sanction requirement. Elsewhere, this Report recommends that all sanction requirements should be eliminated even in respect of non Lokpal covered personnel. [Para 12.41]
69. The previous two paragraphs if implemented, would achieve genuine and declared statutory independence of investigation for the first time for the CBI. [Para 12.42]
70. The main investigation, discussed in the previous few paragraphs, to be conducted by the CBI, necessarily means the stage from which it is handed over to the CBI by the Lokpal, till the stage that the CBI files either a chargesheet or a closure report under Section 173 of the CrPC. However, one caveat needs to be added at this stage. The CBI’s chargesheet or closure report must be filed after the approval by the Lokpal and, if necessary, suitable changes may have to be made in this regard to Section 173 CrPC and other related provisions. [Para 12.43]
71. The aforesaid independence of the CBI is reasonable and harmonizes well with the supervisory superintendence of the Lokpal in the proposed Lokpal Bill, which is now exercised by CVC under Section 8 (1) of the CVC Act. The Committee recommends the above provision, suitably adapted to be applicable in the relationship between the Lokpal and the CBI. [Para 12.44]
72. The next stage of the criminal process would go back to the Lokpal with full powers of prosecution on the basis of the investigation by the CBI. The following points in this respect are noteworthy:
• Clause 15 in Chapter IV of the Lokpal Bill, 2011 already contains adequate provisions in this regard and they can, with some modifications, be retained and applied.
• The Committee’s recommendations create, again for the first time, a fair demarcation between independent investigation and independent prosecution by two distinct bodies, which would considerably enhance impartiality, objectivity and the quality of the entire criminal process.
• It creates, for the first time in India, an independent prosecution wing, under the general control and superintendence of the Lokpal, which, hopefully will eventually develop into a premium, independent autonomous Directorate of Public Prosecution with an independent prosecution service (under the Lokpal institution). The Committee also believes that this structure would not in any manner diminish or dilute the cooperative and harmonious interface between the investigation and prosecution processes since the former, though conducted by the CBI, comes under the supervisory jurisdiction of the Lokpal. [Para 12.45]
73. The next stage is that of adjudication and punishment, if any, which shall, as before, be done by a special Judge. The Committee considers that it would be desirable to use the nomenclature of ‘Lokpal Judge’ (or Lokayukta Judge in respect of States) under the new dispensation. However, this is largely a matter of nomenclature and existing provisions in the Lokpal Bill, 2011 in Chapter IX are adequate, though they need to be applied, with modifications. [Para 12.46] 131
74. The aforesaid integrates all the stages of a criminal prosecution for an offence of corruption but still leaves open the issue of departmental proceedings in respect of the same accused. [Para 12.47] 75. The Committee agrees that for the Lokpal covered personnel and issues, it would be counter-productive, superfluous and unnecessary to have the CVC to play any role in departmental proceedings. Such a role would be needlessly duplicative and superfluous. For such matters, the Lokpal should be largely empowered to do all those things which the CVC presently does, but with some significant changes, elaborated below. [Para 12.48] 76. Clauses 28 and 29 of the Lokpal Bill are adequate in this regard but the following changes are recommended: (i) The Lokpal or Lokayukta would be the authority to recommend disciplinary proceedings for all Lokpal or Lokayukta covered persons. (ii) The CVC would exercise jurisdiction for all non Lokpal covered persons in respect of disciplinary proceedings. (iii) The CBI would similarly continue to exercise its existing powers under the CVC’s superintendence for all non Lokpal personnel and proceedings. (iv) Departmental action must, as the law today stands, comply with the over arching mandate of Article 311 of the Indian Constitution. Dissatisfaction or objection to the practical operation of Article 311, fully understandable and indeed justifiable, does not permit or impel us to ignore the existence of Article 311, until altered. If there is consensus outside the Committee on amending Article 311, it must be amended as elaborated and recommended by the Committee in paragraph 12.49. However, absent such a consensus, the passage of the Lokpal Bill need not be held up on that account and hence the present report makes recommendations on the basis of the continuance of Article 311. If, however, it is amended as per paragraph 12.49, the proposed Lokpal Act can easily be modified to reflect such changes. (v) It may also be remembered that the Lokpal itself does not conduct the departmental proceedings. For the law to provide for Lokpal to conduct the entire departmental proceedings itself, would be to put a humungous and unworkable burden on the institution. (vi) Therefore, the power to take departmental action whether in the case of bureaucrats or in the case of Ministers as provided in Clauses 28 and 29 of the Lokpal Bill 2011, are largely appropriate. (vii) The Committee is informed that suspension of a delinquent officer during his criminal prosecution is virtually automatic in practice. However, the Committee feels the need to emphasize that a specific provision be added in Chapter VII making it clear that once any bureaucrat (viz. group A or group B officer) as covered in the proposed Lokpal Bill is under investigation and the Lokpal makes a recommendation that such a person be suspended, such suspension should mandatorily be carried out unless, for reasons to be recorded in writing by a majority out of a group of 3 persons not below the rank of Ministers of State belonging to the Ministries of Home, Personnel and the relevant administrative Ministry of the delinquent officer, opine to the contrary. Such suspension on Lokpal recommendation does not violate Article 311 in any 132
manner. Refusal by the aforesaid Committee of three provides a check and balance qua possibly unreasonable Lokpal recommendations. The reference is to three high functionaries of three Ministries and not to the Administrative Ministry alone since it is frequently found in practice that the Administrative Ministry’s responses alone may seek to preserve the status quo on account of vested interests arising from the presence of the delinquent officer in that Administrative Ministry.
(viii) There cannot be a counterpart suspension provision in respect of MPs or Ministers or the like, but an explicit clause may be added to the existing Clause 29 that the Presiding Officer of the relevant House in the case of MPs and Prime Minister in the case of a member of the Council of Ministers shall record a note in writing indicating the action being taken in regard to the Lokpal’s recommendations or the reasons for not taking such action.
(ix) Wherever otherwise applicable, in respect of the details of the departmental inquiry, the provisions of Article 311 would, unless altered and subject to Paras D above and 12.49 below, continue to apply. [Para 12.49]
77. The Committee strongly pleads and recommends that the provisions of Article 311 require a close and careful re-look to ensure that reasonable protection is given to bureaucrats for the independent and fair discharge of their functions but that the enormous paraphernalia of procedural rules and regulations which have become a major obstacle in the taking of genuine and legitimate departmental action against delinquent officers, be eliminated. The Committee notes with concern and with growing apprehension that serious and high level/big ticket corruption has increased exponentially since Independence at all levels in the Lokpal proposed categories of personnel. In particular, bureaucratic corruption has been relatively ignored or underplayed in the context of the excessive media and civil society focus on political corruption, coupled with the doctrine of civil service anonymity, which this country imported from our former colonial masters. Hence, the substantial modification of Article 311 or, indeed, its replacement by a much lesser statutory (not constitutional counterpart) should be taken up and implemented at the earliest. It may be added that what requires to be looked into is not the mere text of Article 311 but the context which has grown around it, through an undesirably large number of statutory and non-statutory rules, procedures and regulations coupled with huge common law jurisprudence over the last 6 decades. It is universally believed that the aforesaid has, in practice, converted Article 311, from a reasonable and salutary safeguard to a haven for those indulging in mal-administration and/corruption with no fear of consequences and the certainty of endless delay. The fact that Article 311 had been given constitutional and not mere statutory status is also responsible for its largely unchanged character over the last six plus decades. [Para 12.50]
78. Though not strictly within the purview of the Lokpal Bill 2011 itself, the Committee also recommends that CVC’s advice in respect of departmental action to be taken by the relevant department in case of non-Lokpal covered personnel must, by a suitable amendment to the CVC Act, be made binding to the extent that, unless for reasons to be recorded by a majority out of the same joint group as aforesaid, comprising 3 persons not below the rank of Ministers of State belonging respectively to the Ministries of Home Affairs, Personnel and the Administrative Ministry to which the delinquent officer belongs, states that CVC advice be not followed, such CVC advice shall be binding. [Para 12.51] 133
79. The Committee has deliberated long and hard on whether it can or should go to the extent of suggesting changes in the selection procedure of the CBI chief. Presently, the CBI chief is appointed by the Government on the recommendation of a Committee consisting of the CVC as Chairperson, Vigilance Commissioner, Secretary, Government of India in the Ministry of Home Affairs and Secretary of the Administrative Ministry (in this case the Ministry of Personnel) [See Section 4A of the Delhi Special Police Establishment Act, 1946]. Section 8 (2) of the 1946 Act further provides for a mandatory input in the selection of a new Director to be made by the outgoing Director and also enjoins upon the Committee, in Section 8 (3), to make recommendations for a panel of officers on the basis of seniority, integrity and experience in the investigation of anti- corruption cases, necessarily belonging to the Indian Police Services. [Para 12.52] 80. Interestingly, Section 4 C of the same 1946 Act provides for the same Committee to make recommendations for all appointments as also extension or curtailment of tenure of all officers above the level of Superintendent of Police in the CBI. [Para 12.53] 81. It is thus clear that it is not correct to suggest that the Central Government has absolute discretion in appointing the CBI Director. After the Vineet Narain vs. Union of India judgment* by the Apex Court, significant changes were brought into the Delhi Special Police Establishment Act, 1946. In 2003 (by Act 45 of 2003) providing for the aforesaid independent and autonomous regime for selection and appointment of CEI Director. The Central Vigilance Commissioner who heads the selection and recommendation process is itself a high statutory authority under a separate enactment called the Central Vigilance Commission Act of 2003 which, in turn in Section 4, obliges the Government to appoint the CVC on the basis of a recommendation of a high powered Committee comprising the Prime Minster, the Home Minister and the leader of opposition in the Lok Sabha. It is, therefore, erroneous to brush aside the existing system as merely involving absolute power/ discretion to select Government favourites as CBI Director. [Para 12.54] 82. Furthermore, the Committee believes that it would neither be proper nor desirable for the Committee to go into and suggest fundamental statutory alterations to the procedure for selection and appointment of CBI Director, which appears, nowhere, directly or indirectly, to be a subject referred for the consideration of this Committee. Collateral recommendations of this nature by a side wind should, in the opinion of this Committee, be avoided, especially since significant statutory changes have been brought in with respect to the appointment of the CBI Director less than 8 years ago. [Para 12.55]
Constitutional Status: If, How and How Much 83. The Committee, therefore, recommends:- (a) The institution of Lokpal must be given constitutional status by inserting into the Constitution by way of constitutional amendment certain basic principles about the Lokpal and leaving the details in the new proposed statute on which this Committee is opining. (b) One practical, reasonable and legally valid model would be for the Government to consider the model and set of provisions asked for by the Committee and
* 1996(2) scc 199. 134
presented in the evidence to the Committee as a draft constitutional amendment by two former Chief Justices of India. That draft is enclosed herewith as Annexure ‘F’ and is self-explanatory. (c) This constitutional amendment does not require ratification by not less than half of the State Legislatures since it does not seek to make any change in any of the provisions listed in the second proviso to Article 368 (2) of the Indian Constitution. (d) The constitutional amendment should, as reflected in the enclosed Annexure ‘F’ be a set of basic principles for the Lokpal as also provide for the basic set up of the Lokayuktas. Both these provisions, proposed in the enclosed draft, propose Part XVA and Articles 329(C) and 329(D), as enabling, empowering and permissive provisions and authorize and empower the appropriate legislature to make proper laws, mutatis mutandis, for Lokpal at the Centre and for Lokayuktas at the State. (e) Such a constitutional status would not only considerably enhance the stature, legal and moral authority of the Lokpal institution but would make interference and tinkering in these basic principles not subject to the vicissitudes of ordinary or transient majorities. Over a period of time, it is likely that these principles would develop into a set of immutable principles and, possibly, even become part of basic structure of the Constitution rendering the existence of the Lokpal and its basic features un-amendable even by a constitutional amendment. (f) Apprehensions regarding delay are misplaced. The constitutional amendment bill would be much shorter than the statutory bill for the new proposed Lokpal and can be passed on the same day and at the same time as the latter, though by a different majority. It is inconceivable that while parties are in favour of the institution of Lokpal in principle, as a statutory body, parties would not agree with equal alacrity for the passage of a constitutional amendment bill. (g) The suggestion that the entire statutory bill should be transposed as a constitutional amendment into the Constitution is untenable and impracticable. That would eliminate flexibility and would require a constitutional amendment for the smallest future change. Moreover, the Constitution does not and is not intended to provide for nitty gritty operational details. It should be and is intended to be a declaration of general and basic principles which, in turn, enable and empower formal legislation, which in turn would take care of the details. (h) An easy or casual repeal of the entire Lokpal scheme would not be possible once it is constitutionally entrenched. (i) Similarly, there would be no option for the federal or State Legislatures not to have a Lokpal or a Lokayukta at all since the constitutional mandate would be to the contrary. (j) Contextually, the issues and some of the suggestions in this Chapter may overlap with and should, therefore, be read in conjunction with Chapter 7 of this report. Though the Committee has already opined in Chapter 4 of this Report here that the issues of grievance redressal should be dealt with in a. 135
separate legislation, the Committee hereby also strongly recommends that there should be a similar declaration either in the same Chapter of the Lokpal or in a separate Chapter proposed to be added in the Indian Constitution, giving the same constitutional status to the citizens grievances and redressal machinery. (k) This recommendation also reflects the genuine and deep concern of this Committee about the need, urgency, status and importance of a citizen’s charter/grievance machinery and Committee believes that the giving of the aforesaid constitutional status to this machinery would go a long way in enhancing its efficacy and in providing a healing touch to the common man. (l) Furthermore, the Committee believes that this recommendation herein is also fully consistent with the letter and spirit of para 1.8 above viz. the conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above. [Para 13.12] The Jurisdictional Limits of Lokpal: Private NGOs, Corporates and Media 84. There is no doubt that corruption is neither the exclusive preserve nor the special privilege nor the unique entitlement of only the political or bureaucratic classes. Nor can anyone justify exclusionary holy cows, supposedly immunized, exempted or put outside the purview of a new and vigorous anti-corruption monitoring, investigation and prosecution regime as the proposed new Lokpal Bill seeks to create. If corruption is rampant in a country like India, it permeates and pervades every nook and cranny of society and is certainly not restricted to the political or bureaucratic classes. Indeed, while no specific statistical data are available, it may not be at all inconceivable that, in quantum terms, the degree of corruption in the non-political/non-bureaucratic private sector, in the aggregate, is far higher than in the realm of political and bureaucratic classes alone. Therefore, in principle, non- application of the proposed Lokpal Bill to all such classes does not appear to be justifiable. [Para 14.22] 85. In this connection, the very recent UK Bribery Act, 2010, is both interesting and instructive. Drafted in a completely non-legalistic manner, format and language, this Act seeks to criminalize corruption everywhere and anywhere, i.e. in the public and private sectors in UK, in Governmental and non-Governmental sectors, by UK citizens abroad, by non-UK citizens acting in UK and in the entire gamut of private and individual transactions in addition to covering dealings in the private sector, intra-private sector, intra-public sector, in Government and private interface and in every other nook and cranny of society. [Para 14.23] 86. Despite the above and despite the simplicity and attractiveness of an all inclusive approach, the latter must yield to exigencies of logistics, operational efficacy and pragmatism. Since this is the nation’s first experiment with a central Lokpal institution, it would amount to starry-eyed idealism to recommend the blanket inclusion of every segment of society under the jurisdiction of an omnipotent and omniscient Lokpal. Such comprehensive inclusion is entirely understandable and may be logically more justifiable in principle, but, in the final opinion of the Committee, must await several years of evolution of the Lokpal institution and a corpus of experiential and practical lessons as also the wisdom of a future generation of Parliamentarians. [Para 14.24] 136
87. As far as the proposed dispensation is concerned, the only available dividing and demarcating line between the complete inclusion and partial exclusion of entities from the jurisdiction of the Lokpal would have to be some test of Government ownership and/or control and/or size of the entity concerned. In this regard, clauses 17 (1) (f) and (g) of the Lokpal Bill, 2011 are relevant. Clause 17 (1) (f) applies the Lokpal jurisdiction mainly to office-bearers of every society, A.o.P. or trust, registered or not, but wholly or partially financed or aided by the Government, subject to being above some specified annual income minima. Clause 17 (1) (g), similarly, applies the Lokpal to office-bearers of every society, A.o.P. or trust, receiving donations from the public, again subject to an annual income minima to be specified by the Central Government. [Para 14.25]
88. After deep consideration, the Committee believes and recommends that these clauses should be merged and expanded to provide for the following coverage/jurisdiction of the Lokpal:
(a) The Lokpal jurisdiction should apply to each and every institution/entity, by whatever name called, owned or controlled by the Central Government, subject, however, to an exclusionary minima, where the ownership or control of the Central Government de minims. Such minima would have to be specified and the power of such specification should be given to the Central Government by notification;
(b) Additionally, all entities/institutions, by whatever name called, receiving donations from the public above a certain minima, liable to be specified by the Central Government should be included. In addition, as also all entities/ institutions receiving donations from foreign sources in the terms and context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs.10 lakh per year, should be covered, whether or not, controlled by the Government. This is largely as per existing clause 17 (1) (g), except for the addition of the foreign donation recipient facet;
(c) It should be clarified that this coverage shall apply, as also stated above, to every entity and institution, by whatever name called, be it corporate, society, trust, A.o.P., partnership, sole proprietorship, LLP or any other, registered or not. It should also be made clear that the approach is functional or ownership based or size based and not based on nomenclature;
(d) It is thus clear that corporates, media or NGOs should and would be covered only to the above extent and not otherwise. [Para 14.25.A]
89. Despite the foregoing elaborations and ‘lament’ regarding exclusion of large slices of society from the Lokpal regime, it must not be forgotten that all persons, whether private, individual, and totally non-Governmental, are already necessarily covered as abettors, co-conspirators, inciters and givers or recipients or bribes in terms of clause 17 (3) of the Lokpal Bill, 2011. It may, however, be further clarified suitably in inclusive and not exhaustive terms in clause 17 (3) that the phrase “if such person is associated with the allegation of corruption”, should include abettors, bribe-givers, bribe-takers, conspirators and all other persons, directly or indirectly, involved in the act or omission relating to corruption within which all other persons and entities in clause 17 are subsumed. The word “associated” presently used is too general and vague. [Para 14.26] 137
90. The Committee further recommends that clause 17 (3) should be explicitly clarified to the effect that the abettor, conspirator or person associated, in any manner, directly or indirectly, with the corruption allegation, shall not only be included but be fully liable to investigation, prosecution and punishment and that the proviso to clause 17 (3) shall be limited only to proposed action to be taken ‘in case of a person serving in the affairs of a State’ and not qua anyone. else. [Para 14.26.A]
Support Structure for the Lokpal: Whistle Blowers, Phone Tappers and Legal Aid/Assistance Issues 91. As regards the whistleblower issue, this Committee has made a detailed recommendation on the subject on August 10, 2011 in respect of the Bill referred to it. That Bill and the Committee’s recommendation are under the active decision making process of the Government of India for eventual translation into law. [Para 15.10] 92. The Committee recommends that the Whistleblowers Bill (Bill No. 97 of 2010) referred to the Committee, with the changes already recommended by the Committee in respect of that Bill (in the Committee’s report dated August 10, 2011), be implemented into law simultaneously and concurrently with the Lokpal Bill. In that case, only one provision needs to be inserted in the Lokpal Bill to the effect that safeguards and machinery provided elaborately in the proposed Whistleblowers Bill, as opined upon by the Committee, would be applicable, mutatis mutandis to the Lokpal Bill. In particular, the Committee notes that clauses 10, 11, 12 and 13 of the aforesaid Whistleblowers Bill, provide a fairly comprehensive fasciculus of provisions providing safeguards against victimization, protection of witnesses and other persons, protection of identity of complainant and power to pass interim orders. The Whistleblowers Bill also sets up a competent authority and provides for several other related provisions to make the functioning of that authority efficacious and to enhance the efficiency, potency and vigour of the safeguards intended to be provided to a whistleblower. The proposed provision in the Lokpal Bill should act as a cross referencing, breach of which should activate the related/ applicable provisions of the Whistleblower Bill and render them applicable to all Lokpal proceedings, as if set out in the Lokpal Bill, 2011. [Para 15.11] 93. Naturally, one of the main adaptations of the Whistleblowers Bill for Lokpal proceedings would be that the competent authority in respect of Lokpal covered persons and offences would be the Lokpal and references in the Whistleblowers Bill to CVC or other entities would be rendered inoperative for purposes of Lokpal personnel and officers. [Para 15.12] 94. If, however, the aforesaid Whistleblower Bill, along with the recommendations of this Committee in that regard, are not enacted into law by the Government of India, co- terminously and simultaneously with the Lokpal Bill, then this Committee recommends the creation of some safeguards, in substance and essence, by the addition of a whole new chapter and certain provisions in the proposed Lokpal Bill. However, those provisions in the Lokpal Bill would be largely an adaptation of the same provisions of the Whistleblowers Bill, especially clauses 10 to 13 of the Whistleblowers Bill, while, as explained above, making the Lokpal the competent authority for such whistleblower issues. [Para 15.13] 95. As regards phone tapping, the Committee emphasizes and underlines the basic reality that phone tapping by regulatory and policing agencies has been prevalent in 138
India for several years and the rules and regulations in that regard have undergone periodic refinement and amendment. Currently the regime of phone tapping is governed by Indian Telegraph Act and Rules read with the judgments of the Supreme Court inter alia in People ‘Union for Civil Liberties Vs. Union of India (1997) 1 SCC 301. The Committee believes that there is no reason, sufficiently strong, to suggest that this substantive law should be altered in respect of Lokpal proceedings. [Para 15.14] 96. Phone tapping has been resorted to, inter alia, by agencies as diverse as CBI, Enforcement Directorate, Directorate of Revenue Intelligence and others, under the aforesaid regime of the Act., Rules and the Supreme Court mandated principles. In all such cases, the Committee is not aware of any situation where any of these agencies are entitled to suo motu, on their own, without separate authorization, and in secrecy, initiate or continue phone tapping. There is, therefore, no reason as to why the proposed Lokpal institution should also not be subjected to the same regime and mechanism. To provide for inherent and separate power in the Lokpal institution in this regard, would also create an excessive and undesirable concentration of powers,” would frequently involve a conflict of interest between preliminary inquiry,’ investigation and prosecution and would disturb the equilibrium of all investigative agencies for the past several years with established practices in respect of phone tapping issues. Indeed, the Committee notes that in other parts of this Report (Chapter 12), the CBI is the principal investigating agency and, therefore, its powers of phone tapping must continue as they exist today. [Para 15.15) 97. As regards legal aid/assistance, the Committee concludes that clause 56 as framed does not intend to and should not be read to be a mandate for provision of automatic legal aid for every accused in a Lokpal proceeding. Clause 56, by any fair reading, and in the opinion of this Committee, is only intended to provide legal assistance by way of legal representation to the accused in any case before the Lokpal e.g.:– a preliminary inquiry. Firstly, the Committee does not read this to mean automatic monetary or fiscal assistance or by way of lawyers’ fees for the accused. Secondly, the Committee believes that this was intended to and recommended so that it should be explicitly clarified that it permits the use of, or appearance by a legal practitioner, where the accused asks for one in Lokpal proceedings eg:- a preliminary inquiry. In any event, elsewhere in this Report we have recommended deletion of the concept of hearing an accused during preliminary inquiry. If that is done away with, no issue would arise of legal practitioners appearing. In any case, they are entitled to appear in all later stages including trial. Finally, it should be clarified that clause 56 does not intend to abrogate or dilute or attenuate any other provision of law under where, by virtue of those provisions of law, the accused may be entitled to a monetary/fiscal legal aid or assistance. [Para 15.16]
The Lokpal Miscellany: Residual Issues 98. Although it is implicit in the Lokpal Bill, 2011, the Committee believes that to obviate all doubts and to prevent any jeopardy to ongoing trials, the proposed Lokpal should have a specific provision categorically applying Section 4 (3) of the POCA to Lokpal proceedings, to enable the special judge or Lokpal judge to try any other offence, where connected, other than those covered by the Lokpal Act. [Para 16.3] 99. Clause 17 (1) in most of its sub-clauses, including (b), (c), (d) and so on, specifically refers to a current/serving as also a former public servant (e.g. Minister, MP, bureaucrat, etc. both past and present). [Para 16.4] 139
100. The Committee has seen the substantive provisions of POCA and it appears to be clear that the POCA, which shall continue to be the substantive law applicable to Lokpal trials and proceedings, seeks to render culpable and punish only official acts done by public servants. Be that as it may, the Committee is of the opinion that a specific provision should be inserted in Clause 17 clarifying and specifying that reference to present and former public servants only means that they can be prosecuted whether in or not in office, but only for acts/omissions done while they were in office and not for allegedly fresh acts/omissions after ceasing to hold office. [Para 16.5] 101. The Committee finds that clause 8 and especially clause 8 (1) of the Lokpal Bill, 2011 has struck the right balance and does not need any fundamental changes. It is intended to strengthen the independence and autonomy of the Lokpal by not making it easy to initiate complaints against Lokpal for the Lokpal’s removal. The Committee, however, recommends an addition to clause 8 (l)(iii), to allay and obviate the apprehension expressed in some quarters, that the process to remove the Lokpal cannot be initiated, under the sub-clause, if the President (which essentially means the Central Government) refuses to refer the complaint against the Lokpal. The Committee feels that this apprehension would be adequately taken care of by providing in clause 8 (1)(iii) that where the President does not refer a citizen’s complaint against the Lokpal to the Apex Court, the President (i.e. the Central Government) shall be obliged to record reasons for the same and to furnish those reasons to the complainant within a maximum period of 3 months from the date of receipt of the complaint. The Committee feels that this process, including the transparency involved in recording these reasons and the attendant judicial review available to the complainant to challenge such reason/refusal, contains an adequate check and balance on this subject. [Para 16.6] 102. Additionally, the Committee recommends that Clause 8 (1) (iv) be added in the existing Lokpal Bill, 2011 to provide, specifically, that anyone can directly approach the apex court in respect of a complaint against the Lokpal (institution or individual member) and that such complaint would go through the normal initial hearing and filter as a preliminary matter before the normal bench strength as prescribed by the Supreme Court Rules but that, if the matter is admitted and put for final hearing, the same shall be heard by an apex court bench of not less than 5 members. It is but obvious that other consequential changes will have to be made in the whole of Section 8 to reflect the addition of the aforesaid Clause 8 (1) (iv). [Para 16.6A] 103. Clause 21 of the Lokpal Bill, 2011 needs a re-look. In its present form, it appears to empower the Lokpal Chairperson to intervene and transfer any pending case from one Bench to another, which appears to include the power of transfer even while a case is under consideration of the Lokpal bench on the merits. This un circumscribed power would seriously impair the objectivity and autonomy of Lokpal Benches, especially at the stage of preliminary inquiry which is a crucial filtering mechanism. It also appears to be inconsistent with normal principles of jurisprudence which seriously frown upon interference even by the Chief Justice in a pending judicial matter before another Bench. The way out would be to delete this provision and to provide for transfer only in exceptional cases where, firstly, strong credible allegations are brought to the forefront in respect of the functioning of any particular Lokpal Bench and secondly, the decision to transfer is taken by not only the entire Lokpal institution sitting together, but also including the Members of the Bench from which the matter is sought to be transferred. [Para 16.7] 140
104. As regards punishment under the Prevention of Corruption Act for a person convicted of different offences relating to corruption, it is noteworthy that the Prevention of Corruption Act prescribes, as it now stands, punishment not less than six months which may extend to five years for various offences involving public servant taking gratification in Sections 7, 8, 9, 10 and also Section 11 which deals with public servant obtaining valuable thing without consideration. Section 12 of POCA dealing with the abetment prescribes the same as six months to five years range of punishment. On the other hand, for offences of criminal misconduct by public servant, the prescribed punishment is not less than one year, extendable upto seven years in Section 13 while Section 14 prescribes punishment of not less than two years extendable to seven years. Section 15 prescribes the punishment for offences referred to in clause C or clause D of 5.13(i) which has no lower limit but a maximum of three years. Additionally, all these provisions empower the imposition of fine. [Para 16.8]
105. Diverse representations from diverse quarters have suggested an enhancement of punishment, with diverse prescriptions of quantum of sentence, including life imprisonment. After deep consideration, the Committee finds it prudent to strike a balanced, reasonable middle ground. A sudden, dramatic and draconian enhancement is, in the opinion of the Committee, undesirable. The Committee cannot ignore the inherent fallibility of mankind and if fallibility is inherent in every system, draconian and extreme punishment, even in a few cases of wrongful conviction, would be undesirable. [Para 16.9]
106. Taking a holistic view, the Committee is of the opinion that: (a) In the cases of Sections 7, 8, 9 and the like, the range from six months to five years should the substituted by imprisonment not less than three years which may extend to not more than seven years.
(b) In the Sections 13 and 14 category of cases providing for a range to one year to seven years, the Committee suggests enhancement, in the case of Section 13 offences, to a minimum of four years and a maximum of ten years while for Section 14, the Committee suggests a minimum of five years and a maximum of ten years. (c) For Section 12 which presently prescribes six months to five years, the aforesaid of minimum three and maximum of seven years shall apply whereas for Section 15 which presently prescribes zero to three years, the, range should be very minimum from two to maximum five years.
(d) Additionally, wherever applicable, there should be a general provision, cutting across Sections, creating a power of full confiscation of assets, proceeds, receipts and benefits, by whatever name called, arising from corruption by the accused. This provision should be properly drafted in a comprehensive manner to cover diverse situations of benefit in cash or kind, which, to the maximum extent possible, should fully be liable to confiscation. [Para 16.9A]
107. Although this issue has been discussed in other parts of this Report, for the sake of clarity, the Committee clarifies that there should be 3 specific and important time limits in the final enactment viz. firstly, the period of 30 days extendable once by a further period of 60 days for preliminary inquiry by the Lokpal; secondly, for completion of investigation by the investigating agency, within 6 months with one 141
further extension of 3 months and thirdly, for completion of trials, within one year with one further extension of 6 months. [Para 16.10] 108. The Committee finds no basis for and no reason to retain the last proviso to clause 17 (l)(g) which appears to be overbroad and altogether exempts from the Lokpal Bill 2011 any entity, simply because it is constituted as a new religious entity or meant to be constituted as an entity for religious purposes. This proviso should be deleted, otherwise this exception would virtually swallow up the entire rule found in the earlier parts of clause 17. [Para 16.11] 109. As regards clause 51 of the Lokpal Bill 2011, the Committee recommends that the intent behind the clause be made clear by way of an Explanation to be added to the effect that the clause is not intended to provide any general exemption and that “good faith” referred to in clause 52 shall have the same meaning as provided in section 52 of the IPC. [Para 16.12]
MINUTES OF DISSENT
(i) MINUTES OF DISSENT SUBMITTED BY - SHRI BALAVANT ALIAS BAL APTE, SHRI KIRTI AZAD, SHRI D.B. CHANDRE GOWDA, SHRI HARIN PATHAK, SHRI ARJUN RAM MEGHWAL AND SHRI MADHUSUDAN YADAV : We are in receipt of the draft report discussed on 30/11/2011 on the Lokpal Bill. We have perused the report and there are several substantial questions on which we are unable to agree. We are, therefore, placing our opinion on those provisions of the report and the bill for your kind consideration. Since the Final Report has not been circulated, the contents of this note should be treated as our Final opinion. .
1. On inclusion of the Prime Minister in the Lokpal : The draft recommendation presented to the Standing Committee does not give a tentative opinion with regard to the inclusion of Prime Minister within the jurisdiction of the Lokpal. The Lokpal is a procedural law. The substantive laws, be it in the Indian Penal Code or Prevention of Corruption Act do not grant any immunity to the Prime Minister from the provisions of penal law. The Code of Criminal Procedure also does not grant any immunity to the Prime Minister from the provisions of the penal law. Thus the procedural law, such as the Lokpal Bill cannot grant to the Prime Minister or any individual immunity from punishment under the substantive penal laws. If such immunity is considered and granted the same may offend the mandate of equality contained in Article 14 of the Constitution. The Prime Minister must be held accountable before the Lokpal in relation to his conduct. We are not in agreement to the suggestion that if a Prime Minister is held guilty of corruption, the nation must continue to accept him and hold him accountable only after he ceases to be a Prime Minister. However, the discharged of the authority like the Prime Minister, in relation to sensitive function of national security and public order could be excluded from the provision of the Lokpal. This would be in consonance with the Bill presented by the NDA Government. No immunity would be available in relation to commercial transactions.
2. Citizens’ Charter and grievances redressal mechanism: The draft placed before the Standing Committee has recommended that a Grievances Redressal mechanism should be provide for in order to ensure that neither red-tapism nor delay on account of collateral motives hurts the interest of the citizens. The draft has recommended that this mechanism should be placed in a separate framework and that the proposed Lokpal should not be overloaded with the work of administering this mechanism. We are of the opinion that providing such mechanism is absolutely necessary. It should be ensured that such a mechanism is provided for in the present proposed law itself. The linkage between the Lokpal and the Grievance Redressal Mechanism could also be maintained by providing for an ‘appeal against the competent authority dealing with orders and grievances arising out of the redressal mechanism. A second appeal on limited questions could be provided for the Lokpal itself. The enforceability of Citizens’ Charter and Grievance Redressal Mechanism could thus converge under the authority of the Lokpal itself. This would also be in accordance with the Finance Minister’s ‘Sense of the House’ statement that “This House agrees in principal on the Citizen’s Charter, Lower Bureaucracy be brought under Lokpal through appropriate mechanism...”
3. Members of the Parliament...vote, speech and conduct within the House: The conduct of MPs within the House can only be investigated by the House and the authorities constituted in the House itself. Each House is the master of its own discipline and
145 146 privileges. Thus, it would not be appropriate to allow an outside agency, including the Lokpal to investigate the conduct of the MPs within the House itself. To this extent, we are in agreement with the recommendations of the Standing Committee. However, we are of the considered opinion that the conduct of MPs which takes place physically and geographically outside the House and amounts to an actionable conduct can be investigated as per the Law of the land. There can be no immunity provided to the MPs not to have their conduct outside the House investigated.
4. Provision of State Lokayuktas in this Act: It needs to be carefully examined whether dealing with Services of the State could be provided for by a Central Legislation. List II Entry 41 deals with the state public services. !t is a subject in the State List. If Constitutionally permitted, we may in this regard have a !aw under Article 253 or pass an enabling provision under Article 252 in order to provide uniformity throughout the country. In either case this could be done by a Central Legislation.
5. Lower Bureaucracy: The earlier draft has suggested that Gr. C&D staff should be kept out of the ambit of the Lokpal. It has been agreed that all Public servants holding civil post in Government should be covered under the Bil1. This is in consonance with our view and the ‘sense of the House’ conveyed by the Finance Minister.
6. False and Frivolous complaints: The Committee has rightly disagreed with the draft bill which provide for exemplary punishment of five years and/or fine of Rs.5 lakhs in the event of a false and frivolous complaint. The Committee has directed that the imprisonment for false and frivolous complaints should not exceed six months. The fine should not exceed Rs.25,000/-. The authority to prosecute for a false and frivolous complaint should be with the Lokpal. We are of the opinion that we cannot deter away people from filing complaints because of fear of a very high punishment/penalty. Proportionality has to be maintained between the crime and the punishment proposed to be imposed. Thus a punishment of a period not exceeding 30 days and/or false fine of Rs.25,000/- should be enough to deal with the false and frivolous complaint.
7. Judiciary: The Committee has rightly suggested that Higher Judiciary should be kept out of the provisions of the Lokpal. The manner in which the Lokpal has to be constituted cannot be an appropriate mechanism to deal with the judiciary. We agree with the suggestion contained with the draft that a National Judicial Commission be appointed in order to deal with the complaints of misdemeanor against Judges. We further feel that a National Judicial Commission should be the competent authority to deal with matters of both judicial appointments and complaints. There should be a National Judicial Commission, which should comprise of the following: 1. The Chief Justice of India. 2. Two senior most judges of the Supreme Court 3. Minister of Law and Justice of Union Council of Ministers. 4. Leader of Opposition, in the House of the people. 5. Two imminent citizens nominated by a collegium comprising of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of the people. 147
6. The Chief Justice of the High Court to be a member whenever appointments or complaints in relation to that High Court are to be investigated. This would require a Constitutional Amendment. The Amendment in this regard can be introduced in Parliament in this session.
8. The Lokpal…Search & Selection: We have considered the appointment mechanism suggested by the Committee. We are unable to agree with the appointment mechanism suggested in the draft report. In our view, the mechanism should comprise of a Selection Committee consisting of the 1. Prime Minister of India. 2. A Minister in the Union Council of Ministers, nominated by the PM. 3. Leader of the Opposition, in the House of the people. 4. Leader of the Opposition, in the Council of States 5. Two judges of the Supreme Court nominated by the CJI in consultation with the Collegium of five (5) Senior Judges of the Supreme Court. 6. Central Vigilance Commissioner. We are unable to agree to the suggestion made in the draft report that it is not mandatory to have a Search Committee. It is extremely important that a Search Committee should be appointed to undertake the spadework in selecting the very best of people to be appointed to Lokpal institution. There should be at least five members of the Search Committee. It should be headed by an eminent person in order to ensure that the best names arc recommended by the Search Committee for the consideration of the Selection Committee. The Search Committee shall consists of persons possessing an unblemished record. These persons could be persons who have been Chief Justice of India, Comptroller and Auditor General of India, Chief Election Commissioner, Chief Vigilance Commissioner, Cabinet Secretary, Judges of the Supreme Court, Chief Justice of the High Court etc. We would further suggest that the process of short listing of the Lokpal Institution must be a transparent process inviting nominations and publishing the details about the proposed names on the internet. While constituting the Search Committee, due regard shall be given to ensure that historically and socially marginalized sections are represented.
9. The Trinity of Lokpal, CVC and CBI: In search of an Equilibrium: The CBI is an important limb of the anti-corruption set-up in the Government for investigating and punishing corrupt public servants. The CBI has experience of decades and has evolved as an institution. It has expertise in the matter of gathering evidence in relation to crimes and in investigating the crime as also in prosecuting the criminals. We believe that in recent years the CBI has seriously compromised itself as an institution because it is under the control of the Central Government. We are, therefore, of the opinion that for efficient handling of the anti- corruption mechanism and maintenance of independent and autonomous character of the CBI as an institution, it is essential that the following steps are to be taken: (i) The appointment of the CBI Director is made by the Government of India. This appointment is made under the Delhi Special Police Establishment Act. The 148
independence and autonomous character of the institution depends directly on the personality of the Director. The appointment of the Director of the CBI will have to be taken out of the purview of the Central Government of the day. Thus the appointment of the Director of CBI should be made by a Statutory Collegium which is created by amending the said Act under which the CBI functions. The said collegium should comprises of the Prime Minister, Leader of the Opposition in the House of the people and the Chairperson, Lokpal. It shall be the responsibility of this Collegium to ensure that the best available police officials ‘are appointed at the senior level in the CBI. (ii) The Department of Personnel will only be an administrative interface of the Central Government dealing with the autonomous CBI. It shall be responsible for answering questions in the Parliament. (iii) In order to ensure that the CBI functions professionally and independently, an additional safeguard should be provided by delinking the investigating wing of the CBI from the prosecuting wing of the CBI. The Director of Prosecution of the CBI should be an independent official and not merely an officer on deputation from the Ministry of Law as at present in the practice. The appointment of the Director of the Prosecution should be made by the same Collegium, which will appoint the Director of the CBI. The Director of the Prosecution should be an officer of the rank of a Special Director in the CBI. The Director of Prosecution shall appoint the CBI Prosecutors who shall take instructions from him. They shall be entitled to independently appraise the evidence and not follow blindly the instructions from the investigative wing or the CBI. (iv) The CBI shall report the progress of the cases referred to it by the Lokpal. The CBI must function independently of Central Government as an independent and autonomous agency. The Lokpal shall be entitled to conduct preliminary inquiries and if it is of the opinion that a corrupt public servant needs to be investigated further, it shall refer the matter to the CBI. who shall investigate the same in accordance with the provisions of Code of Criminal Procedures. For the purposes of conducting preliminary enquiries, the Lokpal shall be entitled to create a staff competent to discharge this job. (v) The Lokpal should be entitled to perform the function in relation to the CBI which were earlier being performed under Section 8(1) (a) & 8(1)(b) of “The Central Vigilance Commission Act, 2003' by the CVC.
10. Constitutional Status: We are in agreement with the recommendations contained with the draft that a constitutional provision could be enacted by amendment providing for the institution of the Lokpal. However, the details of the Lokpal legislation should be provided for a separate law.
11. NGOs, private companies and media organizations: We have gone through the draft, which has been prepared. The draft is confusing. We are of the opinion that the authority of the Lokpal should extend to investigating public servants/office bearers and organizations connected with the Government or funded by the Government. It is essential that the jurisdiction of the Lokpal should be extended to such organizations, which receives sizeable funding: from government, and whose limit is a cap fixed by law i.e. Rs.10 lakhs per annum and are discharging functions of a public character. Any private organization, which does not receive any funding from the Government, cannot be included with in the ambit of the 149
Lokpal. For the functioning of the healthy democracy, we cannot afford to have intrusive institutions.
12. Whistle-blowers legislation: We believe that the whistleblowers protection legislation should simultaneously be enacted as a part of the Lokpal legislation and the Lokpal should ensure the protection of the whistleblowers.
13. Phone tapping: We are clearly of the opinion that the Standing Committee’s recommendation with regard to the present status quo being maintained in the matter of tapping of telecommunications should be maintained.
14. Removal of Lokpal: We are clearly of the opinion that the proposal that only the Government can move for the removal of Lokpal for his conduct is not appropriate. If a member of the Lokpal is biased in favour of the Government, obviously the Government will not seek his removal. Any ‘person aggrieved’ should be entitled to move the Supreme Court for removal of the Lokpal. The Supreme Court should have a two-phased procedure. A frivolous complaint against the Lokpal should be dismissed at the initial stage itself. Heavy penalties can also be imposed, if frivolous petitions are filed. If the Supreme Court decides to hear the complaint against a member of the Lokpal then the detailed procedure of enquiry should be specified in the proposed bill. The power to recommend suspension of a member of the Lokpal pending enquiry should be with the Supreme Court who will forward the same to the Hon’ble President.
15. Budget of Lokpal: A separate budget head in the Union Budget should be authorized and approved by the Parliament to clear the budget of the Lokpal as an institution. Rules can be framed, laying down detailed guidelines as to the manner in which the members of the Lokpal are entitled to spend the budget.
16. Article 311 to be followed: Once the Lokpal holds a public servant guilty and liable far disciplinary action, the requirements of Article 311 of the Constitution will have to be complied with. The provisions of Article 311 require that it is only the appointing authority, which can remove a public servant. Needless to say that the appointing authority should give ‘due regard’ to the recommendations of the Lokpal. In case, it chooses to disagree with the recommendations, it will have to give reasons in writing.
17. Complaints against the Lokpal Staff: A statutory Tribunal should be created by the Bill, which should hear the complaints against the members of the administrative staffs of the Lokpal. Since, the senior members can delegate the functions, which may be prescribed by rules, it is important that this complaint redressal mechanism should be completely independent and autonomous.
18. Quantum of Punishment: The cancer of corruption has spread very deeply and it has entered into the vitals of the 150 system. Therefore, the quantum of punishment prescribed for the guilty should be such that, it acts as a deterrent. There should be time limit prescribed for the Lokpal, i.e. six months after initiating an enquiry against the delinquent public servant. Similarly, the Act must provide for creation of special benches of High Court, which shall in time-bound manner endeavor to dispose off the appeals against the Lokpal.
Thanking you.
1. Sd/- 2. Sd/- (KIRTI AZAD) (HARIN PATHAK) Member, Lok Sabha. Member, Lok Sabha.
3. Sd/- 4. Sd/- (BALA VANT alias BAL APTE) (ARJUN RAM MEGHWAL) Member, Rajya Sabha. Member, Lok Sabha.
5. Sd/- 6. Sd/- (MADHUSUDAN YADAV) (D.B. CHANDRE GOWDA) Member, Lok Sabha. Member, Lok Sabha. 151
(ii) MINUTES OF DISSENT SUBMITTED BY SHRI RAM JETHMALANI I have gone through the draft report on the Lokpal Bill, hereafter called the Report. I however find that I am unable to agree with some recommendations made in the report. I, therefore, submit the following note of dissent.
BRINGING THE CBI UNDER THE LOKPAL This is my major point of concern and dissent. One has only to recall the glorious history of the CBI and its present state of degradation. It owes its horizon to corruption offences committed during the Second World War. It was intended to bring the offenders to book. For quite sometime its record was excellent. It enjoyed the confidence of the Courts as well as the people. It is a great misfortunate for the country that today it is no better if not Worse than any other police organisation or investigating agency. I must start with what a three Judge Bench or the Supreme Court of India had to say in a judgment Centre for Public Interest Litigation & Anr. Vs. Union of India and others Paragraph 28. It is reproduced here under in full:- “28. While CBI had to explain this averment made in para 18 of the writ petition, if really it wanted to convey to the Court as to the non-availability of Part II file to comment on the above allegation, one would have expected CBI to come forward with a simple explanation that it is unable to respond to the above allegation in view of the fact that the said file was not traceable instead of averring in the affidavit that no such file is in existence. The use of the words “no such file” clearly indicates that what CBI intended to convey to the Court in the first affidavit was to tell the Court that such file never existed and it is only when the reply to the said affidavit was filed by the writ petitioners with a view to get over the earlier statement, the second affidavit was filed by Mr. Raghuvanshi interpreting the world “existence” to mean “not traceable”. In the circumstances mentioned hereinabove, we are unable to accept this explanation of CBI and are constrained to observe that the statement made in the first affidavit as to the existence of Part II file can aptly be described as suggestio falsi and suppressio veri. That apart, the explanation given in the second affidavit of CBI also discloses a sad state of affairs prevailing in the organization. In that affidavit, CBI has stated before the Court that Part II file with which the Court was concerned, was destroyed unauthorisedly with an ulterior motive by none other than an official of CBI in collusion with a senior officer of the same organisation which fact, if true, reflects very poorly on the integrity of CBI. We note herein with concern that courts including this Court have very often relied on this organization for assistance by conducting special investigations. This reliance of the courts on CBI is based on the confidence that the courts have reposed in it and the instances like the one with which we are now confronted, are likely to shake our confidence in this organisation. Therefore, we feel it is high time that this organisation puts it house in order before it is too late” The Supreme Court had to say this even though four years earlier in another case Costao Fernandez Vs. State at the Instance of SSP. CBI Bombay in (1996).7 SCC 516 paragraph 7 and 8 held- “7. The CBI says the injuries were self-inflicted. The CBI has taken this stand because, according to it, the appellant had an ulterior motive in killing the deceased, which was to share reward relating to recovery of smuggled gold worth Rs. 28 lakhs. The reward had, however,
151 152 become due in 1984 and the present occurrence had taken place on 16-05-1991. How far-fetched is the imputed motive? The High Court itself has disbelieved this and has really criticized the CBI for suggesting the same. This is, however not all. As the further case of the CBI is that no records were placed before it to show that the appellant had prior information of smuggling, following which the smuggler was chased. Another material used against the appellant is his so-called abscondence. 8. None of the aforesaid has legs to stand, as would appear from what is being stated later. A biased investigation of the type at hand from the CBI has indeed pained us, because people of this country have still high hopes from it, which would get dashed if, bias creeps in its investigation. But then the deceased was no ordinary mortal, as he was a brother of the one time Chief Minister of Goa; and the occurrence had taken place in Goa.” These two paragraphs show how it is instrument of serious miscarriage of Justice. I am not exaggerating but I believe thatI have tremendous experience of the criminal side of our justice system and the way CBI has become a shameless instrument of the evil political design of the ruling government My experience convinces me that the CBI has got to be rescued from this infamy and the nation saved from the grave consequences of its misdeeds. The present system of supervision has become hopelessly inadequate and much more effective one has to be imposed upon it. I could quote instances a galore. The first instance that comes to my mind is Bofors investigation and the role of Ottavio Quattrocchi. When investigation outside India revealed that Mr. Quattrocchi had received a large amount of money in a foreign bank because be had assured the Swedish Company that the deal will go through by a designated date and it did. An Ex-Director of the CBI for whom I have great respect immediately informed the then director of the CBI that now that Quattrocchi’s name has appeared and there is reason to believe that he is a conspirator, immediate steps should be taken to arrest him. This was not done. The written request and advice of the earlier CBI Director is on record and is available. Quattrocchi was not only able to f1y out of the country but his wife, whom he left: behind, sold out all the Indian assets of the family and without challenge or hindrance quietly walked out of the country, thereafter a pretence of effort to extradite him from abroad was enacted but without any genuine intension of securing his extradition. Kindly enquire how the Malaysian Court refused the request for extradition because the CBI did not carry out the simple request of the Judge to supply him with a summary of implicating evidence against Quattrocchi. Arrogantly and almost in language which in India would be contempt they told the Judge that they have filed a large number of volumes of evidence and the judge could find the evidence for himself clearly inviting a dismissal. Crores have been spent on this pretended performance first in Malaysia and then elsewhere. As hereinafter explained the appointment of the Director and Officers of equivalent status should be totally immunized from government’s interferencc or influence. In the following pages you will find other instances of this unpardonable misdemeanor. The entire reason for the Lokpal is to have an institution independent of the government for investigating corruption involving the government so as to avoid the conflicts of interest involved in a government controlled agency investigating corruption in the government. The Report proposes that the CBI be the main anti corruption agency and that it be left in the administrative control of the government, with only some vague and weak supervisory jurisdiction of the Lokpal in the same manner in which the CVC currently has that supervisory jurisdiction. This would be totally unsatisfactory and would leave the CBI under the control of the government through its power of postings, transfers, promotions and disciplinary control. Using these powers the governments of the 153 day have been misusing the CBI for their own political purposes despite the supervisory jurisdiction of the CVC. I have equally strong views on including the Citizens Charter And Public Grievance Redressal mechanism in the text of the Bill. Similarly the dissent of some Members of Parliament on Vote, Speech and Conduct within House has my approve. I believe that some members have put in their dissent and I endorse it. I do wish to recall my great appreciation of the work that you have accomplished as a Chairman of this Committee. I believe the Committee has unanimously recorded their admiration. My comments on the CBI do not retract from the presence in their force of some honest officers but they don’t seem to prevail. I hope this reaches you within time.
Sd/- (SHRI RAM JETHMALANI) Member, Rajya Sabha. 154
(iii) MINUTES OF DISSENT SUBMITTED BY SHRI RAM VILAS PASWAN: (i) It may be recalled that the glass of juice that Anna Hazare drank to end his fast the Ramlila maidan was offered by a little Dalit girl and a Muslim girl. This symbolic act was a clear acknowledgement that they presented groups that are among the foremost victims of a social order which is still far from equal. It is a stark reality that even 60 odd years after Independence, the SC & STs, women, minorities and OBCs continue to suffer from discrimination in almost every walk of life. (ii) It may be recalled on several occasions the subject matter came up for discussion in the standing committee as also when Team Anna appeared before the committee. From the deliberations one got the general impression that reservation in Lokpal and search committee would be given for this groups. But in the last meeting position was change and therefore I gave my note dissent on the subject. (iii) I strongly object to the ambivalent clause in the Report that insinuates that reservation of positions in the Lokpal and Search Committee wil1 be optional and not mandatory. I wish to emphasize that the Search Committee and Lokpal must have reservation for SC/ST, OBCs, Minorities and Women to the extent of 50% of the total so that it represents and inclusive secular polity. Anything short of this basic requirement is unacceptable to me. (iv) I have serious reservations regarding the recommendations of the Standing Committee on the Lokpal Bill. (v) Most importantly, I strongly object to the ambivalent clause in the Report that insinuates that reservation of positions in the Lokpal is desirable but optional. I wish to emphasize that the Lokpal must necessarily have representation of women, SCs & STs, OBCs and minorities in the apex body to the extent of 50% of the total so that it represents our inclusive secular polity. Anything short of this basic requirement is unacceptable to me and my party. (vi) I have grave reservations regarding the Committee’s recommendation to include Group ‘A’ and ‘B’ officers (totaling about one million), corporates, private NGOs and media within the Lokpal ambit, as this mandate when combined with’ the inquiry, investigation and prosecution procedures spelt out in paras 49 to 81, will not only spawn a massive Lokpal bureaucracy that is another Frankenstein monster similar to that envisaged in the Jan Lokpal Bill but will destroy all existing institutions such as the CBI, the CVC, the internal vigilance apparatus in all Govt. organizations, which have been painstakingly built up over the decades. Let me explain my reasons for this seemingly harsh judgement. (vii) The Standing Committee has recommended that the preliminary enquiry will be done by the Lokpal for which it wil1 have a “sufficiently large internal enquiry division” and it has also been mandated that no complaint except a trap case can be closed without inquiry. Is the Committee aware that the CVC which deals only with Group ‘A’ officers of Central Govt. and PSUs was required to give its advice on 5327 cases involving Group ‘A’ officers in 2010? By adding Group ‘B’, NGOs, media, corporates and politicians, the Lokpal will have to deal with 30,000 to 40,000 cases and possibly more, every year covering the length and breadth of the country. The mammoth task of conducting preliminary enquiries into all these cases would require thousands of enquiry officials and their paraphernalia in various parts of the country. Presently, the preliminary enquiry in most cases is done by the internal vigilance of each organization. On top of this, the Committee also envisages a separate prosecution division under the Lokpal.
154 155
(viii) The Committee has recommended that in all cases, the investigation will be done by the CBI which presently deals only with major cases of corruption. By entrusting all vigilance cases of Lokpal covered employees to the CBI for investigation, we are ensuring that the CBI is unable to handle even a small fraction of the workload with the existing strength. The CBI will certainly insist on a massive increase in it manpower, while at the same time, it wil1 be frittering away much of its energies on relatively petty cases. (ix) The Committee has proposed that after the investigation is conducted by the CBI, the case will be referred back to the Lokpal which wil1 then give the public servant an opportunity to be heard. What this entails is that every charged employee from any part of the country will have to appear before the Lokpal Board before the chargesheet is issued. This is a patently absurd and unworkable suggestion. (x) My greatest worry is the adverse impact that an overarching Lokpal will have on all govt. institutions. With disciplinary powers largely in the hands of the Lokpal, thereby emasculating the management of the different offices, there is bound to be organizational atrophy and paralysis. (xi) I have highlighted the main issues on which I differ with the Committee’s recommendations. May I also point out that my self and the Secretary General of my Party have sent four letters to the Committee highlighting my party’s views on the Jan Lokpal Bill, the Government draft and what my party envisages should be the structure and powers of the Lokpal. For some reasons, the content of the letters have not been mentioned in the Report. For ready reference, I am enclosing another copy.
Sd/- (RAM VILAS PASWAN) 156
(iv) MINUTES OF DISSENT SUBMITTED BY SHRI SHAILENDRA KUMAR:
Note of Dissent by Shri Shailendra Kumar I have following dissensions over the recommendations of Lokpal Committee. These should also be included in the recommendations and report.
Citizens Charter and Public Grievance Redressal Mechanism According to the para 1.8 of the draft report of the standing committee, at the end of the discussions held on 27th August. 2011 over the issue of Lokpal, the Minister of Finance Shri Pranab Mukherjee had given the following statement in the House: “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and Establishment of Lok Ayuktas in the States. I will request you to transmit the proceedings to the Department-related Standing Committee for its perusal while formulating its recommendations for a Lokpal Bill.” From this it is clear that it was the desire of the House to bring the issue of Citizens Charter within the ambit of Lokpal. And if it is not done then it would appear that the Standing Committee is violating the proposal of the House. Hence, it is my suggestion that the issue of Citizens Charter should also be included in Lokpal Bill by adding another chapter to the Report. I am annexing a draft of this Chapter along with this note (Annexure-‘A’). The mechanism suggested in the Annexure would be completely decentralized in its nature and this would facilitate public in getting their grievances addressed at the block or district level itself. There will be no direct appeal to the members of the Lokpal in this mechanism. This mechanism would also negate the apprehension that Lokpal would be overburdened by the complaints and thus it would be rendered defunct. On the contrary if a penalty is imposed on the head of a department, he would immediately ensure that the Citizens Chal1er is not violated and such grievances are redressed immediately. After some time people would not be required to file a complaint and the number of complaints would instead start decreasing.
Group ‘C’ Employees During a discussion in the House on 27th August, “The Sense of the House” included bring the corruption of lower level officials under the ambit of Lokpal, whether this Committee is not once again violating the proposal of the House by deviating from this? In most of the corruption cases officers and employees from top to bottom rung of the bureaucracy are involved. In such a situation, how can we claim to establish an effective mechanism against corruption by creating separate investigation agencies for higher and lower bureaucracy? What would be the effect and utility of Lokpal if. 95 per cent Government employees are not included within the ambit of this institution? General Public have to deal with these Government employees in their day to day life. Police Inspector, Ration Inspector, School Inspector, Sales Tax Inspector, Tehsildar, Patwari, corrupt Junior Engineer of NAREGA etc. are the officers whose act of corruption victimises each and every citizen of the country. Allowing them
156 157 to continue their corrupt Practices or to handover them to any weak institution would prove to be fatal for anti-corruption mechanism. Therefore, I strongly demand to bring the group ‘C’ employees also under the ambit of Lokpal. It is said that by bringing 60 lakh employees within the ambit of Lokpal the volume of work of this institution would increase to such an extent that the Lokpal would not be able to handle it. Hence a separate agency would be entrusted the corruption related issues of group ‘C’ and ‘D’ employees. I wonder that if a separate agency can handle 57 lakh employees, why not the Lokpal itself.
The Prime Minister and Lokpal I agree with the point in view of the sensitivity of the office of the Prime Minister, he shall be kept out of the ambit of the Lokpal. However, except the issues related to the national security, nuclear, defence and foreign policy, the office of the Prime Minister may be brought within the ambit of the Lokpal.
Selection of Members of Lokpal I do not agree with the suggestion made by the Standing Committee in respect of selection committee. This selection committee consists of 5 members. Out of these 5 members, Prime Minister and the Speaker, Lok Sabha are from the Ruling Party. In additions to this the Leader of the Opposition is also a member of the selection committee. In this perspective, a question arises that when accusations of corruption against these persons would come within the ambit of Lokpal, would they ever like to select a strong & effective Lokpal? Another member in the selection committee, would be jointly suggested by the CVC. CAG and the Chairman, Union Public Service Commission (UPSC). In my opinion, these three persons could never reach a consensus on a common name. There is every possibility that some names would be suggested to them by the Government and they would reach a consensus on of the names. Therefore, it is my suggestion that selection committee should consist of the following members:– 1. The Prime Minister 2. The Leader of Opposition in the Lok Sabha 3&4. One Judge of the Supreme Court and one Chief Justice of one of the High Courts. (Their names’ selection would be done by a full bench of the Supreme Court). 5. Chief Vigilance Commissioner 6. Chief Election Commissioner 7. Comptrol1er and Auditor General of India
Search Committee As all members of the selection committee would be very important persons and they would also be very busy. It is, therefore, necessary that a joint search Committee should be formed by including some retired and distinguished citizens. The search committee should invite public to propose some of the names and then submit the names to Selection Committee after shortlisting for their consideration. Search committee should consist of ten members out of these five members should have retired as Chief Justice, Chief Election Commissioner, Comptroller and Auditor General of India and 158
Chief Vigilance Commissioner. (person included in the search committee should be unblemished, independent of any political outfit and should not be holding any public office after retirement). While these five names of the members for search committee would he determined by the selection committee, these five members together would chose another five members from the civil society. The five members of civil society would be the distinguished persons from Scheduled Caste, Scheduled Tribes. Other Backward Castes, Minorities and women. Thus, selection committee would consist of ten members out of these 5 members would be retired persons and 5 from the civil society. It is essential that 50 per cent members from these must come from SC, ST, OBCs. Minorities and women. Selection committee and the search committee would take note of that fact that while selecting the Lokpal 50% of the members must have representation from all the sections of the society like SC, ST, OBCs, Minorities and women.
Process of shortlisting the names for search committee. Draft Report of the Standing Committee is silent about the selection process. The selection process must be completed in transparent manner with public participation and such process must be categorically mentioned in the Bill itself. Our experience tells us that due to non-availability of categorical selection process the Government of the day have been making arbitrary appointments as head of the institutions. In this process competent persons close to and faithful to some political families get appointed to such institutions and thus these institutions deviate from their objectives. It is, therefore, my suggestion that following selection process may be incorporated in the Statute: 1. The search Committee shall invite suitable nomination for the office of Chairman and members of Lokpal from distinguished persons or groups of various sections. 2. Only persons with integrity and with vast experience (particularly against corruption) in public service could be nominated for the office of the Chairman and members of the Lokpal. 3. While recommending the nomination, it would be essential to provide the basis of eligibility of the candidate for that office, his contribution against corruption and details of any type of accusations labeled against him under any law as also any other details that search committee may prescribe. 4. The search committee would collect maximum details about the background of these candidates and their achievements through other mediums. 5. After receiving the details of nominated candidates, it would be put on website in order to invite reactions of the public regarding their eligibility and ineligibility. 6. Keeping in view above information, the search committee would prepare a unanimous list of shortlisted probable candidates for the office of the Chairman and member of Lokpal as far as possible. This list would contain thrice the names of the number of vacancies. 7. In case three or more members of the search committee express reservations about any of the candidates his name would not be included in the shortlist. 8. Before sending the list of shortlisted candidates to the selection committee, the details of such candidates would be put on the website and again the information from general public would be invited thereon. 9. Keeping in view all the information’s, the selection committee would select the chairman and members of Lokpal from amongst the candidates included in the 159
shortlist. This selection as far as possible would be unanimous. If three or more members of the selection committee express reservations on the name of the candidate, selection of such candidates would not be considered.
10. After selecting eligible candidate for the office of chairman or members of the Lokpal the Selection committee shall seek consent of selected candidates before forwarding it to the President for final approval.
Lokpal and Central Bureau of Investigation (CBI) At present CBI is under the control of the Government and we all know now the Ruling Party in the Centre has been misusing the CBI for furthering their interest. Hence, there is an urgent need to bring the CBI out from the control of the Government. Now the question arises that whether CBI should be made an autonomous body or be brought under the control of Lokpal. To make the CBI an autonomous body would mean to create an institution which will have all powers of the police but would not be accountable to anyone. Such an institution could become a threat to our democracy in future. Therefore, I am of the opinion that CBJ may be brought under the control of Lokpal with following provisions: (a) Selection of Director, CBI should be made in the same manner as the members of Lokpal. (b) Director, CBJ shall be under the Lokpal. (c) The Central Government would have no role to play or intervene in formulation of its policy or otherwise. All the work related to CBI shall be done by Lokpal.
Process for removal of Members of Lokpal Who will be vested with the power of removal of Chairman or members of Lokpal In case they have been found involved in corruption? Government wants that this power should exclusively vest in it. I am of the view that this power should be given to the public. Any person could file a complaint against the Chairman or the members of Lokpal the Chairman or the members of Lokpal in the Supreme Court. After hearing the complaint the Supreme Court should decide whether there is prima facie case or not? If there is a case. the Supreme Court shall direct removal of chairman and member of the Lokpal after getting it investigated within three months. In case of false and baseless complaints being made against the chairman or members of Lokpal. The Supreme Court should have power to impose heavy fine or imprisonment so as to deter public from unnecessary wasting the time of the Supreme Court. The power to suspend the Chairman or members of Lokpal against whom. the complaints are under consideration should be with the Supreme Court and not with the Government.
Autonomy and Independence of the Lokpal It is very important that Lokpal should be comp1etely free from Government’s control. It his been observed in the past that the Government is not comfortable with the institutions. It stops funding them adequately in order to cripple their functioning and render them ineffective. Here Lokpal would go into the depth of highest level corruption, it is obvious that it could buy the wrath of those in the Government in some of the cases. Therefore. following provisions are necessary to make the Lokpal autonomous and independent:– 160
1. In order to make Lokpal financially independent a certain percentage of Government of India’s expenditure may be fixed for Lokpal which could be as little as 0.1% of the total expenditure of the Government. Lokpal could ask for budget for spending on any item within the limit of the said allocation which could be placed for approval of Parliament. Lokpal, instead of forwarding its budget to any Ministry, would place it directly before the Parliament. The Parliament shall directly approve its budget. In order to prevent misuse of funds for personal benefits or private amenities, a provision could be made that the pay scales of members of Lokpal and. employees would be at par with the pay scales of similarly placed officials in the Government of India. Lokpal would seek the approval from Parliament for any modifications therein. 2. Lokpal shall be completely independent of the Government for its administrative, economic and functional activities. 3. Lokpal would not be required to get any of its expenditure approved from any Ministry. 4. The appointment of the officers of Lokpal shall be made according to the rules made by the Board of Lokpal (consisting of the Chairman, all members of the Lokpal). 5. Lokpal shall appoint a Secretary whose hierarchy would be at par with the Secretary to the Government of India. 6. Lokpal shall be free to make appointments of judicial officer, advocates, senior advocates etc. for their various functions, 7. In the official Bill the power to formulate rules regarding working of Lokpal has been retained with the Government in respect of many issues. As a consequence the Government is getting overwhelming powers to interfere in the working of the Lokpal. Misusing these powers. the Governments could pose unwanted hindrance in the working of Lokpal. The Power to formulate rules in respect of working of Lokpal should vest exclusively with the Lokpal. The Government should have no power to formulate any rule regarding Lokpal without its concurrence.
Removal of Government Employees from Service: After the completion of an enquiry the case would be referred to the trial court. In addition to this, the officer shall be liable for departmental penalty. In the official Bill there is a provision for imposition of departmental penalty by the Minister of the concerned Department on the employees working under him. It is not possible to abide by the same owing to the close relation between the minister and the employees working under him since they work in close coordination. There is every possibility of their being hands in gloves. Therefore, it is my suggestion that the Lokpal Bench should offer the accused an opportunity to be heard in public and reach the decision for imposition of the departmental penalty. Lokpal would suggest the penalty to be imposed by the Appointing Authority of the accused officer. The Appointing Authority within a month of receipt of the report of the Lokpal shall take a decision on the action to be taken according to report within one month of the Report. In case the Appointing Authority prefers to disagree with the suggestions of the Lokpal, same would be intimated to the Lokpal after recording the reasons therefor. In case the Lokpal feels necessary he would move the Court against this. A bench comprising of the Members of the Lokpal shall deal with the matters related to senior officers. But in order to deal with mutters concerning Junior officers a bench comprising of appointed judicial officers may be constituted. 161
Complaints against Employees of Lokpal: According to the provisions of the draft of the official Lokpal Bill, the Lokpal itself would conduct inquiry into the complaints related to its own employees. This shall create a paradoxical situation. I suggest that for this an independent complaint Authority may be constituted on the lines of suggestions given by the Hon’ble Supreme Court for police reforms. For this the following chapter would be required to be added to the official Lokpal Bill.
Independent Complaint Authority: A complaint authority shall be constituted at the national level and one or more such authorities shall be constituted at State level to hear the complaints against the officers and employees of Lokpal. 2. The procedure for selection to such authorities shall be same as for the members for the Lokpal and it shall be done by the same Committee. 3. The Chairperson of the authority shall be a retired judge of the High Court. In addition to this it shall also have two retired Government officers and two other distinguished citizens. 4. The complaint authority shall conduct open hearing of the complaints against the employees of the Lokpal and shall take a decision on every complaint within two months of its receipt. The employee of the Lokpal shal1 be given every opportunity to defend himself. If the accused employee is found guilty of misconduct, or unfair inquiry or corruption, then the Complaint Authority may order his removal, dismissal or reduction in rank. 5. The final order of the complaint authority shall be appealable to Supreme Court under Article 226 of the Constitution. 6. If the Authority feels it appropriate it can order suspension of the employee of the Lokpal. 7. The Lokpal shall also bear the expenses incurred on the business of the complaint Authority. 8. The business of the Authority shall be transacted in the benches as per rules made under this Act.
Punishment in cases of Corruption: In case a company or its employees is punished under Prevention of Corruption Act such company and all other companies associated with the promoters of such a company shall be barred from transacting business with Government in the future. If any employee is punished for corruption, he shall be removed from his office.
Procedure for Time Bound Appeal: At present it takes many years for a decision by the High Courts in corruption case. therefore, a provision for constitution of special division benches of the High Court for exclusive hearing of cases under Anti-Corruption law shall be inserted in the law. The law should provide that hearing of such appeal shall be concluded within a period of not more than six months. The Judges of special courts (at trial level) hearing cases under Prevention of Corruption Act and the judges of the Appellate Benches constituted in the High Courts for hearing these cases shall exclusively hear the cases of Prevention of Corruption Act. 162
Incentives to Whistleblowers: Encouraging persons against corruption. The Lokpal shall put in place the appropriate incentive schemes to encourage Government employees and other citizens to raise their voice, against corruption, to provide information and encourage spirit of providing evidences about corruption and the amount of such incentive award shall not be more than 10% of the amount recorded either out of the loss suffered by the Government or expected loss to the Government.
Protection to Whistleblowers: Persons raising voice against corruption either by using Right to Information or otherwise are being targetted across the nation. They are being victimized and are also subject to attacks. There is apprehension that no sooner than some person lodges a complaint with Lokpal he would be subjected to harassment. In such a situation only the Lokpal will be better placed to provide security to the complainant since it would be well conversant with the case. But to tackle this problem, the Government is bringing a separate bill where the authority to provide security to the person raising voice against corruption will vest with the Central Vigilance Commission instead of the Lokpal. In the year 2003, the Supreme Court in the matter of Satyendra Dubey’s Murder had appointed Central Vigilance Commission (CVC) as the nodal agency to provide professional and physical security to the Whistleblowers. But during past 8 years despite receiving a huge number of applications the CVC. has failed to provide security even to a single person. It is because that the CVC neither has the resources nor the authority to do so. During the last few years 13 right to information activist have been murdered and CVC has failed to provide security to anyone of them. Even the Standing Committee of the Parliament stated in their point that the CVC is not the appropriate institution for this work. I therefore, strongly opine that the responsibility of providing security to the whistleblowers should vest with Lokpal.
Annexure ‘A’ Definition: ‘Grievance’ means a claim made by any person who did not get a satisfactory solution as provided in Citizen’s Charter even after contacting the Head of a department.
Chapter: 1. After the enforcement of this law every public authority shall in a reasonable time, but within a maximum of one year, formulate a citizen’s charter. 2. Every Citizens’ Charter shall clearly mention the committed time frame and business being transacted by the officers responsible for completion of the work within given time frame. 3. If any public authority fails to formulate a citizens’ charter within an year of the enforcement of this law. The Lokpal after the deliberation with that public authority shall itself formulate the Citizens’ Charter and it would be binding upon the Public Authority. 4. Every public authority shall assess the necessary resources required to implement its Citizens’ Charter and the Government shall provide the said resources. 5. Every public authority, in its office where it may be, shall nominate one employee as the public grievance officer. In the event of violation of the Citizens’ Charter a citizen will be able to complain to such Public Grievance Officer. 6. The senior most officer in every office shal1 be nominated as the public grievance officer. 163
7. It will be the duty of the public grievance officer to receive complaints regarding violation of Citizens’ Charter and to address them not more than 30 days time. 8. In the event of a complaint, not being addressed within the stipulated time frame of 30 days by the public grievance officer, a complaint can be lodged with the Head of the Department. 9. If the head of the department also fails to address the problem within 30 days, a complaint can be made to the Judicial officer of the Lokpal. 10. Lokpal shall appoint at least one judicial officer in every district. This number may be more, depending upon the quantum of work in every district. Lokpal shall appoint Judicial officers from amongst retired judges, retired Government officers or such kind of ordinary citizens. 11. If in the opinion of the judicial officer, the complaint has not been address in an appropriate matter, he shall penalize the responsible officer for the non-redressal of the grievance after giving the related parties an opportunity for hearing. The penalty for delay in grievance redressal shall not be more than 500 per day and 50,000 per officer. This amount shall be deducted from the salary of the accused officer for responsible. In such cases, if aggrieved person is socially or economically backward, the amount of penalty to be recovered from the responsible officer will be double. 12. In such cases the Judicial officer of the Lokpal shall also order the concerned officer to address the complaint of the complainant in a given time frame. 13. Recurrence of similar nature of complaints received against an officer, it will be treated as corruption. 14. In the event of recurring complaints being received against an officer, the judicial officer shall recommend to the division bench of Lokpal for removal or reduction in the rank of the responsible officer for such complaints. The division bench after duly hearing the officer shall recommend such stringent action to the Government. 15. Every public authority shall review its Citizens’ Charter once a year and shall bring appropriate changes. The review shall be done in the presence of the representative of the Lokpal and through public deliberations. 16. The Lokpal can order for incorporating changes in the Citizens’ Charter of the public authority. But such changes have to be approved by the three member division bench of the Lokpal. 17. The concerned public authority shall implement the order of the Lokpal to make changes in the Citizens’ Charter within one month of the receipt of such order. 18. The social audit of the work of every judicial officer shall be done once in every six months. In such social audit the judicial officer shall present himself before the public, and present all facts related to his work, shall answer all question asked by the public and shall incorporate the suggestions of the public in his procedure. Such public hearing shall be done in the presence of the senior officer of the Lokpal. 19. No case shall be closed until the complaint of the complainant is addressed or it is rejected by the judicial officer.
Sd/- (SHRI SHAILENDRA KUMAR) Member, Lok Sabha 164
(v) MINUTES OF DISSENT SUBMITTED BY SHRI PRASANTA KUMAR MAJUMDAR: As has been widely acknowledged by overwhelming sections of our society, unabated rise of corruption and incidents of scams are attributable to the policy of economic liberalization being mindlessly pursued by the successive Governments since the early 1990’s in the country without caring for the need of putting in place adequate regulatory measures and/or ensuring transparency. Even the commitment for putting in place the mechanism of ‘Ombudsman’ (Lokpal) have witnessed wavering by Government of the day since 1967. The present Lokpal Bill, 2011, therefore, holds out yet again a substantial potential for the Parliament to make good for the lost opportunities by bringing in an effective Law; in the backdrop of the enormous dimension and magnitude of corruption witnessed by the society virtually since independence of our country, in its attempt to usher in a corruption-free system of governance. Since India is a country comprising vastly of poor population and knowing that corruption hurt them the hardest, by any attempt to combat the ‘corruption’ if made in a half-hearted manner we would not only be failing in our duty to protect the basic interest of the poor but would also be inviting the wrath of the affected citizens which would, in turn, weaken Indian democracy -the signs of which have off late started surfacing in various forms and substance. Viewed in this perspective, the Draft of the 48th Report of the Standing Committee on the ‘Lokpal Bill, 2011’ has disappointed us as it has failed to hit at the root of corruption in our society in several critical areas where it has been seen to be prevailing mostly and, hence, I, on behalf of the Revolutionary Socialist Party, feel constrained to register dissent note on some of the Committee’s recommendations as detailed hereunder:–
Chapter 4: Citizen’s Charter and Grievances Redressal Mechanism: While the recommendation in para 4.16 is appreciated, I would like to reiterate the suggestion made in my letter to the Chairman dated 4/11/2011 that the proposed mechanism on the Citizens’ Charter and Grievances Redressal should be given a Constitutional Status in order to prevent its casual amendments/manipulation.
Chapter 5: Inclusion/Exclusion of Prime Minister: While I take note that on the issue of inclusion or exclusion of the Prime Minister under the Lokpal Committee will be awaiting the outcome of its deliberations scheduled for Nov.30 & Dec. 01, 2011, I take this opportunity to reiterate our party stand that Prime Minister and PMO must be included within the ambit of the Lokpal because Prime Minister is not above the Law and nor is he immune to the Indian Penal Code or Cr. PC in the matter relating to the Prevention of Corruption Act, keeping him out of the Lokpal will not be justified. Notably, Prime Ministers in several other democracies of the world are included within the provision of Ombudsman.
Chapter 8: Inclusion of Lower Bureaucracy under the Lokpal: The common man (aam admi) experiences ‘corruption’ at the lower level of bureaucracy who are entrusted with the responsibility of delivery of public services, like issuing of Ration Card, Birth Certificate, ST/SC/OBC certificates, Driving Licence, Passports, Disbursement of Govt. subsidies and so on, on day to day basis. While the Lokpal Bill is restricted to the Group-A cadre
164 165 of bureaucracy, it is recommended in the Draft Report (Para 8.18A) for inclusion of Group-B official within its ambit.
Since this will be a half-hearted attempt to combat corruption, we strongly demanded that Group-C employees of Govt/PSUs must be brought under the Lokpal in order to make the system corruption free.
Chapter 10: Corruption in Judiciary: While we confer with the suggestion contained in para 10.21 (ii) of the Draft Report that subjecting judiciary to the normal process of criminal prosecution or punishment through the normal courts of the land would not be conducive to the preservation of the judicial independence in the long run, we demand that a comprehensive provision for facilitating investigation/prosecution and punishment against corruption in the judiciary in a non-complicated manner by an appropriate provision in the proposed Judicial Commission. We demand that this requirement mlust be fulfilled by providing appropriate mechanism within the Judicial Standards and Accountability Bill, 2010. We would demand that the above Chapter-wise suggestions may be incorporated in the final Report of the Standing Committee failing which this letter be treated as a Note of Dissent from my side and be annexed to the Final Report of the Committee.
Sd/- (SHRI PRASANTA KUMAR MAJUMDAR) Member, Lok Sabha 166
(vi) MINUTES OF DISSENT SUBMITTED BY SHRI PINAKI MISRA: 1. The Biju Janata Dal (BJD) is firmly of the opinion that the office of the Prime Minister must be included in the purview of the Lokpal Institution. The Constitution framers advisedly did not give the Prime Minister any immunity from prosecution, as the did to the office of the President of India. Similarly the Indian Parliament when enacting the Prevention of Corruption Act did not give the P.M. any immunity from prosecution. In fact this was again advisedly so since, unlike in the United States of America, in our system since independence the P.M. has very often held important economic portfolios such as defence, telecom etc., in which ministries there have been numerous scandals. Therefore there is no reason to grant the P.M. who in our Parliamentary System is “only first among equals”, any immunity from the Lokpal’s scrutiny, WHILE THE P.M. HOLDS OFFICE. This can be subject to just exceptions of some sensitive subjects like Space, Atomic Energy, National Security etc. Also a further safeguard could be that the full strength of the Lokpal must decide on a investigation/prosecution of the P.M., with at least a 3/4th majority deciding in favour of such action. 2. The ‘A’ and ‘B’ category Govt. Servants in Central Services have already been included as per the Committee’s decision. As far a category ‘C’ is concerned a provision should be incorporated in the Bill that in the event in future the Lokpal believes that there are any “significant decision making level staff” escaping the rigors of scrutiny, and which is significantly impacting the anti corruption drive, the said “C” category staff may also be included. That way the vast number of nearly 57 lakh “C” level employees such as peons, stenos and typists etc., who really have no important decision making roles, will not burden the Lokpal Institution. The BJD believes the Lokpal at the Centre should be a body of prestigious and reputed persons, served by a honest and compact Secretariat and the discussion which was mooted in our Committee Meetings that a 35,000 strong Lokpal Secretariat could be created to monitor the approximately 60 lakh employees of “A”, “B” &”C” category will be extremely impractical due to multifarious reasons. Further the lower bureaucracy in category “C” in the States, who play an important role in the lives of the people on a daily basis such as SHOs’ and sub inspectors of police, junior engineers of various departments such as PWD, irrigation and rural development, excise and civil supplies staff, revenue field staff etc. can all be included under the purview of the Lokayukts in the States, which would make the Institution have a wide base at the bottom, becoming learner and more tightly knitted as it goes up, to tackle the big ticket corruption at the Central level, rather than making it “TOO TOP HEAVY”, which may result in collapse of the mechanism before it starts its important work. 3. The independence of the C.B.I. is of paramount importance. The Supreme Court’s judgment in the Vineet Narain case envisaging the independence of the C.B.I. has been followed in the breach by all Government since 1998. This is because the C.B.I. has continued to be the favoured hatchet instrument of all ruling regimes, and therefore it has become ineffective in tackling corruption, and that has led to the present clamour for a popular anti corruption crusade leading up to the demand for a vigorous Lokpal by the public. The decision of the Committee on 30th November to free the C.B.I. Director’s appointment from the control of the ruling Government was a salutary step and the decision to reverse the same by majority vote at the meeting of 1st December is MOST REGRETTABLE and appears to have
166 167 been motivated by vested interests at the Centre. The B.J.D. believes that since the C.B.I. is going to be the principal investigative arm of the Lokpal, it must be released from the right control of the Central Government as at present. The post of Director C.B.I. and all Special Directors must be selected by a Selection Committee comprising of the Prime Minister, Leader of the Opposition in the Lok Sabha and the Chairman, Lokpal. This would be an effective way to ensure that in future the ruling party at the Centre is not able to control the C.B.I. through handpicked officers and pick and choose the anti corruption drive to suit their political convenience as has happened repeatedly in the past, leading to severe erosion in the credibility of the C.B.I. and serious weakening of the entire anti corruption drive. Further it has been seen that the C.B.I. has become the exclusive turf of the Indian Police Service, which is not desirable. It should be ensured in future that the C.B.I is staffed with officers from diverse services in order to make it a more representative body. Similarly the post of CVC and the Director of the Directorate of Prosecution (recommended elsewhere by our Committee), should also be released from Governmental controls and be selected by this above suggested independent mechanism. This would truly add to the robustness of the anti corruption movement. 4. The decision of the Committee to recommend separate Constitutional provision for the creation of an independent Citizen’s charter is a good step and the B.J.D. hopes that an effectives Citizen’s Charter and Public Grievance Redress mechanism will be put in place by the Government at the earliest. The B.J.D. believes that the mechanism provided by the Government in the draft Citizen’s Right to Grievance Redress Bill which has been put up on the website is inadequate and must be comprehensively changed and redrafted to make it more efficacious. Further since giving effect to this would entail substantial additional expenditure for poorer states like Odisha, the BJD hopes that the Central Government will support the states entirely in terms of the necessary financial outlay in that regard. 5. The B.J.D. also believe that the present Whistleblower’s Protection Bill that is pending in Parliament has serious lacunae and has given rise to acute misgivings amongst large sections of Civil society. This must be withdrawn by the Government and a more comprehensive and effective Whistleblower’s Protection Bill should be introduced at the earliest.
Sd/- (SHRI PINAKI MISRA) Member, Lok Sabha 168
(vii) MINUTES OF DISSENT SUBMITTED BY ADV. A. SAMPATH: The people of India are eagerly expecting Parliament to adopt a legislation that will constitute an effective Lokpal authority to curb corruption in high places and in the public sphere. With this in view, 1 am submitting this note of dissent as I strongly feel the incorporation of the steps mentioned below are essential for a strong and effective Lokpal body to be set up. 1. The Prime Minister should be brought under the purview of the Lokpal. 2. The Members of Parliament should be brought under the purview of the Lokpal. For Members of Parliament, Article 105 of the Constitution provides protection with regard to freedom of speech and voting. The real issue is that, this freedom and protection does not extend to acts of corruption by Members of Parliament. This should be done through an amendment to Article 105 of the Constitution of India on the lines recommended by the National Commission to review the working of the Constitution. 3. The powers of the Lokpal should be expanded to include not only Group A and Group B officers, but also officers belonging to Group C and Group D. The provisions for the State Lokayuktas should contain similar counterpart reference for purposes of coverage of all similar categories at the state level which are the same or equivalent to Group A., Group B, Group C and Group D for the Lokpal. 4. The constitution of the Search Committee should be made mandatory to prepare the panel of names for the consideration of the Selection Committee for the appointment of chairperson and other members of the Lokpal. 5. The Lokpal should be provided with its own investigative mechanism with exclusive jurisdiction for the Prevention of Corruption Act. 6. The CBI Director should be selected by the Selection Committee constituted for selecting Chairperson and other members of the Lokpal. 7. The definition of “corruption” under the PCA 1988 is inadequate. Therefore the following needs to be added: “willfully giving any undue benefit to any person or obtaining any benefit from any public servant in violation of any laws or rules.” 8. Lokpal should be given powers to investigate cases which involve business entities and to recommend cancellation of licenses, contracts, lease or agreements if it was obtained by corrupt means, The Lokpal should also have the power to recommend blacklisting companies from getting Government contracts and licenses. Similarly, if the beneficiary of an offense is a business entity, the Lokpal should have the power to recommend concrete steps to recover the loss caused to the public exchequer.
Sd/- (ADV. A. SAMPATH) Member, Lok Sabha
168 169
(viii) MINUTES OF DISSENT SUBMITTED BY SHRI S. SEMMALAI: I strongly feel that the decision arrived at the Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice relating to the formation of Lokayukta as necessary instrument to contain corruption through a single enactment of Lokpal Bill by the Centre is an infringement of the State’s power and intrusion of State autonomy. It would strike at the roots of the federal concept enshrined in the Constitution of India. Art. 246 of the Constitution empowers the States to make law with respect to any of the matters enumerated in list-III of the Seventh Schedule of the Indian Constitution. By exercising the powers provided under Art. 253 of the Constitution has indicated in the draft report, the Centre attempts to over-ride the independence of the State and relegate the States to a subordinate position. This is quite unacceptable. The concept of federalism, as mandated by the Constitution does not allow the Center to treat the States with over-riding powers and authority. Strong States are vital to a stable and strong Center. The Constitution does not make any difference between Centre and States and the concurrent list enjoyed by the Centre and the States should be to serve the interest of both the limbs. Hence, I strongly advocate that the States should be given freedom to constitute Lokayukta and the State Legislature should be allowed to decide when and in what manner such a body (Lokayukta) has to be created. The Center’s directions in this regard through a Lokpal Act as contemplated in the Committee’s report is unwarranted and unjustifiable. I place on record on behalf of my party AIADMK my dissenting view against the Committee’s report in paragraph 16 of page No.143. I urge the Committee to reconsider its view taking into account the strong sentiments and views expressed by the Government of Tamil Nadu and other State Governments and withdraw the portion of the recommendation (Para 16 of Page No.143) contained in the Committee report.
Sd/- (SHRI S. SEMMALAI) Member, Lok Sabha
169 170
(ix) MINUTES OF DISSENT BY KUMARI MEENAKSHI NATARAJAN, ADV. P.T. THOMAS AND SHRIMATI DEEPA DASMUNSHI We the undersigned member of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice propose that the 48th Report of the Committee on the Lokpal Bill, 2011 be amended as needed to reflect the following:- 1. The CVC should be placed under the Lok Pal and the State Vigilance Commissions should be under Lokayukta. 2. Investigations into corruption cases by the CBI shall be subject to the superintendence and control of the Lok Pal. 3. Group C officers shall be included in the jurisdiction of the Lok Pal in accordance with appropriate administrative arrangements. 4. The proposal that Article 311 of the Constitution of India be repealed or amended should be deleted from the Report.
Sd/- (Meenakshi Natarajan)
Sd/- (P.T. Thomas)
Sd/- (Deepa Dasmunshi)
170 171
(x) MINUTES OF DISSENT SUBMITTED BY SHRI VIJAY BAHADUR SINGH: The common man is being harassed and has to pay bribes at each steps whenever he contacts the Government officials. The quantum of bribe increase with the status of officials. But the common man in majority is harassed by lower officials also and have to grease their palm at the entry level who are mostly lower officials. Since, in Lokayukta at the State level employees of Class-I to IV have been covered there is no reason or logic of exempting similar Class-C employees in the Central Government from the jurisdiction of Lokpal. Majority of the poor man are harassed on day to day basis by Class-C employees also in very large degrees. Therefore, it would fair, proper and also in public interest to cover Class-C employees also under jurisdiction of Lokpal.
Sd/- (Vijay Bahadur Singh)
171
MINUTES
XV FIFTEENTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Wednesday, the 10th August, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Ram Jethmalani 3. Shri Parimal Nathwani 4. Shri Ram Vilas Paswan
LOK SABHA 5. Shri N.S.V. Chitthan 6. Shri Shailendra Kumar 7. Dr. Kirodi Lal Meena 8. Kumari Meenakshi Natarajan 9. Shri Devji M. Patel 10. Shri Harin Pathak 11. Shri Lalu Prasad 12. Shri S. Semmalai 13. Shri Vijay Bahadur Singh 14. Dr. Prabha Kishor Taviad 15. Shri Manish Tewari 16. Adv. P.T. Thomas (Idukki)
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
A. WITNESSES I. Ministry of Personnel, Public Grievances and Pensions • Department of Personnel and Training 1. Shrimati Alka Sirohi, Secretary;
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2. Dr. S.K. Sarkar, Additional Secretary (S&V); 3. Shri Alok Kumar, Joint Secretary (Vigilance); and 4. Shri Ashok K.K. Meena, Director (V-II). • Central Bureau of Investigation Shri Balwinder Singh, Special Director. • Central Vigilance Commission Shri K.P. Tripathi, Secretary. II. Ministry of Law and Justice • Legislative Department Shri N.K. Nampoothiry, Additional Secretary. B. NON - OFFICIAL WITNESSES 1. Shri Anna Hazare; 2. Shri Arvind Kejriwal; 3. Ms. Kiran Bedi; 4. Shri Shanti Bhushan; and 5. Shri Prashant Bhushan. 2. The Chairman of the Committee extended a warm welcome to the Members of the Committee and informed them that Hon’ble Chairman, Rajya Sabha has referred the Lokpal Bill, 2011 to the Committee on the 8th August, 2011 for examination and report within three months. The Committee authorized the Secretariat to issue a press release on the Bill inviting suggestions from individuals, experts/organisations. 3. Thereafter, the Chairman welcomed the Secretary and officials of Department of Personnel and Training and the officers of Legislative Department. He then requested the Secretary, Department of Personnel and Training to make a presentation on the Lokpal Bill, 2011. The Secretary, while making a detailed power point presentation on the Bill, elucidated upon the reasons that necessitated the introduction of the Bill. The Secretary also apprised the Committee about the salient features of the Bill. The Chairman and Members of the Committee sought clarifications, which were responded to by the Secretary. (The witnesses then withdrew). 4. The Chairman then welcomed S/Shri Anna Hazare, Shanti Bhusan, Prashant Bhusan, Arvind Kejriwal and Shrimati Kiran Bedi. He then requested them to place their views on the Lokpal Bill, 2011 before the Committee. 5. The witnesses, raised serious doubts about efficacy of the Lokpal as envisaged in the Bill in tackling corruption. In their opinion the Lokpal in this Bill was not independent of the control of the Government since majority of the Members of the Selection Committee were to be selected by the Government. They also expressed concern on the power given to the Government to suspend a Member of Lokpal. They suggested that all employees, irrespective of their rank or position should be brought under the purview of Lokpal as the Bill in its present state with Group ‘A’ and above officer only within its jurisdiction would not be able to check the day to day corruption at the ground level faced by the common man. They suggested a Lokpal at the Centre and the Lokayuktas in all States/UTs having uniform powers/functions. 177
6. They objected to the provision in the Bill envisaging preliminary enquiry before registering an FIR against a public servant and were unhappy about exclusion of Prime Minister, judiciary, acts of MPs inside Parliament from the purview of the Bill. They suggested that Lokpal should also have the power to protect whistle blowers and pointed out that the punishment in case an act of corruption is proved, is far less than the penalty proposed in the Bill in case of frivolous/malafide complaints. They also objected to the inclusion of even those NGOs within the fold of the Bill which were not getting any aid from Government as, in their view, this would weaken the activities of such NGOs. 7. They were of the view that conflict of interest arising out of public servants dealing with companies/firms/agencies, in their official capacity, taking up post retirement jobs in the same company/firm/ agency, is not addressed in the Bill and opined that duality of agencies in investigation process will lead to overlapping of jurisdiction, thereby hampering the efficiency of the mechanism. The witnesses replied to the queries raised by the Chairman and Members of the Committee. 8. Some Members asked questions form the witnesses. The Chairman pointed out that as far as the Committee is concerned, no proceedings were a formality, that every input would be sought and looked at seriously and that a holistic, considered decision would be taken. The discussion, originally scheduled for one hour with the Hazare Team, lasted just under two hours and was detailed and intense. The Chairman also informed the witnesses that this is only the beginning and that the Committee looked forward to call Civil Society members again in the future. 9. A verbatim record of the proceedings of the meeting was kept.
10. The Committee adjourned at 6.45 P.M. 178
I FIRST MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.00 P.M. on Friday, the 23rd September, 2011 in the Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri O.T. Lepcha 9. Shri Parimal Nathwani
LOK SABHA 10. Shri Kirti Azad 11. Shri N.S.V. Chitthan 12. Shrimati Deepa Dasmunsi 13. Shri Shailendra Kumar 14. Shrimati Chandresh Kumari 15. Shri Prasanta Kumar Majumdar 16. Shri Arjun Ram Meghwal 17. Shri Pinaki Misra 18. Kumari Meenakshi Natrajan 19. Shri Harin Pathak 20. Shri Lalu Prasad 21. Adv. A. Sampath 22. Shri S. Semmalai 23. Shri Vijay Bahadur Singh 24. Dr. Prabha Kishor Taviad 25. Adv. P.T. Thomas 26. Shri Arun Subhash Chandra Yadav
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SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
A. NON OFFICIAL WITNESSES • National Campaign for People's Right to Information 1. Shrimati Aruna Roy; Member; 2. Shri Shekhar Singh, Member; 3. Shri Harsh Mander, Member; 4. Shrimati Anjali Bharadwaj, Member; 5. Shri Nikhil Dey, Co-convener; and 6. Shri Venkatesh Nayak, Co-convener. • Lok Satta Party Shri Jayaprakash Narayan, President.
B. OFFICIAL WITNESSES • Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Shri Alok Kumar, Joint Secretary. • Ministry of Law and Justice (Legislative Department) 1. Shri N.K. Nampoothiry, Additional Secretary; and 2. Dr. Sanjay Singh; Joint Secretary and Legislative Counsel. 2. At the outset, the Chairman welcomed the Members of the newly constituted Committee and briefed them on the Lokpal Bill, 2011 which is presently under examination of the Committee. The Chairman also welcomed the witnesses invited to give oral evidence before the Committee on The Lokpal Bill, 2011 and the representatives of the Department of Personnel and Training and the Legislative Department of Government of India. Thereafter, he requested Shrimati Aruna Roy and her team to apprise the Committee of their views on the various provisions of the Bill. 3. Shrimati Aruna Roy expressed her appreciation of the Committee’s decision to hear all voices with respect to the Lokpal Bill. She apprised the Committee on the main features of the Lokpal Bill drafted by NCPRI and requested the representatives of her organization to make presentations before the Committee on the provisions of the Lokpal Bill. 3.1 Thereafter, the representatives of NCPRI raised their concerns about the issues that remain unaddressed or have been incorrectly addressed in the Government Bill. Offering comments on the selection procedure of the Members of the Lokpal, they proposed that the provision of Search Committee for recommending the Members of the Lokpal should be mandatory. On the inclusion of Group ‘B’, ‘C’ and ‘D’ officials under the Lokpal, they opined that such categories of officials should also be made part of the Lokpal Bill. However, for this purpose, they proposed an alternative mechanism comprising of a system of Uplokpal at the Centre and Uplokayukta in the States. 180
3.2 The witnesses stated that the Parliament is competent enough to legislate for Lokayukta in States and opined that the present Bill should, accordingly, provide for Lokayuktas in the States. They emphasized that constitutional methods are available for achieving this end. On grievance redressal mechanism, they favoured the need for such a system but opined that the issue should be addressed through a separate Bill. 3.3 On the inclusion of the Prime Minister with in the ambit of Lokpal, they were of the opinion that the Prime Minister should be under the purview of the Lokpal provided that safeguards to protect the office of the Prime Minister from frequent frivolous complaints are put in place. 3.4 As regards the punishment for the frivolous complaints, they were of the view that only the complainants with malicious intent should be punished and the quantum of the punishment should also be reduced. They suggested that the Judicial Standards and Accountability Bill should be made more effective over the issue of making judiciary accountable, They also raised the issue of protection of the whistle blowers and suggested measures to be incorporated in the Lokpal Bill so as to ensure the safety of the whistle blowers. 3.5 Thereafter, the Members sought clarifications from the witnesses, who in turn replied in detail. The Chairman requested the representatives to send the replies in writing to questions which were not replied to in the meeting. The witnesses were also requested to send the amendments that they propose in the Government Bill, indicating the additions/deletions therein in square brackets. (The Witnesses then withdrew) 4. Then, the Chairman welcomed Shri Jayaprakash Narayan, President Loksatta Party and requested him to present his viewpoints on various provisions of Lokpal Bill. 4.1 Taking the floor, Shri Jayaparkash Narayan, made an outline of the background of the ongoing debate over the Lokpal Bill in the country. Highlighting the debatable issues with respect to the various provisions of the Lokpal Bill he offered his comments thereon. 4.2 He drew the attention of the Committee towards the various functional and dysfunctional aspects of the implementation of the proposed Government Bill on the Lokpal. He also suggested remedial measures and additional safeguards which need to be considered if the Bill is to make an effective legislation and provide a workable institution of Lokpal commensurate with Indian Constitution and model of governance and polity. 4.3 The main issues he emphasized upon were inclusion of Prime Minister in the Lokpal, putting the conduct of MPs in Parliament within the ambit of Lokpal, issue of corresponding Lokayuktas in States; role, functions, jurisdictions and responsibilities of CVC and CBI in relation to the Lokpal Bill and accountability of judiciary, etc. 5. The Committee, then, decided to hear the rest of presentation of Shri Jayaprakash Narayan the next day i.e. Saturday the 24th September, 2011 and requested him to appear before the Committee, accordingly. (The witnesses then withdrew). 6. The verbatim record of the proceedings of the discussion was kept.
7. The Committee adjourned at 7.42 P.M. 181
II SECOND MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 10.00 A.M. on Saturday, the 24th September, 2011, in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri O.T. Lepcha 9. Shri Parimal Nathwani
LOK SABHA 10. Shri Kirti Azad 11. Shri N.S.V. Chitthan 12. Shrimati Deepa Dasmunsi 13. Shri Shailendra Kumar 14. Shrimati Chandresh Kumari 15. Shri Prasanta Kumar Majumdar 16. Shri Arjun Ram Meghwal 17. Shri Pinaki Misra 18. Kumari Meenakshi Natarajan 19. Shri Harin Pathak 20. Shri Lalu Prasad 21. Adv. A. Sampath 22. Shri S. Semmalai 23. Shri Vijay Bahadur Singh 24. Dr. Prabha Kishor Taviad 25. Adv. P.T. Thomas (Idukki) 26. Shri Arun Subhash Chandra Yadav
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SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
A. NON OFFICIAL WITNESSES 1. Shri Jayaprakash Narayan, Lok Satta Party; 2. Shri Ashok Kumar Parija, Chairman, Bar Council of India; 3. Shri Pratap Bhanu Mehta, President, Centre for Policy Research, New Delhi; 4. Shri Harish N. Salve, Senior Advocate, Supreme Court of India. and 5. Dr. Udit Raj, President, Indian Justice Party.
B. OFFICIAL WITNESSES • Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Shri Alok Kumar, Joint Secretary. • Ministry of Law and Justice (Legislative Department) Shri N.K. Nampoothiry, Additional Secretary. 2. At the outset, the Chairman welcomed the Members of the Committee and Shri Jayaprakash Narayan who had been requested to appear before the Committee for sharing his views/suggestions on The Lokpal Bill, 2011. He also welcomed the representatives of the Department of Personnel and Training and the Legislative Department of Government of India. Thereafter, He requested Shri Jayaprakash Narayan to resume his presentation on the Bill from the previous day. 3. Shri Jayaprakash Narayan made a brief reference to the points he made on the previous day. The issue of the Citizen’s Charter formed the core of his presentation. He was of the view that without making statutory provisions for ensuring legal guarantee to select services, the objective of the Citizen’s Charter remains unfulfilled. 3.1 With regard to frivolous complaints in connection with the functioning of Lokpal, he was of the view that the present law is adequate to deal with such complaints. Recognizing the need for punishment for the malicious complaints, he however, favors a more balanced quantum of punishment. 3.2 He also apprised the Committee over the issues of inclusion of NGOs, corporate houses and media within the ambit of Lokpal Bill. The point that in view of the prevalence of collusive corruption between a public servant and a private entity, mechanism must be worked out so as to bring them under the purview of the Prevention of Corruption Act and the Lokpal institutions. 3.3 Then Members sought various clarifications and the witness responded to some of the queries. The Chairman asked Shri Jaiprakash Narayan to send in writing the replies to questions which were not replied to during the meeting. (The witness then withdrew) 183
4. Then the Chairman welcomed Shri Ashok Kumar Parija, Chairman, Bar Council of India to the meeting and requested him to present his viewpoints on the legal aspects of the various provisions of the Bill. 4.1 Shri Ashok Kumar Parija initiated his response favoured for the Lokpal to be a Constitutional Body in line with the Election Commission. With regard to the coverage of the Lokpal, he suggested the Lokpal to be a decentralized body having multiple branches. He was of the view that the mandate of the Lokpal should be confined only to the investigation part and issues of Citizen’s Charter and Public Grievances Redressal Mechanism should be looked after, separately. 4.2 Expressing his opinion over the CBI, he made a strong case for an independent and autonomous CBI. He also threw light on the rule of Search Committee in the proposed legislation for Lokpal and favoured a more balanced selection body for the members of the Lokpal. Issues like bringing the conduct of MPs in Parliament, whistle blower protection, removal of the Lokpal, Lokayukts in States also formed the part of his presentation. 4.3 Then Members sought various clarifications and the witness responded to some of the queries. The Chairman asked Shri Parija to send in writing the replies to questions which were not replied to during the meeting. (The witness then withdrew) 5. Thereafter, Dr. Pratap Bhanu Mehta made a very lucid and pointed presentation over the provisions of the Lokpal Bill. Bringing out the basic principles that a legislation should meet, he made analytical and insightful observations on the issues arising out of the ongoing debate over the Lokpal Bill. 5.1 Lauding the Lokpal Bill for providing an independent mechanism for pursuing prosecution in cases of corruption, he offered a strong defence for the provisions made in the Bill. On the issue of whether the PM should be within the ambit of Lokpal, he was of the view that given the importance of the office of the Prime Minister, he should be brought within the ambit of the Lokpal subject to certain conditions. Likewise, he also favoured that Constitutional protection provided to the MPs and opined that it should remain intact. 5.2 With regard to whether NGOs, Media and private sectors be brought under the Lokpal, he was apprehensive that such a move may put the dynamism of civil society at a standstill. He was also not in favour of bringing the lower bureaucracy within the ambit of Lokpal. Instead, he suggested that the CVC should be made a supervisory body to look after corruption in the lower bureaucracy. 5.3 Then Members sought various clarifications and the witness responded to some of the queries. The Chairman asked Shri Mehta to send in writing the replies to questions which were not replied to during the meeting. (The witness then withdrew)
(The Committee adjourned for Lunch at 1.30 P.M. to reassemble at 2.15 P.M.) 6. The Chairman while resuming the meeting welcomed Shri Harish N. Salve to the meeting and requested him to apprise the Committee on various provisions of the Bill. Shri Salve set the stage for his presentation on the provisions of the Lokpal Bill by making general comments over the menace of corruption and its socio-political implications. He emphasized that the issues that arose during the ongoing debate on Lokpal need to be examined in the light of the ideas of civil liberties, federalism, and separation of investigation from trials. 184
6.1. He also drew the attention of the Committee to other systemic gap in the judicial delivery system like delay in trails, low conviction rate, and shortage of judges. He was of the view that the civil society version of Jan Lokpal Bill is violative of the principle of federalism. 6.2 He, however emphasized the need for a Union legislation on Citizen’s Charter applicable all over India. On the inclusion of the Prime Minister under the Lokpal, he opined that there should be clear demarcated areas of exclusion in the functioning of the Prime Minister’s Office where the Prime Minister cannot be subject to the Lokpal in the lines of the U.K. and Hong-kong models of ombudsman and supported the idea that functioning of the all economic Ministries under the Prime Minister’s Office should be brought within the ambit of Lokpal. 6.3 He also underscored the need to make NGOs accountable. He was of the view that NGOs must share accountability with other institutions, if they claim to be a part of the governance. Though he was not in favour of putting judiciary under the Lokpal, he, however, contended that judiciary needs to be made more accountable and reviewing of the present collegium system of the appointment of judges. The queries made by Members were replied by the witness. (The witness then withdrew) 7. The Chairman, welcomed the next witness Shri Udit Raj and requested him to present his views on the Lokpal Bill. Arguing for a more inclusive and representative character for the institution of the Lokpal, he appealed the Committee for inclusion of the members of SCs, STs, OBCs, and Minorities in the Lokpal structure. He also argued for broadening the definition of “corruption”, keeping in view the specific requirements of the weaker sections of the society. 7.1 He did not favour the Janlokpal Bill on many counts particularly over its demand for exclusion of the NGOs. Instead, he opined that NGOs should come under the Lokpal. He was also of the view that corporate houses and media should also be covered under the Lokpal. He also floated the idea that the bribe giver must be made accountable by bringing it under the definition of corruption. 7.2 Members sought clarifications from the witness, who in turn responded to in detail. The Chairman of the Committee also requested Shri Udit Raj to send written replies on those matters not readily available with them, for reference of the Committee. (The witnesses then withdrew) 8. The Chairman requested all groups of witnesses to send their proposed amendments in the Government Bill indicating the additions/deletions in square brackets. 9. A verbatim record of the proceedings of the meeting was kept.
10. The Committee adjourned at 4.21 P.M. 185
III THIRD MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 10.00 A.M. on Saturday, the 1st October, 2011, in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri Parimal Nathwani
LOK SABHA 9. Shri Kirti Azad 10. Shri N.S.V. Chitthan 11. Shrimati Deepa Dasmunsi 12. Shri D.B. Chandre Gowda 13. Shri Shailendra Kumar 14. Shri Prasanta Kumar Majumdar 15. Shri Arjun Ram Meghwal, 16. Shri Pinaki Misra 17. Shri Harin Pathak 18. Shri Lalu Prasad 19. Adv. A. Sampath 20. Shri S. Semmalai 21. Shri Vijay Bahadur Singh 22. Dr. Prabha Kishor Taviad 23. Adv. P.T. Thomas (Idukki) 24. Shri Arun Subhash Chandra Yadav
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SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
WITNESSES Central Vigilance Commission 1. Shri Pradeep Kumar, Central Vigilance Commissioner; 2. Shri. K.D. Tripathi, Secretary; and 3. Shri Anil Sinha, Additional Secretary. Central Bureau of Investigation 1. Shri Amar Pratap Singh, Director, CBI; 2. Shri Balwinder Singh, Special Director, CBI; and 3. Shri V.K. Gupta, Special Director, CBI.
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS Department of Personnel and Training 1. Shri Alok Kumar, Joint Secretary (Vigilance); and 2. Shri Ashok K.K. Meena, Director (V-II). MINISTRY OF LAW AND JUSTICE Legislative Department Shri N.K. Nampoothiry, Additional Secretary. At the outset, the Chairman of the Committee welcomed the Members of the Committee and Shri Pradeep Kumar, Central Vigilance Commissioner who was invited to share his views/ suggestions on the provisions of the Lokpal Bill, 2011. He also welcomed the representatives of the Department of Personnel and Training and the Legislative Department. Thereafter, he requested the Central Vigilance Commissioner to apprise the Committee of his views on the Bill. 2. The Central Vigilance Commissioner began with a power point presentation and outlined the powers and responsibilities conferred upon the Central Vigilance Commission under the CVC Act, 2003. He also threw light on the major causes of corruption, the activities of the Commission in relation to complaint handling, preventive action, preventive vigilance international collaborations and the Commission’s supervisory role vis-a-vis the CBI. He highlighted how the nature of superintendence of the institution of Lokpal differs from that of CVC and elaborated on how both institutions can strengthen the vigilance administration. On corporate corruption, he opined that provision should be made in the Lokpal Bill and the Prevention of Corruption Act to address corporate corruption. 3. The CVC favoured a strong and effective Lokpal to focus on political corruption while the CVC should continue to function as a premier integrity institution with the jurisdiction over higher 187 bureaucracy. He was of the view that CVC and Lokpal should work in tandem without disturbing the prevailing vigilance administration. 3.1 On the lines of Second Administrative Reforms Commission, the witness recommended that CVC be made an ex-officio member of the Lokpal. For the purpose of further strengthening of CVC, he advocated that CVC should be accorded autonomy on the lines of UPSC & CAG and that Departments of Government of India should be made liable to explain in Parliament for non - acceptance of CVC’ s advice. He further suggested that time limit should be fixed for trials under the Prevention of Corruption Act and appeals before High Courts should also be disposed within a fixed time frame. 4. The Members took note of the points made by the witness and sought various clarifications from the witness. The Chairman also requested the witness to send the replies in writing. (The witness then withdrew) 5. The Chairman of the Committee extended a warm welcome to Shri Amar Pratap Singh, Director, CBI and requested him to apprise the Committee of his views on the Lokpal Bill, 2011. The witness expressed his appreciation on the objectives of the Bill and termed it as a strong anti- corruption measure. He, however. emphasized the need for further strengthening of the CBI and enhancing its functional autonomy to effectively deal with the menace of corruption. 5.1 The witness further suggested that a collaborative synergy needs to be evolved between the Lokpal and CBI, if the corruption in the country is to be effectively curbed. He also drew the attention of the Committee on delays in trials and huge pendency of cases and suggested that a strong criminal justice system is needed to strengthen and supplement the anti corruption measures being taken by the Government. 6. He was, however, not in favour of merging the anti-corruption wing of CBI with Lokpal and argued that such a move is not practical as it may pave the way for overlapping of jurisdiction between CBI and Lokpal. Likewise, he also did not support subsuming the prosecution wing of CBI. Instead, he opined that Lokpal can exercise general superintendence on anti-corruption matters as laid down in the Vineet Narayan case. 7. Referring to the observations made by the Supreme Court in the Vineet Narayan Case, he requested the Committee to consider more autonomy and enhancement of the time-period of the tenure of Director, cm. He also favoured that the Director, CBI should be made an ex-officio member of the Institution of Lokpal with same powers and status as prescribed for other members of the Lokpal. He, however, opined that all powers to meet financial, administrative and legal requirements of CBI may vest in Lokpal and the power to sanction prosecution under the section 197 of the CrPC and section 19 of Prevention of Corruption Act in anti-corruption cases of CBI may also vest in Lokpal. 8. The Members took note of the points made by the witness and sought various clarifications. The Chairman asked the witness to send written replies to questions which could not be answered. (The witness then withdrew) 9. A verbatim record of the proceedings of the meeting was kept.
10. The Committee adjourned at 2.00 P.M. 188
IV FOURTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.30 P.M. on Thursday, the 13th October, 2011 in Room No. G-74, Parliament Library Building, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri O.T. Lepcha 9. Shri Parimal Nathwani
LOK SABHA 10. Shrimati Deepa Dasmunsi 11. Shri D.B. Chandre Gowda 12. Shri Shailendra Kumar 13. Shrimati Chandresh Kumari 14. Shri Arjun Ram Meghwal 15. Shri Pinaki Misra 16. Kumari Meenakshi Natarajan 17. Shri Harin Pathak 18. Adv. A. Sampath 19. Shri S. Semmalai 20. Shri Vijay Bahadur Singh 21. Dr. Prabha Kishor Taviad 22. Adv. P.T. Thomas (Idukki)
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director
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Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
A. NON OFFICIAL WITNESSES 1. Justice M.N. Venkatachalaiah, Former Chief Justice of India; and 2. Justice J.S. Verma, Former Chief Justice of India
B. OFFICIAL WITNESSES Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training Shri Alok Kumar, Joint Secretary (Vigilance) Ministry of Law and Justice (Legislative Department) 1. Shri N.K. Nampoothiry, Additional Secretary; and 2. Shri Diwakar Singh, Deputy Legislative Counsel. 2. At the outset, the Chairman extended a warm welcome to Members present and the witnesses. Briefly highlighting on the credentials of the witnesses, he invited them to share their much valued views on the Lokpal Bill and principally on the aspect of going in for a constitutional amendment. 3. Justice M.N. Venkatachalaiah traced the evolution of the institution of the Indian Parliament and stated that it has a great reputation all over the world. He drew the attention of the Committee on how the Indian democracy has been penned as robust but at the same time, the rowdiest in the world and how the Parliament has sustained this great experiment. 4. The witness expressed his disappointment on the developing culture of negative social critical mass which unleashed a chain reaction and the disenchantment with institutions of democracy and of governance, which has unleashed a sense of cynicism and worked as a power of destruction rather than that of re-construction. He emphasised on the ethical and philosophical foundations of the whole matter for rooting out corruption. 5. The witness however, cautioned that the paranoia of corruption demoralizes the administration. Honest officers should not be under a fear psychosis that they do not want to take decision out of fear that somebody would raise an issue. Such being the situation, he felt that a constitutional declaration would assure the people that they live under the protection of an adequate system and then decide how the law should be framed. He wound up his submissions opining that the Parliament of India must foremost come out with a constitutional exhortation that will provide a system of protection to the people from corruption. 6. The Chairman thanked Justice M.N. Venkatachalaiah and invited Justice J.S. Verma to take the floor. 7. Justice J.S. Verma expressed his gratitude for the invitation to share his views on the Lokpal Bill and announced his total agreement with the views of Justice Venkatachalaiah for bringing out a constitutional declaration. He also expressed his distress on the movement implying that everyone is above Parliament and reminded that all legislations must be done within the constitutional framework, and that the Constitution had entrusted that task to Parliament. 190
8. Reacting to cries for a strong Lokpal and substantiating on his support for a Constitutional declaration, he stated that there could be nothing stronger than a Constitutional mandate. 9. He stated that passage of this Constitution Amendment Bill would make Lokpal a part of the Constitution which implies that it remains a permanent feature and cannot be ordinarily amended like an ordinary statute by some simple majority. Secondly, when it becomes a basic feature and a part of the indestructible basic structure of the Constitution, it would be beyond the amending power of any political equation or formulation and even of Parliament. In this way, the demand for a strong Lokpal would also be fulfilled. 10. Justice Verma cautioned over a hasty legislation. He implored for a holistic approach as Justice Venkatachaliah had pointed out in addressing the morality aspects and the ethical values in the legislation, the working of the system and its faithful implementation has to be seriously addressed and accountability ensured when the details are drawn up. 11. He concluded his presentation conveying his faith in Parliament and pointing out the noteworthyness of the high degree of commitment in the debate in Parliament and the earnestness with which Members spoke on the subject cutting across party lines. 12. At this juncture, the Chairman pointed out that adopting Article 253 of the Constitution for legislation for the States would invite federal debate and sought clarification on the matter. He also requested the witnesses to elucidate on their use of the phrase “appropriate legislature” in the Lok Ayukta context which leaves a speculation as to whether it is Central or State legislature. 13. The witnesses informed the Committee that Article 253 of the Constitution provided for implementing an international treaty, convention, etc., and as such, the Parliament is entitled to enact for the whole or any part of the territory as has already been done in the case of the Protection of Human Rights Act, 1993. As regards the use of the term “appropriate legislature” in the case of Lok Ayukta, they informed that it has been done deliberately to avoid the contentious issue of contesting the erosion of the spirit of federalism. 14. Thereafter, Members sought clarifications on the various provisions of the Lokpal Bill and issues related thereto which were clarified by the witnesses. 15. The Chairman then thanked the witness and expressed appreciation for sharing their erudite views with the Committee. He also requested them to send in writing, if they so desire to make supplementary submissions on the issues discussed. (The witnesses then withdrew) 16. A verbatim record of the proceedings of the meeting was kept.
17. The Committee adjourned at 7.15 P.M. 191
V FIFTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Thursday, the 14th October, 2011 in Room No. ‘63’, First Floor, Parliament House, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Sukhendu Sekhar Roy 6. Shri O.T. Lepcha
LOK SABHA 7. Shrimati Deepa Dasmunsi 8. Shri D.B. Chandre Gowda 9. Shri Shailendra Kumar 10. Shrimati Chandresh Kumari 11. Shri Arjun Ram Meghwal 12. Kumari Meenakshi Natarajan 13. Shri Harin Pathak 14. Shri Lalu Prasad 15. Shri Vijay Bahadur Singh 16. Dr. Prabha Kishor Taviad 17. Adv. P.T. Thomas (ldukki) 18. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
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A. NON OFFICIAL WITNESSES Confederation of Indian Industry (CII) 1. Shri B. Muthuraman, President; 2. Shri Sunil Kant Munjal, Past President; 3. Shri Harpal Singh, Chairman, CII National Committee on School Education; 4. Shri S Sen, Principal Advisor; and 5. Shri Sunil K Misra, Director. Federation of Indian Chambers of Commerce and Industry (FICCI) 1. Shri R.V. Kanoria, Senior Vice President; and 2. Shri Arun Chawla, Assistant Secretary General. The Associated Chambers of Commerce and Industry (ASSOCHAM) 1. Shri Dilip Modi, President; 2. Shri D.S. Rawat, Secretary General; and 3. Shri Anil Singhal, Chief Technical Examiner.
B. OFFICIAL WITNESSES I. Ministry of Personnel, Public Grievances and Pensions • Department of Personnel and Training Shri Alok Kumar, Joint Secretary. II. Ministry of Law and Justice • Legislative Department 1. Shri N.K. Nampoothiry, Additional Secretary; 2. Shri Diwakar Singh, Deputy Legislative Counsel; and 3. Shri K.V. Kumar, Assistant Legislative Counsel.
2. At the outset, the Chairman extended a warm welcome to Members and Shri B. Muthuraman, President, CII and his team. He invited the President, CII to comment on the issues contained in the Lokpal Bill, 2011 and particularly on whether the corporate sector should be subjected to Lokpal.
3. Shri Muthuraman expressed appreciation for the invite and made preliminary remarks on how corruption is damaging the country in several ways. He suggested two key measures that needed to be put in place for progress towards a corruption free environment - First, to create systems and processes that make it difficult to adopt corrupt practices. Secondly, to create machinery, mechanisms and laws that identify and punish corrupt practices. 4. The witness informed the Committee that the CII welcomed the introduction of the Lokpal Bill which ensured the second measure for curbing corruption by creation of law and machinery to punish corrupt practices. He observed that the Prime Minister should be outside the purview of the Lokpal and may be investigated after he demits office. He favoured continuance of the existing arrangement as regards inclusion of the Judiciary and MPs’ action inside the Parliament while phone tapping and protection of whistle blowers may be ensured with a separate law. He did not favour merging of CBI’s Anti-Corruption Wing with the Lokpal. 193
5. The witness opined that inclusion of all bureaucracy may become an unworkable proposition and therefore, for the first few years Lokpal should restrict itself only to higher bureaucracy and later, lower bureaucracy may be included. He supported the setting up of Lokayuktas in the States and for making an enabling provision in the Lokpal Bill for that purpose. 6. Placing his views on the inclusion of the corporate sector, the witness stated that enough mechanisms already exist for corporate sector and as such, in his view, the corporate sector should not be covered under the Lokpal. He, however, felt that implementation of these mechanisms can be improved upon. On being asked to share his views of what the defining line should be if at all, corporates and the private sector should be considered for inclusion within the purview of Lokpal, the witness submitted that only that realm of the corporate body whose entity is owned by public money in part or in whole may be considered for inclusion in the Lokpal. 7. Thereafter, Members sought clarifications on various related issues arising out of the presentation and the witness responded. Chairman also requested the witness to give written response to the queries of Members, alongwith the changes proposed in the Bill. (The witnesses then withdrew) 8. Chairman extended a warm welcome to Shri R.V. Kanoria, Vice-President, FICCI and his colleague and requested him to make focussed comments on the contentious issues in the Lokpal Bill, 2011 and from the point of view of Chamber of Commerce, to share his views on subsuming of corporations within the ambit of a Lokpal. Shri Kanoria thanked the Committee for the invite and in his preliminary remarks said that in a democracy, Parliament is supreme and sovereign in determining the nature of legislation and change in established law. 9. Coming to the subject, the witness stated that coverage of corporates under the Lokpal should be to the extent of involvement in collusive corruption. He also suggested that adequate protection to whistleblowers in corporates within the whistleblower policy should be ensured through a legislation. As regards the issue of bringing the lower grade officers within the ambit of the Bill, he claimed that the maximum harassment meted out was from the lower grade officers. Moreover, most of the decision making is done at these levels and therefore, the scope of the Bill should be extended to the lower grade officers. 10. On the concept of bringing about a Citizen’s Charter, he was of the view that non- adherence to a Charter tantamount to either abrogation of duty or corruption and, therefore, should be taken into account. He suggested to give powers to the Lokpal to take cognizance, investigate and initiate a trial on the basis of suo motu evidence without having to go back to the Government. He also felt judiciary’s independence should be maintained and supported the idea of Lokpals in the States on uniform lines. 11. Thereafter, Members sought some clarifications and the witness replied to those queries. The Chairman requested the witness to give written replies alongwith changes proposed in the Bill. (The Witnesses then withdrew) 12. Then the Chairman welcomed Shri Dilip Modi, President, ASSOCHAM and his colleagues and requested him to share his views on the issues in the Lokpal Bill, 2011 vis-a-vis corporations. 13. Shri Modi thanked the Committee for giving the opportunity to share their views and claimed that since the corporates are already covered in the Prevention of Corruption Act, it would not be proper to bring the corporates within the purview of Lokpal. He also contended it important that the Lokpal Bill should not be seen in isolation, but in the context of a comprehensive statute in consonance with other existing laws. The witness was of the opinion that judiciary should be kept out of this Bill and the independence of judiciary should be maintained. With regard to the 194 drawing line on the extent of coverage of the corporates, he assured the Committee that written submissions would be made thereon. 14. Thereafter, Members sought some clarifications on various related issues arising out of the presentation and the replies were given to those queries. The Chairman requested the witness to give written replies alongwith the changes proposed in the Bill. (The witnesses then withdrew) 15. A verbatim record of the proceedings of the meeting was kept.
16. The Committee adjourned at 6.35 P.M. 195
VI SIXTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 2.00 P.M. on Thursday, the 21st October, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Sukhendu Sekhar Roy 5. Shri Parimal Nathwani
LOK SABHA 6. Shri N.S.V. Chitthan 7. Shrimati Deepa Dasmunsi 8. Shri D.B. Chandre Gowda 9. Shri Shailendra Kumar 10. Shrimati Chandresh Kumari 11. Shri Prasanta Kumar Majumdar 12. Shri Arjun Ram Meghwal 13. Kumari Meenakshi Natarajan 14. Shri Harin Pathak 15. Shri Lalu Prasad 16. Adv. A. Sampath 17. Shri S. Semmalai 18. Shri Vijay Bahadur Singh 19. Dr. Prabha Kishor Taviad 20. Adv. P.T. Thomas (Idukki) 21. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director
195 196
Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
A. NON OFFICIAL WITNESSES 1. National Commission for Scheduled Castes Shri P.L. Punia, Chairman
2. Delhi Commission for Protection of Child Right's 1. Shri Amod K. Kanth, Chairperson; and 2. Shri Shashank Shekhar.
3. Federation for Economic Freedom 1. Shri Bharat Gandhi, Political Reformer and Auther; and 2. Shri Aruneshwar Gupta, Advocate Supreme Court.
4. United Nations Development Programme (UNDP) 1. Ms. Alexandra Solovieva, Deputy Country Director; and 2. Ms. Sumeeta Banerji, Assistant Country Director & Head.
5. Transparency International India Shri P.S. Bawa, IPS, Chairman
6. PRS Legislative Research 1. Shri M.R. Madhavan; 2. Ms. Kaushiki Sanyal; and 3. Ms. Harsimaran Kalra.
7. Akhil Bhartiya Vidhyarthi Parishad (ABVP) 1. Shri Sunil Ambekar, National Organizing Secretary; and 2. Shri Sunil Bansal.
8. Shri P.S. Krishnan (IAS Retd)
9. Indian Social Institute 1. Dr. Christopher Lakra, Executive Director; 2. Dr. Ibrahim Qureshi; 3. Dr. Paul Diwakar; and 4. Prof. Sushma Yadav.
10. Gandhian Sewa and Satyagraha Brigade 1. Shri Shambu Dutt, Advisor; and 2. Justice Kamleshwar Nath. 197
11. Bharat Raksha Manch 1. Shri Om Prakash Gupta, IFS National Working President; and 2. Shri Rattan Lal Gupta.
12. All India Council of Human Rights, Liberties & Social Justicc 1. Shri Anthony Raju, National President; and 2. Shri J.E. John.
13. Consumer Online Foundation 1. Shri S. Krishnan, Advisor; and 2. Shri. Pyush Misra, Governing Council Member.
14. Public Interest Legal Support and Research Centre (PILSARC) 1. Shri Rajeev Dhavan, Senior Advocate, Supreme Court of India and Director, PILSARC; and 2. Ms. Swati Chawla, Senior Researcher.
15. Shri J.B. Mohapatra, Former Joint Secretary, Judges Inquiry Committee
16. Civil Society for Truth 1. Dr. Sowesh Pattanaik; and 2. Shri Ritwik Agrawal. 17. Confederation of All India Traders 1. Shri Praveen Khandelwal, Secretary General; 2. Shri Satish Garg; and 3. Shri Nander Madaan. 18. 1. Ms. Sandhya Jain, Journalist; and 2. Shri Rohit Srivastava, Journalist.
19. Shri Ranjit Singh
20. Akhil Bhartiya Sant Samiti 1. Acharya Pramod Krishanam, President; 2. Yogi Rakesh Nath; 3. Mahant Naryan Giri; 4. Mahant Durga Das; 5. SwatanterYogi; 6. Acharya Madan; and 7. Shri Umesh Yogi
21. Editors Guild of India 1. Shri T.N. Ninan, Chairman and Editorial Director, Business Standards; 2. Ms. Coomi Kapoor, Journalist; and 3. Shri Suresh Bafna, Journalist. 198
B. OFFICIAL WITNESSES I. Ministry of Personnel, Public Grievances and Pensions • Department of Personnel and Training Shri Alok Kumar, Joint Secretary. II. Ministry of Law and Justice • Legislative Department Dr. Sanjay Singh, Joint Secretary. (In the absence of Chairman Shri Shantaram Laxman Naik was voted to the Chair) 2. The Chairman welcomed the Members present and all the witnesses who had responded to the invite of the Committee by making their presence to share their views on the Lokpal Bill, 2011. He made a preliminary briefing on the work done by the Committee and then requested them to take the floor one after the other. 3. Shri P.L. Punia, Chairman, National Commission for Scheduled Castes made submissions primarily for representation of the scheduled castes, scheduled tribes and other backward classes in the Lokpal. He also shared his views with regard to the composition of the Selection Committee and the Search Committee and various other provisions of the Bill. 4. Thereafter, Shri J.B. Mohapatra in his submissions dwelt broadly on the status of the CBI, delegation of powers, coverage of the term ‘public servants’ and various issues likely to arise in the implementation of the provisions of the Bill. 5. Shri Amod K. Kanth, Chairman, Delhi Commission for Protection of Child Rights and ‘PRAYAS’ made a power-point presentation on the various provisions of the Bill including accountability of the anti-corruption wing of the CBI, inclusion of Prime Minister under Lokpal, etc. 6. Representing the Federation for Economic Freedom, S/shri Bharat Gandhi and Aruneshwar Gupta appraised the Committee of their apprehension on whether corruption would be rooted out with the establishment of the institution of Lokpal. They made observations with regard to the role of media, the feasibility of merging the CBI with Lokpal, representation of the scheduled castes, scheduled tribes and other backward classes in the Lokpal, coverage of both the bribe taker and giver, coverage of private companies, etc. (Dr. Abhishek Manu Singhvi assumed the Chair) 7. Chairman then requested the witnesses to send their further comments on the Lokpal Bill, 2011 if any, in writing within a week. 8. Ms. Sumeeta Banerji of the United Nations Development Programme made a power-point presentation highlighting global examples on some broad issues, such as, jurisdiction, accountability, citizens’ charters, etc. and cited examples on how some aspects have been addressed in anti- corruption laws in different countries. 9. Shri P.S. Bawa of Transparency International India gave a brief account of the merits of the Lokpal Bill, 2011. He made suggestions on issues such as, Lokpal’s jurisdiction, procedure of inquiry and investigation, action against Members of Parliament, legal assistance to a defaulter, power to make rules, etc. 10. Another witness, Ms. Sandhya Jain made observations on the composition of the Selection Committee, setting up of Lokayukta in States, bringing media under some kind of scrutiny, inclusion of lower bureaucrats, etc. 199
11. PRS Legislative Research representative, Shri M.R. Madhavan made remarks on the anticipated resultant status of various issues if the Lokpal Bill is passed in its current form, such as role of the Central Vigilance Commission, office of the Prime Minister and information related to national security. He supported inclusion of NGOs and corporations under the Lokpal. 12. Representing the Akhil Bhartiya Vidhyarthi Parishad (ABVP), Shri Sunil Ambekar, National Organizing Secretary and Shri Sunil Bansal commented on the restrictions imposed on the Chairman and members for re-employment after they cease to hold office, inclusion of NGOs and lower bureaucracy within the ambit of the Lokpal, Citizen’s Charter, false and frivolous complaints, protection of complainants, etc. 13. Representing Public Interest Legal Support Centre (PILSARC), Shri Rajeev Dhavan suggested for pruning of the Selection Committee to three people to have a manageable collegium and commented on issues relating to complaints, inquiry and investigation, inclusion of the Prime Minister, lower bureaucracy and jurisdiction of the CVC after instituting Lokpal, Parliament legislating on the Lok Ayuktas, etc. 14. Another witness, Shri P.S. Krishnan briefed the Members on a Samajik Nyaya Lokpal Bill drafted by him with focus on SC, ST, BC, minorities categories. He advocated reservation in Lokpal and Lokayuktas. He also made remarks on the remuneration for members of the Search Committee and commented on Whistleblower’s protection. 15. Dr. Christopher Lakra of Indian Social Institute made suggestions on selection and appointment of the Selection Committee and removal of Lokpal. He also commented on grievance redressal mechanism and suggested a mechanism to restrict false, frivolous and vexatious complaints. 15.1 Dr. Ibrahim Qureshi of Indian Social Institute said in his presentation that NGOs, corporate sectors and trusts should also be considered for coverage under the Lokpal. 16. Shri T.N. Ninan, Chairman of Editors Guild of India and Editorial Director, Business Standards informed the Committee that the Guild has over 200 members representing large and medium media organisations, both print and electronic and that there is no unanimity of views. The only unanimous view that the Guild could submit was that it would be wrong and violative of the freedom of press to bring the media under the Lokpal. He justified his view that the Lokpal is supposed to make public servants accountable to the people of India and Journalists are not public servants as they are not paid by the State. They are private actors who are accountable to their readers and viewers. 17. Shri Acharya Pramod Krishanam, President of the Akhil Bhartiya Sant Samiti made general observations of his apprehensions of a corruption free society even with the institution of Lokpal. He also submitted his views regarding the jurisdiction of the Lokpal including inclusion of the Prime Minister and favoured inclusion of corporates and media. He also raised his concern of the potential of the Lokpal getting corrupt, especially when the Lokpal is proposed to be made so strong. 18. On behalf of Gandhian Sewa and Satyagraha Brigade, Justice Kamleshwar Nath expressed faith in bringing about an effective Lokpal. He also submitted views regarding the jurisdiction of the Lokpal, whether to give Constitutional status to the institution, role of the CVC and the CBI and various aspects of the provisions of the Bill. 19. Deposing before the Committee, Shri Om Prakash Gupta of Bharat Raksha Manch submitted his disagreement for keeping reservation within the Lokpal body but favoured the merging of the Anti Corruption Department of the cm with Lokpal. He also submitted gave views on various other provisions of the Bill. 200
20. Representing Consumer Online Foundation, Shri S. Krishnan placed his views on the provisions of the Bill regarding the culpability of the bribe-giver, provision for whistleblowers, etc. 21. Shri Praveen Khandelwal of Confederation of All India Traders made submissions with regard to corporations, apprehensions on the multiplicity of laws and agencies dealing with corruption, fear of turning the Lokpal into a giant power, etc. 22. Dr. Sowesh Pattanaik of Civil Society for Truth made a powerpoint presentation on issues such as, reservations for the Scheduled Caste/Scheduled Tribes, the acts and conducts of the Members of Parliament inside Parliament and inclusion of private or non-governmental sector under the Lokpal, restriction of eligibility of the Chairperson and Members for any post of public office after they remit office, investigation agency of the Lokpal and other related issues. 23. Another witness, Shri Ranjit Singh opined that the Lokpal should expend the expertise of the CVC and the cm and confine only to monitoring of these agencies. He proposed for setting up of an Administrative Reforms Commission to deal with corruption issues. 24. Chairman then thanked all the witnesses. (The witnesses then withdrew) 25. A verbatim record of the proceedings of the meeting was kept.
26. The Committee adjourned at 6.41 P.M. 201
VII SEVENTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Thursday, the 3rd November, 2011 in Room No. ‘63’, First Floor, Parliament House, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Sukhendu Sekhar Roy 6. Shri Parimal Nathwani
LOK SABHA 7. Shri Kirti Azad 8. Shri N.S.V. Chitthan 9. Shrimati Deepa Dasmunsi 10. Shri Shailendra Kumar 11. Shrimati Chandresh Kumari 12. Shri Prasanta Kumar Majumdar 13. Shri Arjun Ram Meghwal 14. Shri Pinaki Misra 15. Kumari Meenakshi Natarajan 16. Shri Harin Pathak 17. Shri S. Semmalai 18. Shri Vijay Bahadur Singh 19. Dr. Prabha Kishor Taviad 20. Adv. P.T. Thomas (Idukki) 21. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
201 202
A. NON OFFICIAL WITNESSES 1. Civil Society 1. Shri Shanti Bhushan; 2. Shri Prashant Bhushan; 3. Shri Arvind Kejriwal; and 4. Shrimati Kiran Bedi. 2. National Students' Union of India 1. Shri Roji M. John, Vice President; 2. Shri Bharat Kumar; 3. Shri Shahnawas Khan; and 4. Ms. Leni Jhadav.
B. OFFICIAL WITNESSES I. Ministry of Personnel, Public Grievances and Pensions • Department of Personnel and Training Shri Alok Kumar, Joint Secretary. II. Ministry of Law and Justice • Legislative Department Shri N.K. Nampoothiry, Additional Secretary. 2. At the outset, the Chairman welcomed the Members and the witnesses. He then requested the witnesses to initiate their presentation on the Lokpal Bill, 2011.
3. Shri Prashant Bhushan made a beginning by highlighting on the amendments that they had proposed along with justifications therefor. He spelt the amendments proposed for providing Lokayuktas in the States to ensure a uniform model law in the entire country. He also fully endorsed the draft of Uttarakhand legislation on Lokayukta. As regards selection of the Chairman and the Members of the Lokpal, he suggested for a broad-based collegium of eight to eleven persons dominated by independent constitutional authorities and ten persons in the Search Committee. He also suggested that removal of Chairperson or Members of the Lokpal may be done through a complaint made to the Supreme Court by any member of the public and the power of their suspension should be the prerogative of the Supreme Court. On their suggestion of merging part of the CBI pertaining to corruption investigation into the Lokpal, he supporting the Committee’s idea said that the Lokpal that way would get initial investigating machinery with it and also that corruption investigation of all public servants would then be done only by one body.
4. As regards the jurisdiction of the Lokpal, the witnesses suggested that all cases of corruption, including the Prime Minister irrespective of rank or position should be investigated by the Lokpal with the safeguard that before starting the investigation against an MP or a Minister or a Judge, the seven member bench of the Lokpal would have to grant permission for filing the charge-sheet. He also suggested for functional, financial and administrative autonomy of the Lokpal and that it should also have the power to direct suspension or transfer of officer pending investigations.
5. The witnesses were also of the view that whistleblower protection must vest with the Lokpal and that the CVC should be phased out and abolished after the Lokpal is instituted. The 203 witnesses made a detailed submission pertaining to punishment and financial penalty to be imposed on the corrupt, inclusion of Citizens Charter, grievances redressal model, time-bound investigation of offences, inclusion of lower bureaucracy and explained the consequential amendments required in other laws. 6. As regards the Judiciary, the witnesses were of the view that the Judges of the High Courts and the Supreme Court must come under the investigative ambit of the Lokpal. They supported giving constitutional status to the Lokpal, subject to the Parliament passing it without the requirement of ratification of the States. They also insisted on all the provisions of the Bill to be necessarily made a part of the Constitutional amendment Bill. 7. The Chairman thanked the witnesses and said that the Members would be seeking clarifications from them in the meeting scheduled for the following day. (The witnesses then withdrew) 8. The Chairman then welcomed the representatives of the National Students’ Union of India and requested them to take the floor and present a focussed presentation on the Lokpal Bill, 2011. 9. Shri Roji M. John, Vice President, National Students’ Union of India (NSUI) thanked the Committee for giving to them the opportunity to present their views on the proposed Lokpal Bill. He said that NSUI welcomed the Lokpal Bill, 2011 which proposes to establish a comprehensive mechanism and a body to fight corruption in India. He also stated that the issue of corruption needs to be dealt with utmost seriousness and, therefore, a legislation alone is not sufficient to root out corruption. He maintained that punishing the culprit is the basic principle of any law but more important is reforming the society to refrain from committing crime. He made general remarks on ways to curb corruption. 10. The witness further conveyed support for Lokpal to be made a constitutional body accountable to the Parliament and suggested some changes in the Bill. lie suggested to replace eminent jurist to be nominated by the Central Government in the Selection Committee with the Central Vigilance Commissioner, appointment of Secretary and other officers and staff of the Lokpal to be made by the Chairperson or such Member or officers of Lokpal as the Chairperson may direct, all major staff selection in the Lokpal to be made by the UPSC or the SSC and that the Lokpal may initiate inquiry against officers working in the State Governments who were earlier working with the Union or other bodies related to the Central Government, without the requirement of consent from the State Government. He also felt that penalties for false complaints was too harsh and may deter complainants fearing harsh repercussions. 11. Thereafter, Members sought clarifications on some issues which were responded to by the witness. Chairman then thanked them for sharing their views. (The witnesses then withdrew) 12. A verbatim record of the proceedings of the meeting was kept.
13. The Committee adjourned at 6.53 P.M. 204
VIII EIGHTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Friday, the 4th November, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Vilas Paswan 6. Shri Parimal Nathwani
LOK SABHA 7. Shri Kirti Azad 8. Shri N.S.V. Chitthan 9. Shrimati Deepa Dasmunsi 10. Shri D.B. Chandre Gowda 11. Shri Shailendra Kumar 12. Shri Prasanta Kumar Majumdar 13. Shri Arjun Ram Meghwal 14. Shri Pinaki Misra 15. Kumari Meenakshi Natarajan 16. Shri Harin Pathak 17. Shri Lalu Prasad 18. Adv. A. Sampath 19. Shri S. Semmalai 20. Shri Vijay Bahadur Singh 21. Dr. Prabha Kishor Taviad 22. Adv. P.T. Thomas (Idukki) 23. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
204 205
A. NON OFFICIAL WITNESSES 1. Civil Society 1. Shri Anna Hazare; 2. Shri Shanti Bhushan; 3. Shri Prashant Bhushan; 4. Shri Arvind Kejriwal; 5. Shrimati Kiran Bedi; 6. Shri Manish Sisodia 7. Shri Suresh Pathare B. OFFICIAL WITNESSES I. Ministry of Personnel, Public Grievances and Pensions • Department of Personnel and Training Shri Alok Kumar, Joint Secretary. II. Ministry of Law and Justice • Legislative Department Shri N.K. Nampoothiry, Additional Secretary. 2. The Chairman welcomed the Members to the meeting and also extended a warm welcome to the witnesses. He informed that the session was entirely for questions-answers. He first requested Shri Anna Hazare to make supplementary submissions to the presentation made by members of his team on the previous day before the Committee. 3. Shri Anna Hazare expressed desire for a strong and effective Lokpal and an integration of all corruption legislations into one law. He expressed an apprehension that having separate laws for Judges, etc. would weaken the set up. 4. Thereafter, a Member drew the attention of all present to the provisions dealing with corruption as contained in the Prevention of Corruption Act, 1988 and expressed his disappointment on the fact that a strong law which is in force has been disregarded all along. He also sought clarifications relating to inclusion of all sections of employees under the jurisdiction of Lokpal, including matters relating to discipline, inclusion of Prime Minister and the powers proposed to be vested with the Lokpal to recommend, cancel or modify lease, licence, etc. 5. Thereafter, Members requested the witnesses to give justification on their suggestions for inclusion of only politicians and the bureaucracy and excluding the entire civil society, the corporate sector and the NGOs in their version of the Bill, inclusion of more than one-third from Judiciary in the composition of the Selection Committee while holding the view that the Judiciary itself was corrupt and the logic for proposing a highly centralized Lokpal. 6. Members also sought clarifications on the various issues arising out of the presentation made by the witnesses the previous day on the provisions of the Lokpal Bill which included distinction sought to be made between the expressions ‘Jan’ and ‘Lok’, phone tapping, and the expected expenditure to be incurred on infrastructure and day-to-day running of the Lokpal. Further, Members requested the witnesses to clarify on their proposed grievance redressal structure and Citizens’ Charter, suo motu powers proposed to be given to Lokpal to investigate, their proposal regarding appeal against orders of Lokpal, etc. 206
7. The witnesses were also requested to further elucidate their views on the tackling corruption in media, suggestions on matters relating to the safeguard of the national security, foreign policy, defence, etc., the accountability for the Lokayukta and the Lokpal, interpretation of the term ‘public servant’, whether Lokpal should have its own agency to investigate by not involving the well-tested CBI or the CVC and whether or not the Lokpal should work within the framework of the Constitution. Clarifications were also sought on many other issues including the constitutional amendment for Lokpal without the requirement of ratification by the States. 8. Some Members also requested the witnesses to share their views on reservations for weaker sections, i.e. SC and ST, OBC and Minorities in the Lokpal. 9. On the proposals to wind up the CVC, a part of the CBI and its merger with the Lokpal and Lokpal’s power to tap telephones, Members raised apprehensions that the country will then transform into a police State with the Lokpal as the super-power. They were also apprehensive over the feasibility of the Lokpal handling the grievances of the whole country, on the powers proposed to be vested with Lokpal for the transfer, suspension or removal of officers under investigation and the manner in which the Lokpal would man its investigations considering its vast jurisdiction when the CBI itself had to take personnel from the State police forces. The witnesses were requested to clarify on these points. 10. The witnesses responded to the queries in substantial details. The Chairman at the end thanked the witnesses. (The witnesses then withdrew) 11. A verbatim record of the proceedings of the meeting was kept.
12. The Committee adjourned at 8.38 P.M. 207
IX NINTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Monday, the 14th November. 2011 in Room No. ‘63’, First Floor, Parliament House, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri O.T. Lepcha
LOK SABHA 9. Shri N.S.V. Chitthan 10. Shri D.B. Chandre Gowda 11. Shri Shailendra Kumar 12. Shrimati Chandresh Kumari 13. Shri Prasanta Kumar Majumdar 14. Shri Arjun Ram Meghwal 15. Shri Pinaki Misra 16. Kumari Meenakshi Natarajan 17. Shri Harin Pathak 18. Shri Lalu Prasad 19. Adv. A. Sampath 20. Shri S. Semmalai 21. Shri Vijay Bahadur Singh 22. Dr. Prabha Kishor Taviad 23. Adv. P.T. Thomas (ldukki) 24. Shri Arun Subhash Chandra Yadav 25. Shri Madhusudan Yadav
207 208
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
WITNESSES I. Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training Shri Alok Kumar, Joint Secretary II. Ministry of Law and Justice Legislative Department 1. Shri N.K. Nampoothiry, Additional Secretary; 2. Dr. Sanjay Singh, J.S.; and 3. Shri Diwakar Singh, Deputy Legislative Counsel.
2. At the outset, the Chairman welcomed the Members to the internal meeting of the Committee meant to finalise views on vital issues before it. Some Members raised concern over the demoralizing situation created by a certain sections of the public and the media by alleging that all politicians were corrupt and dishonest. They regretted such events and felt that all this had lowered the prestige of the MPs and the Committee. 3. The Members then took up the issue regarding inclusion of Lokayuktas for States in the Lokpal Bill for consideration. Members deliberated on whether the Central Act to create State Lokayuktas would be constitutionally valid. After a thorough deliberation on the issue, the Committee felt that if the Parliament has the power to legislate on the subject matter then it would be desirable to have a common law in the interest of uniformity and synergy. 4. On the inclusion of Citizens’ Charter and Public Grievances, the Committee deliberated extensively and felt that these should be dealt with in separate legislations bringing about a uniform set up in all States and empowered with statutory authority. 5. On the issue of inclusion of lower bureaucracy within the jurisdiction of the Lokpal, the Committee considered at length the desirability and repercussions of adding the lower bureaucracy into the folds of the Lokpal. One view that came strongly before the Committee was to have Group A and B officers under the Lokpal. It was felt that Group B officers constituting Section Officer and above (including equivalent level officers in PSUs and entities owned/controlled by the Central Government) would, in effect, cover by-and-large all important and material persons. It was pointed out that inclusion of peons, drivers and messengers would raise the number to such an extent so as to make things unmanageable for the Lokpal. An apprehension was expressed that in case all employees were covered, only lower class employees would be punished while the big corruption might slip away. Some Members of the Committee, however, wanted Group C and D employees also to be covered under the Lokpal. The views being on both sides, the issue before the Committee was that of drawing a line for the purpose of coverage under the Lokpal in the best interest of all. The discussion ended with a note to in any case include Group A and B officers under the Lokpal. 209
6. On the issue of inclusion of the acts and speech of MPs in Parliament, after deliberation on the various aspects of the issue, the Committee came to the conclusion not to interfere with the well established privilege of MPs as contained in Art 105 of the Constitution of India. 7. The Committee also considered the provisions relating to punishment for false and frivolous complaints and felt that it should be made less stringent. Issues relating to the judiciary was also deliberated upon in detail and after elaborate discussion on the subject, the Committee felt that judiciary should not be brought within the ambit of the Lokpal but should be dealt with separately. 8. A verbatim record of the proceedings of the meeting was kept.
9. The Committee adjourned at 6.05 P.M. 210
X TENTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Tuesday, the 15th November, 2011 in Committee Room ‘B’, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Sukhendu Sekhar Roy 5. Shri Ram Vilas Paswan 6. Shri O.T. Lepcha 7. Shri Amar Singh
LOK SABHA 8. Shri D.B. Chandre Gowda 9. Shri Shailendra Kumar 10. Shrimati Chandresh Kumari 11. Shri Prasanta Kumar Majumdar 12. Shri Arjun Ram Meghwal 13. Shri Pinaki Misra 14. Kumari Meenakshi Natarajan 15. Shri Harin Pathak 16. Shri Lalu Prasad 17. Adv. A. Sampath 18. Shri S. Semmalai 19. Shri Vijay Bahadur Singh 20. Dr. Prabha Kishor Taviad 21. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
210 211
WITNESSES I. Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training Shri Alok Kumar, Joint Secretary II. Ministry of Law and Justice Legislative Department 1. Shri N.K. Nampoothiry, Additional Secretary; 2. Dr. Sanjay Singh, J.S.; and 3. Shri Diwakar Singh, Deputy Legislative Counsel. 2. The Chairman welcomed the Members to the meeting. Resuming the previous day’s discussion, the Members took up for consideration the issue of inclusion of the Prime Minister within the ambit of the Lokpal. Members analyzed the various views submitted by the witnesses and the suggestions received on the issue from various quarters of the public. They explored the pros and cons of the various opinions. Even after a long and intense debate, no consensus could be arrived at. The Committee, then, decided to re-consider the issue at the time of adoption of the draft report on the Bill and deferred consideration of the same. 3. Chairman then placed before the Committee for consideration matters relating to the CBI and CVC, their exact role, status, functioning vis-a-vis the institution of the Lokpal. The Committee analyzed the various submissions and views received on these issues, especially those relating to investigation and prosecution of cases. Members appreciated the idea of an independent Directorate of Public Prosecution. Members were agreeable to vest investigation of Lokpal cases with the CBI and prosecution through the Directorate of Prosecution under the Lokpal. 4. In the case of CVC, Members deliberated extensively on its role and status and noted that with officers of Group ‘A’ and ‘B’ brought within the ambit of the Lokpal, all other employees of the Government should fall under CVC. Members also felt that the recommendations of Lokpal for suspension, removal or departmental action against officers should be binding on the departments, with some appropriate escape route. 5. Thereafter, Members discussed the issue of Selection Committee. The Committee were agreeable that the Selection Committee should be strong and manageable and therefore, should primarily not consist of many members. 6. After a brief deliberation on the issue, the Committee agreed that the Selection Committee may consist of the respective heads of the Executive, Judiciary and the Legislature, i.e. the Prime Minister, the Chief Justice of India and the Speaker of the Lok Sabha. In addition to these, there may be an eminent Indian to be recommended by the Chairman of the CAG, CEC and the UPSC. 7. Coming to the issue of the Search Committee, Members agreed that Search Committee should be selected and constituted by the Selection Committee and 50% of the same should be represented by Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women. 8. As regards whistleblowers, the Committee felt that in view of a separate legislation on it, the need to provide for protection of whistleblowers in the Lokpal legislation was not felt necessary. 9. A verbatim record of the proceedings of the meeting was kept.
10. The Committee adjourned at 6.15 P.M. 212
XI ELEVENTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Thursday, the 24th November, 2011 in Committee Room ‘E’, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Ram Vilas Paswan 8. Shri Parimal Nathwani
LOK SABHA 9. Shri Kirti Azad 10. Shri N.S.V. Chitthan 11. Shrimati Deepa Dasmunsi 12. Shri Shailendra Kumar 13. Shrimati Chandresh Kumari 14. Shri Prasanta Kumar Majumdar 15. Shri Arjun Ram Meghwal 16. Shri Pinaki Misra 17. Kumari Meenakshi Natarajan 18. Shri Harin Pathak 19. Adv. A. Sampath 20. Shri S. Semmalai 21. Dr. Prabha Kishor Taviad 22. Adv. P.T. Thomas (Iddukki) 23. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary
212 213
Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer 2. At the outset, Chairman welcome the Members. The deliberations began with consideration of the extent of inclusion of NGOs, private companies, media houses, trusts, societies or association of persons in the ambit of the Lokpal. After brief discussion, the Committee noted the Bill already covers a vast category of bodies/institutions falling in the category of ‘owned or controlled by the Central Government’ or where Government donations exceed certain notified amount. The Committee, however, agreed to add to this list such bodies/institutions that were recipient funds under FCRA above a specified amount which could be ten or twenty thousand dollars per annum. 3. The Committee then came to the definitions of ‘corruption’ from the angle of covering corruption in private sector. It was felt that Section, 8, 9 & 13 of Prevention of Corruption Act, 1988 contain a comprehensive definition of corruption and a new definition was not desirable at this stage. 4. The Committee next considered Clause 56 pertaining to legal assistance, Clause 51 pertaining to action taken in good faith by a Government servant and Clause 52 regarding action taken in good faith. The Committee felt that:- (i) in Clause 56 the words ‘shall provide’ may read as ‘shall allow’, and (ii) Clause 51 may remain as it is though there were apprehensions of excessive protection to civil servants. As regards Clause 52, it was noted that the provisions were intended to protect officers against action taken in good faith under the Lokpal Bill. 5. On the issue of giving Lokpal a Constitutional status, the Committee felt that the submissions made by the former CJIs were acceptable. The Committee noted that if the Bill for constitutional amendment was introduced simultaneously with the Lokpal Bill, there would be no delay even in case the constitution amendment is also resorted to. 6. The Committee next discussed phone tapping and felt that status-quo be maintained in this matter. Members also re-examined the strength of the Lokpal, the Selection Committee, the Search Committee and the provision for representation of SCs, STs, backward classes and minority groups, including women therein. A view was raised to increase the strength of the Lokpal from 9 to 11 and give representation to SC/ST, backward classes, etc. proportionately. The view was responded to by stating that adequate reservation is proposed to be provided in the Search Committee will take care of these aspects. However, another view also emerged suggesting provision for reservation in the Selection Committee. The discussion ended on a note emphasizing on the desirability of the Lokpal to reflect the pluralism and diversity of India. The Committee also considered action on whistleblowers in relation to the institution of Lokpal. It came around to a view to suitably add provisions of the Whistleblowers’ Bill in the Lokpal legislation. 7. The Committee then took up for discussion the issue of inclusion of the Prime Minister within the ambit of the Lokpal. Members were of divergent views on the issue and therefore, the matter was deferred to be dealt at the time of consideration of the draft report. Thereafter, Chairman informed the Members that in a few day they would received the draft report. 8. A verbatim record of the proceedings of the meeting was kept.
9. The Committee adjourned at 4.46 P.M. 214
XII TWELFTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Wednesday, the 30th November, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri Amar Singh
LOK SABHA 8. Shri Kirti Azad 9. Shri N.S.V. Chitthan 10. Shrimati Deepa Dasmunsi 11. Shri Shailendra Kumar 12. Shrimati Chandresh Kumari 13. Shri Prasanta Kumar Majumdar 14. Shri Arjun Ram Meghwal 15. Shri Pinaki Misra 16. Kumari Meenakshi Natarajan 17. Shri Harin Pathak 18. Adv. A. Sampath 19. Shri S. Semmalai 20. Shri Vijay Bahadur Singh 21. Dr. Prabha Kishor Taviad 22. Adv. P.T. Thomas (Iddukki) 23. Shri Arun Subhash Chandra Yadav
214 215
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer 2. The Chairman welcomed the Members of the Committee. Initiated the deliberations, he referred to the draft report which had been circulated to the Members. He pointed out that the draft report containing 16 chapters dealt with issues that had already been agreed upon in principle. The issue of inclusion of Prime Minister was, however, yet to be finally decided upon. 3. The Members were requested to take up for consideration the issue of inclusion of Prime Minister under the purview of Lokpal. The Chairman referred to the four different options that had emerged in the course of the Committee’s deliberations so far, viz., (i) inclusion of Prime Minister in substantive terms with deferred prosecution and some supplementary safeguards to take care of instances where the term ‘as Prime Minster’ gets repeated; (ii) complete exclusion with no deferred prosecution; (iii) inclusion of Prime Minister with two safeguards, namely, subject matter exclusion (subjects like national security, foreign affairs, atomic energy, space, etc.) and cumulatively provision of a condition for clearance of full bench of Lokpal before initiation of action against Prime Minister; and (iv) full inclusion with no safeguards. 4. The Members expressed their views on the above issue and substantiated their observations. However, no consensus could be arrived at on the subject. In view of this, the Chairman proposed the sense of the Committee on the issue in two models, namely, (i) total exclusion and (ii) deferred exclusion and said that these options may be conveyed to the Parliament, leaving the decision on their wisdom. 5. Some Members raised the issue of non-inclusion of Group ‘C’ and ‘D’ Government employees. The Chairman of the Committee clarified that it was based on the broad consensus in the Committee, as reflected in its earlier sittings. However, several Members strongly opined for inclusion of all levels of bureaucracy under the Lokpal in consonance with the sense of the House. Keeping in view the aspects of operation efficacy on the one hand and the sentiments of the Members of the Committee on the other (for inclusion of the entire lower bureaucracy), it was agreed to include Group ‘C’ employees also under the Lokpal in addition to the Group’ A’ and ‘B’ employees. 6. Some Members emphasized on the need to revamp the CBI, especially the selection process of the top officers of the CBI, so as to ensure autonomy in function of the organisation. It was agreed to modify the existing selection process of Director, CBI, by providing a selection process similar to the one that was being proposed for the Lokpal. 7. Members discussed on the penal provision under the Prevention of Corruption Act and felt that there was a need for an upward revision of penalties for indulgence in corruption. It was agreed to propose a minimum of three years and a maximum of seven years imprisonment together with confiscation of disproportionate assets, under the Prevention of Corruption Act. 8. There was some discussion on the Search Committee for the Lokpal. It was agreed to make the constitution of the Search Committee by the Selection Committee mandatory. 9. There was a discussion on the procedure for removal of Lokpal prescribed under Clause 8 of the Bill. It was suggested to make further provisions in Clause 8 of the Bill whereby a citizen 216 could make a complaint to the Supreme Court. It was also suggested that power of suspension of Lokpal should be vested in the Supreme Court instead of the President. 10. Citizens’ Charter, Grievance Redressal Mechanism, etc. were also discussed and it was felt that the sense of the House did not mean provision of these mechanism in the Lokpal Bill itself. 11. The Chairman then requested the Members to give their Notes of dissent within a short time. 12. He also informed that evidences recorded before the Committee will be laid on the Table of both the Houses along with the Report. 13. A verbatim record of the proceedings of the meeting was kept.
14. The Committee adjourned at 6.41 P.M. 217
XIII THIRTEENTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Thursday, the 1st December, 2011 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Dr. Bhalchandra Mungekar 4. Shri Balavant alias Bal Apte 5. Shri Ram Jethmalani 6. Shri Sukhendu Sekhar Roy 7. Shri O.T. Lepcha 8. Shri Parimal Nathwani
LOK SABHA 9. Shri Kirti Azad 10. Shri N.S.V. Chitthan 11. Shrimati Deepa Dasmunsi 12. Shri D.B. Chandre Gowda 13. Shri Shailendra Kumar 14. Shrimati Chandresh Kumari 15. Shri Prasanta Kumar Majumdar 16. Shri Arjun Ram Meghwal 17. Shri Pinaki Misra 18. Kumari Meenakshi Natarajan 19. Shri Harin Pathak 20. Adv. A. Sampath 21. Shri S. Semmalai 22. Shri Vijay Bahadur Singh 23. Dr. Prabha Kishor Taviad 24. Adv. P.T. Thomas (Iddukki) 25. Shri Arun Subhash Chandra Yadav 26. Shri Madhusudan Yadav
217 218
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer 2. The Chairman welcomed the Members of the Committee and explained the circumstances leading to convening of the meeting. He informed the Committee of the requests received from Members to hold a meeting of the Committee as they were not fully aware and cognigent of the jurisdictional limits and boundaries of Groups A, B, C and D and felt that the discussion in the last meeting held on 30th December was incomplete. He requested those members to explain themselves the basis of their requests. 3. The members then, one by one, expressed their views on the inclusion/exclusion of Group ‘C’ under the control of Lokpal. There was a broad consensus among the members for exclusion of Group ‘C’. It was suggested that Group ‘C’ may be monitored or controlled by the CVC. It was further agreed that CVC may give a report in every two or three months to the Lokpal giving the details of its work on Group ‘C’ corruption. 4. The members who were not in favour of exclusion of Group ‘C’ strongly opposed its exclusion. They also expressed their displeasure with regard to the change of Committee’s view that emerged during its meeting held on 30th November, 2011. They insisted on giving the Note of Dissent on the issue. 5. The second issue cited by the Members for reconvening the meeting of the Committee was the appointment process of Director, CBI. The Committee was informed by these members that the appointment of Director, CBI did not fall within the purview of this Bill. The CBI Director is appointed under a different Act namely, Delhi Special Police Establishment Act. The Members then citied Rule 273 of the Rules of Business of the Council of States which provides that the Committee should examine only such Bills introduced in either of the Houses as are referred to it by the Chairman or Speaker as the case may be. There was a broad consensus on this issue and it was decided that the existing mode of selection of Director, CBI may continue. 6. The Members, who were not in agreement with the broad consensus stated that the change in the selection process of CBI was desirable in order to ensure the independence of CBI. They referred to the view that emerged in the last meeting of the Committee held on 30th November, 2011 for providing a change in the selection process on the lines of the selection process for Lokpal. 7. Some Members also desired that another meeting should be held to adopt the Report. The Chairman agreed to hold another meeting for approval of the Draft Report. The Chairman then informed the Members that the time given by the Hon’ble Chairman for examination of the Bill was upto the 7th December, 2011. As the Committee had to hold one more meeting it was agreed to seek a short extension of time for 4-5 days for presentation of Report. 8. A verbatim record of the proceedings of the meeting was kept.
9. The Committee adjourned at 6.20 P.M. 219
XIV FOURTEENTH MEETING
The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.15 P.M. on Wednesday, the 7th December, 2011 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.
MEMBERS PRESENT 1. Dr. Abhishek Manu Singhvi — Chairman
RAJYA SABHA 2. Shri Shantaram Laxman Naik 3. Shri Balavant alias Bal Apte 4. Shri Sukhendu Sekhar Roy 5. Shri Parimal Nathwani 6. Shri Amar Singh
LOK SABHA 7. Shri Kirti Azad 8. Shri N.S.V. Chitthan 9. Shrimati Deepa Dasmunsi 10. Shri Shailendra Kumar 11. Shri Prasanta Kumar Majumdar 12. Shri Arjun Ram Meghwal 13. Kumari Meenakshi Natarajan 14. Shri Harin Pathak 15. Shri Lalu Prasad 16. Adv. A. Sampath 17. Shri Vijay Bahadur Singh 18. Dr. Prabha Kishor Taviad 19. Adv. P.T. Thomas (Iddukki) 20. Shri Arun Subhash Chandra Yadav
SECRETARIAT Shri Deepak Goyal, Joint Secretary Shri K.P. Singh, Director Shri K.N. Earendra Kumar, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Committee Officer
219 220
2. The Chairman welcomed the Members to the meeting and informed them of the five/six changes made in the draft report on the Lokpal Bill, 2011 in the light of discussion held in the previous meeting. He also informed that today’s meeting had been called only for the purpose of adoption of the draft report. 3. A Member drew the attention of the Committee on the derogatory manner in which Shri Prashant Bhushan, one of the witnesses who had appeared before the Committee to depose his views on the Lokpal Bill, 2011 had remarked on the Committee Chairman to Media. The Committee places on record its condemnation of the comment. 4. The Committee next took up the draft report for consideration. Some Members suggested minor typographical changes in a few paras of the draft report which were noted. 5. Several Members requested the Chairman to permit their submission of Notes of Dissent on the issues broadly agreed to by the Committee and on which they do not agree individually. Chairman acceded to their requests. Some Members submitted their dissent notes which were taken on record. Some Members who sought to raise again certain issues dealt with in the draft report were asked to submit their views in the form of dissent note, which would be appended with the report. 6. Thereafter, the draft report was adopted. The Committee decided to present the Report, along with the Notes of dissent and the Evidence recorded by the Committee, to the Parliament on the 9th December, 2011. 7. The Committee authorized the Chairman and in his absence nominated Shri Shantaram Laxman Naik and in his absence, Dr. Balchandra Mungekar, to present the Report and Evidence in the Rajya Sabha and nominated Shri Pinaki Misra and in his absence, Shri Harin Pathak to lay the same on the table of Lok Sabha. 8. A verbatim record of the proceedings of the meeting was kept.
9. The Committee adjourned at 4.35 P.M. 221
ANNEXURES
ANNEXURE-A [Vide para 1.2 of the Report]
AS INTRODUCED IN LOK SABHA
Bill No. 39 of 2011
THE LOKPAL BILL, 2011
ARRANGEMENTS OF CLAUSES
CHAPTER I
PRELIMINARY
CLAUSES 1. Short title, extent and commencement. 2. Definitions.
CHAPTER II
ESTABLISHMENT OF LOKPAL
3. Establishment of Lokpal. 4. Appointment of Chairperson and Members and Selection Committee. 5. Filling up of vacancies of Chairperson and Members. 6. Term of office of Chairperson and Members. 7. Salary, allowances and other conditions of service of Chairperson and Members. 8. Removal and suspension of Chairperson and Member of Lokpal. 9. Restriction on employment by Chairperson and Members after ceasing to hold office. 10. Member to act as Chairperson or to discharge his functions in certain circumstances. 11. Secretary, other officers and staff of Lokpal.
CHAPTER III
INVESTIGATION WING
12. Investigation Wing. 13. Investigation officer to have powers of police.
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14. Investigation officer to inquire on direction of Lokpal.
CHAPTER IV
PROSECUTION WING 15. Prosecution wing and appointment of Director of Prosecution.
CHAPTER V
EXPENSES OF INSTITUTION OF LOKPAL TO BE CHARGED ON CONSOLIDATED FUND OF INDIA
16. Expenses of Lokpal to be charged on Consolidated Fund of India.
CHAPTER VI
JURISDICTION IN RESPECT OF INQUIRY
CLAUSES 17. Jurisdiction of Lokpal. 18. Matters pending before any court or committee or authority before inquiry before Lokpal not to be affected. 19. Constitution of Benches of Lokpal. 20. Distribution of business amongst Benches. 21. Power of Chairperson to transfer cases. 22. Decision to be by majority.
CHAPTER VII
PROCEDURE IN RESPECT OF INQUIRY AND INVESTIGATION
23. Provisions relating to complaints and inquiry and investigation. 24. Inspection of documents and furnishing copies thereof to persons against whom complaints have been made. 25. Persons likely to be prejudicially affected to be heard. 26. Lokpal may require any public servant or any other person to furnish information, etc. 27. Previous sanction not necessary for investigation and initiating prosecution by Lokpal in certain cases. 28. Action on inquiry in relation to public servants not being Ministers or Members of Parliament. 29. Action on inquiry against public servant being Ministers or Members of Parliament.
CHAPTER VIII
POWERS OF LOKPAL 30. Search and seizure. 31. Lokpal to have powers of civil court in certain cases. 32. Power of Lokpal to utilise services of officers of Central or State Government. 225
33. Provisional attachment of assets. 34. Confirmation of attachment of assets. 35. Power of Lokpal to recommend transfer or suspension of public servant connected with allegation of corruption. 36. Power of Lokpal to give directions to prevent destruction of records during inquiry. 37. Power to delegate.
CHAPTER IX
SPECIAL COURTS 38. Special Courts to be notified by Central Government. 39. Letter of request to a contracting State in certain cases.
CHAPTER X
COMPLAINTS AGAINST CHAIRPERSON, MEMBERS AND OFFICIALS OF LOKPAL
CLAUSES 40. Complaints against Chairperson and Members not to be inquired by Lokpal. 41. Complaints against officials of Lokpal.
CHAPTER XI
ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT 42. Assessment of loss and recovery thereof by Special Court.
CHAPTER XII
FINANCE, ACCOUNTS AND AUDIT 43. Budget. 44. Grants by Central Government. 45. Annual statement of accounts. 46. Furnishing of returns, etc., to Central Government.
CHAPTER XIII
DECLARATION OF ASSETS 47. Declaration of assets. 48. Presumption as to acquisition of assets by corrupt means in certain cases.
CHAPTER XIV
OFFENCES AND PENALTIES 49. Prosecution for false complaint and payment of compensation, etc., to public servant. 50. False complaint made by society or association of persons or trust. 226
CHAPTER XV
MISCELLANEOUS
51. Protection of action taken in good faith by any public servant.
52. Protection of action taken in good faith by others.
53. Members, officers and employees of Lokpal to be public servants.
54. Limitation to apply in certain cases.
55. Bar of Jurisdiction.
56. Legal assistance.
57. Act to have overriding effect.
58. Provision of this Act to be in addition to other laws.
59. Amendment of certain enactments.
60. Power to make rules.
61. Power of Lokpal to make regulations.
62. Laying of rules and regulations.
63. Power to remove difficulties. THE FIRST SCHEDULE THE SECOND SCHEDULE 227
AS INTRODUCED IN LOK SABHA
ON
Bill No. 39 of 2011
THE LOKPAL BILL, 2011
A BILL to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India established a democratic Republic to ensure justice for all;
AND WHEREAS the country’s commitment to clean and responsive governance has to be reflected in an effective institution to independently inquire into and prosecute acts of corruption;
NOW, THEREFORE, it is expedient to establish a strong and effective institution to contain corruption.
BE it enacted by Parliament in the Sixty-second Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Lokpal Act, 2011. Short title, extent and (2) It extends to the whole of India and also applies to public commence- servants outside India. ment.
227 228
(3) It shall come into force on such date as the Central Government may, by notification In the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
Definitions 2. (1) In this Act, unless the context otherwise requires,– (a) “Bench” means a Bench of the Lokpal; (b) “Chairperson” means the Chairperson of the Lokpal; (c) “competent authority”, in relation to— (i) a member of the Council of Ministers, means the Prime Minister; (ii) a member of Parliament, other than a Minister, means (A) in the case of a member of the Council of States, the Chairman of that Council; and (B) in the case of a member of the House of the People, the Speaker of that House; (iii) an officer in the Ministry or Department of the Central Government, means the Minister in charge of the Ministry or Department under which such officer is serving; (iv) a chairperson or members of any body, or Board or corporation or authority or company or society or autonomous body (by whatever name called) established or constituted by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it, means the Minister in charge of the administrative Ministry of such body, or Board or corporation or authority or company or society or autonomous body; (v) an officer of any body or Board or corporation or authority or company or society or autonomous body (by whatever name called) established or constituted by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it, means the head of such body or Board or corporation or authority or company or society or autonomous body; (vi) any other case not falling under sub-clauses (i) to (v) above, means the Central Government: Provided that if any person referred to in sub- clause (iv) or sub-c1ause (v) is also a Member of Parliament, then the competent authority shall be— 229
(A) in case such member is a Member of the Council of States, the Chairman of that House; and
(B) in case such member is a Member of the House of the People, the Speaker of that House;
(d) “complaint” means a complaint, made in such form as may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of 49 of 1988. Corruption Act, 1988;
(e) “inquiry” means an inquiry conducted under this Act by the Lokpal;
(f) “Judicial Member” means a Judicial Member of the Lokpal appointed as such; (g) “Lokpal” means the institution established under section 3;
(h) “Member” means a Member of the Lokpal;
(i) “Minister” means a Union Minister but does not include the Prime Minister;
(j) “notification” means notification published in the Official Gazette and the expression “notify” shall be construed accordingly;
(k) “prescribed” means prescribed by rules made under this Act;
(1) “public servant” means a person referred to in clauses (a) to (g) of sub-section (1) of section 17; (m) “regulations” means regulations made under this Act;
(n) “rules” means rules made under this Act;
(o) “Schedule” means a Schedule to this Act;
(p) “Special Court” means the court of a Special Judge appointed under sub-section (1) of section 3 of the Prevention 49 of 1988. of Corruption Act, 1988.
(2) Words and expressions used herein and not defined in this 49 of 1988. Act but defined in the Prevention of Corruption Act, 1988, shall have the meanings respectively assigned to them in that Act.
(3) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shal1 be construed to have a reference to the corresponding Act or provision thereof in force in such area. 230
CHAPTER II
ESTABLISHMENT OF LOKPAL
Establishment 3. (1) As from the commencement of this Act, there shall of Lokpal. be established, for the purpose of making inquiries in respect of complaints made under this Act, an institution to be called the “Lokpal”. (2) The Lokpal shall consist of— (a) a Chairperson, who is or has been a Chief Justice of India or a Judge of the Supreme Court; and (b) such number of Members, not exceeding eight out of whom fifty per cent, shall be Judicial Members. (3) A person shall be eligible to be appointed,— (a) as a Judicial Member if he is or has been a Judge of the Supreme Court or a Chief Justice of a High Court; (b) as a Member other than a Judicial Member, if he is a person of impeccable integrity, outstanding ability and standing having special knowledge and expertise of not less than twenty-five years in the matters relating to anti- corruption policy, public administration, vigilance, finance including insurance and banking, law, and management. (4) The Chairperson or a Member shall not be a member of Parliament or a member of the Legislature of any State or Union territory and shall not hold any office of trust or profit (other than the office as the Chairperson or a Member) or be connected with any political party or carry on any business or practise any profession and accordingly, before he enters upon his office, a person appointed as the Chairperson or a Member, as the case may be, shall, if— (a) he holds any office of trust or profit, resign from such office; or (b) he is carrying on any business, sever his connection with the conduct and management of such business; or (c) he is practising any profession, cease to practise such profession. (5) The Chairperson and every Member shall, before entering upon his office, make and subscribe before the President an oath or affirmation in the form set out in the First Schedule.
Appointment of 4. (1) The Chairperson and Members shall be appointed by Chairperson and the President after obtaining the recommendations of a Selection Members and Selection Committee consisting of— Committee. (a) the Prime Minister — chairperson; (b) the Speaker of the House of the People — member; 231
(c) the Leader of Opposition in the House of the People — member; (d) the Leader of Opposition in the Council of States — member; (e) a Union Cabinet Minister to be nominated by the Prime Minister — member; (f) one sitting Judge of the Supreme Court to be nominated by the Chief Justice of India — member; (g) one sitting Chief Justice of a High Court to be nominated by the Chief Justice of India — member; (h) one eminent Jurist to be nominated by the Central Government — member; (i) one person of eminence in public life with wide knowledge of and experience in anti-corruption policy, public administration, vigilance, policy making, finance including Insurance and banking, law, or management to be nominated by the Central Government — member. (2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. (3) The Selection Committee may, if it considers necessary for the purposes of selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of such persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law, and management, or in any other matter which, in the opinion of the Selection Committee, may be useful in making selection of the Chairperson and Members of the Lokpal. (4) The Selection Committee shall regulate its own procedure for selecting the Chairperson and Members of the Lokpal which shall be transparent. (5) The term of the Search Committee referred to in sub- section (3), the fee and allowances payable to its members and the manner of selection of panel of names shall be such as may be prescribed.
5. The President shall take or cause to be taken all necessary Filling up of steps for the appointment of a new Chairperson and Members at vacancies of Chairperson and least three months before the expiry of the term of such Members. Chairperson or Member, as the case may be, in accordance with the procedure laid down in this Act.
6. The Chairperson and every Member shall, on the Term of office recommendations of the Selection Committee, be appointed by the of Chairperson and Members. President by warrant under his hand and seal and hold office as 232
such for a term not exceeding five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier: Provided that he may— (a) by writing under his hand addressed to the President, resign his office; or (b) be removed from his office in the manner provided in section 8.
Salary, 7. The salary, allowances and other conditions of service allowances and of— other conditions of service of (i) the Chairperson shall be the same as those of Chairperson and Members. the Chief Justice of India; (ii) other Members shall be the same as those of a Judge of the Supreme Court: Provided that if the Chairperson or a Member is, at the time of his appointment, in receipt of pension (other than disability pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of service as the Chairperson or, as the case may be, as a Member, be reduced— (a) by the amount of that pension; and (b) if he has, before such appointment, received, in lieu of a portion of the pension due to him in respect of such previous service, the commuted value thereof, by the amount of that portion of the pension: Provided further that the salary, allowances and pension payable to, and other conditions of service of, the Chairperson or a Member shall not be varied to his disadvantage after his appointment.
Removal and 8. (1) Subject to the provisions of sub-section (3), the suspension of Chairperson or any Member shall be removed from his office by Chairperson and Member of order of the President on the grounds of misbehaviour after the Lokpal. Supreme Court, on a reference being made to it— (i) by the President, or (ii) by the President on a petition being signed by at least one hundred Members of Parliament, or (iii) by the President on receipt of a petition made by a citizen of India and where the President is satisfied that the petition should be referred, has, on an inquiry held ill accordance with the procedure prescribed in that behalf, reported that the Chairperson or such Member, as the case may be, ought to be removed on such ground. 233
(2) The President may suspend from office the Chairperson or any Member in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1), the President may, by order, remove from the office the Chairperson or any Member if the Chairperson or such Member, as the case may be,— (a) is adjudged an insolvent; or (b) engages, during his term of office, in any paid employment outside the duties of his office; or (c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. (4) If the Chairperson or any Member is, or becomes, in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.
9. (1) On ceasing to hold office, the Chairperson and every Restriction on Member shall be ineligible for— employment by Chairperson and (i) reappointment as the Chairperson or a Member of Members after ceasing to hold the Lokpal; office. (ii) any diplomatic assignment, appointment as administrator of a Union Territory and such other assignment or appointment which is required by law to be made by the President by warrant under his hand and seal; (iii) further employment to any other office of profit under the Government of India or the Government of a State; (iv) contesting any election of President or Vice President or Member of either House of Parliament or Member of either House of a State Legislature or Municipality or Panchayat within a period of five years from the date of cessation of holding the office of the Chairperson or Member. (2) Notwithstanding anything contained in sub-section (1), a Member shall be eligible to be appointed as a Chairperson, if his total tenure as Member and Chairperson does not exceed five years.
10. (1) In the event of occurrence of any vacancy in the Member to act office of the Chairperson by reason of his death, resignation or as Chairperson or to discharge otherwise, the President may, by notification, authorise the senior- his functions in most Member to act as the Chairperson until the appointment of a certain new Chairperson to fill such vacancy. circumstances. 234
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, the senior-most Member available, as the President may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.
Secretary, 11. (1) The appointment of Secretary and other officers other officers and staff of the Lokpal shall be made by the Chairperson or and staff of Lokpal. such Member or officer of Lokpal as the Chairperson may direct: Provided that the President may by rule require that the appointment in respect of any post or posts as may be specified in the rule, shall be made after consultation with the Union Public Service Commission. (2) Subject to the provisions of any law made by Parliament, the conditions of service of secretary and other officers and staff of the Lokpal shall be such as may be specified by regulations made by the Lokpal for the purpose: Provided that the regulations made under this sub-section shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
CHAPTER III
INVESTIGATION WING
Investigation 12. (1) Notwithstanding anything contained in any law for Wing. the time being in force, the Lokpal shall constitute an Investigation Wing for the purpose of conducting investigation of any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988: 49 of 1988. Provided that till such time the Investigation Wing is constituted by the Lokpal, the Central Government shall make available such number of investigation officers and other staff from such of its Ministries or Departments, as may be required by the Lokpal, for carrying out investigation under this Act. (2) The Central Government may, after obtaining consent of the concerned State Government, by notification, extend the powers and jurisdiction of officers of the Investigation Wing of the Lokpal in that State and the provisions of sub-sections (2) and (3) of section 5 of the Delhi Special Police Establishment Act, 1946, shall 25 of 1946. apply as if the members of the Investigation Wing were members of the police force of that State.
Investigation 13. (1) No investigation shall be made by an investigation officer to have officer of the Investigation Wing below the rank of a Deputy powers of police. Superintendent of Police or by any other officer of equivalent rank. (2) The investigation officers of the Investigation Wing shall have, in relation to the investigation of such offences referred to in 235
sub-section (1) of section 12, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of such offences under the Prevention of Corruption 49 of 1988. Act, 1988.
14. (1) The Lokpal may, before ho 1ding any inquiry under Investigation this Act, by an order, require the investigation officer of its officer to inquire on direction of Investigation Wing to make, or cause to be made, a preliminary Lokpal. investigation in such manner as it may direct and submit a report to the Lokpal, within such time as may be specified by the Lokpal, to enable it to satisfy itself as to whether or not the matter requires to be inquired into by the Lokpal.
(2) The investigation officer on receipt of an order under sub- section (1) shall complete the investigation and submit his report within the time specified under that sub-section.
CHAPTER IV
PROSECUTION WING
15. (1) The Lokpal may, by notification, constitute a Prosecution wing prosecution wing and appoint a Director of prosecution and such and appointment of Director of other officers and employees to assist the Director of Prosecution Prosecution. for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under this Act.
(2) The Director of prosecution shall, after having been so directed by the Lokpal, file a complaint before the Special Court, and take all necessary steps in respect of the prosecution of public servants in relation to any offence punishable under the Prevention 49 of 1988. of Corruption Act, 1988.
CHAPTER V
EXPENSES OF INSTITUTION OF LOKPAL TO BE CHARGED ON CONSOLIDATED FUND OF INDIA
16. The expenses of the Lokpal, including all salaries, Expenses of allowances and pensions payable to or in respect of the Lokpal to be charged on Chairperson, Members or secretary or other officers or staff of the Consolidated Lokpal, shall be charged on the Consolidated Fund of India and any Fund of India. fees or other moneys taken by the Lokpal shall form part of that Fund.
CHAPTER VI
JURISDICTION IN RESPECT OF INQUIRY
17. (1) Subject to the other provisions of this Act, the Lokpal Jurisdiction of shall inquire into any matter involved in, or arising from, or Lokpal. connected with, any allegation of corruption made in a complaint in respect of the following, namely:— 236
(a) a Prime Minister, after he has demitted the office of the Prime Minister;
(b) any other person who is or has been a Minister of the Union;
(c) any person who is or has been a Member of either House of Parliament;
(d) any Group “A” officer or equivalent or above, from amongst the public servants defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruptions Act, 1988 when serving or who has served, in connection 49 of 1988. with the affairs of the Union;
(e) any person who is or has been a chairperson or member or officer equivalent to Group “A” officer referred to in clause (d) or equivalent or above in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it: Provided that in respect of such officers referred to in clause (d) who have served in connection with the affairs of the Union or in any body or Board or corporation or authority or company or society or trust or autonomous body referred to in this clause but are working in connection with the affairs of the State or in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of the State Legislature or wholly or partly financed by the State Government or control1ed by it, the Lokpal and the officers of its Investigation Wing or prosecution Wing shall have jurisdiction under this Act in respect of such officers only after obtaining the consent of the concerned State Government;
(f) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) wholly or partly financed or aided by the Government and the annual income of which exceeds such amount as the Central Government may by notification specify;
(g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public and the annual income of which exceeds such amount as the Central Government may by notification specify: 237
Provided that nothing in this section shall apply in relation to the Prime Minister, in whatever capacity he may be holding an office as a public functionary: Provided further that any person referred to in this clause shall be deemed to be a public servant under clause (c) 49 of 1988. of section 2 of the Prevention of Corruption Act, 1988 and the provisions of that Act shall apply accordingly: Provided also that nothing in clauses (e) and (f) and this clause shall apply to any society or association of persons or trust constituted for religious purposes. (2) Notwithstanding anything contained in sub-section (1), the Lokpal shall not inquire into any matter involved in, or arising from, or connected with, any such allegation of corruption against any Member of either House of Parliament in respect of anything said or a vote given by him in Parliament or any committee thereof covered under the provisions contained in clause (2) of article 105 of the Constitution. (3) The Lokpal may inquire into any act or conduct of any person other than those referred to in sub-section (1), if such person is associated with the allegation of corruption under the 49 of 1988. Prevention of Corruption Act, 1988: Provided that, no action under this section shall be taken in case of a person serving in connection with the affairs of a State, without the consent of the State Government; (4) No matter in respect of which a complaint has been made to the Lokpal under this Act, shall be referred for inquiry under the 60 of 1952. Commissions of Inquiry Act, 1952. Explanation.—For the removal of doubts, it is hereby declared that a complaint under this Act shall only relate to a period during which the public servant was holding or serving in that capacity.
18. In case any matter or proceeding related to allegation of Matters pending 49 of 1988. corruption under the Prevention of Corruption Act, 1988 has been before any court or committee or pending before any court or committee of either House of authority for Parliament or before any other authority prior to commencement of inquiry before this Act or prior to commencement of any inquiry after the Lokpal not to commencement of this Act, such matter or proceeding shall be be affected. continued before such court, committee or authority. Explanation.—For the removal of doubts, it is herby declared that continuance of such matter or proceeding before any court or committee of either House of Parliament or before any other authority, except for such matters as are protected under clause (2) of article 105 of the Constitution or are pending before a court, shall not affect the power of the Lokpal to inquire into such matter under this Act. 238
Constitution of 19. (1) Subject to the provisions of this Act,— Benches of Lokpal. (a) the jurisdiction of the Lokpal may be exercised by Benches thereof; (b) a Bench may be constituted by the Chairperson with two or more Members as the Chairperson may deem fit; (c) every Bench shall ordinarily consist of at least one Judicial Member; (d) where a Bench consists of the Chairperson, such Bench shall be presided over by the Chairperson; (e) where a Bench consists of a Judicial Member, and a non-Judicial Member, not being the Chairperson, such bench shall be presided over by the Judicial Member; (f) the Benches of the Lokpal shall ordinarily sit at New Delhi and at such other places as the Lokpal may, by regulations, specify. (2) The Lokpal shall notify the areas in relation to which each Bench of the Lokpal may exercise jurisdiction. (3) Notwithstanding anything contained in sub-section (2), the Chairperson shall have the power to constitute or reconstitute Benches from time-to-time. (4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such nature that it ought to be heard by a Bench consisting of three or more Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit.
Distribution of 20. Where Benches are constituted, the Chairperson may, business amongst from time-to-time, by notification, make provisions as to the Benches. distribution of the business of the Lokpal amongst the Benches and also provide for the matters which may be dealt with by each Bench.
Power of 21. On an application for transfer made by the complainant or Chairperson to the public servant, the Chairperson, after giving an opportunity of transfer cases. being heard to the complainant or the public servant, as the case may be, may transfer any case pending before one Bench for disposal to any other Bench.
Decision to be 22. If the Members of a Bench consisting of two Members by majority. differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Lokpal and such point or points shall be decided according to the opinion of the majority of the Members of the Lokpal who have heard the case, including those who first heard it. 239
CHAPTER VII
PROCEDURE IN RESPECT OF INQUIRY AND INVESTIGATION
23. (1) The Lokpal, on receipt of a complaint, may either Provisions make a preliminary inquiry or direct its Investigation Wing, to relating to complaints and make a preliminary investigation to ascertain whether there exists inquiry and a prima facie case for proceeding in the matter. investigation. (2) Every preliminary inquiry or preliminary investigation referred to in sub-section (1) shall ordinarily be completed within a period of thirty days and for reasons to be recorded in writing, within a further period of three months from the date of receipt of the complaint. (3) Upon completion of the preliminary investigation, the investigating authority shall submit its report to the Lokpal. (4) Before the Lokpal comes to the conclusion in the course of a preliminary inquiry and after submission of a report referred to in sub-section (3) that a prima facie case is made out against the public servant pursuant to such a preliminary inquiry, the Lokpal shall afford the public servant an opportunity of being heard. (5) Where the Lokpal, after receiving the report of the investigating authority pursuant to a preliminary investigation or conclusion of the preliminary inquiries as referred to in sub- section (1) is satisfied that no prima facie case is made out for proceeding further in the matter, the complaint shall be closed and the decision thereon be communicated to the complainant and the public servant. (6) Where the Lokpal is of the opinion that prima facie case is made out and refers the matter for investigation, upon completion of such investigation and before filing the charge sheet, the public servant against whom such investigation is being conducted shall be given an opportunity of being heard. (7) Every inquiry conducted by the Lokpal, upon being satisfied that a prima facie case is made out, shall be open to the public provided that in exceptional circumstances and for reasons to be recorded in writing by the Lokpal, such inquiry may be conducted in camera. (8) In case the Lokpal proceeds to inquire into the complaint under sub-section (7) it shall hold such inquiry as expeditiously as possible and complete the inquiry within a period of six months from the date of receipt of the complaint which, for reasons to be recorded in writing, may be extended by a further period of six months. (9) The public servant against whom an inquiry is being conducted under sub-section (8) shall be given an opportunity of being heard. 240
(10) Where in a case the Lokpal is of the opinion and for reason to be recorded in writing that it is not in the interest of justice to either hold a preliminary inquiry or preliminary investigation, it may refer the matter for investigation. (11) Upon completion of such investigation but before filing a charge sheet, the investigating authority shal1 place the records in its possession along with its prima facie conclusion before the Lokpal who shall before directing that a charge sheet be filed afford the public servant concerned an opportunity of being heard. (12) If the Lokpal proposes to inquire into a complaint, it may, at any stage,— (a) pass appropriate orders for safe custody of the documents relevant to the inquiry as it deems fit; and (b) forward a copy of the complaint to the public servant concerned along with all relevant material relied upon and afford him an opportunity to represent his case. (13) The website of the Lokpal shall, from time-to-time and in such manner as may be specified by regulations, display to the public, the status of number of complaints pending before it or disposed of by it. (14) The Lokpal may withhold the records and evidence which are likely to impede the process of inquiry or conduct of a case by it or by the Special Court. (15) Save as otherwise provided, the manner and procedure of conducting an inquiry or investigation under this Act, shall be such as may be specified by regulations.
Inspection of 24. In cases where, an investigation or inquiry into a document and complaint is proposed to be initiated by the Lokpal, every person furnishing copies thereof to against whom such inquiry or investigation is proposed to be persons against conducted, shall be entitled to inspect any record in connection with whom the commission of any alleged offence and take an extract complaints have been made. therefrom, as is considered necessary to defend his case.
Persons likely to 25. If, at any stage of the proceeding, the Lokpal— be prejudicially affected to be (a) considers it necessary to inquire into the conduct heard. of any person other than the prospective accused; or (b) is of opinion that the reputation of any person other than an accused is likely to be prejudicially affected by the inquiry, the Lokpal shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence, consistent with the principles of natural justice: Provided that nothing in this section shall apply where the credibility of a witness is being questioned. 241
26. Subject to the provisions of this Act, for the purpose of Lokpal may any inquiry or investigation, the Lokpal or the investigating authority, require any public servant or as the case may be, may require any public servant or any other any other person person who, in its opinion, is able to furnish information or produce to furnish documents relevant to such inquiry or investigation, to furnish any information etc. such information or produce any such document.
27. (1) No sanction or approval shall be required by the Previous Lokpal or its Investigation Wing under section 197 of the Code of sanction not necessary for 2 of 1974. Criminal Procedure, 1973 or section 19 of the Prevention of investigation and 49 of 1988. Corruption Act, 1988 for the purpose of making inquiry by the initiating Lokpal or investigation by its Investigation Wing into any complaint prosecution by against any public servant or for filing of any complaint in respect Lokpal in certain cases. thereof before the Special Court under this Act. (2) A Special Court may, notwithstanding anything contained 2 of 1974. in section 197 of the Code of Criminal Procedure, 1973 or section 49 of 1988. 19 of the Prevention of Corruption Act, 1988, on a complaint filed by the Lokpal or any officer authorised by it in this behalf, take cognizance of offence committed by any public servant. (3) Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding the office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal of such person has been specified therein. (4) The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in article 311 and sub-clause (c) of clause (3) of article 320 of the Constitution.
28. (1) Where, after the conclusion of the inquiry or Action on investigation, the findings of the Lokpal disclose the commission of inquiry in relation to public 49 of 1988. an offence under the Prevention of Corruption Act, 1988 by a public servants not servant referred to in clause (c) or clause (d) of sub-section (1) of being Ministers section 17, the Lokpal may or Members of Parliament. (a) file a case in the Special Court and send a copy of the report together with its findings to the competent authority; (b) recommend to the competent authority the initiation of disciplinary proceedings under the rules of disciplinary proceedings applicable to such public servant; (c) provide a copy of the report to the public servant or his representative. (2) The competent authority shall, within a period of thirty days of the receipt of recommendation under clause (b) of sub- section (1), initiate disciplinary proceedings against the delinquent public servant accused of committing offence under the Prevention 49 of 1988. of Corruption Act, 1988 and forward its comments on the report, including the action taken or proposed to be taken thereon, to the Lokpal ordinarily within six months of initiation of such disciplinary proceedings. 242
Action on 29. (1) Where, after the conclusion of the inquiry or inquiry against investigation, the findings of the Lokpal disclose the commission of public servant being Ministers an offence under the Prevention of Corruption Act, 1988 by a public 49 of 1988. or Members of servant referred to in clause (a) or clause (b) of sub-section (1) of Parliament. section 17, the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority. (2) The Prime Minister, in the case of the Minister, the Speaker in the case of a Member of the House of the People, and the Chairman of the Council of States; in the case of a Member of that Council shall, as soon as may be, after the receipt of report under sub-section (1), cause the same to be laid before the House of the People or the Council of States, as the case may be, while it is in session, and if the House of the People or the Council of States, as the case may be, is not in session, within a period of one week from the reassembly of the said House or the Council, as the case may be. (3) The competent authority shall examine the report forwarded to it under sub-section (1) and communicate to the Lokpal, within a period of ninety days from the date of receipt of the report, the action taken or proposed to be taken on the basis of the report. Explanation.—In computing the period of ninety days referred to in this sub-section, any period during which Parliament or, as the case may be, either House of Parliament, is not in session, shall be excluded.
CHAPTER VIII
POWERS OF LOKPAL
Search and 30. (1) If the Lokpal has reason to believe that any document seizure. which, in its opinion, shall be useful for, or relevant to, any investigation or inquiry under this Act, are secreted in any place, it may authorise any officer of the Investigation Wing, to search for and to seize such documents. (2) If the Lokpal is satisfied that any document seized under sub-section (1) would be evidence for the purpose of any investigation or inquiry under this Act and that it would be necessary to retain the document in its custody or in the custody of such officer as may be authorised, it may so retain or direct such officer authorised to retain such document till the completion of such investigation or inquiry: Provided that where any document is required to be returned, the Lokpal or the authorised officer may return the same after retaining copies of such document duly authenticated.
(3) The provisions of the Code of Criminal Procedure, 1973 2 of 1974. relating to searches shall, so far as may be, apply to searches under 243
this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word “Magistrate”, wherever it occurs therein, the words “Lokpal or any officer authorised by it” were substituted.
31. (1) Subject to the provisions of this section, for the Lokpal to have purpose of any inquiry, the Lokpal shall have all the powers of a powers of civil court in certain 5 of 1908. civil court, under the Code of Civil Procedure, 1908, while trying cases. a suit in respect of the fol1owing matters, namely:— (i) summoning and enforcing the attendance of any person and examining him on oath; (ii) requiring the discovery and production of any document; (iii) receiving evidence on affidavits; (iv) requisitioning any public record or copy thereof from any court or office; (v) issuing commissions for the examination of witnesses or documents: Provided that such commission, in case of a witness, shall be issued only where the witness, in the opinion of the Lokpal, is not in a position to attend the proceeding before the Lokpal; and (vi) such other matters as may be prescribed. (2) Any proceeding before the Lokpal shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian 45 of 1860. Penal Code.
32. (1) The Lokpal may, for the purpose of conducting Power of Lokpal any inquiry, utilise the services of any officer or investigation to utilise services of agency of the Central Government or any State Government, officers of as the case may be. Central or State Government. (2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (2) may, subject to the direction and control of the Lokpal,— (a) summon and enforce the attendance of any person and examine him; (b) require the discovery and production of any document; and (c) requisition any public record or copy thereof from any office. (3) The officer or agency whose services are utilised under sub-section (2) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Lokpal within such period as may be specified by the Lokpal in this behalf. 244
Provisional 33. (1) Where the Lokpal or any investigation officer attachment of authorised by it in this behalf, has reason to believe, the reason for assets. such belief to be recorded in writing, on the basis of material in its or his possession, that— (a) any person is in possession of any proceeds of corruption; (b) such person is accused of having committed an offence relating to corruption; and (c) such proceeds of offence are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of offence, the Lokpal or such investigation officer may, by order in writing, provisionally attach such property for a period not exceeding ninety days from the date of the order, in the manner provided in the Second Schedule to the Income-tax Act, 1961 and the Lokpal or 43 of 1961. such investigation officer, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule. (2) The Lokpal shall, immediately after attachment under sub- section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Special Court, in a sealed envelope, in the manner as may be prescribed and such Court may extend the order of attachment and keep such material for such period as the Court may deem fit. (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or after the expiry of the period as directed by the Special Court under sub-section (2). (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub- section (1) or sub-section (2), from such enjoyment. Explanation.—For the purposes of this sub-section, “person interested”, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
Confirmation of 34. (1) The Lokpal, when it provisionally attaches any attachment of property under sub-section (1) of section 33 shall, within a period assets. of thirty days of such attachment, direct its prosecution wing to file an application stating the facts of such attachment before the Special Court and make a prayer for confirmation of attachment of the property till completion of the proceedings against the public servant in the Special Court. (2) The Special Court may, if it is of the opinion that the property provisionally attached had been acquired through corrupt means, make an order for confirmation of attachment of such property till the completion of the proceedings against the public servant in the Special Court. 245
(3) If the public servant is subsequently acquitted of the charges framed against him, the property, subject to the orders of the Special Court, shall be restored to the concerned public servant along with benefits from such property as might have accrued during the period of attachment. (4) If the public servant is subsequently convicted of the charges of corruption, the proceeds relatable to the offence under 49 of 1988. the Prevention of Corruption Act, 1988 shall be confiscated and vest in the Central Government free from any encumbrance or leasehold interest excluding any debt due to any bank or financial institution. Explanation.—For the purposes of this sub-section, the expressions “bank”, “debt” and “financial institution” shall have the meanings respectively assigned to them in clauses (d), (g) and (h) of section 2 of the Recovery of Debts Due to Banks and Financial 51 of 1993. Institutions Act, 1993.
35. (1) Where the Lokpal, while making an inquiry into Power of Lokpal allegations of corruption, is prima facie satisfied, on the basis of to recommend transfer or evidence available, that— suspension of public servant (a) the continuance of the public servant referred to in connected with clause (c) or clause (d) of sub-section (1) of section 17 in his allegation of post while conducting the inquiry is likely to affect such corruption. inquiry adversely; or (b) the public servant referred to in clause (a) is likely to destroy or in any way tamper with the evidence or influence witnesses, then, the Lokpal may recommend to the Central Government for transfer or suspension of such public servant from the post held by him till such period as may be specified in the order. (2) The Central Government shall ordinarily accept the recommendation of the Lokpal made under sub-section (1), except for the reasons to be recorded in writing in a case where it is not feasible for administrative reasons.
36. The Lokpal may, in discharge of its functions ulnder this Power of Lokpal Act, issue appropriate directions to a public servant entrusted with to give directions to the preparation or custody of any document or record— prevent destruction of (a) to protect such document or record from destruction records during or damage; or inquiry. (b) to prevent the public servant from altering or secreting such document or record; or (c) to prevent the public servant from transferring or alienating any assets allegedly acquired by him through corrupt means.
37. The Lokpal may, by general or special order in writing, Power to and subject to such conditions and limitations as may be specified delegate. 246
therein, direct that any administrative or financial power conferred on it may also be exercised or discharged by such of its Members or officers or employees as may be specified in the order.
CHAPTER IX
SPECIAL COURTS
Special Courts to 38. (1) The Central Government shall constitute such number be notified by of Special Courts, as recommended by the Lokpal, to hear and Central Government. decide the cases arising out of the Prevention of Corruption Act, 1988 or under this Act. 49 of 1988.
(2) The Special Courts constituted under sub-section (1) shall ensure completion of each trial within a period of one year from the date of filing of the case in the Court:
Provided that in case the trial cannot be completed within a period of one year, the Special Court shall record reasons therefor and complete the trial within a further period of not more than three months or such further periods not exceeding three months each, for reasons to be recorded in writing, before the end of each such three months period, but not exceeding a total period of two years.
Letter of request 39. (1) Notwithstanding anything contained in this Act or the to a contracting Code of Criminal Procedure, 1973 if, in the course of an inquiry 2 of 1974. State in certain cases. or investigation into an offence or other proceeding under this Act, an application is made to a Special Court by the Investigation Officer of the Lokpal that any evidence is required in connection with the inquiry or investigation into an offence or proceeding under this Act and he is of the opinion that such evidence may be available in any place in a contracting State, and the Special Court, on being satisfied that such evidence is required in connection with the inquiry or investigation into an offence or proceeding under this Act, may issue a letter of request to a court or an authority in the contracting State competent to deal with such request to—
(i) examine the facts and circumstances of the case;
(ii) take such steps as the Special Court may specify in such letter of request; and
(iii) forward all the evidence so taken or collected to the Special Court issuing such letter of request.
(2) The letter of requests shall be transmitted in such manner as the Central Government may prescribe in this behalf.
(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be evidence collected during the course of the inquiry or investigation. 247
CHAPTER X
COMPLAINTS AGAINST CHAIRPERSON, MEMBERS AND OFFICIALS OF LOKPAL
40. (1) The Lokpal shall not inquire into any complaint made Complaints against the Chairperson or any Member. against Chairperson and (2) Any complaint against the Chairperson or Member shall be Members not to be inquired by made by an application by the party aggrieved, to the President. Lokpal. (3) The President shall, in case there exists a prima facie case for bias or corruption, make a reference to the Chief Justice of India in such manner as may be prescribed for inquiring into the complaint against the Chairperson or Member. (4) The President shall decide the action against the Chairperson or Member on the basis of the opinion of the Chief Justice of India and in case the President is satisfied, on the basis of the said opinion that the Chairperson or the Member is biased or has indulged in corruption, the President shall, notwithstanding anything contained in sub-section (1) of section 8, remove such Chairperson or Member and also order for initiation of prosecution in case of allegation of corruption.
41. (1) Every complaint of allegation or wrongdoing made Complaints against any officer or employee or investigation agency under or against officials of Lokpal. associated with the Lokpal for offence punishable under the 49 of 1988. Prevention of Corruption Act, 1988 shall be dealt with in accordance with the provisions of this section. (2) The Lokpal shall complete the inquiry into the complaint or allegation made, within a period of thirty days from the date of its receipt. (3) While making an inquiry into the complaint against any officer or employee of the Lokpal or agency engaged or associated with the Lokpal, if the Lokpal is prima facie satisfied on the basis of evidence available, that— (a) continuance of such officer or employee of the Lokpal in his post or agency engaged or associated while conducting the inquiry is likely to affect such inquiry adversely; or (b) an officer or employee of the Lokpal or agency engaged or associated is likely to destroy or in any way tamper with the evidence or influence witnesses, then, the Lokpal may, by order, suspend such officer or employee of the Lokpal or divest such agency engaged or associated with the Lokpal of all powers and responsibilities hereto before exercised by it. (4) On the completion of the inquiry, if the Lokpal is satisfied that there is prima facie evidence of the commission of an offence 49 of 1988. under the Prevention of Corruption Act, 1988 or of any wrongdoing, 248
it shall, within a period of fifteen days of the completion of such inquiry, order to prosecute such officer or employee of the Lokpal or such officer or employee of agency engaged or associated with the Lokpal and initiate disciplinary proceedings against the official concerned: Provided that no such order shall be passed without giving such officer or employee of the Lokpal or officer or employee of agency engaged or associated, a reasonable opportunity of being heard.
CHAPTER XI
ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT
Assessment of 42. If any public servant is convicted of an offence under the loss and Prevention of Corruption Act, 1988 by the Special Court, 49 of 1988. recovery thereof by notwithstanding and without prejudice to any law for the time being Special Court. in force, it may make an assessment of loss, if any, caused to the public exchequer on account of the actions or decisions of such public servant not taken in good faith and for which he stands convicted, and may order recovery of such loss, if possible or quantifiable, from such public servant so convicted: Provided that if the Special Court, for reasons to be recorded in writing, comes to the conclusion that the loss caused was pursuant to a conspiracy with the beneficiary or beneficiaries of actions or decisions of the public servant so convicted, then such loss may, if assessed and quantifiable under this section, also be recovered from such beneficiary or beneficiaries proportionately.
CHAPTER XII
FINANCE, ACCOUNTS AND AUDIT
Budget. 43. The Lokpal shall prepare, in such form and at such time in each financial year as may be prescribed, its budget for the next financial year, showing the estimated receipts and expenditure of the Lokpal and forward the same to the Central Government for information.
Grants by 44. Without prejudice to the provisions of section 16, the Central Central Government may, after due appropriation made by Government. Parliament by law in this behalf, make to the Lokpal grants of such sums of money as are required to be paid for the salaries and allowances payable to the Chairperson and Members and the administrative expenses, including the salaries and allowances and pension payable to or in respect of officers and other employees of the Lokpal.
Annual 45. (1) The Lokpal shall maintain proper accounts and other statement of relevant records and prepare an annual statement of accounts in accounts. such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India. 249
(2) The accounts of the Lokpal shall be audited by the Comptroller and Auditor General of India at such intervals as may be specified by him. (3) The Comptroller and Auditor-General of India or any person appointed by him in connection with the audit of the accounts of the Lokpal under this Act shall have the same rights, privileges and authority in connection with such audit, as the Comptroller and Auditor-General of India generally has, in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Lokpal. (4) The accounts of the Lokpal, as certified by Comptroller and Auditor-General of India or any other person appointed by him in this behalf, together with the audit report thereon, shall be forwarded annually to the Central Government and the Central Government shall cause the same to be laid before each House of Parliament.
46. (1) The Lokpal shall furnish to the Central Government, Furnishing of at such time and in such form and manner as may be prescribed or returns, etc., to Central as the Central Government may request, such returns and Government. statements and such particulars in regard to any matter under the jurisdiction of the Lokpal, as the Central Government may, from time to time, require. (2) The Lokpal shall prepare, once every year, in such form and at such time as may be prescribed, an annual report, giving a summary of its activities during the previous year and copies of the report shall be forwarded to the Central Government. (3) A copy of the report received under sub-section (2) shall be laid by the Central Government, as soon as may be after it is received, before each House of Parliament.
CHAPTEER XIII
DECLARATION OF ASSETS
47. (1) Every public servant shall make a declaration of his Declaration of assets and liabilities in the manner as provided by or under this Act. assets. (2) Every public servant shall, within a period of thirty days from the date on which he makes and subscribes an oath or affirmation to enter upon his office, furnish to the competent authority the information relating to— (a) the assets of which he, his spouse and his dependent children are, jointly or severally, owners or beneficiaries; (b) his liabilities and that of his spouse and his dependent children. 250
(3) Every public servant holding his office as such, at the time of the commencement of this Act; shall furnish information relating to such assets and liabilities, as referred to in sub- section (2) to the competent authority within thirty days of the coming into force of this Act.
(4) Every public servant shall file with the competent authority, on or before the 31st July of every year, an annual return of such assets and liabilities, as referred to in sub-section (2), as on the 31st March of that year.
(5) The information under sub-section (2) or sub-section (3) and annual return under sub-section (4) shall be furnished to the competent authority in such form and in such manner as may be prescribed.
(6) The competent authority in respect of each office or Department shall ensure that all such statements are published on the website of such office or Department by 31st August of that year.
Explanation.—For the purposes of this section, “dependent children” means sons and daughters who have no separate means of earning and are wholly dependent on the public servant for their livelihood.
Presumption as 48. If any public servant willfully or for reasons which are to acquisition of not justifiable,— assets by corrupt means in certain cases. (a) fails to declare his assets; or (b) gives misleading information in respect of such assets and is found to be in possession of assets not disclosed or in respect of which misleading information was furnished,
then such assets shall, unless otherwise proved, be presumed to belong to the public servant and shall be presumed to be assets acquired by corrupt means:
Provided that the competent authority may condone or exempt the public servant from furnishing information in respect of assets not exceeding such minimum value as may be prescribed.
CHAPTER XIV
OFFENCES AND PENALTIES
Prosecution for 49. (1) Notwithstanding anything contained in this Act, false complaint whoever makes any false and frivolous or vexatious complaint under and payment of compensation, this Act shall, on conviction, be punished with imprisonment for a etc., to public term which shal1 not be less than two years but which may extend servant. to five years and with fine which shall not be less than twenty-five thousand rupees but which may extend to two lakh rupees. 251
(2) No Court, except a Special Court, shall take cognizance of an offence under sub-section (1). (3) No Special Court shall take cognizance of an offence under sub-section (1) except on a complaint made by a person against whom the false, frivolous or vexatious complaint was made. (4) The prosecution in relation to an offence under sub- section (1) shall be conducted by the public prosecutor and all expenses connected with such prosecution shall be borne by the Central Government. (5) In case of conviction of a person [being an individual or society or association of persons or trust (whether registered or not)], for having made a false complaint under this Act, such person shall be liable to pay compensation to the public servant against whom he made the false complaint in addition to the legal expenses for contesting the case by such public servant, as the Special Court may determine.
50. (1) Where any offence under section 49 has been False complaint committed by any society or association of persons or trust (whether made by society or association of registered or not), every person who, at the time the offence was persons or trust. committed, was directly in charge of, and was responsible to, the society or association of persons or trust, for the conduct of the business or affairs or activities of the society or association of persons or trust as well as such society or association of persons or trust shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a society or association of persons or trust (whether registered or not) and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of such society or association of persons or trust, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
CHAPTER XV
MISCELLANEOUS
51. No suit, prosecution or other legal proceedings under this Protection of Act shall lie against any public servant, in respect of anything which action taken in good faith by is done in good faith or intended to be done in the discharge of his any public official functions or in exercise of his powers. servant. 252
Protection of 52. No suit, prosecution or other legal proceedings shall lie action taken in against the Lokpal or against any officer, employee, agency or any good faith by others. person, in respect of anything which is done in good faith or intended to be done under this Act or the rules or the regulations made thereunder.
Members, 53. The Chairperson, Members, officers and other employees officers and of the Lokpal shall be deemed, when acting or purporting to act in employees of Lokpal to be pursuance of any of the provisions of this Act, to be public servants public servants. within the meaning of section 21 of the Indian Penal Code. 45 of 1860.
Limitation to 54. The Lokpal shall not inquire or investigate into any apply in certain complaint, if the complaint is made after the expiry of a period of cases. seven years from the date on which the offence mentioned in such complaint is alleged to have been committed.
Bar of 55. No civil court shall have jurisdiction in respect of any matter jurisdiction. which the Lokpal is empowered by or under this Act to determine.
Legal 56. The Lokpal shall provide to every person against whom a assistance. complaint has been made, before it, under this Act, legal assistance to defend his case before the Lokpal, if such assistance is requested for.
Act to have 57. The provisions of this Act shall have effect notwith- overriding standing anything inconsistent therewith contained in any enactment effect. other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
Provision of 58. The provisions of this Act shall be in addition to, and not this Act to be in derogation of, any other law for the time being in force. in addition to other laws.
Amendment of 59. The enactments specified in the Second Schedule shall be certain amended in the manner, specified therein. enactments. Power to make 60. (1) The Central Government may, by notification make rules. rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the form of complaint referred to in clause (d) of sub-section (1) of section 2;
(b) the term of the Search Committee, the fee and allowances payable to its members and the manner of selection of panel of names under sub-section (5) of section 4;
(c) the procedure of inquiry into misbehaviour for removal of the Chairperson or any Member under sub- section (1) of section 8; 253
(d) the post or posts in respect of which the appointment shall be made after consultation with the Union Public Service Commission under the proviso to sub- section (1) of section 11; (e) other matters for which the Lokpal shall have the powers of a civil court under clause (vi) of sub-section (1) of section 31; (f) the manner of sending the order of attachment along with the material to the Special Court under sub-section (2) of section 33; (g) the manner of transmitting the letter of request under sub-section (2) of section 39; (h) the manner of making reference to the Chief Justice of India under sub-section (3) of section 40; (i) the form and the time for preparing in each financial year the budget for the next financial year, showing the estimated receipts and expenditure of the Lokpal under section 43; (j) the form for maintaining the accounts and other relevant records and the form of annual statement of accounts under sub-section (1) of section 45; (k) the form and manner and the time for preparing the returns and statements along with particulars under sub- section (1) of section 46; (l) the form and the time for preparing an annual report giving a summary of its activities during the previous year under sub-section (2) of section 46; (m) the form of annual return to be filed by a public servant under sub-section (5) of section 47; (n) the minimum value for which the competent authority may condone or exempt a public servant from furnishing information in respect of assets under the proviso to section 48; (o) any other matter which is to be or may be prescribed,
61. (1) Subject to the provisions of this Act and the rules Power of Lokpal made thereunder, the Lokpal may, by notification make regulations to make to carry out the provisions of this Act. regulations. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:— (a) the conditions of service of the secretary and other officers and staff of the Lokpal and the matters which in so far as they relate to salaries, allowances, leave or pensions, 254
require the approval of the President under sub-section (2) of section 11; (b) the place of sittings of Benches of the Lokpal under clause (f) of sub-section (1) of section 19; (c) the manner for displaying on the website of the Lokpal, the status of all complaints pending or disposed of along with records and evidence with reference thereto under sub-section (13) of section 23; (d) the manner and procedure of conducting an inquiry or investigation under sub-section (15) of section 23; (e) any other matter which is required to be, or may be, specified under this Act.
Laying of rules 62. Every rule and every regulation made under this Act shall and regulations. be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
Power to 63. (1) If any difficulty arises in giving effect to the remove provisions of this Act, the Central Government may, by order, difficulties. published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty: Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 255
THE FIRST SCHEDULE [See section 3(5)]
I, A.B...... , having been appointed Chairperson (or a Member) of the Lokpal, do swear in the name of God/ solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will.
255 256
THE SECOND SCHEDULE (See section 59)
AMENDMENT TO CERTAIN ENACTMENTS
PART I
AMENDMENT TO THE COMMISSIONS OF INQUIRY ACT, 1952 (60 OF 1952)
Amendment In section 3, in sub-section (1), for the words “The of section 3. appropriate Government may”, the words and figures “Save as otherwise provided in the Lokpal Act, 2011, the appropriate Government may” shall be substituted.
PART II
AMENDMENTS TO THE PREVENTION OF CORRUPTION ACT, 1988 (49 OF 1988)
Amendment 1. In section 13, in sub-section (2), for the words “seven of section 13. years”, the words “ten years” shall be substituted.
Amendment 2. In section 14, for the words “seven years”, the words “ten of section 14. years” shall be substituted.
Amendment 3. In section 19, in sub-section (1), after the words “except of section 19. with the previous sanction”, the words and figures “save as otherwise provided in the Lokpal Act, 2011” shall be inserted.
PART III
AMENDMENT TO THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974)
Amendment In section 197, after the words “except with the previous of section sanction”, the words and figures “save as otherwise provided in the 197. Lokpal Act, 2011” shall be inserted.
256 257
STATEMENT OF OBJECTS AND REASONS
The need to have a strong and effective institution of Lokpal has been felt for quite sometime. The Administrative Reforms Commission, in its interim report on the “Problems of Redressal of Citizens’ Grievances” submitted in 1966, inter alia, recommended the setting up of an institution of Lokpal at the Centre in this regard. To give effect to this recommendation of the Administrative Reforms Commission, eight Bills on Lokpal were introduced in the Lok Sabha in the past, namely in the years 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. However, these Bills had lapsed consequent upon the dissolution of the respective Lok Sabha except in the case of 1985 Bill which was withdrawn after its introduction.
2. A need has been felt to constitute a mechanism for dealing with complaints on corruption against public functionaries in high places. In this regard, the Central Government constituted a Joint Drafting Committee (JDC) on 8th April, 2011 to draft a Lokpal Bill.
3. Based on the deliberations and having regard to the need for establishing a strong and effective institution of Lokpal to inquire into allegations of corruption against certain public functionaries, it has been decided to enact a stand alone legislation, inter alia, to provide for the following matters, namely:—
(i) to establish an Institution of Lokpal with a Chairperson and eight Members of which fifty per cent shall be Judicial Members;
(ii) to set up Lokpal’s own Investigation Wing and Prosecution Wing with such officers and employees as felt by it to be necessary;
(iii) the category of public functionaries against whom allegations of corruption are to be inquired into, namely:—
(a) a Prime Minister, after he has demitted office;
(b) a Minister of the Union;
(c) a Member of Parliament;
(d) any Group “A” officer or equivalent;
(e) a Chairperson or member or officer equivalent to Group “A” in any body, Board, corporation, authority, company, society, trust, autonomous body
257 258
established by an Act of Parliament or wholly or partly financed or controlled by the Central Government;
(f) any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may by notification specify but the organisations created for religious purposes and receiving public donations would be outside the purview of the Lokpal.
(iv) to provide for a mechanism to ensure that no sanction or approval under section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988, will be required in cases where prosecution is proposed by the Lokpal;
(v) to confer on the Lokpal the power of search and seizures and certain powers of a Civil Court;
(vi) to empower the Lokpal or any investigation officer authorised by it in this behalf to attach property which, prima facie, has been acquired by corrupt means;
(vii) to lay down a period of limitation of seven years from the date of commission of alleged offence for filing the complaints before the Lokpal;
(viii) to confer powers of police upon Lokpal which the police officers have in connection with investigation;
(ix) to charge the expenses of Lokpal on the Consolidated Fund of India;
(x) to utilise services of officers of Central or State Government with the consent of the State Government for the purpose of conducting inquiry;
(xi) to recommend transfer or suspension of public servants connected with allegation of corruption;
(xii) to constitute sufficient number of Special Courts as may be recommended by the Lokpal to hear and decide the cases arising out of the Prevention of Corruption Act, 1988 under the proposed enactment;
(xiii) to make every public servant to declare his assets and liabilities, and in case of default or furnishing misleading information, to presume that the public servant has acquired such assets by corrupt means; 259
(xiv) to provide for prosecution of persons who make false or frivolous or vexatious complaints.
4. The notes on clauses explain in detail the various provisions contained in the Bill. 5. The Bill seeks to achieve the above objects.
NEW DELHI; Y. NARAYANASAMY The 1st August, 2011.
PRESIDENT’S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA [Copy of letter No. 40407/44/2011-AVD. IV, dated the 1st August, 2011 from Shri Y. Narayanasamy, Minister of State in the Ministry of Personnel, Public Grievances and Pensions to the Secretary-General, Lok Sabha] The President, having been informed of the subject matter of the Lokpal Bill, 2011 recommends the introduction and consideration of the Bill in Lok Sabha under article 117(1) and (3) of the Constitution. 260
NOTES ON CLAUSES
Clause 1.—This clause of the Bill seeks to provide for the short title, extent and commencement of the proposed Lokpal legislation. It provides that it shall come into force on such date as the Central Government may appoint by notification in the Official Gazette and the Central Government may appoint different dates for different provisions of the proposed legislation. Clause 2.—This clause defines the various expressions used in the Bill which, inter alia, include the expressions — “Bench”, “competent authority”, “complaint”, “inquiry”, “Judicial Member’:, “Lokpal”, “Member”, “Minister”, “public servant”, “Special Court”, etc. The court of Special Judge appointed under sub-section (1) of section 3 of the Prevention of Corruption Act, 1988 shall be the Special Court. Sub-clause (3) of the aforesaid clause provides that any reference in the proposed legislation to any other Act or provision thereof which is not in force in any area to which the proposed legislation applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area. Clause 3.—This clause seeks to provide for the establishment of Lokpal consisting of a Chairperson and eight Members. It also provides that fifty per cent of the Members shall be Judicial Members. The Chairperson shall be a person who is or has been the Chief Justice or a Judge of the Supreme Court. The Judicial Member shall be a person who is or has been the Judge of the Supreme Court or the Chief Justice of a High Court. The Members shall be the persons who are of impeccable integrity, outstanding ability and standing having special knowledge and experience of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management. It further provides that the Chairperson or a Member of the Lokpal shall not be a Member of Parliament or a Member of a Legislature of any State or Union territory and shall not hold any office of trust or profit or be connected with any political party or carry on own business or practice any profession. It further provides that the person appointed as Chairperson or a Member before he enters upon his office shall resign from the office of trust or profit held by him or sever his connection with the conduct and management of any business carried on by him or cease to practice if he is practicing any profession. Clause 4.—This clause provides for appointment of Chairperson and other Members and constitution of a Selection
260 261
Committee for that purpose. The Chairperson and Members shall be appointed after obtaining the recommendations of a Selection Committee consisting of the Prime Minister, the Speaker of the House of the People, the Leader of Opposition in the House of the People, the Leader of Opposition” in the Council of States, one Union Cabinet Minister, one sitting Judge of the Supreme Court, one sitting Judge of a High Court nominated by the Chief Justice of India, one eminent jurist and one person of eminence in public life with wide knowledge and experience in anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law or management to be nominated by the Central Government. For the purpose of selecting the Chairperson and other Members of the Lokpal and for preparing a panel of persons to be considered for appointment, the Selection Committee may constitute a Search Committee consisting of such persons of standing having special knowledge and expertise in the matters relating to anti- corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which in the opinion of the Selection Committee may be useful for making the selection of a Chairperson and Members of the Lokpal.
Clause 5.—This clause provides that all necessary steps for appointment of a new Chairperson or Members shall be taken at least three months before the expiry of the term of such Chairperson or Member, as the case may be, in accordance with the procedure laid down in the proposed legislation.
Clause 6.—This clause deals with the terms of office of the Chairperson and Members. It provides that the Chairperson and every Member shall be appointed by the President by warrant under his hand and seal and hold office as such for a term not exceeding five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier.
Clause 7.—This clause deals with salary, allowances and other conditions of services of Chairperson and Members. It provides that the salary, allowances and other conditions of services of the Chairperson shall be the same as that of a Chief Justice of India. The salary, allowances and other conditions of services of the Members shall be the same as that of a Judges of the Supreme Court. Further, after a person is appointed as a Chairperson or a Member, his conditions of service, allowances and pension payable to him shall not be varied to his disadvantage.
Clause 8.—This clause provide for the removal and suspension of Chairperson and Members of the Lokpal. The Chairperson and Members may be removed from his office by an order of the President on the ground of misbehaviour after the Supreme Court held an inquiry in accordance with a prescribed procedure on a reference being made to it by the President suo motu, or on a petition of at least one hundred Members of 262
Parliament or on a petition of a citizen referred to the Supreme Court by the President. Sub-clause (2) provides that the Chairperson or a Member in respect of whom a reference has been made to the Supreme Court may be suspended by the President until orders on receipt of a report from the Supreme Court on the reference made to it. Sub- clause (3) provides that the Chairperson or any Member may be removed from office if he is adjudged as insolvent or if, during his term of office engages in paid employment outside his duties or if in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. Sub-clause (4) provides certain grounds in which the Chairperson or Member shall be deemed to be guilty of misbehaviour. Clause 9.—This clause provides for restriction on employment by Chairperson and Members after ceasing to hold the office. It provides that the Chairperson or Member shall not be eligible for reappointment in the Lokpal or any diplomatic assignment or appointment as Administrator of Union territory or further employment to any other office of profit. It also provides that the Chairperson and Members of Lokpal shall be ineligible to contest any election of President or Vice-President or Member of either House of Parliament or Member of either House of a State Legislature or Municipality or Panchayat within a period of five years from the date of relinquishing the post. However, a Member shall be eligible to be appointed as a Chairperson if his total tenure as Member and Chairperson does not exceed five years. Clause 10.—This clause seeks to provide that in the event of occurrence of any vacancy in the office of Chairperson, by reason of his death, resignation or otherwise, the President may authorise the senior-most Member to act as the Chairperson until a new Chairperson is appointed to fill the vacancy and when a Chairperson is unable to discharge his functions owing to absence or leave or otherwise, the President may authorise the senior-most Member to discharge his functions. Clause 11.—This clause seeks to provide that the secretary or other officers and staff of the Lokpal shall be appointed by the Chairperson or the Member or officer of Lokpal as the Chairperson may direct. The President may make rules that the appointment in respect of any post or posts shall be made after consultation with the Union Public Service Commission. Clause 12.—This clause provides for setting up of an Investigation Wing of the Lokpal for the purpose of conducting investigation of any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988. It further provides that till such time the Investigation Wing is constituted by the Lokpal, the Central Government will make available the services of its investigation officers and other staff required by the Lokpal. It also provides for extension of 263 powers and jurisdiction of officers of the Investigation Wing of the Lokpal to the States with the consent of the concerned State Government and on such extension the members of the Investigation Wing of the Lokpal will have jurisdiction and powers under certain provisions of the Delhi Special Police Establishment Act, 1946 to act as if they were members of the Police Force of the concerned State. Clause 13.—This clause stipulates that the Investigating Officers shall be of the rank of Deputy Superintendent of Police or any other officer of equivalent rank. Clause 14.—This clause lays down that the Lokpal may require the Investigating Officer of its Investigation Wing to make a preliminary investigation and submit a report within a specified time so as to specify itself as to whether or not the matter requires to be inquired into further by the Lokpal. Clause 15.—This clause seeks to provide that the Lokpal may constitute a Prosecution Wing under a Director of Prosecution with such other officers and employees as required to assist him for the purpose of prosecution of public servants in relation to offences punishable under the Prevention of Corruption Act, 1988, such prosecution shall be on complains to be made by the Lokpal before the Special Court. Clause 16.—This clause lays down that the expenses of the Lokpal including salaries, allowances and pensions payable to or in respect of Chairperson, Members, Secretary or other officers or staff of the Lokpal shall be charged on the Consolidated Fund of India. It also provides that any fees or other moneys taken by the Lokpal shall form part of the Consolidated Fund of India. Clause 17.—This clause deals with the jurisdiction of Lokpal. Sub-clause (1) seeks to provide that the Lokpal shall inquire into any matter involved in or arising from or connected with any allegation of corruption made in a complaint in respect of Prime Minister, after he has demitted the office of the Prime Minister, a Minister, a Member of either House of Parliament, any Group “A” officer or equivalent or above from against the public servants as defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption Act, 1988 who was serving or has served in connection with the affairs of the Union, and Chairperson or Member or officers of certain boards, corporations, authority, company, society, trust, etc., established by an Act of Parliament or wholly or partly financed or controlled by the Central Government; director, manager, secretary or other officers of certain societies, association of persons etc. and director, manager, secretary or other officer of every other society, etc. wholly or partly financed or aided by the Government and the annual income of which exceeds such amount as may be notified by the Central Government which are for non-religious purpose and are in receipt of public donations. However, the 264 various offices held by the Prime Minister shall not come within the purview of this provision.
Sub-clause (2) provides that the Lokpal shall not inquire into any matter against any member of either House of Parliament in respect of anything said or vote given by him in Parliament or any Committee thereof covered under the provisions of clause (2) of article 105 of the Constitution.
Sub-clause (3) provides that the Lokpal may inquire into any act or conduct of any person if such person is associated with the allegation of corruption under the Prevention of Corruption Act, 1988.
Sub-clause (4) seeks to provide that in the matters in respect of which a complaint has been made under the proposed legislation shall not be referred for inquiry under the Commissions of Inquiry Act, 1952. The Explanation to clause 17 clarifies that a complaint under the proposed legislation shall relate only to a period during which the public servant was holding or serving as a public servant.
Clause 18.—This clause lays down the matters pending before any Court or Committee or Authority prior to commencement of the proposed legislation shall be continued before such Court, Committee or Authority, as the case may be. However, such continuance of proceedings will not affect the powers of the Lokpal to inquire into such matter under the proposed legislation.
Clause 19.—This clause seeks to provide that the jurisdiction of the Lokpal may be exercised by Benches thereof. A Bench of the Lokpal may be constituted by the Chairperson with two or more Members. Every Bench shall ordinarily consist of at least one Judicial Member in it. The Benches of Lokpal shall ordinarily be at New Delhi and at such places as the Lokpal may, by regulations, specify.
Clause 20.—This clause seeks to empower the Chairperson to distribute the business of Lokpal amongst its Benches and also specify the matters which may be dealt with by each Bench.
Clause 21.—This clause seeks to provide that the Chairperson may transfer any case pending before one Bench for disposal to any other Bench on receipt of an application for such transfer from the complainant or the public servant.
Clause 22.—This clause seeks to provide that the decision of the Lokpal shall be according to the opinion of the majority of the Members of Lokpal. However, if the Members of a Bench consisting of two Members differ in opinion on any point or points shall be referred to the Chairperson. The Chairperson may either hear such point or points himself or refer the same for hearing by one or more other Member and it shall be decided accordingly to the opinion of the majority of the Members who have heard the case including those who first heard it. 265
Clause 23.—This clause makes provision relating to complaint and inquiry and investigation by Lokpal. It provides that on receipt of a complaint, the Lokpal may either make preliminary inquiry or direct its Investigation Wing to make a preliminary inquiry to ascertain whether there exist a prima facie case for proceeding in the matter. A preliminary inquiry or preliminary investigation should ordinarily be completed within thirty days. However, this period could be extended for a further period of three months from the date of receipt of the complaint after recording the reasons for extension. It also provides that in cases where the Lokpal is of the opinion that it is not in the interest of justice to either hold preliminary inquiry or preliminary investigation it may for reasons to be recorded in writing refer the matter for investigation. Sub- clause (4) provides that the Lokpal before coming to a conclusion in the course of a preliminary inquiry that a prima facie case is made out against a public servant, the Lokpal shall give an opportunity to the public servant of being heard. It further provides that where the Lokpal is of the opinion that prima facie case is made out against the public servant, the public servant against whom such investigation is being conducted shall be given an opportunity to be heard before filing the charge sheet. Clause 24.—This clause seeks to provide that the persons against whom any inquiry or investigation is proposed to be conducted shall be allowed to inspect any record in connection with the commission of any alleged office which are necessary for him to defend his case and take extracts therefrom. Clause 25.—This clause provides that persons likely to be prejudicially affected are to be provided a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence consistent with the principles of natural justice. However, this will not apply where the credibility of a witness is being questioned. Clause 26.—This clause seeks to provide that Lokpal may require any public servant or any other person to furnish information or produce documents relevant to inquiry or investigation. Clause 27.—This clause makes provision that no previous sanction or approval shall be required by the Lokpal or its Investigation Wing under section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988. Clause 28.—This clause makes provision for the action to be taken by the Lokpal on conclusion of inquiry or investigation in relation to public servants who are not Ministers or Members of Parliament. It further provides that on conclusion of inquiry or investigation, where it is found that there is commission of offence under the Prevention of Corruption Act, 1988 by a public servant, the Lokpal may file a case in the Special Court and send a copy of the report and its findings to the competent authority, recommend to the competent authority initiation of disciplinary proceedings and 266 also provide a copy of the report to the public servant or his representative. Clause 29.—This clause makes provision for action to be taken by the .Lokpal on conclusion of inquiry or investigation against public servants being Ministers or Members of Parliament. It provides that where the commission of offence under Prevention of Corruption Act, 1988 by such public servants has-taken place, the Lokpal may file a case in the Special Court and send a copy of the report along with its findings to the competent authority as defined in the proposed legislation. It also provides that the competent authority shall examine the report and communicate to the Lokpal within a period of ninety days from the date of receipt of the report, the action taken or proposed to be taken on the basis of the report. However, in computing the period of ninety days, the period during which the Parliament will not be in session shall be excluded. Clause 30.—This clause seeks to confer power of search and seizure of documents on the Lokpal. Clause 31.—This clause provides that the Lokpal shall have all the powers of a Civil Court in certain matters and the proceedings before the Lokpal shall be deemed to be judicial proceedings within the meaning of Section 193 of the Indian Penal Code. Clause 32.—This clause seeks to make provision that the Lokpal may utilize the services of any officer or investigating agency of the Central Government or the State Government, as the case may be. It also enables the Lokpal to confer certain powers on such officers. Clause 33.—This clause makes provision for provisional attachment of assets by the Lokpal or any investigation officer authorised by it if such assets are any proceeds of corruption. Clause 34.—This clause makes provision for confirmation of provisional attachment of assets made by the Lokpal under clause 33 by the Special Court. Clause 35.—This clause seeks to provide that the Lokpal may recommend transfer or suspension of any public servant connected with allegation of corruption. This clause also provides that ordinarily the recommendation of the Lokpal shall be accepted by the Government. Clause 36.—This clause seeks to provide that the Lokpal may give directions to prevent destruction of records during inquiry. Clause 37.—This clause provides that the Lokpal may, by general or special order in writing, and subject to such conditions and limitations as may be specified therein, direct that any administrative or financial power conferred on it may also be exercised or discharged by such of its Members or officers or employees as may be specified in the order. 267
Clause 38.—This clause provides for constitution of Special Courts by the Central Government as recommended by the Lokpal to hear and decide the cases arising out of the Prevention of Corruption Act, 1988 or under the proposed legislation. It also provides that the Special Courts shall ensure completion of each trial within a period of one year from the date of filing the case in the court, However, in case the trial cannot be completed within a- period of one year, the Special Court shall record reasons therefor and complete the trial within a further period of not more than three months or such further periods not exceeding three months each, for reasons to be recorded in writing, before the end of each such three months period, but not exceeding a total period of two years. Clause 39.—This clause makes provision for issue of letter of request to a court or an authority in the contracting State in certain cases. Clause 40.—This clause makes provisions for handling of complaints against the Chairperson and Members of the Lokpal. Clause 41.—This clause provides for the provisions for dealing the complaints against officials of Lokpal. Clause 42.—This clause provides that when a public servant has committed an offence under the Prevention of Corruption Act, 1988, the Special Court may make an assessment of loss, if any; caused to the public exchequer on account of actions or decisions of such public servant not taken in good faith and for which he stands convicted, and may order recovery of such losses. Clause 43.—This clause seeks to provide that the Lokpal shall prepare its budget showing the estimated receipts and expenditure of the Lokpal and forward the same to the Central Government for intervention. Clause 44.—This clause provides that without prejudice to the provisions of clause 16, the Central Government may make grants of such sums of money to the Lokpal as are required to be paid for salaries and allowances payable to the Chairperson and Members and the administrative expenses, including the salaries and allowances and pension payable to or in respect of officers and other employees of the Lokpal. Clause 45.—This clause provides for maintaining the accounts and other relevant records and annual statement of accounts by the Lokpal. It further provides that accounts of the Lokpal shall be audited by the Comptroller and Auditor General of India. It also provides that the accounts of Lokpal together with the Audit Report thereon shall be forwarded annually to the Central Government and the Central Government shall lay the same before each House of Parliament. Clause 46.—This clause provides that the Lokpal shall furnish to the Central Government such returns or statements and such 268 particulars with regard to any matter under the jurisdiction of Lokpal as the Central Government may prescribe from time-to-time.
Clause 47.—This clause provides that the public servants shall make a declaration of their assets and liabilities in the manner as provided in this Act.
Clause 48.—This clause provides that any wilful failure on the part of a public servant to declare his assets shall amount to presumption that the assets have been acquired by corrupt means.
Clause 49.—This clause provides that if any person makes false or frivolous or vexatious complaint under this Act, he shall be liable for prosecution and on conviction he may be punished with imprisonment for a minimum term of two years and a maximum term of five years and with fine minimum of which shall be twenty-five thousand rupees and maximum of two lakh rupees.
Clause 50.—This clause provides that if false complaint is made by the Society or association of persons or trust, in that case every person who, at the time of commission of offence, was directly in-charge of the affairs or activities of such society etc. shall be deemed to be guilty of the offence under clause 48 and liable Jar punishment.
Clause 51.—This clause provides for protection of public servant from legal proceedings, etc., for the action taken in good faith.
Clause 52.—This clause provides for the protection of action taken in good faith by Lokpal, any officer, employee, agency or any person in respect of anything done or intended to be done under the proposed legislation or the rules or regulations made thereunder.
Clause 53.—This clause provides that the Chairperson,. Members, Officers and other employees of the Lokpal shall be public servants within the meaning of section 21 of the Indian Penal Code.
Clause 54.—This clause lays down the period of limitation for filing of complaints before the Lokpal as seven years from the date of commission of the alleged offence.
Clause 55.—This clause provides that no civil court shall have jurisdiction in the matters for which Lokpal is empowered under the proposed legislation.
Clause 56.—This clause provides that legal assistance for defending a case before the Lokpal shall be provided to every person against whom complaint has been made before it, if such assistance is requested for.
Clause 57.—This clause seeks to provide that the provisions of the proposed legislation shall have overriding effect. 269
Clause 58.—This clause provides that the provisions of the proposed legislation shall be in addition to any other law for the time being in force. Clause 59.—This clause seeks to amend certain enactments as specified in Second Schedule to the proposed legislation. Clause 60.—This clause seeks to empower the Central Government to make rules for carrying out the provisions of the proposed legislation. Sub-clause (2) of the said clause enumerates the various matters in respect of which such rules may be made. Clause 61.—This clause seeks to confer power on the Lokpal to make regulations for carrying out the provisions of the proposed legislation consistent with the provisions of the proposed legislation and the rules made by the Central Government under clause 60. Sub-clause (2) enumerates the various matters in respect of which such regulations may be made. Clause 62.—This clause provides that every rule and every regulation made under the proposed legislation shall be laid before each House of Parliament. Clause 63.—This clause relates to the power of the Central Government to remove difficulties. In case any difficulty arises in giving effect to the provisions of the proposed legislation, the Central Government may make such provisions as may be necessary in removing the difficulties by order published in the Official Gazette. However, no such order shall be made under this clause after the expiry of a period of two years from the commencement of the proposed legislation and every such order shall also be required to be laid before each House of Parliament. The First Schedule to the proposed legislation lays down the form of oath or affirmation which may be taken by any person before entering upon the office of Chairperson or Member of the Lokpal. The Second Schedule contains the details of amendments in certain enactments which are consequential to the enactment of the proposed legislation. 270
FINANCIAL MEMORANDUM
Sub-clause (1) of clause 3 of the Bill provides for the establishment of an institution to be called the Lokpal for the purpose of making inquiries in respect of complaints as may be made under the proposed legislation. 2. Sub-clause (2) of clause 3 provides for the appointment of the Lokpal consisting of a Chairperson and eight Members. Clause 7 of the Bill envisages that the salary, allowances and other conditions of service of, the Chairperson of the Lokpal shall be the same as those of the Chief Justice of lndia and the Members as those of the Judges of the Supreme Court. This clause also provides that the salary payable to the Chairperson and Members shall be reduced by any pension and pension equivalent to other pensionary benefits to which the Member may be entitled to in respect of any previous service under the Government of India or under the Government of a State. 3. Clause 11 of the Bill provides for the appointment of a Secretary and such other officers and employees for the Lokpal. Sub-clause (2) of the said clause provides that the conditions of service of Secretary and other officers and staff of the Lokpal shall be such as may be specified by regulations made by the Lokpal for the purpose. 4. Sub-clause (1) of clause 12 provides that the Lokpal shall constitute an Investigation Wing for the purpose of conducting investigation of any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988. Sub-clause (1) of clause 15 of the Bill provides that the Lokpal shall constitute a Prosecution Wing under a Director of Prosecution and such other officers and staff for the purpose of prosecution of public servants in relation to any complaint by the Lokpal. Sub-clause (1) of clause 32 empowers the Lokpal to utilise the services of any officer or investigating agency of the Central Government or any State Government for the purpose of conducting any inquiry. 5. C1ause 16 of the Bill provides that the expenses of the Lokpal including the salaries, allowances and pensions payable to or in respect of the Chairperson, Members or Secretary or other officers or staff of the Lokpal shall be charged on the Consolidated Fund of India and any fees and other moneys taken by the Lokpal shall form part of that fund. 6. At this stage, it is not possible to give precise details of the expenditure to be incurred on the Lokpal. It is, however, expected that the Bill, if enacted and brought into operation, would involve a
270 271 non-recurring expenditure of fifty crores of rupees and a recurring expenditure of hundred crores of rupees in a financial year. In case it becomes necessary to construct a building to house the establishment of the Lokpal, additional expenditure of a non- recurring nature of the order four hundred crores of rupees may also be involved. 7. The Bill, if enacted, is not likely to involve any other recurring or non-recurring expenditure. 272
MEMORANDUM REGARDING DELEGATED LEGISLATION
Clause 60 of the Bill empowers the Central Government to make rules for the purpose of carrying out the provisions of the proposed legislation. Sub-clause (1) of the said clause specifies the various matters in respect of which the rules may be made. These matters, inter alia, relate to the form of complaint referred to in clause (d) of sub-section (1) of section 2; the tem of Search Committee, fee and allowances payable to the members of Search Committee and the manner of selection of panel of names; procedure of inquiry into misbehaviour for removal of the Chairperson or any Member; the posts in respect of which appointments shall be made after consultation with the Union Public Service Commission; matters for which the Lokpal shall have the powers of a Civil Court; the manner of sending an order of attachment to a Special Court; the manner of transmitting the letter of request under sub-section (2) of section 39; the manner of making reference to the Chief Justice of India; the form and the time for preparing the budget; the form for maintaining accounts and other relevant records and the form of annual statement of accounts; the form and manner and time for preparing the returns and statements under sub-section (1) of section 46; the form and the time for preparing the annual report; the form of annual return to be filed by a public servant under sub-section (5) of section 47; the minimum value for which the competent authority may condone or exempt a public servant from furnishing information in respect of assets under the proviso to section 48.
2. Clause 61 of the Bill empowers the Lokpal to make, by notification, regulations for carrying out the provisions of the proposed legislation. Such regulations should be consistent with the provisions of the proposed legislation and the rules made thereunder. The matters in respect of which the Lokpal may make regulations, inter alia, include the conditions of service of the secretary and other officers and staff of the Lokpal and the matters which in so far as relate to salaries, allowances, leave or pensions, the place of sittings of Benches of the Lokpal, the manner for displaying the status of all complaints pending or disposed of on the website of the Lokpal, and the manner and procedure of conducting an inquiry or investigation.
3. The rules and regulations made under the proposed legislation shall be required to be laid before each House of Parliament.
4. The matters in respect of which rules or regulations may be made under the proposed legislation are matters of procedure or administrative details and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.
272 273
ANNEXURE
EXTRACT FROM THE COMMISSIONS OF INQUIRY ACT, 1952
(60 OF 1952)
*****
3. (1) The appropriate Government may, if it is of opinion Appointment that it is necessary so to do, and shall, if a resolution in this behalf of Commission. is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette, inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly:
Provided that where any such Commission has been appointed to inquire into any matter—
(a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning;
(b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States.
*****
EXTRACT FROM THE PREVENTION OF CORRUPTION ACT, 1988
(49 OF 1988)
*****
13. (1)*****Criminal misconduct (2) Any public servant who commits criminal misconduct by a public shall be punishable with imprisonment for a term which shall be not servant. less than one year but which may extend to seven years and shall also be liable to fine.
*****
273 274
Habitual 14. Whoever habitually commits— committing of offence under (a) an offence punishable under section 8 or section 9; or sections 8, 9 and 12. (b) an offence punishable under section 12,
shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to seven years and shall also be liable to fine.
** * **
CHAPTER V
SANCTION FOR PROSECUTION AND OTHER MISCELLANEOUS PROVISIONS
Previous 19. (1) No court shall take cognizance of an offence punishable sanction under sections 7, 10, 11, 13 and 15 alleged to have been committed necessary for prosecution. by a public servant, except with the previous sanctions,— (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a Sate and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
** * **
EXTRACT FROM THE CODE OF CRIMINAL PROCEDURE, 1973
(2 OF 1974)
** * **
Prosecution of 197. (1) When any person who is or was a Judge or Judges and Magistrate or a public servant not removable from his office save public servants. by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction—
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; 275
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. ***** 276
LOK SABHA
A BILL to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.
(Shri V. Narayanasamy, Minister of State in the Ministry of Personnel, Public Grievances and Pensions)
276 277
ANNEXURE B [vide para 2.2 of the Report]
Gist of debates held in Lok Sabha and Rajya Sabha on 27th August, 2011 on the statement made by the Finance Minister on the issues relating to setting up of a Lok Pal
The Minister of Finance made a Statement in both the Houses requesting Shri Anna Hazare to end his fast in view of the appeal made by the Prime Minister in his statement and the sentiments expressed by the Leader of the Opposition and the Hon’ble Speaker, Lok Sabha, on 25th August, 2011. He then gave an update of the events covering the deliberations of the Joint Drafting Committee followed by enumeration of the issues on which there was disagreement in the Joint Drafting Committee. He stated that the Government had assured the representatives of Shri Anna Hazare that if a consensus in House emerges over these issues, the Standing Committee would be requested to take into account the same while recommending upon the Lokpal Bill, 2011. Accordingly, Shri Pranab. Mukherjee, Honorable Finance Minister apprised Parliament of the negotiations held with Shri Anna Hazare and developments that occurred since the formation of the Joint Drafting Committee comprising of the representatives of the Government and Civil Society. Thereafter, discussions were raised in both Houses to elicit the opinion of the Members vis-a-vis issues arising out of the Lokpal Bill in general and over the following three points of discussion in particular. These three points were:– • Whether the jurisdiction of the Lokpal should cover all employees of the Central Government? • Whether it will be applicable through the institution of the Lokayukta in all States? • Whether the Lokpal should have the power to punish all those who violate the ‘grievance redressal mechanism’ to be put in place? 4.2 Members, during discussions in Parliament, demonstrated serious commitment to evolve effective mechanisms to deal with the menace of the corruption. They were of the opinion that the supreme legislative body should convey a cogent message to the Government to ensure the constitution of a strong and effective institution of Lokpal to root out the widespread corruption. Members acknowledged that the three specific issues raised by Shri Anna Hazare were relevant and they deserved attention while examining the Lokpal Bill. 4.3 Majority of the Members expressed their unanimous and in-principle association with these three issues1. For instance, Shrimati Sushma Swaraj, Leader of Opposition in Lok Sabha conveying a representative view of her party stated: “I hereby register the consent of my party on all the three points raised by the hon. Leader of the House”. 4.4 However, several ideas were floated by the Members about how to proceed while evolving the required legislative frameworks to address the demands of civil society vis-a-vis these three
1However, most of the Members who participated in debates were not in agreement with many provisions of Jan Lokpal Bill like Prime Minister be brought within the ambit of Lokpal without safeguards and extension of the authority of Lokpal vis-a-vis the Members’ conduct in relation to the maters of the House etc.
277 278 issues. The Members were of the opinion that the spirit of the Constitution should not be undermined while providing statutory shape to these three issues. Members, though lauded the need to include the three issues in appropriate legislations but, they cautioned that such legislative initiative must not be inconsistent with the principle enshrined in the Constitution. 4.5 With regards to the issue of Public Grievance Redressal Mechanism and the Citizens Charter, Members unanimously acknowledged the necessity of establishment of such mechanisms in all Government of India’s Departments/organizations if the objective of good governance was to be attained. However, instead of creating provision in the Lokpal Bill for the purpose, the Members favoured a separate law to deal with these issues. Some Members also drew the attention of the House towards the laws enacted by some State Governments in this regard and suggested that such laws may be considered while legislating upon a central legislation to deal with the issue. Shri V Narayanaswamy, Minister of State for Personal, Public Grievances and Pensions apprised the House that the Government is planning to unveil a separate Bill to provide for an effective public grievance redressal machinery along with making the Citizens Charter a statuary obligation for Government departments/organizations. 4.6 On the establishment of the institutions of Lokayuktas in States through a single Act, Members did acknowledge the need for establishing effective institutions of Lokayuktas in all of the States. Notwithstanding so, Members were of the view that establishment of Lokayuktas in States should be in accordance with the spirit of our federal polity. 4.7 Apprising the House about the responses of State Governments over the said issue, Union Finance Minister, Shri Mukherjee shared the seriousness and concerns of the Government in this regard with the Members. Also, he candidly requested the Leader of Opposition in Rajya Sabha, Shri Arun Jaitley, who is also an eminent lawyer, to share his opinion over the issue of providing for Lokayuktas in the States in the Central Legislature. Shri Jaitley suggested two alternatives to overcome the federal dilemma over the issue. He put his views as:– “…One possible option is that you can legislate on areas where the Central legislature has jurisdiction. Where you find that the Central Legislature has no jurisdiction, you hove two options–either you leave that part to the States or under Article 252, with the consent of two States, the Central Legislature can bring an enabling law compatible with the Constitutional Scheme…” 4.8 Most of the Members were of the view that a model Bill should be framed in this regard and the States should be given the authority to constitute the Lokayuktas. Members were hopeful that this federal dimension would be earnestly examined by the Standing Committee in the light of relevant constitutional provisions. 4.9 Over the inclusion of lower bureaucracy within the ambit of the Lokpal, Members admitted the need to make all classes of bureaucracy more accountable to the people of this country. However, the question before the Parliament was what would be the appropriate legislative framework for the purpose. There were apprehensions that if all classes of the bureaucracy are brought under the Lokpal, the institution will become overburdened and it will not be able to discharge its responsibilities effectively. Likewise, the Members also pointed out that constitutional protections given to the bureaucrats under articles 311 and 320 should also be taken into account while making provisions in this regard in the Lokpal Bill. 4.10 Shri Sitaram Yechury, Member, Rajya Sabha suggested a very lucid solution in this regard. He put his point as: “…For the lower bureaucracy, existing vigilance machinery, which is there to oversee them, can be brought under the supervision of the Lokpal. You already have existing vigilance 279
machinery. That can be brought under the supervision of Lokpal. If the existing machinery is not delivering then the Lokpal can be approached…” 4.11 He and other Members were of the view that while legislating upon the issue of inc1usion of lower bureaucracy, the aspects of constitutionality and practical feasibility need to be considered in detail. 4.12 While giving the reply to the debate the Minister of Finance concluded that the House discussed various issues relating to setting up of a strong and effective Lokpal in these words: “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and Establishment of Lokayuktas in the States. I will request you to transmit the proceedings to the Department-related Standing Committee for its perusal while formulating its recommendations for a Lokpal Bill.” 280 ANNEXURE-C para 1.11 of the Report) para 1.11 Vide Comments of DOPT ( the context of the Indian polity, the Prime the context of Indian polity,
Minister occupies a pivotal position in the ensure that Prime To set up. Governments’ Minister is able to discharge his functions it without any interference from quarter, is felt that the Prime Minister may be kept outside the purview of Lokpal. However, after the Prime Minister has demitted office, he will come within the purview of the Lokpal. In and includes the ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL NCPRI is of the view that there no Comments/Suggestions Provided that no investigation would be launched Provided has against the Prime Minister unless a reference been made by a full bench of the Lokpal to Chief Justice of India and that the Chief Court has constituted a full bench of the Supreme which has examined the complaint and relevant and evidence come to the conclusion that grounds such an investigation is warranted; actions further that complaints regarding Provided the Prime Minister is not directly done by others where as the Head of involved but can be held responsible the Government or cabinet would not be entertained (no vicarious liability). legal or moral justification in excluding the Prime Minister from the purview of Lokpal Bill. Therefore, they have suggested the following: (i) ”Minister” means an Union Minister Prime Minister; 1. 2. Clause 2(1)(i) of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, individual National Campaign Right to for People’s Information 12 3 4 1. No. Organisation/ Memoranda Name COMMENTS OF DOPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DOPT 281 Same as at Sl. No. I above In the light of duties and responsibilities of the Lokpal, it is felt that a person with judicial background would be more suitable to hold the position of Chairman Lokpal. The proposed Selection Committee in the consists of people Lokpal Bill, 2011 eminence with vast experience in public life. the Selection Committee, if it considers Further, may also set up a Search Committee necessary, to assist in selection of the candidates five all be part This is not follows:
3(2)(a) as : the PM, the Speaker, the cabinet : the PM, Speaker, member of the Lokpal.”
to amend Clause Also provided that where the Prime Minister is of that where Also provided opinion that some information is asked for by the Lokpal as a part of an investigation is such that national security or might compromise its disclosure the prime Minster other critical national interests, would in confidence brief the CJI, whose decision on whether the information should be disclosed to Lokpal, and if so, under what conditions, would be final. out of nine members minister and the two eminent persons would Clause 4(1) – Selection Committee NCPRI has stated that in the Selection committee of/appointed by the central government. “A Chairperson, who is or has been a Chief Justice of Court: or is otherwise India or a Judge of the Supreme qualified to be a 3. Clause 17 (1) The NCPRI has suggested that in clause 17(1)(a) the words, “after he has demitted the office of Prime Minister” should be deleted and the revised clause should read as: 17(1)(a) a Prime Minister; Clause 3(1) There is no justification in restricting the position to judges, especially as the law provides for an adequate number of judicial members. Therefore, NCPRI has suggested 282 The Lokpal Bill 2011 provides that the The Lokpal Bill 2011 Selection Committee may set up a Search Committee to assist in selection of candidates. The provisions provided in the Bill appears to be adequate. The selection committee shall select out
(3) panel of not less than three and not more than five and not more panel of not less than three a eligible candidates for each vacancy. This panel of eligible eligible candidates for each vacancy. committee set up candidates shall be finalised by a search that the selection committee for the purpose; provided committee to submit up two the search can require over and above those additional names for any vacancy, initially suggested, if they so deem necessary. of acceptable. Therefore, they have suggest that the selection committee be a balance between the Government, as follows. opposition and the judiciary, 4. (1) The Chairperson and Members shall be appointed by the President after obtaining recommendations of a Selection Committee consisting of-— (a) the Prime Minister — chairperson; (b) the Leader of Opposition in House People — member; (e) one sitting Judge of the Supreme Court to be nominated by the Chief Justice of India — member; Clause 4(3) NCPRI has stated that the high powered selection committees do not have the time to search out appropriate candidates. Therefore, the final selection is invariable decided by the dealing department which often puts before the selection committee an inadequate and/or inappropriate set of choices (as seem in the appointments CVC and various information commissioners chief information commissioners). Therefore, they feel that there must be a search committee, as follows: Replace by: 12 3 4 283 Comptroller and Auditor Generals of India and Comptroller appointment of the first Chief Lokpal) Former Lokpals (for appointment of only) Government in any capacity Any person who took up a Government assignment barring those assignments which after retirement, which the person for the post from reserved are retired. In addition, the search committee will consist of another In addition, the search five members who would be selected by the among the members, appointed under (a) above, from civil society and could include activists, academics, etc. journalists, professionals, appointed by the selection committee. among former: from than two members should that not more Provided belong to anyone of the categories listed above. further that the following persons shall not Provided be eligible for becoming members of the search committee: i. Chief Justices of India i. Any person who has joined any political party. v. Chief Information Commissioners of India ii. Court of India Judges of the Supreme ii. Any person who is still in the service of iv. Chief Election Commissioners of India vi. Former or outgoing Chief Lokpals (after the iii. iii. vii. (c) (a) committee shall comprise of five members The search (b) committee would be selected Members of the search 284 It is felt that the organisations who are receiving grants etc. from the Government the NGOs which should be covered. Similarly, are getting donations from the public, they are also also getting tax relief, thereby, indirectly funded by the Government, it is felt that those organisations which are set up other than for religious purposes, and are receiving public donations, should come within the ambit of Lokpal. is of the view that it a draconian provision to develop a short list of names that could be considered to the selection committee. for recommending details of all the candidates being names and relevant The public would be given sufficient time considered. (not less than a month) to send in their views, if any, of of any one or more pertinent to the candidature material, if any. these candidates, along with relevant will it deems necessary, and, wherever so received further investigate the comments about, or credentials of, any of the candidates under consideration. than five and not more not less than three recommend names to the selection committee for each vacancy. (d) to committee shall devise its own procedures The search (e) committee shall put up on a website the The search (f) committee will compile all the comments The search (g) committee will Based on all this material, the search by the search or considered All the material received as its final recommendation, to reach committee in order to its own well as the details and documents related would be available for public scrutiny once proceedings, appointments have been made. the relevant Clause 17(1)(g) NCPRI declare office bearers of NGOs and movements that do not receive any Government funds as public servants. Not only would this result in a huge amount of harassment but also be impractical as such bodies are not bound by Government rules and procedures, cannot be held 12 3 4 285 The formulations proposed by NCPRI would imply that anybody may complain against the members of Lokpal directly to It is felt that the Supreme Court only. provisions provided in the Lokpal Bill, 2011 are adequate to address the problem, as it is provided that complaint can be addressed to the President. provides Section 8 of the Lokpal Bill 2011 that the petitions from citizens are to be forwarded by the President to Supreme Court for an inquiry as per the prescribed Delete 17(1)(g). has suggested to amend the given formulation as Subject to the provisions of sub-section (3), the Subject to the provisions The President may suspend from office the may suspend from The President
Chairperson or any other Member shall be removed from Chairperson or any other Member shall be removed of on grounds of the President his office by order Court, on a complaint misbehaviour after the Supreme with the held in accordance made to it has, on inquiry, in that behalf, advised the prescribed procedure as the case may be, Chairperson or such other Member, on such ground. ought to be removed 8(2) Clause 8(1) NCPRI is of the view that current provisions compromise the independence of Lokpal by giving Central Government various powers related to complaints against members of the Lokpal. This is not desirable and they propose that these powers and function be given instead to the Supreme Court, as suggested below. “8(1) of whom a Chairperson or any other Member in respect Court under complaint has been made to the Supreme sub-section (1), if the Chief Justice of India so advises, of the on receipt has passed orders until the President Court on such a complaint.” of the Supreme report Clause 40(2) NCPRI follows: accountable to those. If any of these organisations violate the existing laws relating to management of funds etc., there are adequate provision to prosecute them. Therefore they have suggested to 286 inter so, the MPs
, provides that no Member of Parliament alia shall be liable to any proceedings in court in respect of anything said or vote given by him in Parliament. It is a matter for examination whether the inquiry by the Lokpal in respect of anything said or vote given by a Member of Parliament would fall under the category ‘proceedings before a court of law’. If would certainly have to be kept outside the purview of the Lokpal. procedure and report. It is felt the proposed formulations in Section 40 are adequate to deal with the complaints against Chairperson or Members of the Lokpal. Article 105 (2) of the Constitution, The to Notwithstanding anything contained in sub-section The Chief Justice of India, on receipt of such a The Chief Justice of India, on receipt
the Lokpal shall not inquire into any matter in the Lokpal shall not inquire (2)
7 1 “ respect of anything said or any vote given by him in respect Parliament or any committee thereof. that this exemption applies only to the Members Provided of the Parliament while attending on floor of the House and/or in Parliament Committees during session.” (1), “40 (2) Any complaint against the Chairperson or Member “40 (2) shall be made by an application the party aggrieved, the Chief justice of India. 40 (3) complaint, shall constitute a committee which will examine exists a prima facie case for bias or whether there corruption and this committee shall advise the Chief Justice on whether the complaint merits detailed the committee advises Chief investigation. Where Justice of India that an investigation is merited, the CJI may have the matter investigated.” Clause 17(2) NCPRI has termed the proposed provisions of Clause 17(2) as an unjustified exemption, but its deletion would involve amendment of the Constitution, it should not be dropped at the, moment but there should a Government undertaking that it would appropriately move Parliament with such a proposal for the amendment of For the moment, the Constitution within a year. Lokpal bill could more faithfully reflect the constitutional position as follows: 12 3 4 287 Lokpal) i.e. The writer has not amplified the concept of “Independent Committee” empowered to the suggestion appoint Ombudsman. However, implies that an Ombudsman ( appointed under the Lokpal will look into complaint or allegations made against the officer or employee of the Lokpal; thereby the suggestion sounds to be contradictory. The provisions provided in the Lokpal to deal with the are sufficient Bill 2011 complaints against the officers or employees of Lokpal. The provisions provided Section 21 of the appears to be adequate. Lokpal Bill 2011 There is no need to put any restrictions on the Lokpal in this regard. The Lokpal shall refer the matter to 21. On an application for transfer made by the Clause 41(2) In keeping with the philosophy behind independent Lokpal that no institution should be solely responsible for investigating and prosecuting its own officers in matters related to corruption, NCPRI is of the view that it only appropriate if the Lokpal does not deal with corruption complaints against its own officers. Therefore, an alternate system is being suggested. “41(2) : Ombudsman appointed for the purpose by an independent committee, who will complete the inquiry into complaint or allegation made, within a period of thirty days from this end, the Ombudsman the date of its receipt. Towards would be empowered to utilise the services of any investigating agency with the central government or that of the Lokpal. In 41 (3) and 41(4) replace “Lokpal” with “Ombudsman” appropriately. Clause 21: Power of Chairperson to transfer cases. NCPRl is of the view that this clause would give enormous power to the chairperson, which could be used arbitrarily to the detriment of justice or members Lokpal. They are of the view that this power needs to be qualified, as below: Clause complainant or the public servant, Chairperson, after 288 There appears to be no reason deny the opportunity of being heard to the public servant at this stage. The inquiries to be held under the Lokpal the Lokpal would be public inquires. However, may frame its rules and regulations to deal with the complaints and such protection may be provided by the Lokpal in its rules and regulations. It is felt that there no need to specifically provide this provision in the Lokpal Bill, 2011. provided that no such transfer would be provided “Delete 23(4)”. Provided that where the complaint involves allegations that where Provided reasons to believe that the ends of justice could not reasons giving an opportunity of being heard to the complainant or the public servant, as case may be, transfer any case pending before one bench for disposal to other bench; are made unless the chairperson is satisfied that there good be met without such a transfer. Provided, further, that the further, Provided, be met without such a transfer. for such a transfer must be, within week of the reasons put into the public domain. transfer being ordered, Clause 23 : Provisions relating to complaints and inquiry and investigations. NCPRI is of the view that there no need to provide right of being heard to the accused at this stage, especially as this is not provided under any other criminal procedure. there is nothing to stop the Lokpal from hearing However, an accused at any stage, if the Lokpal feels that this is required in the interest of justice. This need not be a statutory right of the accused. Therefore, they have suggested to Clause 24: Inspection of documents It must be ensured that the provision of this right does not compromise the interests of “whistleblowers”, witnesses and other vulnerable persons connected with the complaint or the investigation. Therefore, they have suggested to Add: a whistleblower or witness who or information from the Lokpal shall wishes to have his identity protected, that advance notice is given to such whistleblower ensure given an opportunity of being and/or witness and they are 12 3 4 289 The Lokpal would be exercising the police powers. Therefore, it is felt that the contempt powers may not be required for the Lokpal. The condition that the trials are to be completed within a maximum period of two years do not imply that on basis the trial can be closed. The proposed provisions appear to be adequate in the Lokpal Bill 2011 and there is no need to make reference the High Courts where trial cannot be completed within the prescribed period of two years. heard prior to the accused being given access any heard further that in no case would the identity provided records: without their prior consent in and/or witness be revealed writing. Contempt Powers Whereas the earlier ministerial draft of Lokpal bill had given the Lokpal ‘contempt powers’ in Section 31. This section has been dropped from the bill introduced in Lok Sabha. Whereas, we were not in favour of giving broad criminal contempt powers to the Lokpal, and we even think that those with the upper judiciary should be significantly curbed, after dropping this section, it is unclear how the Act are Lokpal would ensure that its directions under this complied with. Therefore, some specific provisions should be added for this, in the form of civil contempt powers. Clause 38 : Special Courts NCPRI has stated that whereas there must be a time frame for the trial of cases, law should not create a situation where if there is a delay that becomes basis Also, there must be some for the case being closed. adverse consequences on the judge responsible for unreasonable delays. They have suggested that Clause 38(2) should be modified as follows: “38 (2) The Special Courts constituted under sub-section (1) shall ensure completion of each trial within a period of one year from the date filing case in Court: Provided that in case the trial cannot be completed within the Special Court shall record a period of one year, 290 malafide 2011 is to discourage 2011
and false complaints. This suggestion appears to be logical. The intention of the provisions provided in the Lokpal Bill making any from from “vexatious”. This would
case would be closed on false allegations, this should
not exceeding a total period no malafide and false complaint, with ordinarily ordinarily might deem necessary to bring the trial provided that provided it Clause 49: Prosecution for false complaints an early conclusion and, where the High Court thinks it an early conclusion and, where against the trial judges(s).” pass strictures appropriate, This is a draconian provision, especially as it impossible to objectively define “frivolous” or strongly discourage most people the basis of trial not having been completed within a trial continues beyond wherever two years. However, would be made to the two years, a mandatory reference High Court which shall examine the matter and pass such as directions malicious intent, under this Act, shall, on conviction, be punished with fine which shall not be less than five thousand rupees but which may extend to one lakh rupees.” Assistance. Clause 56: Legal Though this might be fair in order to ensure that the innocent among the accused do not have to spend large amounts of money that they cannot afford to defend themselves against malicious or complaints. Therefore, they have suggested to modify it as follows: Act, “49(1) Notwithstanding anything contained in this whoever makes any of two years; reasons therefor and complete the trial within a further period of not more than three months or such further periods not exceeding three months each, for reasons to be recorded in writing, before the end of each such three month period, but 12 3 4 291 false complaints. This is relating to widening the scope of definition of the corruption. This needs to be examined separately. The views of the Rashtriya Mukti Moarcha are the same as that of Government. The apprehensions of the author are ill- founded. The intention of incorporating clause 49 and 50 provide for prosecution for false complaints. It is felt that such provisions are required to discourage Covering the Private Sector (appropriately amend the PCA to include) Where not end up subsidising the corrupt on public expense. Therefore, NCPRI has suggested the following proviso “Provided that where the accused is finally found guilty of any the charges made against him, by special Act, and subject to further court provided for in the appeals, the accused would be requires to refund total cost of the assistance so provided. In exceptional circumstances where the Lokpal so determines that recovery of such dues might result in unwarranted hardship the amount can be adjusted to the accused or his family, against confiscation of property as specified under sections 33 and 34.” Add: corporation or profit seeking entity any private body, receives from any public authority concession or dispensation, including but not restricted to licences, subsidies, contracts, orders, quotas, allocations, clearances, grants, etc, that is in violation of the law or any prevailing rules, it would be deemed to have indulged in corrupt practices unless it can show that was unreasonable to expect the corporation know that a law or a rule had been violated. The Rashtriya Mukti Morcha has opposed the inclusion of Prime Minister or judges higher judiciary from the ambit of Lokpal. Clause 49 & 50 regarding prosecution for false complaint and demand of compensation etc., to the public servant; and false complaint made by the society or association of persons trust. Rashtriya Mukti Morcha, New Delhi 2. 292 No separate comments on Jan Lokpal Bill are needed. The drafting errors will be taken care of by Legislative Department while finalizing the final draft of the Bill. . It is further stated suo motto that the proposed provision is nothing but a warning to all the citizens not to peep into dirty business of corrupt people; keep mum and do not have courage to question any questionable thing in the corrupt world. This Lokpal is nothing but an attempt to provide safeguard the corrupt Anna Hazare and The Jan Lokpal Bill prepared by Shri team should be adopted in its present form and the Prime Minister should be put under the purview of Lokpal. The writer has sent a chart depicting drafting errors of the Bill. The Rashtriya Mukti Morcha is of the view that these provisions are very harsh in nature and nothing but an It is further stated that attempt to kill the messenger. similar provisions exist in various Lokayuktas states and that is the reason citizens never approach the Lokayuktas and just to register their presence Lokayuktas initiated inquiry Shri Ashok Kumar Kakkar Justice A.K. Srivastava 12 3 4 3. 4. 293 Comments of DOPT provisions made in clause 17 of the context of the Indian polity, the the context of Indian polity, already before the Parliament. Prime Minister occupies a pivotal position in the Governments’ set up. ensure that Prime Minister is able To to discharge his functions without any it is felt interference from any quarter, that the Prime Minister may be kept outside the purview of Lokpal. after the Prime Minister has However, demitted the office, he will come within the purview of Lokpal. the Bill appear to be adequate. If lower bureaucracy and other institutions suggested by the author are also brought within the purview of Lokpal, it will over burden the Lokpal. (i)Accountability Bill is Judicial Standards (ii) In (iii) The ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL Comments/Suggestions Society, Organization, NGO: Society,
Office of the Prime Minister: The Judiciary should be kept out of the ambit Lokpal. There should be constitution of a Judicial Commission in consultation with the Supreme Court Act should be made for this Accountability or Judicial purpose. There must be some Special circumstances under which the office of Prime Minister while he is holding office, should be brought within the ambit of Lokpal and these circumstances should specifically be mentioned under section 2(1) of Chapter 4 and 17(1) of Chapter 6 the Lokpal Bill. In other matters, office of the Prime Minister should be included in ambit of Lokpal after he demits his office. Trust, Not in favour of keeping Trusts, Societies, NGOs in the ambit of Lokpal. However, Organizations, the organizations created for religious purposes and receiving public donations as well all Corporate Institutions, Financial Companies, Trading & Business Agencies, Interest Mafias in cities Houses, Placement Judiciary : Clause 17 (i) (ii) (iii) of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, individual Shri Manoj Kumar, National General All India Secretary, Community Health Association Worker (Regd.) 12 3 4 5. No. Organisation/ COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda Name 294 of the Bill is adequate. If all officials are brought within the purview of Lokpal, it will over burden it. The Lokpal Bill do not provide for putting CVC under Lokpal. The Selection process of CVC is to be Act. followed as per the CVC Clause 32 of the Lokpal Bill provides that the Lokpal may utilise services of officers of Central or State Governments. Centre and it may constitute Benches which shall ordinarily sit at New Delhi. level, the At State [Clause 19]. concerned State Government has to consider setting of Lokayuktas. given in Clauses 23 to 29 of the Bill, and it appears to be adequate. (i) Jurisdiction as provided in Clause 17 (ii) (iii) (iv) The Bill seeks to provide Lokpal at the (v) The procedure for investigation has been (vi) This is beyond the scope of Lokpal. Minister, Chief Ministers, Members of Parliament, Minister, Legislators, all Officials should be included within the ambit of Jan Lokpal. CBI be an independent Unit, but the appointment of CVC should be made in consultation with the Prime Opposition and Lokpal. Minister, Lokpal can use the CBI for investigating a matter. in Delhi. There should be Up-Lokpal the State Assistant (Sahayak) Lokpal at the District Capitals and a level so that corruption of the general public and officials can be investigated easily and general public can also lodge its complaints to the Lokpal. of corruption against the Prime Minister and after he should have power to make completion of enquiry, request to the President take further action in The same process should be adopted in the matter. case of Chief Ministers also. Group “B” category should be brought within the purview of Lokpal. CLAUSE 17 (i) Every citizen of the Country including Prime (ii) CLAUSE 32 (iii) CLAUSE 19 (iv) The Head Office of the Jan Lokpal should be located CLAUSE 23-29 (v) The Lokpal should have power to investigate a case & small urban areas, Property Dealers and all officials in Shri Ashok Arya, Shri Ashok Dr. Ambedkar Jan Sewak Samaj, Lucknow 12 3 4 6. 295 under the Lokpal. The Lokpal may frame its regulations in this regard. The concept of Lokpal Committee is not clear. (i) The system of reward is not envisaged (ii) (iii) ATM Card, containing details of the person ATM concerned, his family details as well should be of his movable/immovable property, issued to all the citizens of country. as transactions of all movable/immovable property should be allowed to made through the CIC, so that record of all these transactions is made in the CIC account of person concerned. investigated by the Lokpal/Up-Lokpal/Asstt. Lokpal from time to time. The following computer based technical measures should be taken by the Lokpal to keep check on corruption: (a) Citizen Identification Card (CIC), on the lines of (b) All transactions of Rs.5000/- & above as well (c) The CIC account of all the citizens should be recovered should be transferred to the bank account of the complainant secretly as a incentive and rest 40 % should be used to meet the expenses of the Government. Confidentiality of the complainant should be maintained. Constitution of the Lokpal Committee: There should be Central & State level Lokpal Committees. In the Central level Committee, there should be retired IAS, IPS, PCS Officers and retired High Court/Supreme holding office Court Judges of impeccable integrity, in Lokpal Committee for period not more than five years. There should a committee at the level of each State (vi) (i) 60% of the amount earned by corrupt means & (ii) (iii) Shri Ajay Pratap Teacher), Singh (Sr. Dadri (Gautam Budh Nagar), Uttar Pradesh. 7. 296 per the procedure prescribed in Parliament is in consonance with the provisions of the Constitution. The Lokpal Bill is being examined by the Standing Committee. The conduct of MPs on the floor the House is not within purview of Lokpal. The Judiciary has not been included within the purview of Lokpal. the purview of Lokpal after he/she demits the office. The office of Chief Ministers would be covered under the Lokayukta for which the Legislative Assembly of the respective State will have to take a decision. Clauses 23 to 29, the Lokpal after investigations will file report with the Special Courts and also send it to the respective appointing authority for further action in the matter. Protection to complainant is part of the for false Whistleblowers Bill. However, complaints, provisions of Clause 49 and 50 would be applicable. The structure as prescribed in Clause 3 and 19 appears to be adequate. (i) introduced in the The Lokpal Bill 2011 (ii) (iii) (iv) (v) The Prime Minister will come under (vi) As (vii) (viii) 19
The conduct of Parliament should not be included within the ambit of Lokpal. The Judiciary should not be included within the the Parliament should ambit of Lokpal. However, ensure the accountability of Judiciary. Minister are brought within the ambit of Lokpal, then it should be ensured that this does not adversely affect their efficiency and capacity to take policy decisions for the general public as a whole or some specific sections of the society. Administration. He should have Judicial against the powers as per the Constitution of India. should not be any penalty imposed against him. state and centre level. the provisions of Constitution, without hurting the Parliamentary system. There should not be any political interest involved in formulation of the Lokpal Bill. CLAUSE 17 (iii) CLAUSE 23-29 (vi) Lokpal should have complete power to initiate action CLAUSE 49-50 (vii) Protection be given to the Complainant and there CLAUSE 3 & (iv) (v) If the Offices of Prime Minister and Chief (viii) The appointment of Lokpal should be at the district, (i) The Lokpal Bill should be made in consonance with (ii) Shri Om Prakash, New Roshanpura Extension, Najafgarh, New Delhi. 12 3 4 8. 297 After the investigations, Lokpal in Clause 4 of the Bill is adequate. investigating agency under the Lokpal. Clause 12 of the Bill provide However, that the Lokpal shall constitute an Investigation Wing. outside the purview of Lokpal. The Lokpal is not to do normal policing functions. It will have to investigate the allegations of corruption against public servants. (ix) The Selection procedure as contained (x) The Bill do not propose to bring any (i) The religious trusts are to be kept (ii) (i)&(ii) has to file a case in the Special Court and also recommend to the competent authority for initiation of disciplinary proceedings under the relevant rules. [Clause 28 & 29]. a lawyer of Supreme Court or i.e. Assets of people which are beyond the scaling Lokpal/Lokayukta with complete powers to order High Court, having minimum 10 years’ experience or a reputed Judge an administrative officer of impeccable integrity and outstanding ability. should be independent of the Lokpal. brought under the ambit of Lokpal to ensure their right to respose faith/trust with authenticity. gambling should come under the scrutiny of Lokpal. Lokpal/Lokayukta should go to jail within two years. dismissal of a corrupt officer. citizen from the same region or union territory. He citizen from the same region or union territory. should not ever be associated with any political Should be acquainted with the Indian party. Constitution, CLAUSE 12 (x) All the top investigating agencies of Country CLAUSE 17 (i) Religious trusts, their trustees and custodian to be (ii) CLAUSE 28-29 (i) Officer/Politician found guilty in Investigations under (ii) CLAUSE 4 (ix) The person appointed as Lokpal should not be a Shri Umesh Babu, South Patel Nagar, New Delhi - 08 Honey Sharma, [email protected] 9. 10. 298 punishment as prescribed in the The Judiciary is not under the purview of Lokpal. Clause 23 of the Bill provide for investigation/inquiry by the Lokpal. Lokpal shall from time to display to the public status of number complaints pending before it or disposed the Lokpal will of by it. Further, also come under the purview of RTI Act, 2005. 4 appears to be adequate. For redressal of public grievances, the Government proposes to bring a separate legislation before the Parliament. Clause 42 provides for recovery of loss. Bill appears to be adequate. The life imprisonment appears to be harsh. introduced and the same may be considered by the Parliament. (iii) (iv) (v) Clause 23 of the Bill provide that (vi) The Selection process as given in Clause (vii) (viii) (ix) The (i) has been The Lokpal Bill 2011 interference of politicians in selections Lokpal/Lokayukta with powers to investigate and prosecute any judge without needing anyone’s permission hear every complaint. transparent and on probe of complain against any staff of Lokpal/Lokayukta punishment to be announced within two months. chairperson and members of Lokpal/Lokayukta. Time bound redressal of public grievances. Provision for the recovery of loss from accused. life imprisonment. V.1.8. given in Janlokpal bill CLAUSE 17 (iii) CLAUSE 23 (iv) Lokpal/Lokayukta with powers to enquire into and (v) All investigations in Lokpal/Lokayukta should be CLAUSE 4 (vi) No (vii) CLAUSE 42 (viii) SECOND SCHEDULE, PART-II (ix) Punishment should be minimum 5 years to maximum (i) Establishment of Lokpal/Lokayukta with the criteria Ghumbre S.U., Asst. Ghumbre S.U., Professor COEP, Pune 12 3 4 11. 299 The jurisdiction as provided in Clause 17 of the Bill appears to be adequate. if the lower bureaucracy is Further, also included it will over burden the Lokpal. The territorial jurisdiction of the Lokpal extends to the whole of India and also applies to public servants outside India. This matter relates to protection Whistleblowers Bill. be decided by the Courts as prescribed in the relevant laws. Clause 42 of the Bill provides for recovery of loss to exchequer. judicial functions, therefore, the Chairperson has to be from judiciary. The provisions made in Clause 3 are adequate. The Article 105(2). This will violate proposed formulation in the Bill is necessary. (ii) (iii) (iv) (v) The quantum of the punishment has to (vi) (i) The Lokpal will be discharging quasi (ii) minimum i.e. MAY WITHOUT MAY A PERSON OF EMINENCE in PERSON OF A Notwithstanding anything contained in The lokpal shall consist of a Chairperson, ecovery from accused should start immediately along with penalty cost (20% of recovery cost) and expenditure cost towards investigation can be taken from this fund. Clause 3(2) 10 years for all cases and may be vary from person to person. who is or has been anti- public administration, policy science, law, vigilance, finance, banking or corruption policy, EMINENT JURIST Clause 17(2) sub-section(l), the Lokpal OR PROVISON CONT ACT ANY TO PRJUDICE AINED IN THE CONSTITUTION OF INDIA, inquire into any matter involved in, or arising against any Member of either House Parliament in respect Bottom to top procedure be followed in Lokpal/ Lokayukta for smooth, efficient and transparent handling of all public complaints. indirectly in any Govt. Organisation should come under Lokpal/Lokayukta complainants against Public or Govt. servant. The suggested amendments in Lokpal Bill 2011 are as The suggested amendments in Lokpal Bill 2011 follows:– (i) CLAUSE 42 (vi) R (ii) CLAUSE 17 (ii) CLAUSE 1 All Indians/NRIs/any person involved directly or (iii) (iv) Provision of efficient law for protection SECOND SCHEDULE, PART-II (v) Provision for more severe punishment, Dr. Anil Dev G, No. Anil Dev G, Dr. 38, 2nd Cross road, loth block, Bdalayout, Bangalore-72 12. 300 limitation period as proposed in Clause 12 of the Bill provide for setting by the Lokpal. Wing up of Investigation The Clause 32 of the Bill provide for utilisation of services officers Central or State Government. Clause 54 appears to be reasonable. that after investigations, the Lokpal, if the findings disclose commission of offence, will file a case in the Special Court. The existing formulation of Clause 3(1) appears to be adequate. The Bill provides for maximum of 50% of the Members to be Judicial Members, and it appears to be adequate [Clause 3(2)(b)] The clause no. given by the author As far as appears to be incorrect. Judicial Members are concerned, they (iii) (iv) The (i) Clause 28 and 29 of the Bill provides (ii) (iii) at least 5 Audit, Accounts and 'arrest and prosecution', ESTABLISH THROUGH ESTABLISH the Lokpal may, for the purpose of the Lokpal may, The Lokpal shall not inquire or investigate Clause 3 Sub (a) and (b) Clause 3 Sub (a) Clause 3 Sub (1) conducting any inquiry, conducting any inquiry, AN GAZETTE THE OFFICIAL IN NOTIFICATION AND TEAM OF INVESTIGATORS INDEPENDENT OFFICERS RECRUITTED BY THE UPSC CIVIL TO AND ACCONTABLE EXAMINATION SERVICES ALONE OR IN CASE OF SHORTFALL LOKPAL utilise the services of any officer or investigation agency of the Central/State Govt. as case may be. into any complaint after the expiry of Fifteen (15) years of the offence. as per code of criminal procedure to be in inserted. of anything said or a vote given by him in Parliament or any committee thereof covered under clause (2) of article 105 the Constitution. instead of 4 judicial members. taxation fields to be added. Clause 32(1) Clause 54. (iv) (i) In (ii) In (iii) (iii) In Andrew D’ Silva, dsilvaandrew@yahoo. com 12 3 4 13. 301 the Bill provides President provisions as contained in Clause 8 have to be with judicial background [Clause 3(3)(a)]. For otherMembers, the formulation given in Clause 3(3)(b) appears to be adequate. number of persons would become ineligible for appointment as Lokpal. The provision proposed in the Bill [sub clause (4) of Clause 3] appears to be adequate. as given in Clause 4 appears to be adequate. The appointment procedure proposed in the Bill is adequate [Clause 4] of the Bill which deals with removal of the Chairperson or any Member Lokpal appear to be adequate. to take action fill up the vacancies of Chairperson or Members of Lokpal, and this seems to be adequate. the Central Government as recommended by the Lokpal [Clause 38] (iv) The suggestion would imply that a large (v) The composition of Selection Committee (vi) (vii) The (viii) Clause 5 of (ix) The Special Courts are to be set up by – Chairperson or Clause 3 Sub (4) Lokpal member shall not be a of any political party for the past 15 years. opposition, Home Minister and Cabinet Secretary AG of India, President should be replaced with C & of Bar Council Supreme Court, President Attorney Accounts if India or Institute of Chartered General of India. only without any Govt. interference. majority of not less than 7 members Lokpal Bench and in case of removal member not less than 5 members. The lokpal/committee shall make an arrangement to fill the vacancy of Lokpal not President. Chairperson or member of Lokpal ceases his office on completion of 5 years term. at every state capital and District Headquarters along with provision of appeal in SC for aggrieved party CLAUSE 4 (v) In the selection committee of Lokpal, leader (vi) Appointment of chairperson Lokpal by its members CLAUSE 8 (vii) The removal of chairperson by Lokpal only with the CLAUSE 5 (viii) CLAUSE 38 (x) Provision for Lokpal jury/Special courts under (iv) In 302 17 of the Bill is adequate. findings disclose commission of offence, the Lokpal shall file a case in Special Court and also recommend to competent authority to initiate disciplinary proceedings under the applicable rules [Clause 28 and 29]. loss to the exchequer is also Further, recoverable under Clause 42. Based on the report of Lokpal, competent authority shall examine it and communicate to the Lokpal action taken or proposed to be on the basis of the report [Clause 29]. However, The suggestion is not clear. the hierarchical structure of judiciary will have to be followed. (x) The jurisdiction as provided in Clause (xi) On completion of investigations, if the (xii) (xiii) – “except Supreme Court of India” to Clause 55 its decision within 6 months with the 30 days appeal time in SC. including Cabinet Secretary except peon and clerk, employees of PSUs, National Banks except peons and clerks all judicial members of courts upto High Court except Supreme Court. amassed through corruption to be attached by Lokpal and to be credited into Consolidated Fund of India. Permanent bar from Elections and Public Office imprisonment as per quantum of corruption. Disqualification of guilty MP/Minister with permanent bar from contesting elections and holding public office and other procedure as mentioned in (xi). inserted. All special courts shall be subordinate to inserted. SC. and SC order is final. Lokpal jury/Spl. courts should give CLAUSE 17 (x) All ministers including PM, all public servants CLAUSE 28, 29 & 42 (xi) Dismissal of guilty from service and all his assets (xii) (xiii) 12 3 4 303 the Lokpal Bill, 2011, after the Prime the Lokpal Bill, 2011, been introduced, the same may be considered by the Parliament. The hearings of the cases are to held as per the judicial norms in matter. Minister demits the office, he/she will come under the purview of Lokpal. the lower bureaucracy within ambit of Lokpal. Clause 3 appears to be adequate. For a separate Judicial Standards judiciary, Accountability Bill is already under the And consideration of the Parliament. for the legislature and executive, the proposed Bill seems to be adequate. conduct of MPs on the floor House [Clause 17(2)], as it will violate Article 105(2) of the the provision of Constitution. Prime Minister occupies a pivotal position in the Governments' set up. ensure that Prime Minister is able To to discharge his functions without any it is felt interference from any quarter, that the Prime Minister may be kept outside the purview of Lokpal. (i) has already Since the Lokpal Bill, 2011 (ii) (iii) In (iv) does not include The Lokpal Bill 2011 (v) The structure of Lokpal as given in (vi) The proposed Bill does not include the (i) the In the context of Indian polity, legislature, executive and the judiciary are included within the ambit of Lokpal, which is undesirable and dangerous for the future of this country. “Public Hearing” as mentioned in the Jan Lokpal Bill is not desirable. The Prime Minister should not be included within the ambit of Lokpal. the ambit of Lokpal. one for legislature, executive and judiciary. Assemblies should not be the Parliament/Legislative included within the ambit of Lokpal. Ministers as its head. Since the of Union Cabinet are included within the ambit of Lokpal, the Prime Minister should also be included within the ambit of Lokpal. (ii) CLAUSE 17 (iii) (iv) Lower bureaucracy should not be included within CLAUSE 3 (v) There should be three separate institutions of Lokpal, CLAUSE 17 (vi) The conduct of MPs and Legislative Members within CLAUSE 17 (i) The Prime Minister is the part of Council (i)Anna Hazare, the In the Jan Lokpal Bill of Shri Shri Santosh Kumar, Sant090975@gmail. com Shri Prahladrai L. Avasatthi 14. 15. 304 However, after the Prime Minister has However, demitted the office, he will come within the purview of Lokpal. a separate Judicial For judiciary, Accountability Bill is before Standards the Parliament. proposes to cover The Lokpal Bill 2011 all the Central institutions and Group are covered. and above officers ‘A’ For the States, institution of Lokayukta is to be set up by the concerned State Legislature. Therefore, the jurisdiction as provided in Clause 17 is adequate. conduct of MPs on the floor House [Clause 17(2)], as it will violate Article 105(2) of the the provision of Constitution. in Clause 4 of the Bill appears to be adequate. The public servants as covered by Clause 17 of the Bill will be within purview of the Lokpal. (ii) (iii) (iv) The proposed Bill does not include the (i) The Selection Committee as proposed (ii) All the Heads of Educational Institutions Independence of the Judiciary should be maintained and there should be a separate authority to deal with the corruption of higher judiciary. CBI, There are many service cadres under IT, Air Ports and so many Railways, Passport offices, others where the case of corrupt practices in subordinate services may also arise. So there has to be an authority of Lokayukta status for dealing with corruption cases of central subordinate services because the State Lokayuktas have jurisdiction only within State services and its PSUs. should be included within the ambit of Lokpal. Lokpal institution should include elected Members of There should not be any NRI member. Parliament. Minimum Qualification should be fixed. There honesty and integrity should be judged before appointment. Right to appoint/remove or punish for any misconduct of the members and Chairman Lokpal institution should be with Parliament. CLAUSE 17: (Private/Government), Private/Government Industries including Contractors, Social, Educational, Religious (ii) (iii) (iv) Conduct and actions of MPs within the Parliament CLAUSE 4 (i) Selection Committee for Chairman and Members of (ii) Shri Rajesh Verma, Shri Rajesh Kapurthala (Punjab) 12 3 4 16. 305 These are beyond the scope Clause 4 of the Bill appears to be adequate. (iii), (iv) & (v) of Lokpal. has already been Since the Lokpal Bill, 2011 introduced, the same may be considered by the Parliament. 1. The selection process proposed in 2. This appears to be a vague. Trusts, etc., Government offices and all other Organizations (Private/Govt.), where money/properties are involved, should be covered under Lokpal Bill. Chief Justice of India President, Prime Minister, should be excluded from preview of Lokpal. Nationalization of religious institutions, temples and All these Ashrams etc. to abolish corruption: institutions should be nationalized. Priest/Pujari and other officials should be appointed by Government. Money/property of the Institutions should be utilized by Govt. for developing public utility infrastructure, children's education, etc. to prevent corruption: Money/ Wealth Ceiling of property having value more than five crores of individuals should be acquired by Government, as unlimited possession of wealth by individuals is a main cause of corruption. Ceiling limit wealth may be revised as per inflation on annual basis. It should be revised as per inflation Rs.2000/- per day. on half yearly basis as in case of Govt. employees. Person violating these rules should be treated as corruption under Lokpal. of Lok Sabha and the Prime Minister should a member of the Committee. be (iii) (iv) (v) Minimum wages of labourers should be fixed @ She has submitted a version of Lokpal Bill, which is same version of the Jan Lokpal Bill, as that of Civil Society’s for consideration of the Committee. CLAUSE 4 (1) The Selection Committee should be chaired by Speaker (2) The Composition of the Selection Committee should Ms. Sanjana Agarwal, Ms. Sanjana Sanjana@newslaundry. com Shri Amit Banerjee 17. 19. 306 the Chairperson and Members shall not be an MP or MLA. to form suitable Search Lokpal Bill 2011 Committee. to the President, and it is felt that existing provisions are adequate. submitted a copy of the Jan Lokpal Bill to the Standing Committee. to deal with these matters are adequate. 3. As per Clause 3(4) of the Lokpal Bill, 4. Already the provision exists in 5. The Bill provides for making a complaint 1.Against Corruption has also India 2. to 8. The provisions provided in the Bill from the lower house to be decided by members of Both the Houses. (a) three members including Chairman from judiciary; (b) three members from Parliament; (c) three members from administration (d) three members either from the upper house or of the members Lokpal. by Cabinet Secretary. the author has suggested that any resident, citizen of India can give complaint before the Selection Committee for removal of Committee Members/removal of Lokpal and after due consideration if the Selection Committee deem fit with the majority opinion can recommend removal and the President should abide by such recommendation. be made compulsory. State Prime Ministers, Chief Judges of Supreme Court, Ministers, Central Government officers and employees be brought under Jan Lokpal Bill. graduate and not above 65 years of age. Prime Speaker of Lok Sabha, Chairman Rajya Minster, CLAUSE 3 (3) No sitting ministers should be considered for election CLAUSE 4(3) (4) If needed the Search Committee should be headed CLAUSE 8 (5) Regarding removal of Chairperson or any member (1) Jan Lokpal Bill for the Centre and Lokayukta CLAUSE 17 (2) All MPs, office bearers of trusts, NGGs, Contractors, CLAUSE 3 (3) The Jan Lokpal office bearers must be double Shri Mallikarjun Biradar 12 3 4 20. 307 Lokpal in this regard. is adequate. It Lokpal Bill 2011 beyond the scope of Lokpal to frame rules for religious trusts. Bill. 1. The rules are to be framed by the 2. The existing provisions are adequate. 3. The existing jurisdiction provided in the 4. Judiciary is not covered by the Lokpal – The author has suggested that for – Prime Minister should be included – In the definition of Ministers, Prime – the complaint should be on a plain sittings of benches the Lokpal if it is hearing Minister should be included. The writer has also suggested to include judiciary. and that Government officers from top to bottom should be covered. The author has also suggested that for religious trusts also rules and regulations be framed. paper by ordinary personnel. Sabha, opposition party members, Chief Justices of Supreme Court, Chief Justice of High Court have to recommend the names of officer bearers. agree/not agree to receive the complaints. be exempted from attending the hearing of Lokpal sitting. day-today basis hearing and the appellate authority must dispose off the appeal within three months. for rigorous imprisonment of minimum one year. two years and maximum of 20 also attachment of property acquired through corrupt means. 3. Clause 17(a) 4. Clause 19(e) 2. Clause 2 (i) (4) Lokpal has to express views in writing why they (5) Prime Minster and Chief Justice of Supreme Court CLAUSE 23-29 (6) Complaint to be disposed off within six months on CLAUSE 49-50 (7) For false complaint the complainant to be punished -II SECOND SCHEDULE, PART (8) If the charges are proved minimum imprisonment of 1. Clause 2(d) 21. Singh Shri G.P. 308 necessary to provide an opportunity the public servant of being heard. Lokpal files a report in the Special Court. attach the property of accused and the proposed provisions appear to be adequate. taken even if the complainant is an individual to deter false and motivated complaints only filed to harass the public servants. But, DOPT is open to suggestions in this regard. 5. In the interest of natural justice, it is 6. Lokpal may frame rules in this regard. 7. On a complaint, after investigation, the 8. Lokpal has powers to provisionally 9. For false complaints, action has to be 10. The existing provisions are adequate. – No action should be taken – It is suggested that the name of – The author is opposed to provide – – The author has suggested that the – The author has suggested that case against judicial officials, it should be chaired by non-judicial. an opportunity to the public servant of being heard before filing the charge sheet. the complainant should not be disclosed if complainant so desires. Lokpal should have right to file FIR in serious cases. attachment of assets should happen immediately or at least freezing orders should come on receipt of complaint. against the complainant if is if the complainant is a society, individual. However, trust or association of persons and it is established with such act was politically motivated, mischievous to dent the reputation of public servant, punitive action may be taken. Individual should also be given the help to fight case and Public servant should be refunded the legal expenses only when he comes clear. 5. Clause 23(11) 6. Clause 23 (12) 7. Clause 28(1) 8. Clause 33 9. Clause 49 & 50 10. 12 3 4 309 . Clause (Clause 12-15) of the Bill provides for setting up period; hence the provision has been made in the Bill. recovery of loss to the exchequer caused in connivance with the convicted public servant. (Clause 42). may be stated that the Selection Committee as proposed in the Bill is quite representative of different strata [Clause 4] of society. gravity of the case would be decided by the Special Court. adequate. [Clause 17] Wing will have its own Investigation Wing and Prosecution The, Therefore, there is no need to put CBI, CVC under the Lokpal. 19 Benches by the Lokpal. 11. It is felt that there should be limitation 12. The corporate houses are also liable for it However, The suggestion is not clear. 13. 14. The punishment is always as per the 15. Clause 42 of the Bill provides for this. 16. The jurisdiction as provided in the Bill is 17. In the Bill it is proposed that Lokpal judiciary, CAG, judiciary, i.e. – There should not be a limitation period Civil Society recommended, people of high moral Government interference should values and integrity. be minimal. The punishment should be based on the gravity of seriousness of the case. Member of Parliament; Government aided NGO and public undertakings. should be under the Lokpal. Like Supreme Court, High Courts, District the Lokpal should also be divided into three levels to deal with public servants and the complaints pouring in. for inquiry of case for Lokpal. However, there should for inquiry of case Lokpal. However, be monetary limit for the case to tried by Lokpal. The corporate houses benefited by existing corruption should also be covered. The Lokpal to have maximum two Government recommended officers and the rest from other centres which are totally independent 14. CLAUSE 42 15. Loss is to be recovered by attachment of property. CLAUSE 17 16. The public servant should include the Prime Minister, 17. CBI, CVC and other such investigating agencies 11. Clause 54 CLAUSE 42 12. CLAUSE 4 13. 310 [CLAUSE 12] to be performed by the Lokpal, composition as proposed in the Bill is necessary. (Clause 12- Wing and Prosecution Wing 15). Therefore, there is no need to put CBI, CVC under the Lokpal. adequate.[Clause 17] previous sanction will be required for investigation/prosecution by Lokpal. powers. provision for attachment of property. [Clause 54] the Lokpal will have its own Investigation Wing 1. Keeping in view the nature of functions 2. Lokpal will have its own Investigation 3. Jurisdiction as provided in the Bill is 4. Clause 27 already provides that no 5. Clause 30 of the Bill provides such 6. Clause 33 and 34 of the Bill provide 7. The proposed provisions are adequate. 8. However, The suggestion is not clear. be kept out of the purview Lokpal. not be required in the case of Lokpal. and seizure of both the civil criminal courts. acquired by corrupt means to prevent its alienation. substantially. CLAUSE 3 (1) Lokpal should consist of Chairman plus two Members. (2) The CVC and CBI should be under the Lokpal. CLAUSE 17 (3) No public functionary including Prime Minister should CLAUSE 27 (4) and IPC should Sanction of approval under Cr.PC CLAUSE 30 (5) Lokpal should be conferred with power of search CLAUSE 33-34 (6) Lokpal should be empowered to attach any property CLAUSE 54 (7) The period of limitation should extend to 10 years. (8) The investigation team should be enhanced 12 3 4 22. Shri Nagesh Kini 311 for the same. are adequate. are adequate as it is felt appointing authority must have control. up of Special Court by the Central Government on the recommendation of Lokpal. declaration of assets by public servants and the provisions made appear adequate. complaints as contained in Clause 49 and 50 are adequate. 9. Clause 16 of the Bill already provides 10. The provisions provided in Clause 32 11. The provisions provided in Clause 35 12. Clause 38 of the Bill provides for setting 13. Clause 47 of the Bill provides for 14. Provisions to deal with the false Clause 17 of the Bill provides jurisdiction of the Lokpal and it appears to be adequate. It is suggested that the officers of public only on the consolidated fund. service of any Central or State Government officials without having to obtain the consent of State Governments. be recommendations but final and conclusive. The Lokpal should be empowered to constitute fast track courts to hear and decide cases within six months. All public functionaries should compulsorily declare their assets and liabilities failure to do so should be considered as serious criminal offence. The punishment for frivolous and vexatious complaints should be RI for as long five years not subject to appeal in any court of law. CLAUSE 16 (9) The charge of expenses the Lokpal should be CLAUSE 32 (10) Lokpal should be empowered to draw upon the CLAUSE 35 (11) order for transfer or suspension shall not Lokpal’s CLAUSE 38 (12) CLAUSE 47 (13) CLAUSE 49-50 (14) CLAUSE 17: institutions should also be brought within the ambit of Bill. Institutions which necessarily bound to have Government funding to have shareholding directly or indirectly through other PSUs have also a crucial role to play in public accountability and these should also be brought under the purview of Lokpal. 23. Shri S. Ramanathan 312 conduct of MPs on the floor House [Clause 17(2)], as it will violate Article 105(2) of the the provision of Constitution. jurisdiction of the Lokpal which appears to be adequate. by the Special Court as per PC Act, 1988. be within the ambit of Lokpal after he/ she has demitted the office. Accountability Bill is already before the Parliament. powers of Civil court in certain cases. examined by the Standing Committee. Administrative Reforms and Public Grievances are in the process of introducing a separate Bill in the Parliament. 1. The proposed Bill does not include the 2. Clause 17 of the Bill defines 3. The punishment is to be awarded 4. It is felt that the Prime Minister should 5. Judicial Standards For Judiciary, 6. Clause 31 of the Bill provides for 7. This is a separate Bill which being 8. For grievance redressal, Department of the floor of House. and other private bodies like hospital. to 10 years but should extend life imprisonment and death for big scam. Lokpal. Government at the earliest. grievance redressal giving timeline. CLAUSE 17 (1) Lokpal should inquire into the conduct of MPs on (2) It should look into the malpractice of NGO, media (3) Maximum punishment for corrupt should be limited (4) Prime Minister should be within the ambit of (5) Judiciary should be under the Lokpal. CLAUSE 31 (6) power should be given to the Lokpal. Civil court’s (7)Accountability Bill should be passed by the Judicial (8) Charter for Each department should have Citizen’s 12 3 4 24. Shri Prasad 313 for the same. However, the demands for the same. However, have to be routed through Ministry of Finance. the Bill are adequate. complaints and inquiry are adequate. Lokpal, and the provision appears to be adequate. and not practicable. 17 is adequate. Whistleblowers had been introduced in Parliament. The recommendation of the 9. Clause 16 of the Bill already provides 10. This is beyond the scope of Lokpal. 11. The provisions made in Clause 40 of 12. The provisions in Clause 23 regarding 13. Clause 19 provides for Benches of the 14. The suggestion appears to be ambiguous 15. The jurisdiction as provided in Clause 16. A separate Bill for protection to powers to investigate suo motto consolidated fund of India and independent Ministry of Finance for its financial independence. Lokpal should be given phone tapping powers. independent authority which should include bench comprising retired Chief Justice of India as its Chairman and other competent Supreme Court judges. Lokpal should have matters. Lokpal should have hierarchy structure like Centre – – so that issue of different Village – District State regions can be tackled at this level itself. remove officer through appropriate procedure like discussion and voting of 2/3 members present voted against the officer and seek removal of from service. All the public servant should come under ambit of Lokpal and there should not be any exclusion. Whistleblower protection can be carried out in a separate law as Whistleblower Protection Bill has been passed recently. CLAUSE 16 (9) Lokpal budget should be charged from the (10) CLAUSE 40 (11) Complaint against Lokpal should be handled by an CLAUSE 23 (12) CLAUSE 19 (13) (14) The Parliament should decide whether or not to CLAUSE 17 (15) (16) 314 consideration. the Bill (Clause 4) is adequate. practicable. The procedure provided in Clause 4 of the Bill is adequate. 2011. a particular age group only eligible for appointment as Chairperson. Chairperson is not practicable. Further the eligibility conditions of persons to be appointed as Chairperson and Members of Lokpal as contained in Clause 3 of the Bill are adequate. too short a period. Standing Committee of Parliament is under 17. The Selection procedure provided in 18. The suggestion appears to be not 1. Same as provided in the Lokpal Bill 2. There appears to be no need make 3. The suggestion for appointment of 4. The term of two years for Lokpal is 5. & 6. The suggestion is not practicable. through panel comprising of legislators, judiciary, media and bureaucrats. civil society, The selection of members should be through voting and members will chose chairperson among themselves through voting. members. age should not be less than 50 years and more than 65 years. and the Government servant, Member of Parliament, Zila Parishad, Assembly, Member of Legislative Panchayats or elected/appointed member of any constitutional institution or person who is getting remuneration from the Government or a member of arm forces of India and also any person who is a member of any political party in about last 15 years from the date, of nomination should not be eligible. be two years from the date on which he enters upon his office and shall not be eligible for re- appointment. process of election by the Members Parliament. CLAUSE 4 (17) Selection of Lokpal Member can be carried out (18) CLAUSE 3 (1) Lokpal should consist of Chairman plus eight (2) The Chairperson should be a citizen of India and the (3) Appointment of Chairperson will be through election CLAUSE 6 (4) The term of office Chairperson and Lokpal shall (5) The selection of Chairperson should be through the 12 3 4 25. Shri Manish Kapoor 315 3 is adequate. place. 23 to 29 are adequate. and Wing setting up of Investigation There (Clause 12-15). Wing Prosecution is no merit in the suggestion. 7. The complaint can be filed by anybody. 8. The structure of Lokpal given in Clause 9. This will concentrate all powers at one 10. The provisions as contained in Clause provides for The Lokpal Bill 2011 & 12. 11. impeachment on a complaint made to Supreme Court of India. can appoint any citizen of India as member Lokpal. Such member should not be less than 50 years and not more than 65 years of age and must be a legal Accountant ore retired judge Chartered practioner, from any judicial court of India. The Chairman can remove any member of Lokpal with the consent five members. working within the territorial limits of India can file a complaint with the Lokpal. FUNCTIONS & POWERS OF LOKPAL: Lokpal but no investigation shall be conducted by the Chairperson. against the Lokpal shall before Chairperson. All eight Lokpals shall have powers to hear complaint, take cognizance, lodge FIR and start investigation The Act. against any person who comes under this Investigating Officer shall work as an agent of the Lokpal. other members to investigating Investigating Officer, team and judge of special court public prosecutor as deemed fit for the case. (6) The elected Chairperson according to his discretion CLAUSE 23 (7) Any person who is citizen of India or organization CLAUSE 3 (8) The Chairperson of Lokpal shall appoint all eight (9) Every appeal against the order or decision made CLAUSE 23-29 (10) CLAUSE 12-15 (11) Every Lokpal shall have power to appoint the The Chairperson can be removed through the process of 316 in Clause 17 of the Bill is adequate. powers to Lokpal. the However, the Lokpal Bill, 2011. Prime Minister during his/her tenure as Prime Minister and the Judiciary is not within the ambit of Lokpal. information are provided in Clause 26, which appear to be adequate. inquiry and investigations is provided in Clause 23 to 29, and appears be adequate. 13. The jurisdiction of Lokpal as contained 14. Clause 31 of the Bill provides such 15. No such specific provision is made in 16. Powers of Lokpal for furnishing 17. to 19. The procedure in respect of of the Cr.PC, 1973. of the Cr.PC, Chief Minister, Prime Minister, judges of High Prime Minister, Chief Minister, FIR shall be lodged against the Prime Minister, the basis of available evidence and information a member of Lokpal including Chairperson can take cognizance of offence related to corruption. Lokpa1 can conduct investigation and appoint public prosecutor and special investigating officer, judges. But no Lokpa1 shall have any punitive powers. The Lokpa1 can inquire against any public servant, and members of armed forces. No person judiciary, or organization can be inquired into by Lokpal which allowances or is not getting any aid, grant, salary, remuneration from any Government or institution which falls under the definition of Government. The Lokpal can compel any person within the territorial limits of India following the procedure to compel appearance before the Lokpal. courts and the Supreme Court of India, Election Commissioners can be compelled to appear before the Lokpal. The Lokpal can compel any person within the territorial limits of India or outside to produce the evidence before Lokpal following procedure as prescribed in Chapter VII and Section 91 to 105L VII-A any Chief Minister or Governor without the approval of Supreme Court India. CLAUSE 23-29 (17) On (18) No (12) CLAUSE 17 (13) CLAUSE 31 (14) (15) No CLAUSE 26 (16) 12 3 4 317 its own Investigation Wing. its own Investigation the officers and employees on deputation will have to be done as per the extant rules. Government can be utilised by the Lokpal as per provisions of Clause 32. officers and staff as per Clause 42 of the Bill for offences punishable under Act, 1988. For other matters, the PC the extant service rules are to be followed. the Central Government as per extant rules on the subject. 20. As per Clause 12, the Lokpal will have 21. Deputation and disciplinary matters of 22. Services of Central and State 23. Lokpal may take action against its 24. to 26 The Special Courts are set up by Government can remove/ suspend/ dismiss or FIR shall be lodged against any judge of Supreme Court of India or High Courts without the approval of the President India. The Lokpal shall appoint the investigating officer and the post shall be filled by person who is working with any State or central investigative agency police who shall not be less than the rank of Sub- appointed or Any serving police officer Inspector. or above in any State ACP equal to the rank of shall not be appointed Territory Government or Union as an investigating officer. call back any officer working under the Lokpal or appointed as investigating officer. Lokpal can also appoint any person working with the Indian armed or para military forces as a rank of equal to sub-inspector or above as investigating officer. Lokpal can remove/suspend and start criminal investigation against any investigating officer. Magistrate of first class or Metropolitan for at least five years or a Sessions Judge an Assistant Sessions Additional Sessions Judge or an Judge can be appointed as a Special by the Lokpal. CLAUSE 12 (20) (21) No CLAUSE 32 (22) (23) (24) The person who has been serving as a Judicial (19) No 318 up of Prosecution Wing by the Lokpal. Wing up of Prosecution Clause 23 to 29 is be followed. the provisions of Clause 33 and 34. regarding transfer or suspension of public servants are adequate. Lokpal has to sent report competent 27. Clause 15 of the Bill provides for setting 28. Investigation procedure as provided in 29. The property can be attached as per 30. Provisions as provided in Clause 35 31. This has to be done as per Clause 21. 32. After completion of investigation, the recommendation can be made by the Lokpal to property shall be attached by the Lokpal except Chairperson can also appoint a legal practitioner having 20 years experience of court. Every judge appointed by the Lokpal shall be deemed equal to the rank of Sessions Judge. The Lokpal may appoint any legal practitioner as a public prosecutor who has at least 15 years expenence. investigating officer during the investigation unless he denies joining the investigation. the property which can be produced as evidence before the special court. suspend or transfer a person against whom the investigation is on unless it proves potential threat of the distraction or temper with evidence by accused. Act anywhere in India. established under this Upon conviction the Lokpal may punish accused with imprisonment for a period which may extend (25) (26) CLAUSE 15 (27) CLAUSE 23-29 (28) No accused shall be arrested by the Lokpal or CLAUSE 33-34 (29) No CLAUSE 35 (30) No CLAUSE 21 (31) The Lokpal can transfer any case in court CLAUSE 28. 29 & 42 (32) 12 3 4 319 electoral reforms. authority and if required, file a report with the Special Courts. [Clause 28 & 29]. Further as per Clause 42, the loss to exchequer can also be recovered from the convicted public servant and other beneficiaries. the competent authority on basis of the report of Lokpal. [Clause 28 & 29] extends to whole of India and also public servants outside India. is adequate. mechanism. punishment for false complaints. if deterrent punishment is not However, imposed, it may lead to a large number of false complaints. But, DOPT is open to suggestions in this regard. term is too harsh. The Bill already provide for recovery of loss and attachment of ill gotten property (Clause 42, 33 and 34) of 33. Action for dismissal has to be taken by 34. The territorial jurisdiction of the Lokpal 35. The limitation as provided in Clause 54 1. The Bill provides for elaborate selection 2. Clause 49 and 50 provide for 3. The maximum imprisonment of life 4. This is a matter to be examined as part case shall be investigated by the Lokpal after passing of 10 years after commission alleged offence. where Government representatives are not in majority. of Rs.500/- to a maximum Rs.5,000/- minimum of 6 months and maximum life imprisonment along with attachment of property acquired through corrupt means. from contesting any elections or joining Govt. service. for life imprisonment and with fine which may extend ten times of the value assets which are received in the form of bribe or gratification. Act Anyone found guilty under the provision of this shall be immediately dismissed from the post and no bail shall be granted by any court to that person. The Lokpal can investigate any case of corruption anywhere in India. CLAUSE 4 1. The Lokpal should be elected/selected by a team 2. For false complaints, the punishment should be penalty CLAUSE 42. 33 & 34 3. On conviction, the accused should be punished with 4. The convicted person should be debarred for ever (33) CLAUSE 1 (34) CLAUSE 54 (35) No Dr. Ashok Gupta Dr. C-168, Lohia Nagar, Ghaziabad 201001 dr.ashok.ghaziabad@ gmail.com 26. 320 (Clause 12-15), hence the CBI in Clause 17. If lower bureaucracy is also brought under the ambit of Lokpal it will over burden the Lokpal. conduct of MPs on the floor House [Clause 17(2)], as it will violate Article 105(2) of the the provision of Constitution. under consideration of the Parliament. Clause 3 of the Bill appears to be adequate. Investigation Wing and Prosecution Wing and similar institution need not be brought under the Lokpal. provides for amending the Section 19 Act. of the PC to Section 13 and 14 of the PC Act, 1988. 5. The Jurisdiction of Lokpal as provided 6. The proposed Bill does not include the 7. a separate Bill is already For Judiciary, 8. The eligibility criteria as provided in 9. The Lokpal will have its own 1. The Lokpal Bill [Second Schedule] 2. The Lokpal Bill provides for amendment servants from Patwari to Prime Minister. of the House should be within purview Lokpal. be within the purview of Lokpal. should be as suggested in the Jan Lokpal Bill. Lokpal. should be amended to remove the provision of sanction. lines of Section 409 IPC which is maximum ten years and the accused is also liable to fine. CLAUSE 17 5. The Lokpal should have jurisdiction over all public 6. The conduct of Members Parliament on the floor 7. Except Supreme Court, the remaining judiciary should CLAUSE 3 8. The eligibility criteria for selection of the Lokpal 9. The CBI and similar institutions should be under the SECOND SCHEDULE. PART-II 1.Act The Section 19 of the Prevention Corruption 2.Act should be on the The punishment under the PC 204, Om Sai Shradja CHS, Ramachandra Nagar-3 Thane, Maharashtra 12 3 4 27. Arvind A. Aghav, 321 at higher places. Further by including lower bureaucracy the Lokpal will be over burdened. Act, 1988 which needs to be examined separately. Constitution it is felt that such a provision should be provided. the complainants; hence it is felt that there is no need to provide such provision in the Bill. 1988 which needs to be examined separately. Act, 1988 is a altogether different PC legislation. the Lokpal as per Clause 15. be provided to defend the case if such assistance is requested for. 3. The Lokpal intends to tackle corruption 4. This relates to amending the PC 5. Due to the federal structure of 6. Normal legal remedies are available to 7.Act, This relates to amending the PC 8. Clause 31 if Bill provides such powers. 9. The intention of the author is not clear. 10. is to be set up by Wing Prosecution 11. It is felt that legal assistance needs to provides for presumption as to acquisition Officers, a large number of people will be left out. Act. also be included in the PC (3) of Clause 17. original complainant directly in the High Court. societies within its purview. Act should also be amended. witnesses and the PC Clause 48 of assets by corrupt means in certain cases, then why not if misappropriation is proved then presumption should be that public servant act was intentional and no need of proving intention/motive. Advisors and Public prosecutors. not agreeable. 4. The provisions for attachment of property should 5. The author is not in favour of proviso to sub-clause 6. There should be provision of filing appeal by the 7.Act should be amended to include various The PC CLAUSE 31 8. The Lokpal should have provision with regard to the 9. CLAUSE 15 10. Director of Prosecution should have permanent Legal CLAUSE 56 11. The provision of legal assistance under Clause 56 CLAUSE 17 3. By limiting the coverage of Lokpal to Group ‘A’ 322 informers under Lokpal Act is not informers under Lokpal required. per procedure prescribed in Clause 23- Act will also be RTI 29. Further, applicable. Clause 54 is required. 1988 which needs to be examined separately. production of documents. appears to be in the Lokpal Bill, 2011 adequate. [Clause 23 to 29] Bill which is already under consideration of the Parliament. legislations is to be decided by the appropriate courts. such cases. any such eventuality. 12. It is felt that the reward scheme for 13. The Lokpal has to submit its report as 14. It is felt that limitation as proposed in 15.Act, This relates to amending the PC 16. Clause 26 of the Bill provide for 17. The procedure for investigation provided 18. This matter relates to Whistleblowers 19. The punishment as per applicable 20. The life imprisonment is too harsh in 21. The Lokpal Bill does not provide for should be made available. there. abetment in Section 13. Return of the accused in DA Authorities the IT Tax cases. Therefore, necessary changes should be Officer. Act or Provision in Lokpal Bill made in the Evidence Act, 1988. and PC and witnesses. there for fabricated evidence or forgery by the accused. of life imprisonment. for ‘perjury’. 12. Reward to the informers should be there. CLAUSE 23-29 13. Enquiry documents after completion or decision taken CLAUSE 54 14. No limitation as prescribed in Clause 54 should be 15.Act, there should be special provision for In PC CLAUSE 26 16. The Investigating officer can demand from Income CLAUSE 23-29 17. In MCOCA the statement made before Investigation 18. Protection should be provided to the complainant SECOND SCHEDULE. PART-II 19. Punishment up to ten years imprisonment should be 20. The habitual offenders should be given punishment 21. Punishment of imprisonment up to 7 years be there 12 3 4 323 is under consideration of the Parliament. the Lokpal makes a report to Special Court and/or to the competent authority. The intention of the author is not understood. Lokpal taken on case to basis by the competent authority on the recommendations of the Lokpal. to black list such firms. the functioning of courts. placing CBI under the Lokpal. provided in Clause 49 and 50 appears 22. A separate bill for judicial accountability 23. Upon finalisation of its investigations, 24. This is beyond the Scope of legislation 25. Decision on suspension etc. has to be 26. and 27. There is no provision in the Bill 28. Lokpal is not supposed to supervise 29. The Lokpal Bill does not envisage 30. The penalty for false complaints as suo check such judgments. loss to Government and wrongful gain anyone by act of public servant (will or omission), no requirement to prove his intention/motive in cases of Act, 1988. Prevention of Corruption telephones. immediately he should be suspended till acquittal of case. and his direct or indirect firms should be black listed for whole life time. ACB units to deal with it. agency to Lokpal or State more than 5 cases are acquitted, Senior Judges Committee including any Lokpal Member will moto to keep it under Lokpal. reasonable level. 24. Lokpal should have special powers to intercept CLAUSE 35 25. Once case is registered against public servant, 26. If contractor is found guilty under corruption act he 27. For substandard construction, a report must be sent 28. No court to reduce the sentence of accused. If 29. CBI should be kept independent and there is no need CLAUSE 49-50 30. Penalty for false complaints must be reduced to 22. The judiciary should be within the purview of Lokpal. CLAUSE 23-29 23. Under Section 13 (1) (D) once it is proved wrongful 324 to be reasonable. But, DoPT is open suggestions. 1988 which needs to be examined as an accomplice However, separately. of public servant, the private parties are also liable for recovery of loss by the exchequer. suffered 1988. introduced, it is felt that the same needs consideration by the Parliament. of the Lokpal appears to be adequate. impracticable. 31. This will overburden the Lokpal. 32.Act, This relates to amending the PC 33.Act, Transaction This relates to Benami 1. has been Since Lokpal Bill 2011 2. The jurisdiction as given in Clause 17 1. to 3. The suggestions appear be Government policy is framed to give benefit to private companies. make the offence non-bailable and more severe punishment equal to section l3(1)(c). regulators such as SEBI, Insurance Regulatory and Pension Fund Regulatory and Agency, Development Regulatory Authority Telecom Development Authority, of India, etc. and other quasi judicial bodies should also be brought under the purview of Lokpal Bill Accountability Bill. or Judicial members should be selected and 40% elected. judge of Supreme Court, Chief Justice High Court with minimum 15 years Government service, former 31. Cognizance of anonymous complaints should be taken. 32.Act where the There should be provision in the PC 33.Act, 1988 should be amended to Transaction Benami 1. The Jan Lokpal Bill should be notified. CLAUSE 17 2. The Chairperson, Members and officers of the CLAUSE 3 1. 60% of the Chairman should be an elected member. 2.The former, For members of Lokpal (elected) – N.K. Rupwani [email protected] Kalmekar Shri R.V. Material Science Centre, IIT Kharagpur Bengal, 721 302 West 12 3 4 28. 29. 325 in the Lokpal Bill appears to be adequate. [Clause 4] requiring no further comments. same. Civil Court to the Lokpal. Clause 54 of the Bill appears to be adequate. the investigation officers of Lokpal. 4. The Selection Committee as provided 5. This is an impracticable suggestion 6. Clause 27 already provides for the 7. Clause 31 provides certain powers of 8. The limitation period as provided in 9. Clause 13 provides police powers to Government officers of any department with minimum 15 years of service, not attached to any political party and within the age group of 40-75 years will be eligible. Court, Chief Justice of High Court; 25 years in anti corruption, vigilance, finance regulations in the age group of 40-75 years. Prime Minister and the Chairperson of Lokpal as Co-Chairperson. The Speaker of LS, Chairman RS, Leader of Opposition in LS, opposition CEC, in R.S., Chief Justice of Supreme Court, CAG, Director CBI and President Press Council of India shall be members. immediate controlling Group 'A' Officer should be held responsible and accountable for complaints against any staff working under him. servant is holding any public office, there should not be any restriction of period offence. If the person is not holding any post on date then it should be under jurisdiction of Lokpal. equal Police powers. 3. For selected Members of Lokpal – Judge Supreme CLAUSE 4 4. The Selection Committee will be chaired by the 5. the officer, below Group ‘A’ For any official/staff CLAUSE 27 6.CLAUSE 31 No Sanction required for any prosecution. 7. Power of investigation Civil Court. CLAUSE 54 8. On limitation period, it is suggested that if the public CLAUSE 13 9. The investigating agencies of Lokpal should have, 326 Lokpal. that the punishment as per Clause 49 and 50 is justified. But, DoPT open to suggestions in this regard. the Bill is adequate. within the ambit of Lokpal, it will be over burdened thereby it may not be able to focus on corruption at higher places. introduced, it is felt that the same needs consideration by the Parliament. corruption at high places. definitions are not given in the Lokpal Act, 1988, Bill, but defined in the PC will have the same meaning as assigned Act. in that Chairperson and Members to serving judges, the field of available candidates will be reduced considerably. 10. This is beyond the scope of scheme 11. deter the false complaints, it is felt To 1. The jurisdiction as given Clause 17 of 2. By bringing the lower bureaucracy 3. has been Since Lokpal Bill 2011 1. The Lokpal Bill intends to fight 2. and expressions for which Words 3. and 4. By limiting the selection of suspension of dutiful official transferred by corrupt higher authorities. prosecuted, but may be blacklisted for future complaints. should be under the purview of Lokpal. purpose’ need be defined. appointment as Chairperson. appointment as Judicial Members. 10. The Lokpal should have powers to cancel transfer/ CLAUSE 49-50 11. For false complaints, the complainant should not be CLAUSE 17 1. NGOs, religious trusts Judiciary, The Prime Minister, 2. Lower bureaucracy be within the purview of Lokpal. 3. Jan Lokpal Bill be passed. PREAMBLE 1.DEFINITIONS In the preamble word “public” be deleted. 2. ‘religious like ‘corruption’, ‘functionary’ Words CLAUSE 3 3. Only serving judge of Supreme Court be eligible for 4. Serving Chief Justice of a High Court be eligible for Rajesh Chandola 142, RPS, DDA Flats, Sheikh Sarai, Ph.I, 017 New Delhi 110 Shri Kaushlendra Prasad Tower Flat No. 328, No.1, Mount Kailash, East of Kailash, 065. New Delhi - 110 12 3 4 30. 31. 327 office of Lokpal is too low. office 17 of the Bill is to ensure that resources of Lokpal are utilised more efficiently to fight corruption at higher places. is adequate. proposed seems to be enough. By adding more members, it may become unwieldy body. as per Clause 33 and 34 of the Bill. ordinarily the Government will accept the recommendation of Lokpal, if not feasible, then the however, Government will have to record the reasons in writing. 5. The upper age of 65 years to hold the 1. The jurisdiction as proposed in Clause 2. The time line as provided in Clause 23 3. The number of Members Lokpal 4. Attachment of property can be resorted 5. Clause 35 of the Bill provides that 6. Clause 47 provides for this. be 65 years. of Lokpal. There should not any exceptions. be laid down. property of a corrupt functionary. suspension of a public servant be binding on the employer. be on regular basis and the onus to prove that property acquired by him was through his legal and known resources may lie with him. CLAUSE 17 1. All public functionaries should be under the purview CLAUSE 23 2. Time line for disposal of various tasks/activities should CLAUSE 3 3. The number of members Lokpal should be increased. CLAUSE 33-34 4. The Lokpal should be competent to forfeit the CLAUSE 35 5. The recommendations of Lokpal for transfer or CLAUSE 47 6. Declaration of assets by public functionary should CLALSE 6 5. The upper age to hold the office of Lokpal should Shri Uma Shanker Tiwari, 294, BJCGHS Ltd., Plot No. 22, Sector - 22, Dwarka, 078 New Delhi - 110 32. 328 Committee appears to be adequate. complaints by Lokpal, there may be undue pressure on the system which in the long run may prove to be counterproductive. accept this suggestion. (Clause 49 and 50) are not covered under the provision of Preliminary Enquiry. 1. to 3. The composition of the Selection 4. By reducing the period for disposal of 5. There appears to be no justification 6. The situations given in Chapter XIV – Central Government may be may be replaced by an eminent the CJI by collegiums of Selection Central Government may be replaced – on Offences and penalties may be the first extension be for two months Clause 4(1)(f) of the CJI. Clause 4(1)(h) practicing Lawyer to be nominated by the Bar Council of India. Clause 4(1)(i) by the CAG of India. Clause 23(8) and the third last for one month. Clause 43 to 46 replaced by the CAG of India. Chapter XIV deleted as there is a provision of Preliminary Enquiry. 2. 3. 4. 5. 6. 1. In Shri S.P. Ashta Shri S.P. Puri, F-127, Vikas 018 New Delhi 110 12 3 4 33. 329 , the Chairperson i.e. Comments of DoPT of Chairperson is not practicable. The eligibility conditions of persons to be appointed as Chairperson and Members of Lokpal as given in Clause 3 the Bill are adequate. the appointment procedure as Further, prescribed in Clause 4, 5 and 6 of the Bill is adequate, and Members of Lokpal shall be appointed by the President on recommendations of the Selection Committee. The eligibility conditions for appointment as Lokpal and Members given in Clause 3 are adequate. (i) and (ii) The suggestion for appointment (iii) The person to be qualified ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL Comments/Suggestions to hold the office of Lokpal should be a natural born Indian, with both biological parents being natural, born Indians. He should be, in the opinion of President, a distinguished and eminent person with honesty and proven integrity, exceptional morality, alternative methods of selection Lokpal. In the first alternative method, the Lokpal will be elected by the people of India direct voting. Election Lokpal will be conducted by the Election Commission of India. In the second alternative method, a panel of names sent by the President to Speaker Lok Sabha will be voted upon in Parliament. The name of the candidate who gets 51% votes will be sent to the Supreme Court for its approval and after approval of the Supreme Court, President of India will appoint that person to the office Lokpal. Panel of candidates for office Lokpal will be selected by the President of India from a list names suggested by the Government of India, State Governments, eminent persons in any field, civil societies and common Indians. Qualification of Lokpal: CLAUSE 3, 4, 5 and 6 (i) Selection/Election of Lokpal: He has suggested two (ii) (iii) of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, individual Shri A.K. Mukhopadhyaya, Air Marshal (Retd.), Chairman, India Defence Foundation, Chittaranjan Park, 019. New Delhi-110 12 3 4 34. No. Organisation/ COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda Name 330 of the Bill is adequate. Further, Judicial of the Bill is adequate. Further, Accountability Bill is already Standards under consideration of the Parliament. will come within the purview of Lokpal once he/she demits the office the judiciary may (Clause 17). However, be kept outside the purview of Lokpal and a separate Bill, Judicial Standards Accountability Bill is already under consideration of the Parliament. The time limits for completion of inquiry as given in Clause 23(2) and 23(8) are adequate. For completion of trial, the time limit as prescribed in Clause 28(2) is adequate. The punishment as prescribed in the Bill appears to be adequate. The life imprisonment appears to be harsh. (iv) Jurisdiction as provided in Clause 17 (i) In the proposed Bill, Prime Minister (ii) (iii) -II T AR Depending upon the gravity of corruption and punishment for loss to the National exchequer, officials should vary from minimum 10 years imprisonment up to Life Sentence. records of unblemished achievements in public sphere with IQ and OLQ (‘Officer Like Quality’, as and cultural Armed Forces Officers) measured for consciousness of not less than the average topmost 10% of Indians, with a PhD. (Doctorate) degree in humanities or sciences engineering/ technologies or law management, etc. and All State Chief Ministers as well Judiciary All State and should be within the ambit of Lokpal. including Chief Justice of India should be kept out they should of the purview Lokpal. However, come within the ambit of Lokpal after they demit their office. Investigations in any case will have to be completed should be completed in next one Trial in one year. year so that the corrupt politician, officer or judge is sent to Jain within two years. (iii) CLAUSE 17 (iv) Ministers The Prime Minister, Jurisdiction of Lokpal: CLAUSE 17 (i) The Prime Minister and the Supreme Court Judges CLAUSE 23 (ii) SECOND SCHEDULE, P National President, All India Council of Human Rights, Liberties and Social Justice. 12 3 4 35. Shri Anthony Raju, 331 Clause 42 of the Bill provides for recovery of loss to the exchequer. the Bill is adequate (Clause 4). Since, the Lokpal will have its own (Clause 12) and Wing Investigation (Clause 15), there is Wing Prosecution ACB of CBI no need to put CVC and under Lokpal. The Lokpal will have its own Wing and Prosecution Wing Investigation After completion of (CLAUSE 12, 15). investigation, if commission of offence is established, the Lokpal will file a report in Special Court. Protection to complainant is part of the Whistleblowers Bill. The eligibility criterion as given in Clause 3 of the Bill is adequate. Clause 49 and 50 would be applicable. But, DoPT is open to suggestions in this regard. (iv) (v) The Selection procedure as provided in (vi) (vii) (viii) (ix) (x) For false complaints, provisions of to be recovered from them at the time of conviction, by attaching their movable/immovable properties. citizens and constitutional authorities not by politicians, through a completely transparent and participatory process. Anti-corruption and Vigilance CVC, Departmental Branch of CBI to be merged into Lokpal. Lokpal/Lokayukta to have complete powers and machinery to independently investigate and prosecute judge or politician. any officer, The Complainants to be provided protection under the provisions of Lokpal Bill. Lokpal. monetary penalty instead of any Jail term and that monetary penalty should not exceed Rs. one lakh. CLAUSE 42 (iv) Loss caused to the Government by corrupt persons CLAUSE 4 (v) Selection of Lokpal members to be made by Judges, CLAUSE 12-15 (vi) CLAUSE 23-29 (vii) (viii) CLAUSE 3 (ix) Only Supreme Court Judges should be appointed as CLAUSE 49 and 50 (x) In case of frivolous complaints, there should be 332 will come within the purview of Lokpal once he/she demits the office the judiciary may [Clause 17]. However, be kept outside the purview of Lokpal and a separate Bill, Judicial Standards Accountability Bill is already under consideration of the Parliament. The suggestion is not practicable. procedure for selection of Chairperson and Members of Lokpal, as given in Clause 4 of the Bill is adequate. The punishment has to be awarded the public servants by appropriate courts/authorities once the commission Clause is established. Further, of offence 17(3) provides that Lokpal may also inquire into any act or conduct of person associated with the allegation of corruption under the Prevention of Corruption Act, 1988. Lokpal comprising of Chairperson and not more than eight Members out of whom 50% shall be Judicial Members [Clause 4]. Further Clause 19 of the Bill provides that Chairperson may constitute Benches of the Lokpal as deemed fit. (i) In the proposed Bill, Prime Minister (ii) (iii) (iv) The Bill provides for the institution of make the Lokpal Bill free of partiality it should be ensured that the Government official would not be punished until the person who made him corrupt is not identified and punished with the equal punishment. under purview of Lokpal. Lokpal must be elected post and the right to elect the Lokpal should be given to elected Block heads (Block Pramukhs) and there should be a provision to allow only those persons contest for Lokpal who are capable to elected be as Judge of Supreme court. first one should work to punish the bribe receivers, the second to punish industrial organisations, involved in the acts of corruption and bribe giving. The third would recommend such legislative provisions/international laws /treatise to Constitute international institutions to nullify the laws/agreement which protect the corrupt people of other countries CLAUSE 17 (i) PM and Justices of Supreme Court should come CLAUSE 4 (ii) CLAUSE 23 - 29 (iii) To CLAUSE 3 & 4 (iv)The Lokpals under Lokpal. Vice Provision of four Federation for Economic Freedom, 402, New Lawyers Supreme Chamber, Court, Bhagwandas Marg, New Delhi 12 3 4 36. 333 The Bill has to be passed by the Parliament by following the due process. This is outside the scope of Lokpal. Clause 47 and 48 of the Bill However, provide for declaration of assets by public servants. The jurisdiction of the Lokpal is given in Clause 17 which appears to be adequate. The procedure for investigation is given in Clauses 23 to 29, which seems to be adequate. the appropriate court depending upon the facts and circumstances of case. expenses of the Lokpal shall be charged on the Consolidated Fund of India. Therefore, there is no need to create any separate Fund. (v) The suggestion is not practicable. (vi) (vii) (viii) (ix) The punishment is to be awarded by (x) Clause 16 of the bill provides that as well as their ill gained money. The fourth Vice The fourth as well their ill gained money. Lokpal should review such laws and values prevalent Lokpal will appoint two Vice Every in the country. Lokayuktas each under them which will be called Central Lokayukta. desire or allurement of riches and who is free from the special affection to their children. Therefore, Lokpal Post should not carry any salary or perks. there is a role of unelected people in its preparation. Lokpal should have the right to order individual or to the institution declare their property let it be acquired by any person or institution, which had deposited the 20% excessive amount in account of the property owner and applied for possession before the office of Lokpal. Lokpal will have power to register the complaint regarding corruption against any staff, officer and Minister including PM. Lokpal will enquire into the complaint without any interference/influence from In case of any sort Executive/legislature/judiciary. influence, Lokpal would introduce a Bill in Parliament to make the attempt null and void. of IPC in corruption cases and will be entitled to recommend the required amendments in law/laws. Fund to or People’s Fund of India called ‘Lok Nidhi’ meet the financial requirements of Lokpal. (v) Lokpal should be a person who is free from money (vi) No such Lokpal bill should be accepted in which CLAUSE 47 and 48 (vii) CLAUSE 17, 23-29 (viii) (ix) Lokpal may recommend to increase the punishments CLAUSE 16 (x) Provision for creating a parallel fund to Consolidated 334 the appropriate court. As per the Bill, the appropriate court. the Lokpal has to file a report in Special Court if the commission of offence is established. [Clause 28 & 29] After by the Lokpal. Wing Investigation the investigations, if commission of offence is established, the Lokpal to file report in the Special Court [Clause 28 & 29]. Clause 1(2) provides the territorial jurisdiction of the Lokpal which extends to whole of India and also applies public servants outside India. (a) & (b) The sentence is to be awarded by (c) The suggestion is not clear. The procedure for removal of Lokpal as given in Clause 8 & 40 of the Bill is adequate. (i) Clause 12 provides for setting up (ii) intervention in the inquiry with immediate effect. Lokpal cannot award a death sentence to person in any case but can give imprisonment for maximum 10 years. person provoking for corruption. He will also provide adequate protection to the people working against the corruption and co-operating in inquiry. give any kind of property to his progeny inheritance or to donate any person institution. Specialised Fast Track Court and the decision to be pronounced within 3 months and total 6 time to dispose off the case including appeal. Jurisdiction of Lokpal also to be outside India. Powers of Elected Lokpal CLAUSE 23 - 29 (a) Lokpal can send any accused to jail prevent the Removal of Lokpal CLAUSE 8 & 40 The President of India will have the power to remove Lokpal. The Parliament will have the right to recommend about the removal of Lokpal to President by passing such resolution with simple majority. CLAUSE 12 (i) Lokpal should have its own investigation agency and CLAUSE 1 (ii) (b) Lokpal will equally punish the accused as well (c) After getting the Post, Lokpal will not be able to L-7, Adarsh Nagar, Old Durg (C.G) 12 3 4 37. 335 rds and expressions not defined Setting up of the Lokayuktas falls within the domain of States. Special Court and further action is to be taken as per the judicial framework. in Clause 4 of the Bill is sufficient. Chairperson or the Member of Lokpal shall hold the office for a term not exceeding five years or until he attains the age of seventy years, whichever is earlier. Clause 32 of the Bill empowers Lokpal to utilise services of officers Central or State Government. Act Act but defined in the PC in this 1988 shall have the same meaning as Act. assigned in that are to be governed by Clause 32 and 33, which seems to be adequate. (iii) (iv) The suggestion is not clear. (v) The Lokpal is to file its report in the (vi) The Selection procedure as prescribed (i) Clause 6 of the Bill provides that (ii) (iii) The wo (iv) The powers for attachment of property Provision of Lokayuktas in all States with the provision of District Lokpal. court for Judiciary and Lokpal. Council (Third Eye Set up) to review the decisions of Lokpal. Prosecutor with clean image to be appointed in Lokpal. Independent head of Lokpal to be appointed under the guidance of PM. and Chairperson (retired CJI) to be incorporated in Lokpal Bill. of Wing Deployment of employees Investigation Lokpal from the special agencies on deputation as regular employees should be lawful. Investigating Officers of Lokpal to be given powers similar CBI. The word “Corrupt Means” in Lokpal to be defined. Act should have no application for attaching Limitation property/recovery regarding limitation of time period and the “Attachment” should include “forfeiture of attached property if found guilty”. (iii) (iv)Appellate Fast Track Provision of common Specialised CLAUSE 23 - 29 Advisory (v) Constitution of an autonomous National CLAUSE 4 of CBI, Police/ retired judges, officers (vi) Veteran CLAUSE 6 (i) Age of the judicial members (retired judges SC) CLAUSE 32 (ii) DEFINITIONS (iii) CLAUSE 32 & 33 (iv) Surender Pal Singh, Sector 5, A2/114, Rohini, Delhi – 85 38. 336 powers of Civil Court. The judicial powers are to be exercised by the As the Lokpal will have Special Courts. [Clause 12] Wing its own Investigation [Clause 15], the Wing and Prosecution anti corruption agencies of the State/ CBI need not be placed under the Lokpal. Central Government shall constitute such number of Special Courts as recommended by the Lokpal to deal with the cases arising out of PC act, 1988. or phrase the word ‘public servant’ is the suggested to be deleted. However, Lokpal Bill is to deal the allegations of corruption against the public functionaries. Therefore, the word ‘public servant’ needs to be retained. (v) Clause 31 of the Bill provides for certain (vi) Clause 38 of the Bill provides that (vii) It is not clear that from which clause The action against the Lokpal and its Members is to be taken as per the provisions of Clause 8 & 40 the Bill which provides not only the removal by President but also for initiation of prosecution in case allegations of corruption. ord “Public Servant” to be deleted. Magistrate and all the powers of Anti Corruption Magistrate and all the powers of Agencies of State/CBI. Chairperson of Lokpal shall have the powers to recommend sufficient number of Special Courts to Act, 1988. deal with the cases arising out of PC CLAUSE 31 (v) Lokpal shall have all the powers of a Judicial CLAUSE 38 (vi) CLAUSE 8 and 40 The individual has asked some questions instead of suggestions regarding protection of the person fighting/ complaining against corruption, proving of the charges made against the relatives of Lokpal members, why there is no provision to give a chance guilty improve and why there is no provision of punishing the guilty member of Lokpal other than removing him from Lokpal. (vii) W Sravan Kumar Mishra 12 3 4 39. 337 election procedure as prescribed the institution of Lokpal which is independent and free from all undue influences, etc. The Bill envisages selection of persons the on the basis of merit. Further, tenure suggested is too short. in Clause 4 of the Bill is adequate. Chairperson and Members of the Lokpal shall be appointed by the President on recommendations of the Selection Committee. For removal etc. of the Chairperson and Members of the Lokpal, the provision has been prescribed in Clause 8 and 40 of the Bill. Lokpal shall form part of the (i) The Lokpal Bill envisages setting up (ii) (iii) The S (iv) Clause 4 of the Bill provides that (v) Any fines or penalties collected by the influences, abetments and inducements. Lokpal must comprise a Chairperson and 8 members. Chairperson shall be a serving or retired judge of The Amongst members half should be women. SC. tenure of Chairperson and members should be 3 years and 2 respectively with no eligibility of reappointment. by a Panel comprising Leader of the Majority Party in LS, leader of opposition Presidents the (a) Bar Council of India (b) Institute Chartered Works Accountants of India (c) Institute Cost and Accountants of India (d) Institute Company Secretaries (e) Institute of Electronics Engineers (India), New Delhi (f) Institute of Engineers Kolkata (g) Institute of Surveyors (India), New Delhi Valuers, (h) Medical Council of India (j) Institute Delhi and (k) Indian Science Congress. Selection Panel, will appoint Chairperson and members on the receipt of of Lokpal. In the same way, recommendation of removal from this Panel, President shall remove chairperson and its members. from complainants, collecting penalties culprits, (i) Lokpal must be independent, free from all undue CLAUSE 3 (iii) CLAUSE 4 (iv) Selection of Chairperson and members will be done (iv) The President of India, on the recommendation CLAUSE 16 (v) Lokpal will earn its revenue by collection of fee Bharastrachar Niwaran Samiti, B5/121, Yamuna N. Delhi-53 Vihar, 40. 338 completion of investigations, if the Consolidated Fund of India. Further, as Consolidated Fund of India. Further, per Clause 16 of the Bill, all expenses of the Lokpal shall be charged expenditure on the Consolidated Fund of India. Prime Minister occupies a pivotal position in the Governments' set up. ensure that Prime Minister is able To to discharge his functions without any it is felt interference from any quarter, that the Prime Minister may be kept outside the purview of Lokpal. after the Prime Minister has However, demitted the office, he will come within the purview of Lokpal. commission of offence has been established, the Lokpal shall file a report the Thereafter, in the Special Court. Special Court will decide the quantum of sentence, etc. as per the established procedure, and normal remedies available under the judicial system of the country will be available to accused persons. Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (vi) the In the context of Indian polity, (vii) On (viii) collection of fee from Media airing its proceedings etc. ambit of Lokpal. Appeal against Lokpal order can be filed in Supreme Court within 10 days from the receipt of such order and jurisdiction of Supreme Court shall be limited for a period of 30 days including final decision and beyond 30 days this jurisdiction would be expired. Every State of India shall adopt and enact law for appointment of ‘Lokayukta’ within 90 days from the enactment of Lokpal Bill. Lokayukta Law shall be as per existing/similar law in force the State of Karnataka without any modification. CLAUSE 17 (vi) The Public servants including PM must be in the CLAUSE 23 - 29 (vii) (viii) 12 3 4 339 use 6 of the Bill provides for selection process as given Clause 3 and 4 of the Bill are adequate. Clause 6 of the Bill provides that Chairperson or the Member of Lokpal shall hold the office for a term not exceeding five years or until he attains the age of seventy years, whichever is earlier. resignation by Chairperson and Member Clause 8 and 40 of Lokpal. Further, provide for removal of Chairperson or Member of Lokpal. complaints against the Lokpal and its Members. other officers appointment of Secretary, and staff of Lokpal by the Chairperson. Clause 12 of the Bill provides for setting by the Lokpal. Wing of Investigation Clause 13 provides that the investigating officers of the Lokpal shall have powers of police and Clause 31 provides for powers of Civil Court to enforce attendance of any person. for prosecution and penalties false complaints. (i) The composition of the Lokpal and its (ii) (iii) Cla (iv) Clause 8 and 40 of the Bill provide for (v) of the Bill provides for Clause 11 (vi) Clause 49 and 50 of the Bill provide 1 and 12 authority or Appointing Authority and the power of Appointing authority or issuing investigation warrant. be appointed by Selection Committee as provision of Lokpal Bill. The term of Chairperson and members will be for five years. Chairperson or member at his/her on will can submit its resignation to the President of India or they can be removed as per the provisions of Lokpal Bill. Complaints against Chairperson and members of Lokpal for their acts of corruption, partiality can be made in the Court. Lokpal shall have the powers to impose penalty against fake claims or charges made Government, or public servant. (v)Administrative Lokpal will have the powers of CLAUSE 3 (i) Lokpal should one chairperson and 10 members to CLAUSE 6 (ii) (iii) CLAUSE 8 and 40 (iv) CLAUSE 1 CLAUSE 49 and 50 (vi) Floor, nd Kolar road, Bhopal (M.P.) Creation and Projection Dotcom, 74, Lake City Builders, 2 41. 340 Clause 46 of the Bill provides for furnishing of annual report giving summary of its activities during the Clause 23 (13) provides previous year. that the Lokpal shall display to public the status of number complaints pending before it or disposed of by on its website. Clause 31 of the Bill provides for certain powers of Civil Court. The judicial powers are to be exercised by the Special Courts. the institution of Lokpal, he will be responsible for its functioning as well. provided in regulations. Act, 2005. the ambit of RTI The quantum of punishment on conviction is to be decided by the Courts as per the prevailing laws. For dealing with the public grievances, a separate mechanism is required to be set up for which the Department of Administrative Reforms and Pensions is working on the same. by the Lokpal. Wing Investigation (vii) (viii) (ix) Since the Chairperson will be head of (x) Method of filing complaint will be (xi) The institution of Lokpal will be within (xii) (xiii) (xiv) Clause 12 provides for setting up of Every year the Chairperson of Lokpal shall submit a Also details annual report to the President of India. the matters disposed off by Lokpal shall be uploaded on the website monthly basis. magistrate. as well inspection of Lokpal. in writing. made public. years of imprisonment extendable up to life imprisonment. Lokpal shall be responsible for the preparation of Citizens’ Charter and thereafter its implementation. be free from any undue pressure or influence any other authority. CLAUSE 46 (vii) CLAUSE 31 (viii) Lokpal shall have the powers of a special judicial SECOND SCHEDULE, Pt. II guilty person shall not be punished less than 5 A (xii) CLAUSE 12 (xiv) which will Wing, Lokpal shall have an Investigation (ix) Chairperson shall be responsible for administration (x) Complaints can be made to Lokpal on a plain paper All the records or information of Lokpal shall be (xi) (xiii) 12 3 4 341 Clause 47 of the Bill provides for declaration of assets by the public servants. as given in Clause 23(2) and 23(8) are adequate. in this regard. introduced in the Parliament and Parliament may to decide the issue. The time lines are prescribed in Clause 23 and Clause 28 of the Bill. cumbersome. The Bill envisages selection of persons on the basis merit. The jurisdiction of the Lokpal as given clause 17 of the Bill appears to be adequate. (xv) (xvi) The time limits for completion of inquiry (xvii) It will be for the Lokpal to take action (i) has since been The Lokpal Bill, 2011 (ii) (i) This will make the process of selection (ii) esponsible for spreading awareness time bound and on failure judiciary to about this law and ensuring the participation of people to fight corruption and mismanagement members as recommended by Jan Lokpal civil society in all the States, Central Government Deptts. to Also to monitor effectively receive/collate/investigate. and keep all the latest status on website for to see. be accountable. Head of Office in Government offices shall ensure that all the Government officials have declared their property in form prescribed by Lokpal on Act within three months implementation of Lokpal and thereafter on 30th June every year. months and in no case later than one year from receipt of complaint. of Lokpal should include elected MPs from SC/ST/ OBC and Minorities in their population ratio with fixed minimum qualification and no NRI in Selection Committee. Right to appoint/remove or punish should be with Parliament. All the heads of educational institutes/industries, social/ education/religious trusts (Pvt./Govt.), Govt. offices and all other organisations (Pvt./Govt.) where money/ properties are involved should come under the ambit (i) out a detailed plan to incorporate selected Working CLAUSE 47 (xv) CLAUSE 23 (xvi) All complaints/charges will be investigated within 6 (xvii) Lokpal shall be r CLAUSE 23 and 28 (ii) It has to be CLAUSE 4 (i) The Selection Committee for Chairmen and members CLAUSE 17 (ii) Brigadier Vinay Kumar Chona R.K. Pal Zonal Gen. Secretary, All India OBC Rly Employee Association, Rail Coach Factory, Kapurthala 42. 43. 342 not clear as which type of This is beyond the scope of Lokpal. Clause 3 of the Bill is adequate. Further the tenure suggested is too short. complaint the author is talking about. if the complaint is against However, the Lokpal or its Members, then complaint mechanism as prescribed in Clause 8 and 40 is to be followed which is adequate. (iii) (iv) This is beyond the scope of Lokpal. (v) This is beyond the scope of Lokpal. The Bill envisages selection on the basis of merit and criteria prescribed. (i) The composition of Lokpal as given in (ii) It is from i.e. of Lokpal. President, PM, CJI should be excluded from the purview of Lokpal. Ashrams etc. to and Temples Religious Institutions, be nationalised to abolish corruption and the Preists/ Pujaris including other official to be appointed by Government and the money of these organisations to be utilised for public utility. Money/property above five crores of individuals should be acquired by Government Ceiling limit of may be revised as per inflation on annual wealt basis. Rs. 2,000/- day and it may be revised as per inflation on half yearly basis. and every year one of them, by turn, shall act as Chief Lokpal. Ministry of Personnel, PG and Pensions will be the nodal agency for appointment of Lokpal. For making complaint Lokpal, it should be signed by at least 1000 citizens. Then, Selection Committee will be responsible for the disposal of complaint after the Speaker is satisfied with disposal. (iii) (iv) (v) Minimum wages of labours should be fixed CLAUSE 3 In para No.3 clause (i) “In the institution of Lokpal there shall be representation from weaker section, and minorities. Women SC, BC, CLAUSE 3 (i) There shall be three Lokpals with years tenure; CLAUSE 8 and 40 (ii) Adhivakta Parishad, Faridabad Gulshan Kumar 12 3 4 44. 45. 343 The Special Courts will function independent of Lokpal. the Lokpal in Clause 23-29. However, may make regulations regarding the format of the complaints etc. (Clause 12), there is Wing Investigation no need to place the CBI under its control. As in Clause 17 of the Bill is adequate. far inclusion of Prime Minister within the purview of Lokpal is concerned, it is stated that in the context of the Prime Minister Indian polity, occupies a pivotal position in the ensure that To Governments' set up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime any quarter, Minister has to be kept outside the after purview of the Lokpa1. However, the Prime Minister has demitted office, he will come within the purview of the Lokpal. If lower bureaucracy is also included in the purview of Lokpal, it would cause enormous strain on the resources of Lokpal and it may not be able to deal with corruption effectively at higher places. (iii) (iv) Complaints handling procedure is given (v) Since the Lokpal will have its own (i) The jurisdiction of the Lokpal as given from a peon/clerk to Group “A” Officer, i.e. upto the PM. President, Vice President and Governor Vice upto the PM. President, can be excluded. No permission required for Lokpal to prosecute any higher office like PM or Cabinet Minister and they should resign immediately after allegation. Lokpal shall be empowered for directing any Fast Track Court to initiate action. plain paper and be signed by complainant along with two witnesses with names and addresses election cards’ numbers. control of the “Groups 3 – Lokpals”. elected or selected shall remain in the ambit of Lokpal, (iv) Complaints to be made Lokpal in writing on a (v) CBI shall be placed under the direct command and CLAUSE 38 (iii) CLAUSE 17 (i) Any government employee or public representative Floor, Five Floor, st Jitendra Shantaram Bhavsar, A-6, Jay Ganeshayan Apt., 1 Bungalow Road, Nasik - 01 46. 344 The judiciary is not within the ambit of Lokpal. Act shall be within the ambit of in the the Lokpal. Wing and Prosecution Wing Investigation {Clause 12 and 15) by the Lokpal, hence there is no need to place CBI under the Lokpal. The Bill provides for furnishing of annual statement of accounts, report etc. by the Lokpal (Clause 45 and 46). as Chairperson and Member of Lokpal is given in Clause 3 and the Selection process is given in Clause 4 which are adequate. Having a toll free number by Lokpal, is a matter to be decided by the Lokpal the process of removal itself. Further, of Lokpal is given in Clause 8 and 40 of the Bill, which is adequate. (ii) (iii) and (iv) The public servants as defined (v) The Bill provides for setting up of (vi) (vii) The eligibility conditions for appointment (viii) institutions whether private, semi Govt. Supreme Court and High judges should be kept out of the ambit Lokpal. All Central, State and PSE employees shall remain under the purview of Lokpal. or Govt., to come under Lokpal. Assessment and inspection of Lokpal within from outside. Lokpal members should be common citizens. The Lokpal is to be of the following in committee:- eminence in society entrepreneurs, no corporate, elected rep., religious chiefs). Lokpal should have a toll free number and on the suspension of Lokpal, PM should debate the matter in Parliament and if need be, suspend the Lokpal. In Assemblies. Further, case of Lokayukta, by State suspension to be reviewed by an independent Ex- (ii) (iii) (iv) All educational (v) CBI to come under Lokpal. CLAUSE 45 and 46 (vi) CLAUSE 3 and 4 (vii) (a) winner or a person of Award One Magasaysay (b) One retired SC CJI (c) One retired SC Judge (d) One Ex-Attorney General of India (e) Five well known citizens of the society (no (viii) 12 3 4 345 in Clause 17 which is adequate. If the lower bureaucracy is also included within the purview of Lokpal, it will As far as the overburden the system. employees of the States are concerned, it is for the respective State Government to set the institution of Lokayukta. Clause 17 provides to cover certain organisations. The proposed institution of Lokpal would be a statutory body. Since the Lokpal will have its own Wings Investigation and Prosecution (Clause 12 and 15), the CVC CBI need not be placed under the Lokpal. domain of the States, therefore, it has to be distinct from the Lokpal. The import of the suggestion is not clear. it may be stated that the However, bureaucrats are governed by the conduct, rules of the respective services to which they belong and are barred to engage in any other economic activity. (i) The jurisdiction of the Lokpal is defined (ii) (iii) (iv) (v) The institution of Lokayukta falls in the India should be covered by Lokpal. All NGOs should be under the purview of Lokpal. The Lokpal should be an independent constitutional institution. Lokpal. the State and appointed by Lokpal. Supreme Court judge supported by two ex-High Court Judges. CLAUSE 17 (i) All the Government Servants of all States CLAUSE 17 (ii) (iii) (iv) into and CBI should be merged Ayukt CVC, Lok (v) in Ayukts Lokpal should be represented by the Lok Public Servants and Elected Officials be barred from having direct or indirect interest in businesses and activities that directly or indirectly receive funds contracts from Government. Shri B. Madhava Rao, Plot No.108, H.No.8, R.K. Enclave, Jyothi AOC, Colony, Secunderabad-500015. Sarvapal Singh Dr. Rana, I/B, Menasri Park, Ujjain-Road, Dewas (M.P.) 47. 48. 346 need to place these organisations The powers of search and seizure, attachment of property is provided in Clause 30, 33 and 34. 35 provides that the Lokpal may recommend transfer or suspension of public servant connected with allegation on completion of corruption. Further, is if commission of offence of inquiry, proved, the Lokpal may file a report in the Special Court and send a report to the competent authority for taking appropriate disciplinary action in the matter. Minister and the judiciary is not under the purview of Lokpal. Clause 49 and 50 of the Bill is not too severe. But, DoPT is open to suggestions in this regard. under the Lokpal as it will have its own Investigation Wing and Prosecution Wing (Clause 12 and 15). The judiciary is out of the purview the Lokpal. purview of the Lokpal after he/she demits the office. (iii) (iv) In the proposed Bill, sitting Prime (i) The punishment for false complaints in (ii) No (iii) (iv) The Prime Minister will be under the and imposing penalty along with termination, suspension, revoking of increments the employees. of whatever nature should Term the Prison However, be decided by the competent courts of law. The sitting Prime Minister and the Chief Justice of India should be kept outside the purview of Lokpal severe to even discourage genuine complaints. of CBI should be Wing Anti-corruption CVC and under the Lokpal. Judiciary should be out of the purview Lokpal. Lokpal in so far as his actions respect of National Relations with foreign Treaty Defence and Security, countries are concerned. CLAUSE 30, 33, 34 and 35 (vi) Lokpal should have power of seizure, confiscation CLAUSE 17 (vii) CLAUSE 49 and 50 (i) Punishment for false complaints should not be too CLAUSE 17 (iv) Prime Minister should be kept out of the purview (ii) (iii) krishanabrol@yahoo. com 12 3 4 49.Abrol, Shri Krishan 347 (Clause 12-15). are included within the ambit of maintain the independence of judiciary, it is necessary that the judiciary, judiciary is kept outside the purview of Judicial Standards the Lokpal. Further, Accountability Bill is already before the Parliament for its consideration. Lokpal. However, their actions on the Lokpal. However, floor of the House are outside purview of the Lokpal. a separate mechanism is required to be set up for which the Department of Administrative Reforms and Pensions is working on the same. and Prosecution Wing Investigation the there is no need to merge Wing, CBI with the Lokpa in Clause 4 of the Bill is adequate and balanced. Prime Minister occupies a pivotal position in the Governments’ set up. ensure that Prime Minister is able To to discharge his functions without any it is felt interference from any quarter, that the Prime Minister has to be kept outside the purview of Lokpal. after the Prime Minister has However, demitted the office, he will come within the purview of Lokpal. (iii) MPs (iv) For dealing with the public grievances, (v) Since the Lokpal will have its own (v) The Selection Committee as proposed (i) the In the context of Indian polity, (ii) To have a majority of politicians. ambit of Lokpal. Judiciary should be included within the ambit of Lokpal. Members of Parliament should be included within the ambit of Lokpal. Grievance Redressal. CLAUSE 4 (v) The Committee for selection of Lokpal should not CLAUSE 17 (i) The Prime Minister should be included within the (ii) CLAUSE 17 (iii) (iv) Charter for Each Department should have a Citizen’s (v) CBI should be merged with the Lokpal. Sily_Jain@mahind rasatyam.com 50. Ms. Silky Jain, 348 eaucracy is also included within the ambit of Lokpal, it will put undue pressure on the resources of the Lokpal and it will be overburdened. This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. The procedure for filing a complaint by any citizen against the Lokpal Members is given in Clause 8, which appears to be adequate. framework of the Constitution. recovery of loss caused to the exchequer from the corrupt public servant. declaration of assets the public servants (Clause 47) failure to do so will amount to presumption as acquisition of assets by corrupt means. the common practice and Government has to take decision depending upon circumstances. (a) There is no ambiguity in the term as the category officers of Group ‘A’ (vi) If the lower bur (vii) (viii) (ix) The Lokpal is independent within the (x) Clause 42 of the Bill provides for (xi) Provisions have been incorporated for (i) The provision made in Clause 1 (3) is (ii) it is mentioned that any of the Bill, instead giving Clause 17(1)(d), Clause 1 discretion, for the commencement of the Act, to the discretion, for the commencement of Central Government to notify in the Official Gazettee on ‘different dates…….for different provisions.’ the Act is to be notified time limit within which the should be specified. Clause 17: Jurisdiction: (a) In of Lokpal. The Lokpal should provide protection to whistleblowers, witnesses and victims of corruption. The accountability of the Lokpal members should be Any citizen can file a petition in the to the public. Supreme Court for removal of a corrupt Lokpal member. account of corruption to be recovered from the assets of the accused. through corruption and these assets to be confiscated by the Lokpal. (ii) (vi) Lower Bureaucracy should be included with the ambit CLAUSE 8 (viii) CLAUSE 42 (x) Entire loss caused to the Government Exchequer on CLAUSE 47 (xi)Assets to be deemed as assets earned Undeclared (vii) (ix) Lokpal to be completely independent institution. (i) Under Shri P.S. Bawa, Shri P.S. IPS(Retd.), Chairman, Transparency International India, Q.No.4, Lajpat Bhawan, Lajpat Nagar-IV, New Delhi-110024. 12 3 4 51. 349 is well defined. Further, by including is well defined. Further, the lower bureaucracy within ambit of Lokpal, undue strain will be put on the resources of Lokpal and it will be overburdened. The existing mechanism will continue to cover the lower bureaucracy. have a federal structure in (b)We which the State Governments are Cadre controlling authorities and their consent is normally obtained before taking action against the officers of this is needed concerned cadre. Further, to avoid victimisation of the public servants concerned. (c) In order to utilise the resources it is in the best possible manner, necessary that the Government may specify the companies or individuals, based on the annual income, who would be covered by the Lokpal. an officer on deputation, creates an artificial category Clause 17(1)(e), allegation of corruption in respect of conduct or of public servants any Group ‘A’ equivalent, etc., shall be subject to the purview of the Lokpal. There is an ambiguity in this It is not defined in any law. context. Group ‘A’ is a financial categorization. This cannot serve as a definition that ought to be more specific. Salary cannot be criterion for committing an offence. This is a weak area that required to be specified as it creates a separate category of officials and defies equality clause of the Constitution as the distinction is neither reasonable nor justified. The Bill should cover all public servants with discretion of the Lokpal either to get the matter enquired/investigated by its institution or pass it on to the already existing networks of anti-corruption institutions. who reverts to the cadre and whose presumably, conduct is under enquiry for his act of omission or commission while serving under the Central Government, the Lokpal shall have to seek 'consent of the concerned State Government'. This stipulation appears unreasonable. Once the he is under scrutiny, conduct of the officer must be within the purview of Lokpal, irrespective of his reversion to the cadre, because the action was performed when he was in the central Government. Clause 17(1)(f) of one (company or individual?) whose annual income ‘exceeds such amount as the Central Government may by notification specify'. This is an ambiguous clause and defies clarity of purpose and interpretation. Same criticism is valid for sub-clause (g) expressed in the same expression. (b) In (c) 350 the interest of natural justice, opportunity has to be provided the public servant of being heard, especially in view of dispensing with prior sanction for prosecution under the PC Act and permission under Section 6A Act. of DSPE (a) Clause 29 provides that after the Lokpal may conclusion of inquiry, file a case in the Special Court. This clause does not imply that the Special Court has to wait the decision of competent authority. (b) The period of 90 days is to be counted taking into account the period during which the Parliament is in session. (iii) In (iv) Procedure in respect of enquiry and Action against Minister or Member of await the decision of competent authority This amounts before proceeding in the matter. to sanction prosecute. This stipulation must be specifically spelled out clearly rather than being presented in a vague language. It may read ‘No Special Court shall take cognizance in the case of..... without sanction of competent authority’ etc. Whereas, the report of Lokpal shall be placed on the table of House within seven days of its receipt, the computing period of ninety days within which the action Clause 23: investigation: The proposed Bill appears to be soft on the defaulter who is given many opportunities to intervene. These are at the stage of conclusion preliminary parlance) when the Lokpal enquiry (PE, in CBI’s shall afford the public servant an opportunity of being heard (Sub-clause 4) and then ‘before filing the charge sheet’, defaulter shall again be given the opportunity of being heard (Sub clause 6). Thus there is a surfeit of opportunities being heard, It is including two under sub-clauses (9) and (11). not clear whether these are repetitive of the above or independent for some other category. Though the defaulter is to be heard, in interest of natural law and procedure, giving too many chances of being heard shall only cause delay in the process of coming to a conclusion. Clause 29: Parliament: (a) The clause implies that the Special Court shall (b) The Explanation to the Clause is problematic. (iii) (iv) 12 3 4 351 (c) It is for the Parliament to decide. (d) There is no requirement for the Special Court to wait the decision of the competent authority. is open DoPT are adequate. However, to suggestions in this regard. 50 to deal with false complaints are adequate. But, DoPT is open to suggestions in this regard. (v) The provisions proposed in Clause 56 (vi) The provisions made in Clause 49 and Legal Assistance: The proposal is too Assistance: Legal Deals with prosecution of false complaint competent authority is to be taken comes a very long time. In the ordinary course, House does not assemble for satisfactory durations. One is not sure also whether boycotting the proceedings of House shall be within the reckoning of period As per the proposed computation of ninety days. stipulation, the decision of authority shall get prolonged. ‘competent authority’ is to be preceded by a debate in the House and voted. In case, it is not to be debated and voted, then the period of ninety days is too much as the matter to be decided by ‘the competent authority’. proposed action of the ‘competent authority’ is not available within a stipulated period, it shall be presumed by the Lokpal or Special Court, unless the authority seeks more time and is that there permitted by the concerned authority, is a consent for proceeding further in the matter as proposed earlier. Clause 49: and payment of compensation to the public servant. On the The parallel clause 50 is for the civil society. face of it, the clauses appear too harsh and shall prevent whistleblowers from venturing information Not only of wrong doing in their spheres activity. it is also is the penalty of punishment too heavy, (c) It is not clear whether the decision of (d) There ought to be a provision that if the Clause 56: liberal and surpasses the intention of Directive Principles of State Policy that seeks to ‘ensure opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities’. (vi) (v) 352 the context of the Indian polity, the the context of Indian polity, included in the purview of Lokpal, it would cause enormous strain on the resources of the Lokpal and it may not be able to deal with corruption effectively at higher places. Prime Minister occupies a pivotal position in the Governments' set up. ensure that Prime Minister is able To to discharge his functions without any it is felt interference from any quarter, that the Prime Minister has to be kept outside the purview of Lokpal. after the Prime Minister has However, demitted the office, he will come within the purview of Lokpal. The Lokpal Bill, 2011 has been introduced in The Lokpal Bill, 2011 the Parliament for its consideration. (i) If the lower bureaucracy is also (ii) In accompanied by a financial liability that may extend to two lakh rupees. This would discourage not only the individual whistleblower but also civil society and a well intentioned citizen who would always be under threat of severe legal action. included within the ambit of Lokpal. Lokpal should inquire of corruption cases not against certain but all public functionaries. The Prime Minister should be included within the ambit of Lokpal without any riders. The Lokpal Bill should be made by the Government as per the Constitutional process and it should be within parameters of the Constitution. CLAUSE 17 (i) All Bureaucracy from top to lowest level should be (ii) Shri Anil Kumar, Social Activist, MIG-302, Lohiya Kankarbagh Nagar, Colony, Patna-800 020 (Bihar) Shri J. Satyanarayana, Secunderabad-500017, Andhra Pradesh 12 3 4 52. 53. 353 The Election Commission is a separate which like judiciary, Constitutional Body, cannot be brought under the purview of the Lokpal. Clause 54 of the Bill is adequate. As in Clause 3 of the Bill is adequate. per clause 3(4) of the Bill Chairperson or Member of Lokpal shall not be an MP/MLA. (iii) (iv) The limitation period as prescribed in (v) The composition of the Lokpal as given Election Commission should also be covered in the Lokpal Bill as they are not recommending recall of elected MPs/MLAs. seven years) from the date of commission alleged offence for filing the complaints before Lokpal. consist of two persons from Supreme Court Judges, two from prominent Supreme Court Practicing Lawyers, one member from Human Rights Organizations and Woman Commission, one from There should not be Activists. the rest with Social any MPs/MLAs. (iii) CLAUSE 54 (iv) There should be limitation of ten years(instead CLAUSE 3 (v) Eight Members of the Institution Lokpal should 354 Clause 33 and 34 of the Lokpal Bill Sub clause (2) of Clause Comments of DoPT Clause 33 and 34 of the Lokpal Bill 2011, provides that the of the Lokpal Bill 2011, provides for attachment of illegally acquired the assets of public servants. Further, Act, 2005 Prevention of Money Laundering Amendment Ordinance, and the Criminal Law 1944 for confiscation/forfeiture/attachment of of the Bill provide for attachment assets of public servants. (ii) The definition of public servant as given Act, 1988, though in Section 2(c) of the PC do not specifically use the nomenclature of MPs/MLAs and Ministers, it is comprehensive enough to include such functionaries. (iii) words and expressions used not defined Act, 1988 shall Act but defined in PC in this have the meaning respectively assigned to Act. Further them in that 2 (i) Section 2(c) of the PC Act, 1988, defines (i) Section 2(c) of the PC the public servant. . ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL ty Suggestions/Comments oper ed pr (iii) In the present context of unethical enrichment by public servants by acquiring property through corrupt means, it is necessary to enact a law providing for confiscation of illegally acquired assets public servants and the burden of proof should be p]aced on holders of such property according to Sec. 106 Indian Evidence Need for a Comprehensive Law of Public Servants law in relation to public servants as defined A (i) Act, 1988 and Sec 2(c) of the Prevention Corruption IPC is necessary and such law must be comprehensive in nature and must also deal with acquisition of assets public servants. Act, 1988 should include (ii) Prevention of Corruption MPs/MLAs and Ministers. Such would be more effective than a mere criminal prosecution under the IPC or PC Act. Necessity of Law to provide for confiscation illegally acquir ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, Name of individual Prof. H.C. Dholakia, Former Member of Law Commission 12 3 4 54. No. Organisation/ COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda 355 ill gotten property of the corrupt public servants. (iv) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. is to provide the The Lokpal Bill, 2011 (v) establishment of the institution Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (vi) Setting up of the Lokayuktas falls within the domain of States. Act (The e est Disclosur Act). (iv) This act is aimed at improving accountability within the govt. or public sector by allowing employees to inform the appropriate authority of organization or individual doing either in a confidential manner of by public report. There is a need to make this law provide protection to the persons (Whistle Blowers) who give information about the illegalities and even may rewarded. It may be noted that this Bill has been introduced in the parliament and needs to be passed fight correction effectively. Allegations against civil servants may not come within (v) the purview of Lokpal and grievances as distinguished from misconduct, may be excluded his jurisdiction. There should be other effective and efficient mechanism like CVC and/or Tribunals – with suitable nomenclatures to look into grievances arising from maladministration or complaints against civil servants. (vi) Every state must have Lokayukta that is to with a Act in force all the states. uniform Lokayukta Act, 1872. In this regard a Bill called “Corrupt Public Servants Forfeiture of Property” Bill was submitted by Law Commission along with its 166th Report. This bill as proposed should be enacted immediately to tackle the corruption. Enactment of a Public Inter Whistle Blowers 356 and , there is no [Clause 12] [Clause 15] Prosecution Wing Prosecution Wing (i) MPs are included within the ambit of their actions on the floor Lokpal. However, of the House are outside purview Lokpal. (ii) The Lokpal Bill provides for inquiry/ investigations by the Lokpal on receipt of a complaint. The punishment has to be awarded to the public servants by appropriate courts/authorities once the commission of offence is established. Clause 17(3) provides that Lokpal Further, may also inquire into any act or conduct of any person associated with the allegation of corruption under the Prevention of Corruption Act, 1988. (iii) In the proposed Bill, sitting Prime Minister and the judiciary is not under purview of the Lokpal. (iv) Since, the Lokpal will have its own Investigation Wing need to CBI under Lokpal. (v) Clause 49 and 50 of the bill provide for prosecution and penalties for false complaints. (vi) The Selection procedure as prescribed in Clause 4 of the Bill is sufficient. Clause 17 (i) Lokpal will have the powers to probe into allegations of corruption by MPs like taking bribe to vote. Clause 23-29 (ii) Lokpal will act on complaints against any Govt. servant and will have the powers to dismiss a corrupt public servant. (iii) Lokpal will have the authority to investigate allegations of corruption against judges as well PM. (iv) CBI to be merged with Lokpal. CLAUSE 49-50 (v) Lokpal to decide regarding a false complaint and impose fine against false complaints. CLAUSE 4 (vi) There should be an independent Search Committee consisting of retired Judges, eminent IAS officers to prepare the first list of eligible candidates Lokpal and Kishor Pandurang Deshmukh 12 3 4 55. 357 (vii) As far as the phone tapping is concerned (vii) it has to be done by the appropriate authority As far as per the guide lines on subject. as corrupt business entities are concerned, these are not covered under the Lokpal Bill,2011. (viii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (ix) Setting up of the Lokayuktas falls within the domain of States. (x) On completion of investigations, if the commission of offence has been established, the Lokpal shall file a report in Special the Special Court will Thereafter, Court. decide the quantum of sentence, etc. as per the established procedure. (xi) Clause 8 and 40 of the Bill provide for complaints against the Lokpal and its Members. (i) In the proposed Bill, Prime Minister will come within the purview of Lokpal once he/she demits the office [Clause 17]. i.e. thereafter, an independent Selection Committee comprising thereafter, of two politicians, four judges and retired constitutional authorities will select the Lokpal. (vii) Lokpal to grant permission for phone tapping in corruption cases and will have power to ban corrupt business entities from future Govt. contracts and black list them. (viii) Lokpal will provide protection to complainants & whistleblowers and to set up for special branches in High Courts to speed up hearing of corruption cases. (ix) Establishment of Lokayutas at state level to prove into corruption cases against Ministers, MLAs and State Govt. officials. CLAUSE 23-39 (x) Enquiry to be done as in other criminal cases, after preliminary enquiry FIR to be lodged, and then investigation followed by trial in the court. CLAUSE 8 (xi) Provision for complaint to remove Lokpal in Supreme Court in the cases of unaccountability Lokpal its actions. CLAUSE 17 (i) PM, Judges of Supreme court, High Court & lower courts, all MPs/MLAs and Central/State Govt. Ministries & officials from Peon to Secretary including village, cities Anti-Corruption Council of India, 418, Urban Estate, 56. 358 However, the judiciary may be kept outside However, the purview of Lokpal and a separate Bill, Accountability Bill is already Judicial Standards As under consideration of the Parliament. if the same is regards lower bureaucracy, also included within the purview of Lokpal, As far as the it will overburden the system. employees of the States are concerned, it is for the respective State Government to set up the institution of Lokayukta. (ii)The proposed institution of Lokpal will be a statutory body. (iii) The procedure for appointment of Chairperson and Members as prescribed in Clause 4 is adequate. (iv) On completion of investigations, if the commission of offence has been established, the Lokpal shall file a report in Special the Special Court will Court. Thereafter, decide the quantum of sentence, etc. as per the established procedure. (v) Clause 49 and 50 of the bill provide for prosecution and penalties for false complaints. But, DoPT is open to suggestion in this regard and can be modified suitably. and municipalities, civil hospitals must come under the purview of Lokpal. (ii) Lokpal should be absolutely independent and autonomous body. CLAUSE 4 (iii) The appointment panel of Lokpal should have 50% Supreme Court/High Court Judges and 50% non judicial members of integrity in the field jurisprudence, legal experts, top level social workers, High Intelligentsia and totally non-political personalities. CLAUSE 23-29 (iv) Lokpal should have absolute rights to punish the guilty by imprisonment upto 6 years without referring the case to judiciary or should seek permission from Govt. CLAUSE 49-50 (v) False complainants should be punished with fines worth Rs. one lakh or month imprisonment instead Lokpal Bill draft. of 6 years imprisonment as in Govt.’s Phase-I, Dugri Road, Ludhiana–02(PB) 12 3 4 359 (vi) The time limits for completion of inquiry as given in Clause 23(2) and 23(8) are adequate. (vii) The Lokpal will have its own [Clause 12] and Wing Investigation [Clause 15]. Wing Prosecution (viii) Clause 61 of the Lokpal Bill provides that the Lokpal may make regulations to Act, namely carry out the provisions of this – conditions of services the secretary and other offices staff of the Lokpal; place of sittings Benches the Lokpal; manner for displaying on the website of Lokpal the status of complaints, etc.; the manner and procedure of conducting an inquiry or investigation. (ix) The powers to attach property acquired through corrupt means by the public servants are provided in Clause 33 and 34. (x) The Special Courts are to be set up by the Central Government as recommended by the Lokpal [Clause 38]. (xi) Such of the organisations which receive the public funds are covered. However, religious organisation receiving public funds are kept outside the purview of Bill. The jurisdiction given under Clause 17 of the Bill is adequate. CLAUSE 23 (vi) Lokpal should have disposed off all the complaints within a period of two/three years. CLAUSE 12-15 (vii) The Lokpal should have strong wings for Investigation, Anti-Corruption wing etc. prosecution and CLAUSE 61 (viii) Central Govt./PM should not interfere in the working of Lok Pal. CLAUSE 33-34 (ix) Lokpal must be empowered to acquire/confiscate the illegal movable/immovable property acquired by the corrupt officials/politicians. CLAUSE 38 (x) Lokpal must be empowered to constitute Special Courts for hearing complaints under Prevention of Corruption Act. CLAUSE 17 Religious and Organizations, Welfare (xi) NGOs, Social Cultural organizations raising voice against corruption should not be covered under the Lokpal Purview. 360 mala fide (xii) Clause 47 of the Bill provides for declaration of assets by public servants. (xiii) The Lokpal is meant to inquire into all allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. As the false and frivolous complaints (i) may cause irreparable loss to the innocent public servants, it is necessary that some deterrent is there to discourage complaints. Therefore, the provisions made in Clause 49 and 50 to deal with false complaints are adequate. But, DoPT is open to suggestions in this regard. the (ii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To the Governments' set up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. CLAUSE 47 Assets (xii) Central Govt. to make it mandatory declare & Liabilities statements for all Political Parties, MPs/ MLAs, IAS/IPS/IRS/IFS Gazetted Officers at the time of joining and thereafter every year. PREAMBLE (xiii) Lokpal should have powers to enquire against any political party/organization established by politicians for their funding, benefits obtained from Govt. and Also the powers to enquire against statements working. of Expenses & Funds raised from the public/industrialists by the politicians for contesting elections. CLAUSE 49-50 (i) In Clause No. (XIV) Govt. Lokpal Bill, there should be a provision of imposing reasonable fine instead prosecution for making frivolous or false meaningless complaints otherwise the fear of prosecution will never allow a person to make even truthful complaint. CLAUSE 17 (ii) PM should be in the ambit of Lok Pal. S.N. Agrawal, DS (Retired), ‘Ashiana’, 7/409, Near Disneyland, High Sec. School, Malviya Jaipur – 17 Nagar, 12 3 4 57. 361 (iii) The Bill provides that any person who secretary manager, is or has been a director, or other officer of every society association of persons or trusts wholly partly financed or aided by the Government and the annual income of which exceeds such amount as the Central Government may by notification are within the ambit of Lokpal. Accountability and The Judicial Standards (iv) Bill is before the Parliament. (v) The Bill provides for setting up of [Clause 12] and Wing Investigation [Clause 15] by the Lokpal. Wing Prosecution (i) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (ii) The time limits for completion of inquiry as given in Clause 23(2) and 23(8) The preliminary inquiry is required to be completed within 30 days which may be extended for a further period of 3 months. The inquiry is to be completed within a period of six months which may be extended for a further period of six months. Clause 42 of the Bill provides for recovery loss caused to the public exchequer. Trust, Local Self Body either receiving Trust, (iii) The Chairman, Director, Manager, Secretary or any Manager, The Chairman, Director, (iii) Authority, Board, Corporation, of any Body, other officer Society, Company, financial aid from Govt. should also be in the domain of Lok Pal. should not be whether higher or lower, (iv) Judiciary, kept under Lokpal instead of this there can be a separate legislation for judiciary. (v) Either the CBI be brought under Lokpal or given autonomy. (i) Set up of Lokpal at Centre and Lokayukta in each State completely independent of the Government. CLAUSE 23 & 42 (ii) Investigations should be completed within one year and trial should be completed in next year to send the corrupt politicians, officer or judge to jail while recovering loss from them. 58. Devendra Kumar 362 (iii) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (iv) The procedure for appointment of Chairperson and Members as prescribed in Clause 4 meets the demand. (v) The provisions for complaint against officials of Lokpal as given in Clause 41 are adequate. (vi) Since, the Lokpal will have its own [Clause 12] and Wing Investigation [Clause 15], there is no Wing Prosecution ACB of CBI under need to put CVC and Lokpal. (vii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (viii) The limitation period as prescribed in Clause 54 is considered necessary to safeguard the public servants against unnecessary victimasation. (iii) Lokpal to impose financial penalty on the guilty officers for delay caused in doing any work of citizen. This penalty will be given as compensation to the complainant. CLAUSE 4 (iv) The members of Lokpal should be appointed by judges, citizens and constitutional authorities through a completely transparent and participatory process, not by politicians. CLAUSE 41 of Lokpal shall be Any complaint against any officer (v) investigated and the officer shall be dismissed within two months. CLAUSE 12-15 (vi) CVC, departmental vigilance and anti-corruption branch of CBI to be merged into Lokpal and shall have the complete powers to independently investigate and judge or politician including PM. prosecute any officer, (vii) Lokpal to provide protection those victims who are raising voice against corruption. CLAUSE 54 (viii) There should not be any timeline for complaining A/B class, PM, Judge corruption done at upper level like and Sansad. 12 3 4 363 (i) The jurisdiction as defined in Clause 17 As far as provisions of the Bill is adequate. Act are of action under the Societies concerned, it is beyond the scope of present Bill. (ii) The proposed Lokpal Bill covers the public functionaries under the Central Government. In so far as the officials under the State Governments are concerned, it is for the respective State Governments to set up the institution of Lokayukta. (iii) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (i) In the proposed Bill, Prime Minister will come within the purview of Lokpal once he/she demits the office [Clause 17]. a separate Bill, regard to the judiciary, With Accountability Bill is already Judicial Standards under consideration of the Parliament. The conduct of the MPs on floor House is also not within the purview of Lokpal. (ii) This mean that the Lokpal would be all encompassing authority thereby all the powers will converge with the single authority which may not be desirable as it will have its implications. CLAUSE 17 (i) The societies conducting programs on different religions and cultural societies to be kept out of Lokpal there Act against should be provision of action under Societies their irregularities. of Centre and State Govt. to be All the officials (ii) brought under Lokpal. (iii) The services like Police/Ration/Hospital/Education/Raod/ Transport/Industries/Panchayat /Municipality/ Forest/ Irrigation/Pension/Collectoriat etc to brought under Lokpal and there should be a provision of atleast 10 years imprisonment, if the complaint is found true. CLAUSE 17 (i) PM, Judiciary and the conduct of MPs during session should be kept out of the perview Lokpal. (ii) Lokpal should have the control over govt. appointing authorities. Sarvesh Kumar Suyash, A-1802, Avash Colony, Vikash Hanspuram, Naubasta, Kanpur-21 Vice J.N. Gahlaut, Patron, Indian Red Cross Society 59. 60. 364 (iii) The complaints mechanism and procedure for inquiry/investigation as given in Clause 23-29 appears to be adequate. Clause 33 & 34 of the Bill provide for The present Bill does attachment of property. not provide for reward to the informer. (iv) The removal of the public servants has Further, to be done after due process of law. on completion of investigations, if the commission of offence has been established, the Lokpal shall file a report in Special the Special Court will Court. Thereafter, decide the quantum of sentence, etc. as per the established procedure. (i) The jurisdiction of the Lokpal as given Clause 17 is adequate. 12 of the Bill Wing provide for setting up of Investigation by the Lokpal and procedure to deal with the complaints is given in Clauses 23- 29, which appears to be adequate. Action for false complaints has to be (ii) taken as per the provisions of Clause 49-50. (iii) The Lokpal will have its own as [Clause 12]. However, Wing Investigation regards investigations against the CMs of CLAUSE 23-29, 33 & 34 (iii) There should be a provision for conducting inquiries on receiving the information regarding deposits in bank accounts and the other properties in shape of real estate, created through undesirable sources. If the information is correct, this property to be taken over by the govt. and It will control the 10% share to be given informer. corruption as the people reality of such persons. (iv) Persons caught red handed should be removed from All the service and no extension after 60 years of age. cases of corruption should be decided with in three months by fast track courts. CLAUSE 17 & 23 (i) Except Supreme court, all govt official including PM should be kept under the ambit of Lokpal. Lokpal have the power to investigate all agencies including CBI and it should take on action complaints made by public. CLAUSE 49-50 (ii) There should not be any provision of prosecution against complainant as it is possible that corrupt official may vanish the evidence and in this case, complaint will be trapped unnecessarily. CLAUSE 12 (iii) Lokpal should have its own autonomous bodies with the powers to investigate against CMs of States and Governors of the States should come under them. V.K. Tyagi, V.K. 40/8B, Chavmandi, Rurkee 12 3 4 61. 365 the States and Governors by Lokpal is concerned, the same come within jurisdiction of the Lokayuktas respective States. (iv) The eligibility conditions for appointment as Chairperson and Members of Lokpal given Clause 3 are adequate. Regarding provisions for removal and complaints against the Lokpal and its members, complaints against the officials of Lokpal the provisions of Clause 8, 40 and 41 are adequate. (i) There appears to be no reason change the name of Bill. (ii) The Bill provides that the words and Act expressions used but not defined in this Act, 1988, shall have the but defined in PC same meaning as assigned to them in that As regards the jurisdiction of Act. Lokpal, the provisions made in Clause 17 seem to be adequate. (iii) The appointment procedure as prescribed in Clause 4, 5 & 6 of the Bill is adequate. (iv) The Chairperson and Members are to be appointed by the President. The procedure AND CLAUSE 17 from individuals to all organizations. CLAUSE 3, 8, 40 & 41 (iv) The members and official of Lokpal should have a clean image and unblemished record. Only the Supreme Court should have the powers to prosecute members or officials of Lokpal. (i) The name of the bill should be “Jan Lokpal Bill”. DEFINITIONS CLAUSE 4 selection committee of three members consisting A (iii) Speaker of Lok Sabha, Leader Opposition in LS and Chief Justice of Supreme Court will be constituted by President to appoint Lokpal and its members. The and 10 members shall be selected through open advertisement with transparency. (iv) Lokpal to be accountable President of India and its members to Lokpal. Complaint against Lokpal may be (ii) The term “Corruption” shall be defined in the bill. bill shall cover all the aspect of corruption at levels, i.e. Unknown Citizen 62. 366 for complaints against the Chairperson and Members as given in Clause 8 and 40 of the Bill is adequate. (v) The mechanism for handling complaints is given in Clause 23-29. (vi) The jurisdiction of the Lokpal as given in the Bill is adequate. (vii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (viii) For matters relating public grievances, a separate mechanism is required to be set up for which the Department of Administrative Reforms and Pensions is working on the same. (ix) This is covered under the protection ro Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (x) There is no such provision in the present Bill. filed in Supreme Court which shall take decision to remove of punish them. CLAUSE 23-29 complaint can be made against any individual or A (v) organization by anyone regarding corruption to Lokpal. CLAUSE 17 All public servants should be kept under the purview (vi) of Lokpal. PM and the conduct MPs shall be under the purview of Lokpal but investigation will be decided by 10 member bench Lokpal bench. (vii) Lokpal at Centre and Lokayukta State will exercise their powers against corruption. charter and its (viii) Each department shall make citizen’s violation will be dealt by Judiciary not Lokpal. (ix) Lokpal will provide protection to whistle blowers. (x) There should not be any provision of phone tapping. 12 3 4 367 (xi) The quantum of punishment on conviction is to be decided by the Courts as As regards the per the prevailing law. termination of service, action has to be taken by the competent authority after following due process of law. (xii) The procedure for conduct of inquiry and action thereon is prescribed in Clause 23-29 of the Bill, which is adequate. Clause 35 provides that the Lokpal may recommend transfer or suspension of public servant connected with allegation of corruption. (xiii) Clause 16 of the Bill provides for same. (xiv) The provisions made in Clause 49 and 50 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (i) The proposed institution of Lokpal is a for making Lokpal However, statutory body. Constitutional a Constitutional body, Amendments will be required. (ii) On completion of investigations, if the commission of offence has been established, the Lokpal shall file a report in Special the Special Court will Thereafter, Court. decide the quantum of sentence, etc. as per (xi) Punishment for corrupt practices will depend on the intensity of the case and may be from 6 months imprisonment of 6 months to 10 years, termination service, imposition of fine or forfeiture assets, as the case may be. CLAUSE 23-29 & 35 (xii) Lokpal shall conduct preliminary enquiry and if the fact is established, Police will lodge FIR followed by Also the corrupt filing charge sheet in Special Court. officer/staff shall be put under suspension till the case is disposed off by special fast track court. CLAUSE 16 (xiii) Lokpal will get fund from consolidated of India. CLAUSE 49-50 (xiv) Lokpal will decide on the false or frivolous complaints and accusation will attract fine up to a maximum up to Rs. 1 lakh (i) Lokpal must be a constitutional body like Election All its members must be judicial Commission of India. members. CLAUSE 23-29 (ii) There should be a provision for appeal against Lokpal in Supreme Court and case of Lokayukta High Court. Yogendra Prasad Yogendra Singh, Convener, Bihar Anusachiviya Karmchari Sangh 63. 368 [CLAUSE 23-29]. Amendment would be required. Further, setting up the institution required. Further, of Lokayukta falls within the domain States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (vii) The proposed institution of Lokpal is to inquire into allegations of corruption against and certain and above officers Group ‘A’ other public functionaries. On the basis of the report of Lokpal, departmental action has to be taken by the competent authority as per law. the established procedure. In so far as Lokayuktas are concerned, it is for the respective State Governments to frame legislations. a view to speed up the process of With (iii) investigation and prosecution, the Lokpal Bill provides that previous sanction will not be required for investigation and initiating prosecution by Lokpal in certain cases. [CLAUSE 27]. (iv) The provisions made in Clause 33 and 34 of the Bill for attachment property are adequate. (v) The intentions of this suggestion are not clear. make the Lokpal as a Constitutional To (vi) Constitutional body, Section i.e. (iii) Column IV of Clause 3 Notification, Act, 1988 to be retained 19 of Prevention Corruption as it is. [Section 19 provides for previous sanction of the competent authority for prosecution] CLAUSE 33 & 34 Assets of public servant to be confiscated VI - (iv) Clause and credited only after the final decision. (v) Lokpal to be set up in five phases according public convenience. (vi) Lokpal to be constituted under the provisions of constitution and the States should have right to constitute Lokayukta. may be used to prevent the corruption Vigilance (vii) among Non Gazetted officials. Public servant should be of the Article 311 dealt without deviating from the Constitution. 12 3 4 369 (i) Clause 46 provides that the Lokpal shall furnish such reports, returns as prescribed by the Central Government and Government shall lay a copy of the report before each House of Parliament. (ii) The meaning of the corruption will have the same meaning as is contained in Act, 1988. Prevention of Corruption (iii) The procedure for appointment of Chairperson and Members of Lokpal as given in Clause 4 is adequate. envisages The Lokpal Bill 2011 (iv) investigations of allegations corruption against certain public functionaries. (v) There is no such provision in the Lokpal Bill, 2011. (vi) If the Government decides on salary of Lokpal Chairman and Members, it may lose its independence. As per Clause 6 of the Bill, (vii) Chairperson or Member of the Lokpal shall hold office for a term not exceeding five years from the date on which he enters i.e. CLAUSE 46 (i) Lokpal should submit its corruption report to President through PM who has right to question, query and ask any clarification before sending to the President. PM shall have the right to see, verify and monitor progress of all the corruption cases except any case related to PM. DEFINITION (ii) Definition of corruption to include both sides, Govt. and Private. CLAUSE 4 (iii) Selection of Lokpal chairman and its members should be done by Govt. approved selection committee and maximum categories of people to be involved. (iv) Jan Lokpal should cater for cases related to reported corruption only. should retain its post and there is Vigilance (v) Secretary Secretary in the Lokpal to Vigilance no need for separate look into the affairs in Govt. deptts. CLAUSE 7 (vi) Govt should decide the salary of Lokpal chairman and its members rather than the provisions of Jan Lokpal Also the salary & service conditions of Lokpal Staff Bill. should be as per the prevailing rules of Govt. CLAUSE 6 (vii) Lokpal Chairman and its members should be less than 75 years of age where as there can be relaxation upper age limit for its staff. Jagpal Singh, Retd. Civilian Gazetted Officer 64. 370 upon his office or until he attains the age of 75 years whichever is earlier. (viii) The Jan Lokpal Bill is before the Committee for its examination. (ix) The judgements are passed by the appropriate Courts and provisions exist in the law to approach appropriate higher Courts against such orders. tackle this, separate Bill, namely the To (x) Prevention of Bribery Foreign Public Officials and of the Public is Bill, 2011, International Organisations already under examination of the Standing Committee. As per the provisions of proposed (xi) Bill on completion of investigations, if the commission of offence has been established, the Lokpal shall file a report in Special the Special Court will Court. Thereafter, decide the quantum of sentence, etc. as per Appeal for revision the established procedure. of judgment etc. has to be done as per the judicial procedure. As per Clause 27 of the Bill, previous (xii) sanction is not necessary for investigation and initiating prosecution by Lokpal in certain cases. Clause 28 of the Bill provides that in the case of Ministers and Members Parliament, where on conclusion of the (viii) Since, Jan Lokpal is drafted by civil society, its (viii) Since, Jan Lokpal is drafted by civil society, members should not made Lokpal Chairman and members. (ix) Citizens should have the right to protest against judgement of corruption report. (x) Lokpal bill should also deal the bribe cases of private Briber giver and taker both should be punished sector. under Lokpal. CLAUSE 23-29 (xi) MPs should have the right to review judgement of Lokpal through Parliamentary Procedure and submit it the suggestions to President of India. Ultimately, will be at the discretion of President to review/pardon this judgement. CLAUSE 27 & 29 Approval of PMO and Parliament to be taken in case (xii) of political corruption. 12 3 4 371 inquiry or investigation, the findings of Lokpal disclose the commission of an offence Act, 1988, the Lokpal may file under the PC a case in the Special Court and shall send copy of the report together with its finding Authority. to the Competent (xiii) Clause 47 and 48 of the Bill deals with the declaration of assets by public servants. (i) The jurisdiction of the Lokpal as provided in Clause 17 is adequate. In the proposed Bill, the Prime Minister will come within purview of the Lokpal once he/she demits the office [Clause 17]. Clause 23-29 of Bill provides procedure to process the complaints the judiciary has been kept outside However, the purview of Lokpal and a separate Bill, Accountability Bill is already Judicial Standards under consideration of the Parliament. CLAUSE 47-48 (xiii) Computerisation of property all govt. servants may be maintained and should available of govt. website. Lokpal can call for any such information, if required. CLAUSE 17 (i) PM, Ministers, MPs or Judiciary members can be brought under the ambit of Lokpal but they must be shielded through adequate checks and balances by making subordinate legislation under the proposed clause 60 of Lokpal Bill. The insulation should be provided as mentioned below: PM & Minister The complaint against PM/Ministers along with the evidence shall be first examined by a committee of experts including two sitting or retired Judges of Supreme Court/High Court. This committee will submit its report to the Ethics committee of the respective house and then after considering this report Ethics committee may recommend the complaint based on facts for investigation and prosecution to the Lokpal. In case of Minister who has yet to attain the membership of either house, President shall constitute a Committee comprising Vice the MPs of both houses Parliament in lieu Ethics Committee. MPs In case of complaint against MPs, the can be investigated and further prosecution only after the Ethics 139, DIN Apartments, Sector 4, Plot No. 7, Dwarka, N. Delhi-78 65. RSV Mani, 372 (i) The Lokpal Bill, 2011 provides for the The Lokpal Bill, 2011 (i) jurisdiction, status, powers and accountability of the Lokpal. (ii) The Lokpal is expected to inquire into allegations of corruption against certain public functionaries and it is not to be an institution Committee of the respective house, has examined and alleged misconduct and evidence against MP, recommends the investigation by Lokpal. Ethics Committee may seek the services of any sitting/retired Judge High Court or of any Law Officer Govt. India to assist in the examination of evidences. Members of Judiciary In case of complaints against Judicial Members, Chief Justice of India (CJI) shall constitute a group Judicial experts/collegium for each case and it will submit its recommendations to CJI who may accord sanction for prosecution to Lokpal. Similarly insulation can be provided for other constitutional chairman may be made authorities like CAG (PAC authority) etc. (ii) In regulation part, a schedule of items can be made regarding exemption of investigation by Lokpal like National Intelligence matters, Defence matters and Security, Also, decisions regarding financial consolidations. suspension of Lokpal during emergency may be included Duties of Lokpal jurisdiction, status, powers and accountability (i) Lokpal’s can be worked out by Parliament as desired to effective. (ii) Lokpal should discharge his duties by choosing the place of investigation/probe each day on random basis keeping their programme of visits strictly secret and M S Krishnamurthy, A-4, Adinath Co-op Antop Hsg. Society, (E), Hill, Wadala Mumbai–37 12 3 4 66. 373 doing the inspection work. Further, Clause doing the inspection work. Further, 61 provides that Lokpal may make regulations in this regard. (iii) The time lines are prescribed in Clause 23 and Clause 28 of the Bill. (iv) It may not be possible for HOD to control the conduct of other persons. Hence, he cannot be held responsible for every instance of corruption detected in his Department. (v) The time lines are prescribed in Clause 23 and 28 of the Bill. (vi) This is beyond the scope of Lokpal. Accountability The Judicial Standards (vii) Bill is already under consideration of the As far as Police reforms are Parliament. concerned, it is beyond the scope of this Bill. (viii) This is beyond the scope of present Bill. (ix) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. surprise. Lokpal should choose the place of visit preferably on the day of visit. Action against corrupts should be time bound. (iii) (iv) HOD to be held accountable for any corruption detected in his department. (v) Cases of elected leaders with criminal antecedents should be decided within 6 months after their election. (vi) There should be fixed time for all projects failing which a strict penalty for those involved including the licensing process of oil blocks, iron ore blocks and spectrum allocation. (vii) Strong judicial accountability and Police reforms to be brought. (viii) The corrupt businessmen to be barred Govt. projects and to be blacklisted. Charters to be endorsed in Govt. Departments. (ix) Citizen’s 374 The present Bill is to provide for (i) & (ii) establishment of the institution Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. (iii) The societies or associations trusts constituted for religious purposes have been kept outside the purview of Lokpal. (iv) The composition of the Selection Committee as prescribed in Clause 4 of the Bill is adequate. (v) In the Bill, 50% of Members Lokpal are to be from judiciary because the Lokpal will be a qusai-judicial body and it will also be discharging certain judicial functions. There is no proposal provide reservations on any ground to category. (vi) The provisions to tackle false complaints as contained in Clause 49 & 50 of the bill are adequate. The aggrieved person may seek appropriate remedies from fora. (vii) This will over burden the Lokpal and may put strain on the available resources. of National Women of National ), the societies or associations The selection committee of Lokpal In clause 17 (f Clasue 4 (1) - trust constituted for religious purposes to be brought under the ambit of Lokpal to prevent ongoing corruption in these trusts/societies. (iv) should also include Chairperson Commission, Chairperson of SC 1ST Commission and Chairperson of National Commission for Minorities. PREAMBLE & CLAUSE 17 (i) Corporate and private functionaries to be brought under the ambit of Lokpal. (ii) Media being fourth pillar of democracy to be brought under the ambit of Lokpal. (iii) CLAUSE 3 (v) For the members of Lokpal, apart from 50% it should include 50% representation from Judiciary, representation for women, 25% SC/ST and minorities. CLAUSE 49-50 (vi) When a false or frivolous complaint is made against SC/ST functionaries, while punishing the complainants in such a situation, clauses 3.1 (ix), 3.2(i), (ii), (vi) and 7 Act), 1989 also need Atrocities (Prevention of of SC/ST to be invoked and needs mentioned in Lokpal Bill. (vii) Lower level of public and private functionaries to be included in the Lokpal Bill. Bharat Patil, Nagarjun Colony, Sanjay Gandhi Nagar, Nagpur-17 12 3 4 67. 375 and Hence, there [Clause 12] [Clause 15]. is no need to place CVC and CBI under the Lokpal. Prosecution Wing Prosecution Wing (viii) These are the matters for which Lokpal has to make rules and regulations. (ix) The Lokpal is intended to investigate matters where allegations of corruption are involved. (x) This issue relates to Electoral Reforms. (i) Lokpal has such powers. (ii)The procedure for handling complaints and investigations etc. is given in Clause 23- 29 which is adequate. (iii) The provisions for attachment of property are given Clause 33 and 34 of the Bill. (iv) The Bill provides the Lokpal shall set up Wing its own Investigation (viii) There should be a provision website and common And necessary telephone number to register complaints. protection rights for whistler blowers to be provisioned. (ix) Diversion of funds from SC/ST subplan should come automatically under the purview of Lokpal and to be Atrocities (Prevention of under SC/ST treated as an offence Act), 1989, if required, necessary amendments can be Act. made in this (x) Election expenses also to be brought under the ambit of Lokpal CLAUSE 17 (i) Lokpal to have powers take action against corrupt officials, MPs or Ministers. CLAUSE 23-29 (ii) Lokpal to have powers act on complaint from general public and to initiate cases by registering FIR further take up the cases of corruption on its own. Lokpal to have a maximum trial period of 1 year put the culprits behind bars as earliest. CLAUSE 33 &34 (iii) Lokpal to have powers confiscate the property of An open hearing culprits and hand over to the Government should take place to remove corrupt officials. CLAUSE 12-15 (iv) The entire vigilance machinery like CVC, CBI and regulatory bodies should come under Lokpal. F-37/1, Vrindavan Housing Society, Sector 4, Sanapada, Navi Mumbai-05 68. Pogaru, Venkat 376 (v) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (vi) The jurisdiction of the Lokpal as given Clause 17 is adequate. (vii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (viii) The Selection procedure provided in Clause 4 is adequate. (xi) Clause 8 and 40 of the Bill provides for mechanism for complaints against the Chairperson and Members of Lokpal Clause 41 provides for complaints against the staff of Lokpal, which are adequate. the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in (v) A citizen charter to be prepared mentioning time A (v) period for specific work by every department and if this charter is ignored, the dealing employee will be punished by Lokpal and a fine to be imposed on employee which is to be paid the citizen. CLAUSE 17 (vi) President, PM and the judges of Supreme Court to Also the Lokpal to be included in the ambit of Lokpal. have the powers to prosecute judges, bureaucrats, MPs & PM. (vii) Set up of Lokpal at Centre and Lokayukta state level. The complaints can be made directly to Lokpal & Lokayukta. CLAUSE 4 (viii) Lokpal members to be selected by a committee comprising 2 leaders, 4 judges and persons from constitutional position with full participation of public. CLAUSE 8, 40 & 41 complaint regarding removal of Lokpal member can A (ix) Also a complaint be filed in Supreme Court by any citizen. commission to be set up in each state investigate breaching in Lokpal Staff. The complaint against staff to be investigated within one month and the guilty member to be terminated from duty. staff CLAUSE 17 (i) PM and Judiciary to be brought under Lokpal with certain conditions. Jaikishan Agrawal, Activist, 393, Blind Social Kucha Bulaki Begum, Dariba Kalan, Delhi-06 12 3 4 69. 377 [Clause 1]. Group ‘A’ officers and other officers Group ‘A’ i.e. the Governments’ set up. To ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within As regards the purview of Lokpal. a separate Judicial Standards judiciary, Accountability Bill is before the Parliament. (ii) Clause 4 of the Bill provides that Selection Committee may constitute a Search Committee for the purpose of selecting Chairperson and Members of the Lokpal for preparing a panel of persons to be considered for appointment as such. (iii) The Bill proposes to cover higher bureaucracy, public functionaries. If the lower bureaucracy is also brought within the ambit of Lokpal, it will over burden and put strain on the resources. (iv) Clause 16 of the Bill provides that expenses of the Lokpal shall be charged on the Consolidated Fund of India. (v) The territorial jurisdiction of the Lokpal extends to whole of India and also applies to public servants outside India The composition of the Lokpal as given in CLAUSE 4 three member committee to be constituted form A (ii) a Search Committee which will select suitable persons for Lokpal and submit its recommendations for the approval of President. (iii) The matters of Govt. officials from Peon to Group “A” officers, MLA, MPs and ministers to be brought before Lokpal. CLAUSE 16 (iv) Salaries of staff Lokpal and its subordinate offices can be paid by prescribing certain fee for complaints and by imposing Lokpal Cess. CLAUSE 1 & 3 (v) Whole India should be under the jurisdiction of Lokpal Lokpals to be appointed under Lokpal. Vice and 378 and ] by Lokpal, so [Clause 12] [Clause 15 is adequate. The tenure of the Lokpal and its Members there is no need to place CBI under Lokpal. (v) The judiciary is not within the ambit of Accountability Bill Lokpal. Judicial Standards is already under consideration of the Parliament. (vi) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. Clause 3 (vi) The time lines are prescribed in Clause 23 and Clause 28 of the Bill. (i) Clause 52 of the Bill provides for protection of action taken in good faith by employee, etc. Lokpal or any officer, (ii) On completion of investigations, the Lokpal has to file a report before the Special Court. Normal judicial procedure has to be followed for any appeal etc. (iii) as given in Clause 6 is adequate. (iv) The Bill provides for setting up of Investigation Wing Prosecution Wing (vi) There should be fixed time for disposing off the cases by Lokpal. CLAUSE 52 (i) Lokpal shall have protection from Liability and Prosecution for acts performed under law. (ii) Only Supreme Court shall have right to review jurisdiction of Lokpal. CLAUSE 6 of Lokpal and its member should be 3 years Tenure (iii) and Lokpal may be dissolved at before tenure by majority voting in Parliament if found incapable to hold the office on moral and technical grounds. (iv) CBI should come under Lokpal. CLAUSE 17 (v) Jurisdiction of the Lokpal shall exclude High court and Supreme court. It will have the powers to investigate the officers/members of lower judiciary and shall submit its report to High court or Supreme court. (vi) Lokpal shall recognize and reward the public servants who have act as a whistleblower against corruption in their offices. Robin Ghosh, 49 Rajinder Road, Exchange, Opp. Tele Jalandhar Cantt-05 12 3 4 70. 379 (vii) The jurisdiction of the Lokpal as given in Clause 17 of the Bill is adequate. (viii) The judiciary is not within the ambit of the Lokpal. In proposed Bill, Prime Minister will come within the purview of the Lokpal once he/she demits office [Clause 17]. (ix) The institution of Lokpal is meant to curb corruption at higher places. Therefore, have to be and above officers the Group ‘A’ brought within the ambit of Lokpal. Further, are within the officers if the Group ‘A’ there purview of CVC and Lokpal jointly, will be duplicity of work and there may clash in approach. (x) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same (xi) The time lines are prescribed in Clause 23 and Clause 28 of the Bill. (xii) The Lokpal has powers of Civil Court in the matter of summoning and enforcing the attendance of any person; requiring discovery and production of any document; receiving evidence on affidavits; requisitioning any public record; issuing commission for (vii) Lokpal to investigate against MLAs/MPs and local political leaders including student unions registered under national political parties. (viii) Judges of Supreme court and High should not come under Lokpal. PMO should Lokpal only for investigation. (ix) Lokpal shall cover public servants other than Grade shall be covered by the CVC & officers A. Grade ‘A’ Lokpal jointly. separate panel shall be setup for screening complaints A (x) and other officer A by the citizens against any Grade complaints directly by Lokpal or Lokayukta. CLAUSE 23 & 28 (xi) Lokpal/Lokayukta shall have to reply the complainant within 45 days and matter to be disposed off with 15 months. CLAUSE 31 (xii) The warrant of arrest shall be issued by local police under the order of Lokpal/Lokayukta against corrupt. No bail before first proceedings by Lokpal. 380 [Clause 31]. the examination of witnesses or documents, etc. (xiii) The punishment has to be awarded as per the prevailing law. (xiv) Clause 31 provides for this. (xv) Clause 23 of the Bill provides that Lokpal shall display to the public status of the complaints pending before it or disposed of by it. (i) The structure of the Lokpal as given in setting up the Clause 3 is adequate. Further, institution of Lokayukta falls within the domain of the States. Keeping in view federal structure of our Constitution, it may be left for the States to decide. The jurisdiction of the Lokpal as prescribed in Clause 17 is adequate. District, i.e. -II T AR where alleged amount is form 1 Lakh but less than two lakh. Public officers taking salary of Rs. 1 lakh to 5 per annum may fall in this. lakh to 1 crore. Public officers taking salary of Rs. 5 lakh to 10 per annum may fall in this Public officers taking salary more than Rs. 10 lakh per annum may fall in this. determine the actual jurisdiction rather than salary of public officer. (a) Jurisdiction at District level shall include matters (b) The State Level shall include matters from Rs. 2 (c) National level shall cover matters of above 1 crore. (d) But the corruption amount involved actually shall (xiii) Provision of minimum 5 years imprisonment extended upto life imprisonment, barring from contesting elections, ceasing of personal property guilty. (xiv) Lokpal shall have the powers of a civil court. State and National level. The jurisdiction of the three should be as follows: SECOND SCHEDULE, P CLAUSE 23 (xv) Progress report of Lokpal to be made public half yearly and to be discussed in Lok Sabha along with Act coverage under RTI CLAUSE 3 & 17 (i) There should three tier Lokpal system, Gurjit Singh, 18, Ghuman Nagar, Sirhind Raod, Patiala (Punjab) 12 3 4 71. 381 [Clause 61] On completion of investigations, (ii) & (iii) if the commission of offence has been established, the Lokpal shall file a report in the Special Thereafter, the Special Court. Court will decide the quantum of sentence, Appeal etc. as per the established procedure. for revision of judgment etc. has to be done as per the judicial procedure. (iv) The Lokpal may frame regulations in this regard. The Lokpal Bill consciously excludes the religious organisations from the purview of Lokpal. (i) The jurisdiction as given in Clause 17 of the Bill is adequate. (ii) The meaning of the corruption will have the same meaning as is contained in place where alleged offence has taken and if it matches the pecuniary limits of jurisdictions mentioned above (e) jurisdiction will be according to the Territorial Appeal Also (ii) Provisions for appeals filing to be made. the appeal from lower level should be allowed only if matter involves question of law or a substantial of public importance. Revision and Review (iii) Provisions for revision and review of orders passed Also provisions for filing reference in matter to be made. that need clarification by National level and involve question of law. (iv) Provisions for filing online complaints as well online availability of orders passed on website CLAUSE 17 All religious organizations raising funds from Public should come under Lokpal. CLAUSE 17 MPs and NGOs functionaries of all (i) PM, Judiciary, political parties (without any exception) should come under the ambit of Lokpal, and person or entities in which Advocates, Public and Govt. reposes faith such as CAs, Agencies, BCCI should also be though of inclusion. Credit DEFINITIONS (ii) The word “Corruption” to be defined. It may include any kind of favor whether in lieu money or equivalent Jana Vignana (Andhra Vedika Pradesh) Pawan K. Sharma, C-10/27, FF, Sector-15, Rohini, Delhi-89 72. 73. 382 The Selection procedure as given Prevention of Corruption Act, 1988. Prevention of Corruption (iii) & (iv) in Clause 4 of the Bill is adequate. (v) Clause 9 of the Bill provides that on ceasing to hold office, the Chairperson and every Member shall not be eligible for reappointment as the Chairperson or Member of the Lokpal; any diplomatic assignment, appointment as administrator of a Union further employment to any other Territory; office of profit under the Government India or the Government of a State and Vice contesting any election of President or President or Member of either House Parliament or Member of either House a State Legislature or Municipality Panchayat within a period of five years from the date others in the ratio 4(4:1) instead of giving majority or any other mode such as appointing someone of corrupt's choice an employee or director any other office of profit which culminates into money equivalent to money or any other direct indirect benefit such extracting or enjoying some power perks of order supply/contracts etc. CLAUSE 4 (iii) The power of appointment a member the Lokpal should be balanced in the hands of Government Vs. appointment powers to Government. (iv) Section 4 of Lokpal Bill draft should give explicit description of the method for selection chairperson or the member instead of leaving it to rules and procedures to be made which says that the selection committee shall adopt its own procedure in this regard. CLAUSE 9 provision should be made setting a condition that A (v) chairperson and a member has not shall hold any position or place post prior to one year and posterior five years. This provision should replace section 9 of Lokpal bill draft. 12 3 4 383 The provisions made in Clause 17 are adequate. (xi) The suggestion is not relatable to Clause 26 of the Bill. (xii) The provisions for attachment of property as provided in the Bill are adequate. (xiii) The provisions regarding complaints against Chairperson and Members of Lokpal as contained in Clause 40 are adequate. of cessation holding the office Chairperson or Member. (vi) The provisions of Clause 10 are adequate. (vii) It is not understood that as to what meant by that the Lokpal should be self reliant. (viii), (ix) and (x) Lokpal should be self reliant and ection 15 (2) - CLAUSE 10 (vi) Section 10 of Lokpal Bill draft should be clear as to the seniority whether by wholesome age of members or by age of appointment as member. (vii) S the proceedings of Lokpal should be time bound. CLAUSE 17 defined matters pertaining to national security Well (viii) must be kept out of the Lokpal ambit under section 17 of the Bill (page 8, line 1 onward). he has demitted (ix) Section 17 (1) (a) - the words “after, the office of PM” must be deleted as all PMs whether serving or retired must come under Lokpal. in whatever category Atleast all UPSC ICS officers (x) they may fall should be covered under section 17 of the Bill. (xi) In section 26 of the Lokpal Bill “and notwithstanding Act or statue” to be added the provisions of any other Act,” after “Subject to the provisions of this CLAUSE 49-50 (xii) Provision for providing restoration of property and benefits during the attachment, if accused is finally absolved. CLAUSE 40 (xiii) Chapter X – the powers to opine President on complaint against Lokpal members should be vested in 3 Judges of Supreme Court/High Court including CJI 384 (xiv) The details such as proforma etc. may be provided in the rules and regulations. (xv) There does not appear to be any this will have to be contradiction. However, examined by the Legislative Department while finalising the final Bill. (xvi) The time lines are prescribed in Clause the 23 and Clause 28 of the Bill. Further, limitation to inquiry by Lokpal as prescribed in Clause 54 of the Bill is adequate. (xvii) The disciplinary action has to be taken The functions by the appointing authority. of the appointing authority cannot be delegated to the Lokpal. the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within instead giving to CJI alone. schedule prescribing the Performa A (xiv) Section 47 – for disclosure of assets and liabilities by public servants containing full details as to the cost, source, market value, annual income for five years immediately prior acquisition/owning should be there. (xv) Section 57 and 58 needs to be revisited as seems contradicting. CLAUSE 23, 28 and 54 (xvi) Limitations of time wherever not prescribed must be prescribed to make it time bound exercise and provisions to be inserted for adherence of time limit as a must by imposing disqualifications or severe penalties. Bill's main time limit 7 years from cause of action may be extended years. to atleast 11 (xvii) Disciplinary or any other penal actions, whether pecuniary or otherwise, to be taken at the hands of Lokpal must be defined/quantified in a band CLAUSE 17 (i) PM and Judiciary (for non judiciary activity) must be brought under Lokpal. (Retd.) National Working President, Bharat Raksha Manch. 12 3 4 74. Om Prakash, IFS 385 the purview of the Lokpal. As regards the purview of Lokpal. a separate Judicial Standards judiciary, Accountability Bill is before the Parliament. (ii) The composition of the Section Committee as provide in Clause 4 is adequate. (iii) Such of the organisations which receive public funds/donations are covered. However, the religious organisation receiving public donations are kept outside the purview of the Bill. The jurisdiction of Lokpal as given in Clause 17 of the Bill is adequate. (iv) The time lines are prescribed in Clause 23 and Clause 28 of the Bill (v) For suspension etc. the relevant rules Clause 35 of are to be followed. However, the Bill empowers to recommend transfer or suspension of the public servant connected with allegations of corruption. (vi) Clause 4 of the Bill provides that Selection Committee may constitute a Search Committee for the purpose of selecting Chairperson and Members of the Lokpal for preparing a panel of persons to be considered for appointment as such. It further provides that the Selection Committee shall regulate its own procedure for selection CLAUSE 4 (ii) Chairman UPSC should be included in Selection Committee and the Search should include a a former Director of Intelligence former Cabinet Secy., Army Staff. Bureau and a former Chief of CLAUSE 17 (iii) Lokpal should have jurisdiction over all NGOs and Civil Societies whether funded by Government or not. Also religious organizations must be under Lokpal and the provision of their exception to be deleted from section l7(1)(g) of the Lokpal Bill. (iv) The time schedule mentioned in Jan Lokpal should be retained in final draft. CLAUSE 35 Any civil servant, if found caught red handed while (v) accepting bribe, he/she must be suspended and should Also remain suspended till acquitted by a court of Law. Government should must give up powers to reinstate a public servant caught red handed with bribe money. CLAUSE 4 (vi) The members of Search Committee and the names suggested by this committee for Selection Committee must be verified by the security agencies. If agencies object to any name, that name may be dropped only with the consultation/concurrence of Leader Opposition in Lok Sabha. There will be a televised public hearing by a Parliament Subcommittee on the names recommended for Selection Committee to ensure the 386 the Chairperson or Members of Lokpal. As regards the corruption by Corporate/ (i) MNCs is concerned, it required to be For corruption by private tackled separately. parties, necessary amendments to IPC are Prevention of Bribery Further, underway. Foreign Public Officials and of Bill, 2011 Public International Organisations, has already been introduced. For corruption in Media, it is felt that separate steps are required to be taken in this regard. Therefore, the jurisdiction of Lokpal as given in Clause 17 is adequate. Judicial Standards (ii) For judiciary, Accountability Bill is already before the Parliament. (iii) The procedure for inquiry and investigations as provided in Clause 23-29 is adequate. (iv) Discretion may not be provided in such cases. transparency of selection procedure, thereafter, a panel of transparency of selection procedure, thereafter, names approved by Parliamentary Subcommittee should go to the Selection committee headed by PM for final selection of Lokpal. CLAUSE 17 Apart from inclusion of public representatives, (i) etc., Coporates, MNCs administrators, police, bureaucracy, and listed companies as they are often seen pumping huge amount of money in order to influence, frame, change or manipulate the Government Policies to seek desirable favours, NGOs seeking Government/foreign funding and both Print Electronic media as back room of investment in it are politicians and corporate houses and sometimes they manipulate news for their vested interest, all these should come under the ambit of Lokpal. As the Judiciary is appointed through legislative and (ii) administrative process, it should come under Lokpal ambit. CLAUSE 23-29 (iii) There should be mandatory punishment in the trials under Lokpal whether the guilty party is complaint or accused. There should be no provision of judicial appeal for either of the party and with provision immediate implementation of the verdict. CLAUSE 17 (iv) PM should be given liberty to declare if she/he included in the ambit of Lokpal. Krishna Mohan Ivaturi and Kshitij Adyalkar 12 3 4 75. 387 (v) The suggestion is not workable. suggestion would imply that in each and every case, the Parliament will have to take a decision, which is not feasible under any circumstances. (v) The Lokpal Committee should be made accountable to both the houses of Parliament and final verdict should rest with the Parliament within stipulated time frame as may be decided without any judicial intervention. 388 Comments of DoPT This requires Constitutional amendments. (i)a separate mechanism is required to be set For matters relating public grievances, up for which the Department of Administrative Reforms and Pensions is working on the same. (ii) (iii) This is beyond the scope of Lokpal. (iv) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL ANCES Comments/Suggestions within a week. month. a name badge. (a) letter should be acknowledged Every Citizen’s (b) letter must be replied within a Every Citizen’s (c) Every officer who has public contact must wear (i) Citizens’ Charter to be brought within the ambit of Availability Accountability, Transparency, Lokpal to ensure of Information and Efficient & Effective Grievance Redressal Mechanism by declaring that:- PUBLIC GRIEV PROTECTION TO WHISTLEBLOWERS An adequate mechanism to be built into the Lokpal (iv) protect Whistleblowers. The charter can be made mandatory. Also, The Lokpal The charter can be made mandatory. Bill should provide for the mandatory Information Facilitation Counters (IFCs) by all organizations covered by the Bill. need to be under article 310 & 311 (ii) Protection offered reviewed to strengthen Lokpal. (iii) There is a need for National Competition Policy to ensure level playing fields for all concerned and to avoid CWG & 2G scams etc. of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, Individual S. Krishnan, IA&AS (Retd.), and Bejon Advisor, Misra, Founder, Consumer Online Foundation 12 3 4 76. No. Organisation/ COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda Name 389 the Bill are under consideration. (v) The Bill provides that the words and Act expressions used but not defined in this Act, 1988, shal1 have the but defined in PC same meaning as assigned to them in that Act. is meant to deal The Lokpal Bil1 2011 (i) with the corruption at higher places, whereas Act, 1988 deals with corruption by the PC public servants. Clause 58 of the Bill clearly Act shall be states that the provisions of this in addition to, and not derogation of, any other law for the time being in force. Further, the Bill provides that words and Act expressions used but not defined in this Act, 1988, shall have the but defined in PC same meaning as assigned to them in that Act.[Clause 2(2)]. (ii) The suggestion is not clear as the exception clause 17 (2) referred to by the and not of author is of Lokpal Bill, 2011 IPC. (iii) The suggestion is to make changes in the Preamble of Lokpal Bill. DEFINITIONS As the term “Corruption” is not defined in Lokpal Bill (v) Act, but certain terms of Lokpal Bill are defined in the PC there should be some methodology to bring the definition of “Corruption” and its various facets defined in the Act directly into this Bill. Prevention of Corruption CLAUSE 58 & 2 should completely override, Act, 2011 The Lokpal (i) Act, 1988 while incorporating all Prevention of Corruption the necessary provisions with required modifications The word" Corruption" to be defined Act. in the Lokpal in the Bill. CLAUSE 17 (ii) Since, the MPs subject to clause 17 (2) of lPC have been included within the powers of Lokpal, those provisions with required modifications should be incorporated in the Lokpal Bill, 2011. PREAMBLE (iii) In first paragraph of Lokpal Bill, for the word “inquire” the words to “inquire & investigate” should be inserted. Similarly in the third & fourth paragraphs, for words “independently inquire into” & for the words “contain corruption”, the words “independently inquire and investigate into” & “eradicate corruption” to be inserted respectively. Lalit Kumar Kejriwal, Executive President, Centre for Legal Research & Studies, Muzaffarpur 77. 390 (iv) The Composition of the Lokpal as given in Clause 3(2)(b) of the Bill is adequate. (v) The composition of the Selection Committee as given in Clause 4 of the Bill is adequate. (vi) Clause 4 of the Bill provides that if necessary, Selection Committee may, constitute a Search Committee consisting of such persons of standing and having special knowledge and expertise in the matters public relating to anti-corruption policy, administration, vigilance, policy making, finance including insurance and banking, law and management. the (vii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (viii) The judiciary is not within the ambit of the Lokpal Bill, 2011. , i.e. – There should be “Ten” members There should be “Ten” – Clause 3(2) (b) instead of ‘Five Members’, ‘Six members’ in place former CAGs & CECs of India, should be 'Ex-RBI Governors, Ex-CAGs/Ex-CECs of India, (b) instead ‘five members’ , ‘three from civil society and (c) one member from Ex-Presidents of FICCI/CII. (vii) Clause 17(1) (a) – Incumbent PM should also be Also the covered in addition to Ex-PMs under the Lokpal. definition of Public Servant in Sec 2(c) Prevention Act, 1988 should be incorporated. Corruption (viii) Judges of Supreme Court/High Court should not be in the jurisdiction of Lokpal as mentioned Jan 2.2. Bill Version (iv) instead of “eight” members in the Lokpal. CLAUSE 4 (v) Selection Committee should be constituted without dominance of Govt. and as per the Jan Lokpal Bill version 2.2. (vi) For Search Committee, clause 6(8) of Jan Lokpal Bill version 2.2 with a modification in clause 6(8) (a), 12 3 4 391 (ix) The punishment is to be awarded by the Competent Court of Law as per prevailing laws. is meant to The Lokpal Bill, 2011 (i) to (iv) deal with the corruption at higher places; hence the jurisdiction as provided in Clause 17 of the Bill is adequate. (v) These are the matters to be taken care of by Lokpal and the may frame regulations in this regard. Cricket and Cricket Associations along with other Sports Cricket and (ix) All other provisions of Jan Lokpal Bill version 2.2 (ix) of Jan A in clause 19 except that punishment for offences Lokpal Bill that should not be to the extent life imprisonment but should be maximum upto 10 years CLAUSE 17 (i) Private Sector as well the Health & Education sectors to be included in the jurisdiction of Lokpal. not only paid news (ii) Media and its commercial activity, but also Media Institutes & the conduct of reporters/ correspondents should be brought in the ambit of Lokpal to ensure the reliability of news aired by media. It is to be made mandatory for all the Media Institutes submit an affidavit that if they found indulged in any their licenses/registration are liable to be corrupt activity, cancelled. There should be a concrete Code of Conduct for Media. The owners, Editors and correspondents of all newspapers, magazines, news channels and other TV channels along with correspondents' organization/clubs must come under the ambit of Lokpal. There should be license system for correspondents. (iii) Organizations to be brought under the ambit of Lokpal. (iv) Religious Institutions, NGOs, Trusts & Private Sector companies. Tele (v) For effective implementation of Lokpal, a Public Information Centre to formed at National level with the provision of a toll free number to provide information about Lokpal, complaints procedure and its disposal etc. The same system should be followed for Lokayuktas in the States. Deepak Khokar, Correspondent 889/ 28, Bharat Colony Rohtak, Haryana 78. 392 and Prosecution Wing and Prosecution . Further, the Lokpal has . Further, provisions made in Lokpal Bill, 2011 [Clause 12] powers to utilise services of officers the Government. However, Central or State Lokpal to have powers use the Police and Army may not be desirable. (iii) The public functionaries as given in Clause 17 of the Bill are within ambit the Lokpal and provisions made are adequate. (iv) Provisions for attachment of property of corrupt public servants are provided in Clause 33 & 34. (v) For false complaints, provisions of Clause 49 and 50 would be applicable. But, DoPT is open to suggestions in this regard. (vi) The for attachment of property are adequate [Clause 33 & 34]. (i) The Selection procedure as prescribed in Clause 4 of the Bill is sufficient. (ii) The Lokpal will have its own Investigation Wing [Clause 15] i.e. CLAUSE 33 & 34 (vi) Private property along with all the official papers, ID and distinct cards etc. should be Vote Ration Card, confiscated. CLAUSE 4 (i) Lokpal Selection Committee should be independent and free from Govt. influence without any political member. It should include highly reputed judges, National awardees, highly reputed social workers, PM & President only. CLAUSE 12-15 & 32 (ii) Lokpal should its own investigation and prosecution wings at Centre level and in every State. Lokpal should Army if required. have powers to use the Police and CLAUSE 17 (iii) Every Govt. servant should come under Lokpal rather all citizens to be held accountable for corruption. CLAUSE 33 & 34 (iv) Corrupt money to be recovered from the corrupt person by seizing bank accounts, selling property acquired through corrupt means and any other possible way of recovery. CLAUSE 49 & 50 (v) Persons making false complaints should be fined by Lokpal according to the seriousness of case rather than imprisonment. Dr. Narinder Singh, Dr. Assistant Professor, Govt. Home Science College, Sector-10, Chandigrah. 12 3 4 79. 393 (vi) The Lokpal Bill, 2011 does not contain The Lokpal Bill, 2011 (vi) any provisions for rewards to the complainants. is within the The Lokpal Bill, 2011 (i) framework of the Constitution. (ii) & (iii) The Selection procedure as prescribed in Clause 4 of the Bill is sufficient. Appointment & Removal (i) Lokpal must be within our Constitutional framework without superseding Parliament, which is supreme, the People”. It should also sovereign institution of “We not encroach upon Judiciaries independence as stated in Jan Lokpal Bill. Our representatives (MLAs/MPs) should not be made bondsmen of any agency/institution. (vi) People should be encouraged to expose the act of corruption by giving them reward and national awards for unveiling the corruption. Reward may be 10% of money recovered from the corrupt. Constitutional Framework, CLAUSE 4 Selection Committee (ii) Lokpal office must be appointed by “Selection Committee” consisting of PM, Leader Opposition Union Home Minister, both houses, Union Law Minister, CJI & senior most Judge of Supreme Court, Speaker Lok Sabha and Chairmen of SC/ST/OBC Commission, headed by PM. Screening/Recommending Committee (iii) It may contain Chairman Human Rights Commission & Minorities Commission, 3 Legal Experts with legal knowledge and expertise of ‘multiple dimensions’ corruption, Ex-Lokpal, Chairman of Equality & Opportunities Commission (which must be created), and 4 peoples representatives from different fields (elected or non elected). It will finalise a list of candidates 5 times of the vacancies for recommend PM within a stipulated time. The selection committee shall have the discretion to finalise the names and forward it President of India. People for Constitution, Democracy & Human Rights (PCDHR) 80. 394 The jurisdiction as provided in Clause 17 of the Bill is adequate. (iv) Provision for removal of Lokpal and its Members are given in Clause 8, which adequate. is meant to deal The Lokpal Bill, 2011 (v) with the corruption at higher places. (vi) & (vii) CLAUSE 8 Removal (iv) The removal of Lokpal must be made by President upon the ‘inquiry’ made by committee consisting of CJI & 2 other Judges of SC India. The Lokpal must hold the office only for four years (preferable 3 years) without holding other Public Office. CLAUSE 17 Jurisdiction (v) Grade B to D public servants must be under CVC which can be strengthened with investigative powers & a wing with prosecution powers. (vi) PM, Ministers, MLAs/MPs, Judges of Supreme court President, Speaker & Deputy Vice & High court, President, Speaker of Lok Sabha, Deputy Chairman Rajya Attorney General of India and Chairman SC, AG, C& OBC Commissions, UPSC, CEC & any other authority ST, appointed under the constitution of India must be kept out of the purview Lokpal. The Judiciary must be accountable to a ‘National Judicial Commission’. While preserving the privileges of MLAs/MPs, they must be regulated by the rules of House. (vii) The definition of corruption needs to be broadened to encompass corruption in Govt. & Private Sector, Business, Media, Charitable & Religious Corporate sector, All such NGOs, religious Institutions and NGOs. institutions and companies being funded, allotted land & other facilities, subsidized, loaned, getting tax concessions by Central Govt. or State must be brought under 12 3 4 395 Decision in such cases is to be taken (ix) This issue requires to be examined it may be stated that However, separately. the Prevention of Bribery Foreign Public Officials and of the Public is Bill, 2011, International Organisations already under examination of the Standing Committee. (x) The procedure for inquiry and investigation by Lokpal as provided in Clause 23-29 are adequate. On completion of investigations, if the commission of offence has been established, the Lokpal shall file a the Thereafter, report in the Special Court. Special Court will decide the quantum of sentence, etc. as per the established Clause 30-37 provides procedure. Further, for the powers of Lokpal. (xi) For false complaints, provisions of Clause 49 and 50 would be applicable. But, DOPT is open to suggestions in this regard. (xiii) depending upon the facts and circumstances of each case. (xiv) The complaints mechanism against the officials of the Lokpal as provided in Clause injuries, to suo motto authority and also powers powers’ and powers of 'investigation'. quasi judicial ‘quasi judicial raid any place or person without courts permission, powers of open court, Instead, Lokpal must be given of contempt simultaneously. only the ambit of Corruption. Authority” must be created for dealing “Separate A (ix) corruption in Private & Corporate sector and religious charitable denominations with the same punitive measures under Lokpal/Lokayukta to uphold Equality principle (Art. 14). CLAUSE 23-29, 30-37 Powers & Functions (x) Lokpal must not be vested with enormous & draconian powers of investigation, police authority; confiscation, recovery & auction, The powers to prosecute & adjudicate must remain separate as they are today. CLAUSE 49-50 (xi) Like protection for the Whistleblowers & Complainants, there shall be protection to the public officials & servants. In case of false & malafide/complaints, the complainants shall be liable for imprisonment upto 5 years. (xiii) If the public servants or any other person is acquitted, they must be compensated with service benefits (if applicable), monetary terms & dignity. CLAUSE 41 (xiv) Lokpal officials must be punished for false inquires & prosecution in service matters upto imprisonment 396 such scheme is provided in the The Bill provides that the words (i) & (ii) and expressions used but not defined in this 41 is adequate. (xv) The time lines are prescribed in Clause 23 and Clause 28 of the Bill. (xvi) The reservation has to be provided as per the Government policy on subject. (xvii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. provides that The Lokpal Bill, 2011 (xviii) the expenses of Lokpal shall be charged upon the Consolidated Fund of India. (xix) No Lokpal Bill, 2011. (xx) The Lokpal Bill does not provide to deal grievance redressal mechanism. AS TION A V YUKT , decision in session court 2 years, High (xvi) There must be reservation in all the posts & vacancies of Lokpal & Lokayuktas for SC/ST/OBCs in accordance Art 15 (4), (5), 16(4), (5) & 335 of the constitution. with 5 years with punitive measures or both. CLAUSE 23 & 28 (xv) There should be a time limit for the conduct of investigation, filling of chargesheet and completion trial including Supreme Court must not be more than 7 years, i.e. 3 years and supreme court another years. RESER LOKA CLAUSE 16 (xviii) The expenses of the Lokpal/Lokayukta shall be charged upon the Consolidated Fund of India/States respectively instead of allowing self funded scheme. (xix) There must not be any reward schemes/financial awards for encouraging complaints. (xx) Grievance Redressal Mechanism must be separated from Lokpal/Lokayukta. DEFINITIONS (i) The term ‘Corruption’, Maladministration, misconduct and other features of corruption should be defined in (xvii) The Lokayukta must be formed in each State & but the states must be allowed to legislate upon this UTs as per state list. P.S. Krishnan, IAS P.S. (Retd.), Aptt. No. 1513-B, Beverly Park 12 3 4 81. 397 Act but defined in PC Act, 1988, shall have Act but defined in PC the same meaning as assigned to them in that Act. SCs/STs under Plan for Schedule Castes (SCP) SCs/STs sub Plans (TsP). Tribal & specifications required to verify actual benefits and bridging of the gap between SCs/STs and advance classes/castes including failure of and showing implementation of the SCP/TsP. utilization funds for purposes other than the actual. under Plan for Schedule Castes (SCP) SCs/STs to benefit other sub Plans (TsP) Tribal & categories, individuals, families etc. specifications required to verify actual benefits and whether they have reached to the SC/ST Also failure to formulate the individuals, families. in a manner which will remove the gap SCP/TsP and advance classes/castes between the SCs/STs including failure of implementation the SCP/ and showing or reporting utilization funds TsP for purposes other than benefits directly and exclusively benefiting individuals, or families, groups of SCs. Etc. public servants to promptly take effective remedial as well punitive when any of the (a) & (b) are brought to the notice. for BCs including of religious minorities including failure to formulate Plan & Strategy for them for eliminating the backwardness. children including failure to formulate plans for (a) Diverting, misutilising of outlays earmarked for (b) with Failure to formulate the SCP/TsP (c) Diverting, misutilising of outlays earmarked for (d) with Failure to formulate the SCP/TsP (e) Failure on the part of superior Govt., servant & (f) Failure to utilized funds provided & earmarked (g) Failure to utilize funds earmarked for women/ clause 2, brought within the purview of Lokpal. Corruption shall include:— II, DLF City, Phase-II, Gurgaon 398 (iii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. between women/children and men/ children including SC/ST/BC women/children of religious minorities and men/children of advanced classes/ castes. for the protection, welfare and advancement of BCs including Religious Minorities of SCs, STs, these and women & children. in public, private sector and media. BCs, issue natural resources depriving SCs, STs, tax evasion and corporate social of black money, accountability. amount exceeding Rs. 50,000/- other than cheque/ draft/bank transfer. wealth by any person in the public or private sector in any profession disproportionate to that person's known legal sources of income and these should be brought within the ambit of proposed Lokpal Bill. (h) Failure to properly implement legislations enacted (a) All kind of discrimination and exclusion practices (b) Corporate frauds that include misappropriation of (c) Pay to or receiving by any professional (d) Possession pecuniary resources or property women/children to remove the disparities in all parameters (ii) The definition of corruption should be further widened to include:— As there is no definition of term “whistleblower” or (iii) provision of protection in the Lokpal Bill, either definition of whistleblower given in Clause 14, Section 2 of Jan Lokpal Bill may be imported in the present bill making provisions for their protection, or a separate 12 3 4 399 The eligibility conditions for The provisions made in Clause The composition of the Lokpal as given Clause 3 of the Bill is adequate. (vi) & (vii) (iv) & (v) 3(3)(b) are adequate. Chairperson and Members of Lokpal as given Clause 3 of the Bill are adequate. (viii) to (xiii) – The phrase ‘free from Clause 3(3) (b) “or in matters relating to SCs, STs, BCs including “or in matters relating to SCs, STs, “Particularly against corruption, maladministration, unconstitutional caste-bias’ should be inserted after the word “impeccable integrity”. (vii) The following should be added at the end of Clause 3(3) (b) of the Bill:– and Children, Women BCs of Religious Minorities, preferably those who in their professional work have earned/shown sensitivity to the special vulnerabilities and the constitutional and statutory human rights of these classes.” (viii) For eligibility of chairperson and members the following should be added:– Whistle Blower Protection Bill may be enacted. CLAUSE 3 Composition of Lokpal (iv) The Lokpal Bill should consist of a Chairperson and 12 members. Lokpal shall have not less than 15% from and not less than 27% SC, not less than 7.5% from STs, from BCs including religious minorities in such a manner that total number of these social classes does not exceed 50% of the total strength Lokpal including chairperson and members. (v) There should not be less than one-third women of the total strength of Lokpal including chairperson and members. Qualification of Lokpal members (vi) 400 (xiv) There is no need to put minimum age limit in the Bill. Appointment
(ix) Any person who has been convicted by a Court or (ix) who has been charged by a Court for any offence under Acts for the protection, welfare and advancement of SCs, Children, Other Women, BCs including BC Minorities, STs, Poor and Labourers. Any person who has been found guilty of unfair (x) practices by a consumer court or the Competition Commission. Any person who has not implemented stipulations in (xi) favour of the above classes while receiving allotment land or other facilities free of cost at concessional rates. Any person who has been established to have (xii) encroached upon or illegally acquired lands SCs which otherwise should not be. STs Any person who has wealth of more than Rs...... (xiii) (may be filled up suitably by the Standing Committee & Parliament). Age (xiv) The minimum age limit should be as indirectly fixed in the Bill or 60 years to be fixed. misconduct, improper discrimination etc. in specific relation Children and Women, BCs, other Poor, to SCs, STs, Labourers”, after “efforts to fight against corruption in the past”. Disqualification for 12 3 4 401 (xv) The composition of the Selection Committee as given in Clause 4 is adequate. allowances and other The salary, (xvi) conditions of service Chairperson and Members shall be governed by provisions of Clause 7. (xvii) The Lokpal is to inquire into the allegations of corruption. (xviii) The Lokpal has to frame its regulations for the manner and procedure of conducting an inquiry or investigation. (xix) There is no such concept of Dalit Charter. Citizens’ Allowances CLAUSE 4 (xv) The Selection Committee should have at least one Women. BC, BC Minorities and member from SC, ST, Salaries and CLAUSE 7 (xvi) No salary or honorarium shall be paid to Chairperson and other members but shall be provided all functional facilities including travelling facilities. They shall have the status of CJI and that the Judges Supreme Court respectively. Adequate legal and other safeguards against the (xvii) witch-hunting of Dalit employees should be provided in the Bill. It may include first referring complaints against to the respective Women BCs, Minorities and SCs, STs, National Commissions to screen and verify whether they are free from caste-bias and other prejudices there should be enhanced punishment for false complaints against any of these social and gender categories, especially SCs and STs. CLAUSE 61 (xviii) The Bill should provide a procedure of screening by the Lokpal to screen and verify whether complaints against public servants not belonging to the classes mentioned above are free from manipulation by powerful vested interests for reasons mentioned above and ensure that there is full protection for honest officers. Apart from the Charter mentioned in Bill/Jan (xix) Lokpal Bill, there should be additional Dalit Citizens' Charter, one each for the categories mentioned above in para (xvii). 402 (i) The Lokpal Bill 2011 is meant to deal The Lokpal Bill 2011 (i) with the corruption at higher places. (ii) The jurisdiction of the Lokpal as given in Clause 17 of the Bill is adequate. Further, the Prime in the context of Indian polity, Minister occupies a pivotal position in the ensure that Prime To Governments' set up. Minister is able to discharge his functions it without any interference from quarter, is felt that the Prime Minister may be kept outside the purview of Lokpal. However, after the Prime Minister has demitted office, he will come within the purview of the Lokpal. (iii) The composition and eligibility conditions of the Chairperson and Members Lokpal as given in the Bill are adequate. holders excluding President, Vice President and Vice holders excluding President, Judiciary. Government of India and its Public Sector undertakings and other organizations. Accountability Bill.” and Standards Attorney General. For deciding Supreme Court or on the culpability of accused taking into consideration all the aspects of matter. Secretary/C&AG/CEC/CVC or a person having (a) All MPs including PM and Ministers. (b) All other constitutional and top statutory office (c) Officers of the rank JS and above in (d) Judges to be covered under the proposed “Judges (a) Chairperson – Former/serving CJI or Judge of (b) Member (General) – Former/serving Cabinet PREAMBLE (i) The Bill should aim to tackle corruption at the topmost level in the Legislature and Executive should be confined to tackling corruption in high places make the Lokpal manageable and to keep the focus intact. CLAUSE 17 (ii) The Lokpal Should cover the following only:– CLAUSE 3 (iii) The Lokpal Should have only a chairperson five members with the following work allocation and Specification:– Satya Narayan Shukla, IAS (Retd.), Advocate General Lok Secretary, Prahari 12 3 4 82. 403 (iv) As per Clause 6 of the Bill, (iv) Chairperson or Member of the Lokpal shall hold office for a term not exceeding five years from the date on which he enters upon his office or until he attains the age of 75 years whichever is earlier. ernment held equivalent rank in Government of India. For specialized knowledge of Rules and Regulations especially related to contracts/procurement. RBI/Finance Secretary/Chairman SBI or a person of similar large reputed banking/financial see if the financial rules and To organization. procedures have been followed. Accountant firm in the panel of CAG with experience of auditing accounts PSUs with examining To spending/earnings/turnover. largest the accounts. of IIT Head a similar institution. For examining engineering/technological aspect, if any, of the case. For former/serving Director of CBI/RAW/IB. examining the culpability of accused under relevant criminal laws and supervising investigation and prosecution. enure of Chairperson and members shall be five enure of Chairperson and (c) Member (Finance) – Former/Serving Governor of (d) Member (Audit) – Head of an eminent Chartered (e) former/serving Director A Member (Engineering) – (f)A Member (Investigation and Prosecution) – CLAUSE 6 (iv) T years and persons in the age group of 55-70/65 should be considered for appointment and debarred from reappointment or holding any other constitutional/statutory office under GoI/State Gov after demitting the Lokpal. 404 (v) The composition of the Selection Committee as given in Clause 4 of the Bill is adequate. (vi) The Lokpal will deal with allegations of corruptions. (vii) The Lokpal will have its own Investigation [Clause 12] and Prosecution Wing Wing [Clause 15]. provides that The Lokpal Bill, 2011 (viii) previous sanction is not necessary for investigation and initiating prosecution by (in that order) awardees in the field of Public Service/Affairs (in that order) awardees in the field of Social service. Work/Social (a) Chairperson Rajya Sabha (b) Speaker of Lok Sabha (c) Prime Minister (d) Leader of Opposition (e) Chief Justice of India (f) Chairman, Bar Council of India (g)Association Chairman, Broadcasting Editors’ (h) Chairman, Editors’ Guild of India (i)Vibhusan Oldest Noble Prize/Bharat Ratna/Padma (j)Vibhusan Oldest Noble Prize/Bharat Ratna/Padma CLAUSE 4 (v) The selection committee should have the following as members:– Functions and Powers (vi) Lokpal should deal with not only complaints about acts of omission or commission punishable under IPC Act but also those relating and Prevention of Corruption to Money Laundering and Foreign Exchange violations. CLAUSE 12-15 (vii) Lokpal should have its own investigation and prosecution wing taking senior officers of CBI on deputation basis. CLAUSE 27 (viii) There is no need of taking permission for investigation and prosecution by Lokpal. 12 3 4 405 Lokpal [Clause 27]. (i) The composition of the Lokpal as given Clause 3 of the Bill is adequate. (ii) The Lokpal will have its own Investigation Wing [Clause 12] and Prosecution Wing [Clause 15]. The appointment of the officers and Wing to man the Investigation has to done as per the Wing Prosecution rules and guidelines on the subject. (iii) The jurisdiction of the Lokpal as given in the Clause 17 of Bill is adequate. (iv) These provisions have been made in Clause 30 and 31 of the Bill. basis giving chance to all States. Apart from the persons mentioned, IAS, IPS, IFS, IPoS (a)Army/Navy/Air force Chief Retired (b) Retired Cabinet Secretary (c) Retired Accountant (d) Retired Chief Secretary of any State on rotation (e) Retired Chief Justice of High Court. (f) Senior Counsel of Supreme Court/High Court. (g) Retired District Judge. CLAUSE 3 (i) Lokpal shall have one chairperson and eight members. The chairperson should be sitting Judge of Supreme court or retired CJI and the 8 members should include: Muslims, Hindus, Dalits and Christians should have representation from (a) to (h) for the purpose of social justice. CLAUSE 12-15 (ii) Investigation and Prosecution wing of Lokpal should have officers of high integrity representing major communities of Muslims, Hindu, Dalits and Christians. Such offices should be without facing any departmental enquiry or charged of any offence and they should declare their assets on joining and thereafter every year till relinquishment of office. CLAUSE 17 (iii) officals, CMs and Ministers of State Government, MLAs and Defense Officials to be brought under Lokpal ambit. CLAUSE 30-31 (iv) Powers of search, seizure and proposed powers police upon Lokpal should be within the domain of Civil Procedure Code, Criminal Code read with Evidence Act. H.No. 274/3RT, Vijay H.No. 274/3RT, Hyderabad-57 Nagar, 83. Rayeece M.A. Khadir, 406 (v) The provisions made in Clause 35 are adequate. expedite the disposal of corruption To (vii) related cases, it is necessary to set up Special Courts to exclusively deal with such cases. After the Bill is passed, it becomes an (i) Act. (ii) The territorial jurisdiction of the Bill extends to the whole of India and also public servants outside India. (iii) The Bill provides that the words and Act expressions used but not defined in this Act, 1988, shall have the but defined in PC same meaning as assigned to them in that Act. tate Government e/S undue advantage to an individual/organisation against the prescribed rules or asks for money/other things in lieu of doing an official administrative work. Government contract or lease, discrimination in providing benefits of government schemes. of causing loss to government income including by way of tax evasion and theft fuel purchased for official work. espect of Employees Centr (a) If a Government servant gives or tries to give (b) Act/attempt of irregularities in allotting license/ (c) Attempt of selling government property or attempt In r CLAUSE 35 Lokpal recommends transfer or suspension, Whenever, (v) must be implemented by the concerned authorized officer and on failing which that office to be punished. CLAUSE 38-39 (vii) Instead of constituting special courts, the strength regular courts may be increased and out of such courts, one of the court may be designated as special court. Act”. The Legislation to be called “Lok Pal (i) CLAUSE 1 including J&K and Act should cover all the States The (ii) to be implemented within 180 days from the date of enactment. DEFINITIONS (iii) Definition of Corruption should include the following: and PSUs/Corporations/Autonomous bodies. E-17, Gunjan Bihar, Colony, Single Story Karrahi, Kanpur-27 (UP) 12 3 4 84. Prinsu, 407 money laundering or favouring to other in doing so. by not declaring it. irregularities in allotting licenses/Government contract/lease or allotment on lower prices than current market price to an individual/organization. attempt of selling Government property or of causing loss to Government income including by way of tax evasion and theft fuel purchased for official work. money laundering or favoring to others in doing so. by not declaring it. NGOs and irregularities by Government contractor/ license holder. person or group of people Government to a Government Post by illegal means. (d) Involvement in accumulation of black money/ Public servants (Representatives)/Constitutional heads (a) act/attempt of Misuse of Public Money, (e) Attempt of concealing his/her property or estates (b) Use of Public Money for personal benefits and (c) Involvement in accumulation of black money/ (d) Attempt of concealing his/her property or estates (e) Embezzlement in Government aides/grants to (f) Attempt regarding appointment of a particular 408 [Clause provided [Clause 17] and the jurisdiction (iv) The composition of the Lokpal 3] in the Bill are adequate. As per Clause 6 of the Bill, (v) Chairperson or Member of the Lokpal shall hold office for a term not exceeding five years from the date on which he enters upon his office or until he attains the age of Clause 9 of 75 years whichever is earlier. the Bill provides for restriction on employment by Chairperson and Members after ceasing to hold office. (vi) The eligibility conditions as provided in Clause 3 of the Bill are adequate. (vii) The Selection procedure as prescribed e enur CLAUSE 3 and 17 Lokpal (iv) Lokpal will be head of a 9 member committee which shall have the powers to investigate and prosecute against corruption cases in Legislature, Executive, Lower Judiciary and PSUs without any interference/influence by anyone. CLAUSE 6 and 9 T CLAUSE 3 Qualification (vi) Should be a citizen of India and residing in undivided Age for Lokpal should be not less than India since birth. 25 and more than 70 years. Should not be insane or insolvent. Should have clean image and there should not have been instances of corruption charges against that person or his/her family including involvement in corruption case. CLAUSE 4 Selection (vii) Lokal will be appointed by the President on (v) Lokpal will have a 5 years tenure. A person should A (v) Lokpal will have a 5 years tenure. Also the not be appointed Lokpal more than two terms. committee of Lokpal members will be dissolved automatically on the completion of tenure Lokpal and the tenure of its members should not be extended more than two times. 12 3 4 409 The eligibility conditions as provided in Clause 3 of the Bill are adequate. (xi) The procedure for removal of Chairperson or Member is provided in Clause 8 of the Bill. (xii) The intention of the suggestion is not clear. (viii) to (x) in Clause 4 of the Bill is sufficient. recommendations of a joint committee comprising Judges of Supreme Court and High Courts. This committee itself shall be appointed by President and must include CJI Chief Justices of any two High Courts. The Lokpal shall compulsorily declare his/her assets including the of family members and will have to leave his private business, if any. (viii) The Lokpal contestants should not be an Industrialist/ Capitalist in any circumstance. Government servant if appointed Lokpal, shall A (ix) resign from his service. (x) It is necessary for the contestants that he/she should have struggled against corruption earlier or would contribute in eradication of corruption any matter. CLAUSE 8 Removal (xi) President shall have the power to remove Lokpal on the grounds of inefficiency or misconduct become incapable mentally/physically in discharging his duties or becomes the member of any political party including relation with political parties or pressurize any Government official to encourage corruption. Powers (xii) Powers of constituting 9 members Lokpal committee comprising at least 1 retired Chief Justice of Supreme Court or High Court, 2 persons of legal background and others from former Election Commissioners and Nobel laureate/Magsaysay awardees. 410 (xiii) The provisions for limitations have been provided in Clause 54. (xiv) This is beyond the scope of Lokpal. (xv) The Lokpal will have power to impose fine for false complaints as per provisions for imposition of Clause 49 and 50. However, of penalty for acts corruption, the matter has to be decided by the appropriate Courts. (xvi) Clause 42 provides for assessment of loss and recovery thereof by the Special Courts. (xvii) Clause 60 provides that the Central Government shall make rules in this regard. (xviii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. CLAUSE 54 (xiii) Lokpal should have powers to investigate any corruption cases but the older than 7 years to be investigated after approval of President by giving one month advance notice for this purpose. and to have record of Tapping (xiv) Powers of Phone internet conversation of any suspected person under RTI Act. CVC, CBI and CAG to be under Lokpal. CLAUSE 49-50 (xv) Lokpal should have the powers of imposing fine from Rs. 50,000 to 50,00,000/- and punishment with minimum 5 years and maximum life imprisonment or both as the case may be. CLAUSE 42 (xvi) Should have powers to impose recovery of damage to Government property on accused and provision of economic recovery caused to a person from accused due to corruption. Procedure of Complaint CLAUSE 60 Any complaint regarding corruption can be made (xvii) with Lokpal by submitting a complaint application along with an affidavit. (xviii) Lokpal should provide adequate protection to the Whistleblowers. 12 3 4 411 (i) The procedure in respect of inquiry and investigation is provided in Clause 23-29 of the Bil1. (ii) The provisions for attachment of property are given in Clause 33 and 34. (iii) This is beyond the scope of Lokpal. (i) The jurisdiction of the Lokpal as given in in Clause 17 of the Bill is adequate. Further, to have make it mandatory for law be enacted to CLAUSE 23-29 and 17 (i) The complaint of the disproportionate assets made against any of the person mentioned in Clause 17 and 17(1) of Lokpal Bill should be within the Jurisdiction Also in clause 17(1), after to investigate and prosecute. word any allegation of corruption, “Or criminal misconduct as defined in section 13 of Prevention Act, 1988 which includes possession of the Corruption property disproportionate to his known source of income” to be added. CLAUSE 33 (ii) Clause 33 (1) – Not only proceeds of corruption but also if the property found disproportionately held or earned by committing misconduct as defined in section 13 of Act should be made subject of Prevention of Corruption attachment and confiscation. (iii) Some CLAUSE 17 Jurisdiction of Lokpal (i) PM must be brought under the provisions of Lokpal only for the acts of corruption and not any other all purchaser of any immovable property and to disclose in the so purchased document, PAN complete details of other immovable property owned by and also him/her and by his/her spouse with their PAN owned by his/her minor children with complete details. Failure of it should be made a punishable offence either by enacting a separate law of making some amendments Act, 1988 and if any such offence in existing IPC or PA is committed by the persons referred in Clause 17 (1) of Lokpal Bill, it should be investigated and prosecuted under Lokpal. S.N. Gupta, President, The Society for Humanity and Honesty Gurudev Singh, Guru Nanak Nagar, Nalas Road, Rajpura, Distt. Patiala (Punjab) 85. 86. 412 the context of the Indian polity, the Prime the context of Indian polity, Minister occupies a pivotal position in the ensure that Prime To set up. Governments’ Minister is able to discharge his functions it without any interference from quarter, is felt that the Prime Minister may be kept outside the purview of Lokpal. However, after the Prime Minister has demitted office, he will come within the purview of the Lokpal. (ii) MPs are included within the ambit of their actions on the floor Lokpal. However, of the House are outside purview Lokpal. (iii) The composition of the Lokpal as given Clause 3 of the Bill is adequate. (iv) The selection procedure as given in Clause 4 of the Bill is adequate. act. For corruption charges against PM including of protecting his/her ministers involved in corruption charges, the Papers of preliminary investigation must be graded as “Secret” and no paper to be published or disclosed in any manner by Print/Electronic media until and unless the charges are cleared by Full Bench of Supreme Court. (ii) MPs must be brought under the ambit of Lokpal for the acts of corruptions by MPs inside or outside Parliament and not for any other act he/she does in Parliament or outside as an MP. CLAUSE 3 Composition of Lokpal (iii) Lokpal should have one chairperson and 9-10 members. Chairperson must be retired Judge of Supreme Court or Chief Justice of High Court in case non availability retired judges of Supreme Court and other members should be retired judges of Supreme Court or High Court. No politician or Bureaucrat should be its member. CLAUSE 4 Selection of Lokpal (iv) Selection Committee must consists of PM, Home Leader of Opposition both the houses, CJI or Minister, the Judge of Supreme Court nominated by CJI and one senior most Chief Justice of High Court. 12 3 4 413 (v) The procedure for removal of Chairperson or Member is provided in Clause 8 of the Bill . (vi) There is no specific provision in the it will be for the Lokpal to Bill. However, decide [Clause 61]. (vii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (ix) The Jan Lokpal Bill is also before the Standing Committee. (i) The jurisdiction of the Lokpal as provided in the Clause 17 of Bill is adequate. CLAUSE 8 Removal of Chairperson/Members Lokpal (v) In case of Chairperson or any member Lokpal is suspected to be involved in acts of corruption/ misconduct, the matter should be referred to Supreme Court through the details containing charges duly signed And the full by the Home Minister and Law Minister. bench of Supreme Court will decided this matter and if it finds its fit to remove, CJI will should sign orders of the removal. Anonymous Complaints (vi) Such complaints should not be rejected but investigated indiscreetly and if found substantial, should be processed further. Lokavukta State for Provisions (vii) Lokpal Bill must contain the provisions for appointment of Lokayukta and the same selection committee should appoint the retired judges of High Courts as Lokayukta in all states. There should be one Deputy Lokayukta who shall assume the charge of in case of sudden demise Lokayukta and another incumbent should be appointed as Deputy Lokayukta not later than 3 months. (ix) Other provisions of Jan Lokpal Bill should be retained in toto. CLAUSE 17 (i) The Corporate and private functionaries, lower level of public & private functionaries, Media, being fourth pillar including such societies or associations of democracy, 87. R.H. Khobragade 414 (ii) The composition of the Selection Committee is adequate. (iii) The provisions of Clause 3 (b) are adequate. (iv) For false complaints, provisions of Clause 49 and 50 would be applicable. But, DoPT is open to suggestions in this regard. (v) These are the issues which can be taken care while framing rules and regulations for the Lokpal. (vi) The Lokpal is to inquire into allegations of corruption. (vii) The issue relates to Electoral Reforms. Women Commission for 3.1(ix), 3.2 (i), (ii) & (vi) 7 under – If a false and frivolous or vexatious – Apart from 50% judicial representation, – – The selection committee should include i.e. Clause 49 (1) Clause 3 (b) Clause 4 (1) trust that are constituted for religious purposes must be brought within the ambit of Lokpal Bill. (ii) (a) Chairperson of National the SC & ST (Prevention of Atrocities) Act, 1989, also Atrocities) (Prevention of the SC & ST need to be invoked and needs mentioned in Lokpal Bill. (v) Lokpal Bill should have provisions for a website and a toll free number for registering complaint. the Also there common man to indicate possible corruption. should be provisions for the protection of rights whistle blower. (vi) Diversion of funds from SC/ST sub-plan should come automatically under the purview of Lokpal and be Act, 1989. under SC & ST treated as offence (vii) Election expenses to be brought under the purview of Lokpal. (b) Chairperson of SC/ST Commission and (c) of National Commission Minorities. (iii) Lokpal should include 50% representation for women, 25% for SC/ST and Minorities. (iv) complaint is made against any SC/ST functionary, the functionary, complaint is made against any SC/ST relevant clauses, 12 3 4 415 The composition of the Lokpal as (i) The jurisdiction of the Lokpal as provided in Clause 17 is adequate. (ii) provided in Clause 3 the Bill is adequate. (iii) The procedure in respect of inquiry and investigation as provided in Clause 23-29 is the Lokpal has powers to adequate. Further, search and seizure [Clause 30] powers of civil court [Clause 31]. (iv) This issues relates to the appointment of Judges. (v) The appointment to any of the post is be done as per the relevant recruitment rules to be framed in due course after establishment of the Lokpal. CLAUSE 17 (i) PM, Leader of Opposition, CJI, Lok Sabha Speaker, Wing, CBI, Foreign Ministers, Legislative Judiciary, Standing Committee should not be investigated by Lokpal but only after demitting the office. CLAUSE 3 (ii) Lokpal to have 5 Chairpersons and 10 members which should be selected from the officers such as retired Supreme Court & High Judge one each, ACB, two persons Advocate General, expert from Retired from civil. They will be appointed by a bench of 7 Association. Supreme Court judges and 7 members of Bar The Lokpal will be directly accountable to President of India. Chairperson and members shall submit affidavit on oath they will not do any such thing, which is against the democratic procedure and National Interest. CLAUSE 23-29. 30 & 31 (iii) Lokpal should have powers to investigate any corruption, power to search and seizure certain powers of civil court. (iv) The selection of Judges for specific judiciary courts should be done by an independent Bench of 7 judges comprising Chief Judges of Supreme Court & High & 7 members from Bar Council of India. (v) Selection of officers for Lokpals' investigation and prosecution wing should be approved by majority of five chairpersons and finally to be authorized by Supreme Court. 88. Dawa Narendra G. 416 This is a separate issue which requires to be handled by the appropriate authority. (viii) Clause 47 and 48 provide for declaration of assets by the public servants. (ix) The procedure in respect of inquiry and investigation as provided in Clause 23-29 is adequate. (x) In order to carry out the investigations, the Investigation Officers of Lokpal will have powers of police. (xi) The complaint against the Lokpal and Members can be made as per provisions of (vi) & (vii) or complaints received suo moto from general public after permission majority of chairperson and also permission from minimum 7 members of Lokpal. CLAUSE 13 (x) Lokpal should not have police powers. CLAUSE 8 & 40 Any aggrieved party can complaint for removal of (xi) Lokpal and its members to the President who further will (vi) Supreme Court independently should be given the task of bringing back the Black money from Swiss Bank & other foreign bank and the task of 2G Spectrum Corruption. SC can take help of CBI, CVC, Lokpal etc. (vii) Citizens accumulated Black Money in Swiss/Foreign bank should be given chance to bring Black Money back to India by asking them pay 40% and invest the balance amount for their business. If they do not agree, freeze all their money by offering 5-10% commission to Swiss/foreign banks if they seize such money and declare A/C No., name it to the Supreme Court or Govt. with of holder and their address in India abroad with the transaction details of last one year. CLAUSE 47 & 48 All the Public servants and Chairperson Members (viii) of Lokpal must declare its assets and liabilities, loans from Banks/Corporates on their selection/appointment and thereafter every year. CLAUSE 23-29 (ix) Lokpal can probe MPs 12 3 4 417 Clause 8 & 40. (xii) The proposed institution of Lokpal is at the Centre level. Setting up institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (xiii) The provisions made for minimum and maximum penalty are adequate. The provisions for attachment of property as provided in the Bill are adequate. (xiv) The jurisdiction of the Lokpal as provided in Clause 17 of the Bill is adequate. (i) The Bill provides that the words and Act expressions used but not defined in this Act, 1988, shall have the but defined in PC same meaning as assigned to them in that Act. refer it to CJI. And the complaints of Lokpal Staff shall And the complaints of Lokpal Staff refer it to CJI. be looked after by chairpersons & members. (xii) Centralised Lokpal will take over the responsibilities of all anti-corruption agencies States. Protection to Whistle Blower to be granted by Supreme Court. and Clause 49 & 50 SECOND SCHEDULE, PART-II (xiii) Punishment for corruption will be minimum 6 months and maximum 7 years. If all assets made from corruption are acquired, punishment should be reduced accordingly. CLAUSE 17 (xiv) Lokpal can probe NGOs, Corporate, Bank Officers, trusts, religious institutes etc. This society has presented its own Bill called “The Indian Lokpal Bill” and the gist of Bill is given below. Definition of Corruption Act of corruption would mean and include:– (i) Any thing made punishable under Chapter IX of IPC (a) Act, 1988; which would also or Prevention of Corruption include any offence committed by an elected member of a house of legislature even in respect his speech or vote inside the house. giving any undue benefit to person or Willfully (b) obtaining any benefit from public servant in violation of any laws or rules. Social Action Society), A-44, LGF, New Lajpat Nagar, Delhi–24 89.The People (A We 418 The composition of the Selection The composition of the Lokpal (ii) & (iii) and the eligibility as provided in Clause 3 of the Bill is adequate. (iv) & (v) Committee and the selection procedure as given in Clause 4 of the Bill is adequate. Chief Justices of the High Courts selected by Collegium of 5 senior most Judges Supreme Court. (a) Leader of the Opposition in Lok Sabha (b) Speaker of both the houses (c) MPs of Rajya Sabha nominated by President Two (d) Judges of Supreme Court and two permanent Two (e) CEC & CAG (f) All previous Chairpersons of Lokpal. Establishment of Lokpal CLAUSE 3 (ii) Lokpal shall have retired CJI as chairperson and 10 members and shall be appointed by the President on Atleast 4 recommendation of a Selection Committee. members of Legal background, two shall be women, one shall be from minority and atleast one member would from SC/ST/OBC. person who is not Indian citizen or less than 45 A (iii) years of age, or a person again whom charges ever have been framed by any court of Law for offence including moral turpitude or who has remitted any Govt. service with the last two years, either by resignation or retirement, shall not be eligible to become Chairperson or member of Lokpal. Selection Committee CLAUSE 4 (iv) PM will be the Chairman of this committee and following will be the member of this committee:– (v) The Selection Committee shall elect the Chairperson and members from short list prepared by a 7 member 12 3 4 419 The jurisdiction of the (vi) As per Clause 6 of the Bill, (vi) Chairperson or Member of the Lokpal shall hold office for a term not exceeding five years from the date on which he enters upon his office or until he attains the age of 75 years whichever is earlier. (vii), (viii) & (ix) Lokpal as provided in Clause 17 and the procedure in respect of inquiry an investigation provided in Clause 23-29 are adequate. the investigation of offences any act corruption either by Govt. servant or a public any officer of society or association trust wholly or partly funded by the Govt. in receipt of any sum under the Foreign Contribution Act, 1976 or any donation from (Regulation) Public. reduction in rank against Govt. servants or public servants if they found guilty after investigation, after giving them reasonable opportunity of being heard. Act. Special Court established under the PA counsels. (a) directions & exercise superintendence over To (b) impose punishment of dismissal, removal or To (c) initiate & ensure proper prosecution before a To (d) prosecutors and senior appoint judicial officers, To Search Committee comprising retired CJI, CEC, retired C&AG retired IB chief, CBI/DRI Director, and two member from Public domain. These persons shall be on non-political background with impeccable integrity and without holding any office of profit. CLAUSE 6 (vi) Chairperson or members shall hold the office for 5 years of upto the age 70 years, whichever is earlier The Govt. shall fill up the vacancies of Chairperson and members 3 months before the member or chairperson is due to retire. Powers and Function CLAUSE 17, 23-29 (vii) The Lokpal Shall have the following functions & Powers:– 420 lease, license, permission, contract or agreement, if obtained by corrupt means including blacklisting of corrupt firms/companies. Also to prepare an appropriate Act. under PC, reward scheme to encourage complaints from or within and outside the Govt. to report corruption cases. filed by all the successful candidates after any election to any seat in either of the house Parliament. means and to confiscate them certain cases as Act. provided under this of Lokpal officers & staff, recruitment IOs and their training arrangements including procurement of modern equipment for investigation. Lokpal shall have the powers of a civil court trying a suit under the Code of Civil Procedure, 1908. other officer upto 6 months or with fine both, if he fails to comply with its order for ensuring their compliance. Act, direct by an interim order, under this appropriate authority to tack such action as is to prevent the public servant from necessary, secreting the assets allegedly gained by corrupt means. (e) recommend cancellation or modification of a To (f) prepare a sentencing policy for the offences To (g) inquire into the assets declaration statements To (h) attach property and assets acquired by corrupt To (i) determine the terms and conditions of service To (j) The members of Lokpal or any officer under (k) Lokpal bench may punish a public servant or any (l) at any stage of investigation The Lokpal may, 12 3 4 421 The provisions made in the Bill (x) The procedure for removal of Chairperson or Member is provided in Clause 8 of the Bill. (xi) & (xii) are adequate. [Clause 43, 44, 45 & 46]. offence under any other law in the same case while investigating any offence under PC, Act 1988. It shall have the powers to issue search warrant. Council of Ministers and MPs without permission of a 7-member bench the Lokpal. (m) Lokpal shall be competent to investigate any (n) No investigation or prosecution against PM, (viii) Any person may file a complaint in the form of (viii) FIR as provided under the CrPC along with an undertaking of true facts without any fee. Any order passed by Lokpal shall be subject to writ (ix) High court shall not jurisdiction of High Court. Ordinarily, but if it does, will have to decide the stay the order, case within two months otherwise the stay will become null and void further no stay could be granted in that case. Removal of Chairperson or members Lokpal CLAUSE 8 (x) Chairperson or any member shall only be removed from his office by President on the recommendation of the Supreme Court after carrying out an inquiry for insolvent or holds any inefficient, alleged misbehavior, paid post etc. If the complaint is found false, Supreme Court may impose a fine or an imprisonment upto one year or both on the complaints. Audit of Lokpal CLAUSE 43, 44, 45 & 46 (xi) CAG shall conduct an annual financial & performance audit while a Parliamentary Committee will do annual appraisal of the functioning Lokpal. 422 The time lines are prescribed (xiii) Clause 23(13) of the Bill provide that the website of Lokpal shall display to the public, status of number complaints pending before it or disposed of by it. (xiv) The complaints mechanism against the officials of the Lokpal as provided in Clause 41 is adequate. (xv) & (xvi) in Clause 23 and 28 of the Bill. Authority (xii) The chairperson Lokpal shall present annually a consolidated report in the prescribed format on its performance to the President, which shall be place before the Parliament. (xiii) Lokpal shall publish every month on its website the summary of the cases and action taken. Independent Complaints CLAUSE 41 (xiv) In each state, one or more complaints authority would be established to entertain any complaints against any officer or staff of Lokpal. The authority shall have one chairperson (retired High Court Judge), two retired civil servants and two persons of Public Domain. This Authority shall be selected by a committee of Complaint 3 persons comprising Chief Justice of the State High and Chairman of Ayukta Lok Court, Chairman of State State Human Rights Commission. This authority will decide the complaints within two months and shall be subject to writ jurisdiction of High Court. Time completion of Investigation and trials (xv) Every Investigating officer (IO) shall endeavor to complete the investigation of an offence within a period he may obtain extension of 6 months but when necessary, of time from Lokpal bench. In any case the period investigation shall not extend beyond 18 months. 12 3 4 423 (xvii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (xviii) The punishment as prescribed in the Bill appears to be adequate. (xix) Provision for recovery of loss are provided in Clause 42. (xx) The existing disciplinary rules provides for this and the action has to be taken by the competent authority. (xxi) Provisions for attachment of assets are the given Clause 33 & 34. Further, punishment has to be decided by the appropriate Courts. -II T AR (xviii) For any act of corruption, the punishment shall not be less than 6 months of rigorous imprisonment and may be extended upto life imprisonment. The Special Court may take into consideration the higher rank of an accused to inflict a more severe punishment. (xvi) Special courts will put effort trying an offence Act, 1988 to complete the trial within a under the PC maximum period of 12 months. Whistle Blowers (xvii) Lokpal shall provide full protection to whistle blowers from any physical harm or administrative harassment. Identity of such whistle blowers shall also be protected if the whistle blowers so desires. Punishments SECOND SCHEDULE. P CLAUSE 42 in addition to the is a business entity, (xix) If the offender Act, a fine upto Act & PC other punishments under this five times the loss caused to public shall be recovered all the accused and recovery would also be made from assets of business entity and personal its MD. (xx) If a public servant is convicted, such shall stand removed from his office. CLAUSE 33 & 34 (xxi) If a public servant is found guilty by the Special Court, all the properties and assets acquired by corrupt means by convicted person as well accruals of these, assets shall be confiscated on the orders of Special Court. 424 and , there is no [Clause 12] [Clause 15] (xxii) Provisions for declaration of assets by the public servants are provided in Clause 47 & 48. (xxiii) The Lokpal will have power to impose fine for false complaints as per provisions of Clause 49 & 50. But, DOPT is open to suggestions in this regard. (xxiv) This is subject matter of service conditions and is to be dealt with accordingly. (xxv) This relates to system of procurement etc. (xxvi) Since, the Lokpal will have its own Investigation Wing Prosecution Wing Prosecution Wing need to put anti corruption wing of CBI under Lokpal. (xxvii) No such provisions are made in the present Bill. June th of every submit to his/her head department. Miscellaneous Provisions CLAUSE 49 & 50 (xxiii) If the complaints made with Lokpal are found false or frivolous and meant only to harass certain authorities, Lokpal may impose such fines on those complainants as it deems fit and also may direct such complainant to pay as it may deem fit. If damages to such public authority, the complainant fails to do so, Lokpal may direct confiscate his/her properties for the purpose of recovering such fine. (xxiv) No govt official shall be eligible to take up jobs, assignments etc with any person, company or organization capacity. that he had dealt with in his official All contracts, public private partnerships, transfer (xxv) by way of sale, lease and any form largesse public authority shall be done with complete transparency and by calling for public tender/auction/bids unless it is an emergency measure. (xxvi) The part of the Delhi Special Police Establishment dealing with investigation and prosecution of offences Act, shall stand under Prevention of Corruption (PC) transferred, along with its employees, assets and liabilities to the Lokpal. Any bribe giver may be granted immunity from (xxvii) prosecution by the special court if he voluntarily gives Property Statements Property CLAUSE 47 & 48 (xxii) Every public servant shall within 3 months after Act and thereafter every 30 implementation of this 12 3 4 425 (i) Non-Group ‘A’ officials are already officials (i) Non-Group ‘A’ Act, 1988. covered by PC (ii) Clause 15 of the Bill provides that and Wing Lokpal may constitute Prosecution appoint Director of Prosecution and such other officers and employees to assist the Director of Prosecution for the purpose prosecution of public servants in relation to Act. any complaint by the Lokpal under this (iii) The provisions proposed in Clause 56 is open to DOPT are adequate. However, suggestions in this regard. (iv) There has to be some limitation for filing a complaint. (v) Statement before Investigation Officers and evidence collected etc. have to be as per the relevant in force. officers can afford legal can afford officers and gist prepared accordingly. Pl and gist prepared accordingly. – There should not be limitation of 7 Clause 56 – Group ‘A’ Clause 56 – Group Clause 54 years. (v) Statement before Investigation officers and evidence- collected complainant like recorded conversation, sting operation should be admissible subject to authenticity by an expert. help, they should not be provision for legal assistance to them. (iv) Lokpal should have every information available Act including the enquiry documents after under RTI completion or decision taken. Information exempted only of investigation till the filling charge sheet. (iv) timely information to the Lokpal about bribe giving with evidence to get the briber taker caught. The same suggestions by this person already received (Memorandum No. 73) CLAUSE 15 (ii) Director of prosecution should have permanent Legal Advisor and Public prosecutors. (iii) see the gist against memorandum no. 73. of Central officers (i) Since the Lokpal covers Group ‘A’ Govt., for covering other public servants effectively, Act, 1988 to be done. amendment in P.C. CA Pawan K. Sharma Arvind A. Adv. 204, Om Sai Aghav, Shradha CHS Ramchandra Nagar, Thane – 04. 90. 91. 426 The punishments (vii), (viii), (ix) & (x) provided in the Bill are adequate and to be decided by the appropriate Courts. Accountability Bill is (xi) Judicial Standards already before the Parliament. (xii) The procedure in respect of inquiry and investigation is given in Clause 23-29. on completion of investigations, Accordingly, if the commission of offence has been established, the Lokpal shall file a report in the Special Thereafter, the Special Court. Court will decide the quantum of sentence, etc. as per the established procedure. (vi) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. 10 years imprisonment i.e. -II T AR (vii) There should be a provision of enhanced punishment Act, 1988, in Lokpal Bill & P.C. for fabricated/false evidence, forgery by accused in corruption cases. Any Public servant proved guilty second time should (viii) be punished with life imprisonment. (ix) There should be no provision of Parole in corruption cases. (x) There should be provision in Lokpal Bill that Discharge application not to be allowed by accused in corruption crimes. (xi) Judiciary should be covered under Lokpal. Investigation officers don't require any permission from anyone to inquire or record statement of judicial person. (vi) Government to provide protection complainant and witness. Identity should be kept secret like in MCOCA Act. SECOND SCHEDULE, P CLAUSE 23-29 (xii) There must be provision in Lokpal Bill that there should be no delay in registering FIR. 12 3 4 427 The composition of the Selection (xiii) The Bill provides that the Lokpal to recommend transfer or suspension of public servants connected with allegation of corruption. (xiv) The Courts have to take decisions as per the prevailing legal system. (xv) Powers for search and seizure are given in Clause 30 of the Bill. For attachment provisions are made in Clause 33 property, & 34. (xvi) The Prime Minister is not within the ambit of the Lokpal. The CBI is also independent of Lokpal. (xvii) The Lokpal will have power to impose fine for false complaints as per provisions of Clause 49 & 50. But, DOPT is open to suggestions in this regard. (i) & (ii) Committee and the selection procedure is given in Clause 4 of the Bill. check such judgments. suo moto CLAUSE 35 (xiii) There should be a provision, in Lokpal Bill, of immediate suspension of public servant on registration should be suspended till corruption case against him/her, acquittal. Even if a contractor is found guilty under corruption act, he and his direct or indirect firms should be black listed for whole time. (xiv) No court to be allowed show any kind of leniency or mercy to accused and no power of reduction of sentence accused. If more than 5 cases are acquitted, senior judges committee including Lokpal and members will CLAUSE 30, 33 & 34 (xv) Lokpal should have powers to allow investigating agency to search and seize of bribery amounts by conducting surprise raids on receiving any information of bribery collection by any office. (xvi) PM and CBI to be kept out the jurisdiction of Lokpal. CLAUSE 49 & 50 (xvii) Penalty for false complaints must be reduced reasonably otherwise people will not come directly and send anonymous complaints. CLAUSE 4 Selection of Lokpal (i) The 10 member Selection committee to have: (a) Not more than 2 politicians including only 1 person from ruling coalition party (b) 5 Judges (c) 3 persons from social activists and constitutional experts. 92. Unknown Citizen 428 (iii) The jurisdiction of the Lokpal as provided in Clause 17 and the Prime Minister while holding his office is not within the ambit of Lokpal. (iv) The Lokpal will have its own [Clause 12] and Wing Investigation [Clause 15], hence, there Wing Prosecution is no need to place anti corruption wing of CBI under the Lokpal. Accountability Bill is (v) Judicial Standards already before the Parliament. (vi) The Members of Parliament are covered under the jurisdiction of Lokpal and their conduct on the floor of House is outside the purview of Lokpal. (vii) For matters relating public grievances, a separate mechanism is required to be set up for which the Department of Administrative Reforms and Pensions is working on the same. (ii) Search committee to be independent and selection process should be aired live. PM & CBI CLAUSE 17 (iii) Lokpal should refer any allegation against PM to CBI Act. under Prevention of Corruption CLAUSE 12-15 Anti corruption wing of CBI should come directly (iv) Any allegation against under the supervision of Lokpal. Anti corruption wing and be verified CBI to be probed by and checked by the Lokpal. Judiciary CLAUSE 17 (v) Judiciary to be in the purview of Lokpal. There should be special immunity against frivolous allegations. Cash for vote, laundering All allegations against any MP, (vi) and bribery should come under the ambit of Lokpal Grievance Redressal (vii) Sloth progress of any citizen's work to be deemed as corruption after investigating the circumstances. 12 3 4 429 The procedure for removal of (viii) & (ix) Chairperson or Member and the complaints handling mechanism is provided in Clause 8 and 40 of the Bill. (x) The procedure for complaints against the officials of Lokpal is given in Clause 41. (xi) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (xii) The procedure in respect of inquiry and investigation is given in Clause 23-29. on completion of investigations, Accordingly, if the commission of offence has been established, the Lokpal shall file a report in the Special Court Thereafter, the Special Court. will decide the quantum of sentence, etc. as per the established procedure. The Lokpal may also recommend to the competent authority for initiation of disciplinary proceedings under the rules of disciplinary proceedings applicable to such public servants. Supreme via CLAUSE 8 & 40 Accountability and Integrity of Lokpal (viii) Lokpal to be accountable the people CLAUSE 41 to fall under the ambit of Lokpal. All rank of officers (x) Lokayukta (xi) Lokayukta to be established in all the States including J&K. CLAUSE 23-29 Dismissal and Punishment of Corrupt Government (xii) Lokpal to decide the dismissal of corrupt Government servants and this order can be challenged in High Court. Maximum punishment in corruption charges shall be 10 years and 12 in case extremely high ranked officials including CBI, civil servants and judiciary. Court and any person or the Government has to approach Supreme Court in order to remove a Lokpal member. (ix) Lokpal along with two CBI Officers shall investigate the charges made against any of its member and accused shall not be part of this investigation. 430 (xiii) The provisions for preparation of Budget are provided in Clause 43. (xiv) The jurisdiction of the Lokpal is given in Clause 17. (xv) The Lokpal will have power to impose fine for false complaints as per provisions of Clause 49 & 50. But, DOPT is open to suggestions in this regard. (i) The Bill provides that the words and Act expressions used but not defined in this Act, 1988, shall have the but defined in PC same meaning as assigned to them in that Act. (ii) The jurisdiction of the Lokpal as provided in Clause 17 and the Prime Minister while holding his office is not within the ambit of Lokpal. Accountability Bill is (iii) Judicial Standards already before the Parliament. (iv) The Members of Parliament are covered under the jurisdiction of Lokpal and their conduct on the floor of House is outside CLAUSE 43 Financial Independence (xiii) Finance Ministry to decide the quantum of budget with consultation Lokpal. Other points CLAUSE 17 All NGOs to be covered under Lokpal. (xiv) CLAUSE 49-50 (xv) There should a maximum punishment of 2 years for false and frivolous complaints. DEFINITIONS (i) Definition of corruption should include both bribe giving and taking. CLAUSE 17 Allegations of corruption against even current PM (ii) must be within the ambit of Lokpal with excepts where covering him this way would affect national security/ interest. JUDICIARY Allegations against judiciary may not be within the (iii) Accountability Bill ambit of Lokpal but a strong Judicial must be introduced. Alleged corrupt actions of MPs inside or outside (iv) Parliament should be within the ambit of Lokpal. Floor, rd S. Ganeshan, Flats 1 & 2, 3 Srijees Apartments, 177/103, Lloyds Road, Royapettah, Chennai - 14 12 3 4 93. 431 the purview of Lokpal. (v) The public functionaries as given in Clause 17 of the Bill are within ambit the Lokpal and provisions made are adequate. (vi) These are covered under Clause 17. (vii) The procedure for removal of Chairperson or Member is provided in Clause 8 of the Bill. (viii) CBI and CVC are separate independent an autonomous authorities. (ix) The composition of the Selection Committee and the selection procedure is given in Clause 4 of the Bill. (x) Clause 60 provides that the Central Government shall make rules in this regard. (xi) The procedure in respect of inquiry and investigations is given in Clause 23-29. (v) Corruption by lower bureaucracy to be under Lokpal. All PSUs and Govt. supported NGOs should come (vi) under the ambit of Lokpal. CLAUSE 8 (vii) Only Supreme Court should have the powers to look into the complaints against Lokpal members. (viii) CBI and CVC to report Lokpal. CLAUSE 4 (ix) Lokpal members to be selected by a panel of 9 members consisting of 2 Judges Supreme Court, Chief Justices of High Courts, 1 representative from 1 Central Government and 1 from main opposition party, retired member of Lokpal; 1 bureaucrat from Central Government and 1 from State Government. CLAUSE 60 (x) Lokpal should receive complaints directly from Public and no permission is required for registering case proceed. Even Lokpal shall have the powers to give instructions for phone tapping. CLAUSE 23-29 (xi) Lokpal members will hear the cases against high officials or where the corruption is of a high magnitude and other cases would be heard by the officers with 432 (xii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (xiii) Maximum punishment of ten years imprisonment has been proposed. (xiv) The Lokpal will have power to impose fine for false complaints as per provisions of Clause 49 and 50. But, DOPT is open to suggestions in this regard. (xv) The procedure in respect of inquiry and investigation is given in Clause 23-29. on completion of investigations, Accordingly, if the commission of offence has been established, the Lokpal shall file a report in the Special Thereafter, the Special Court. Court will decide the quantum of sentence, As etc. as per the established procedure. regards the setting up of Special Courts are concerned, these are to be set up by the Central Government on the recommendations of the Lokpal to conduct speedy trial. (xvi) For matters relating public grievances, a separate mechanism is required to be set up for which the Department of -II T AR AND 38 (xiii) Punishment to be maximum life imprisonment and dismissal of government servants to be on the binding recommendation of Lokpal. (xv) High Courts to set up special branches hear appeals against Lokpal decisions in a time bound manner. And the complaints against Lokpal staff to be heard by to be works. Cr.PC concerned High Court where staff amended wherever necessary to speed up cases. Citizens’ Charter (xvi) Each Government Department whether Centre or States should have a citizens’ charter for redressal of public grievances. delegated powers by Lokpal. (xii) Lokpal should give protection to whistleblowers, witnesses and victims of corruption their complaints should be looked into and redressed on priority within set time frame. SECOND SCHEDULE, P CLAUSE 49-50 (xiv) In case of false, frivolous or vexatious complaints are established, the complaints should be punished with same punishment, as alleged person would have. CLAUSE 23-49 12 3 4 433 the context of the Indian polity, the the context of Indian polity, Administrative Reforms and Pensions is working on the same. (xvii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (i) No reservation has been proposed in the Bill in the selection of Lokpal and its Members. (ii) In Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. For judiciary, Accountability Bill is already Judicial Standards before the Parliament. (iii) The powers for search and seizure have been provided in Clause 30. (iv) The Lokpal will have powers to utilise the services of officers Central or AS T YUKA When the services of Central or State Government (xvii) There should be a provision for uniform Lokayukta in all states on lines of Lokpal Bill. LOKA CLAUSE 4 (i) There should not be any kind of reservation or region, representation based on caste, religion, gender, language etc. in the selection of Lokpal and its members. The only criteria that should be uniformly and consistently applied is that none of the members Lokpal associated by any way with political party or organization. CLAUSE 17 (ii) The PM, Judiciary to be included in the ambit of Lokpal but the allegations of corruptions against PM, CJI or Judges of Supreme Court should be recorded and kept in abeyance till the time they are office and would be initiated immediately after they demit their offices. CLAUSE 30 (iii) The actions of Lokpal on search and seizure should Any appeal not be challengeable in a civil or criminal court. against such actions to be minimum in the High court. CLAUSE 32 (iv) officers will be utilised by Lokpal, they report only to the D 904, Pearl Drop, GE Garden, LBS Marg, Kanjurmarg Mumbai – 78 (West), 94. Ashutosh Mishra, 434 State Government. For the officers working on deputation, the normal deputation rules shall apply. (v) The provisions for removal of the Lokpal and its Members are given in Clause 8. (vi) Clause 6 of the Bill provides that President by warrant under his hand and seal shall appoint the Chairperson and Members of the Lokpal. (vii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (viii) CBI is separate independent authorities under supervision of CVC. For placing the Enforcement Directorate under the Lokpal, the Ministry of Finance have to give their views. (ix) The time lines are prescribed in Clause 23 and Clause 28 of the Bill. Lokpal and will maintain absolute confidentiality of the assignment entrusted to them and on failure they should be charged under appropriate confidentiality provisions. CLAUSE 8 (v) President of India will the authority for removal of Lokpal and its members. On the involvement chairman or any member of Lokpal in corrupt practices, they will be removed immediately and investigated upon. they will be reinstated with the same If found not guilty, seniority and position. CLAUSE 6 (vi) Chairperson and members of Lokpal to be administered And violation of this oath to oath by President or CJI. considered a criminal offence and liable to appropriate punishment. All state Lokayukta should be under the supervision (vii) of Lokpal but no process appeal from Lokayukta to Lokpal. (viii) CBI, Enforcement Directorate etc., should have a transparent reporting process into the Lokpal. (ix) The duration of investigation and prosecution should be time bound. 12 3 4 435 (x) There is no need to place the CVC and under Vigilance CBI and the Departmental the Lokpal. (xi) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To the Governments' set up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. Accountability Bill is (ii) Judicial Standards already before the Parliament. (iii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (iv) The Lokpal will have its own Investigation Wing [Clause 12] and Prosecution Wing [Clause 15], hence, there is no need to place (x) CVC, anti corruption unit of CBI and department vigilance should be merged into a single body under the leadership of CVC. CVC should have provision to refer matters to Lok Pal; as deemed necessary. (xi) Non performance of duty by various public agencies within prescribed time, should not be deemed as corruption. CLAUSE 17 (i) PM should be included in the ambit of Lok Pal but he/ she to be investigated for corruption complaints only when 50 or more (number may be decided by Parliament) MPs sign the complaints and submit to Lok Pal, with reasonable – even circumstantial evidence and this shall form the And the same on investigation. basis for Lok Pal’s submission of the complaint/petition by 25 MPs, a member of council minister would be investigated by Lok Pal. a Judicial Lok Pal Bill exactly on (ii) For the Judiciary, the lines of Lok Pal bill to be made and introduced with The Judicial Lok Pal will the Lokpal Bill right now. oversee all judiciary and comes from within the judiciary. (iii) The Lok Pal Bill must have the provisions for uniform with a uniform system and in all the States Ayukta Lok beyond the purview of state CMs. CLAUSE 12-15 & 23-29 of CBI must come Wing Anti-Corruption (iv) CVC and under Lok Pal. Pal will be the only institution to look into the corruption charges. If Government wants that a particular corruption charge coming into its notice be JR Nagar, Behind JR Nagar, Pandian Rice Mill, Tiruninravur, Chennai – 24 95. Mohan Vijay 436 anti-corruption wing of CBI under the Lokpal. The procedure for inquiry and investigation is provided in Clause 23-29. are and above officers All Group ‘A’ (v) covered under the ambit of Lokpal. Bringing the lower bureaucracy under ambit of Lokpal will put undue strain on the resources of the Lokpal. (vi) The accountability of the Lokpal has to be to the Parliament. The procedure for appointment of Lokpal and its Members is given in Clause 4-6 of the Bill. investigated, it must transfer to the Lok Pal with a classification like urgent. All Groups (A, B, C and D) must technically come (v) under Lok Pal. But, Pal must investigate directly only & B which are key functionaries under A groups government C & D groups must be handled by the wings Anti-Corruption/Vigilance respective Departmental Anti Corruption/ at present. For this purpose, Departmental must be selected on inter-departmental Wings Vigilance basis by Lok Pal and must function under only. They will report details on monthly basis and Lok Pal have full authority to re-investigate any serious case. Departments themselves can handle non-Corruption cases. at state Ayuktas The same system to be followed for Lok level. CLAUSE 4-6 must be accountable Ayukta (vi) Both Lok Pal and only Supreme Court of India. Even the must have final approval of their appointments though committees may be formed as stated in Jan Lok Pal Bill Supreme court may nominate Judicial Draft. However, monthly/ Ayukta's Lok Pal to look at the Pal/Lok quarterly reports and submit its report to a 3 member Also, Lok Pal may submit bench of Supreme Court. advisory and statistical reports to Parliament for its views and consideration. Parliament also may send the review Apart from this, report to Lokpal for its consideration. Ayukta Supreme Court may issue advices to Lok Pal/Lok for handling of cases. 12 3 4 437 (vii) The procedure for inquiry and investigations as given in Clause 23-29 has to be followed. The quantum of sentence is to be decided by the appropriate Courts as per the provisions of law. (viii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (ix) The Special Courts are to be set up by the Central Government on recommendations of the Lokpal. (x) The provisions for preparation of Budget are provided in Clause 43. -II T AR (vii) Every inquiry to be completed within 6 months and there should be no jail sentence for first offence, unless too serious and need not go to court of Law in case Grade C & D servants. Punishment should be imposed , through controlling departmental Ayukta by Lok Pal/Lok who shall have no option in that matter. officers, & B will be decided by Lok A Corruption cases of Grade Pal. Even for Ministers Lok Pal will decide punishment based on the gravity of offence and recommend to courts of Law. CLAUSE 23-29, SECOND SECHEDULE, P PROTECTION TO WHISTLEBLOWERS (viii) There should be adequate protection to complainants and Whistleblowers. There shall be no punishment for complainants/whistleblowers in case, the complaint is not proved. But if the complaint is totally proved false, Lok complaint motivated to implicate an honest officer, Pal must have powers to impose fine in first offence and jail term for subsequent offences, which must not exceed 6 months in any case. CLAUSE 30 (ix) There should Special Benches to fast track the cases and complete them within 6 months maximum. CLAUSE 43 (x) Lok Pal will decide its Budget and it a charge on Consolidated Fund of India and process will the same as Budgets for Lok in case of Supreme Court. Similarly, on the Consolidated Fund of will be a charge Ayukta States. (xi) Lokpal shall be entitled to take adequate steps or prescribe procedures to prevent corruption on pro-active basis. Lok Pal shall have the authority to supplement 438 (xii) Such powers are not envisaged for the Lokpal. (xiii) Clause 37 of the Bill provide for delegation of administrative or financial powers. (xiv) The jurisdiction of the Lokpal is provided in Clause 17. (xv) The Lokpal will have its own Investigation [Clause 12] and Prosecution Wing Wing [Clause 15]. The time lines are prescribed in Clause 23 and 28 of the Bill. (i) & (ii) The Lokpal shall inquire into allegations of corruption against certain public functionaries. The employees of the regulating bodies shall also be covered for their acts of corruption under the Lokpal. APPING T Regulatory bodies of institutions like educational (xii) Both Government and Lok Pal shall have powers to tap phones for pro-active prevention of corruption but adequate reasons of for tapping shall be recorded in writing and decision shall be taken at high level. existing rules and procedure to strengthen them prevent corruption. PHONE CLAUSE 37 (xiii) Lok Pal shall have to delegate duties officers working under him along with powers of interrogation but only upto a certain higher level as per the seriousness of the case and rank accused. CLAUSE 17 (xiv) PSUs should come under Lok Pal. NGOs funded by Central and State Government may come under the Lokpal and Lokayukta respectively. CLAUSE 12-15, 23 & 28 must be independent with adequate Ayukta (xv) Lok Pal/Lok powers to investigate and prosecute recommend About 95% cases to be completed within 6 punishments. months by them and remain 5% within another 6 months. (i) If the regulatory body do not take any action against an erring institution, individual can file a complaint with the Lokayukta who will first ask regulatory body why no action has been taken. (ii) institutions shall be free from political influence and Shrimati Lovina Singhla, Advocate, Chamber No. 262, District Court, Rohtak (Haryana)-01 12 3 4 96. 439 (i) The jurisdiction of the Lokpal is provided in Clause 17. (ii) The procedure for inquiry and investigations is provided in Clause 23-29. Provisions have been made of legal assistance As regards the procedure before in Clause 56. the Special Courts, this has to be as per rules on the subject. (iii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (iv) The Lokpal will have power to impose fine for false complaints as per provisions of Clause 49 & 50. But, DOPT is open to suggestions in this regard. (v) No distinction is made in this regard. should be independently answerable only to the head of the state like Governor/President of India/Courts/Lokayukta. CLAUSE 17 Autonomous bodies and Trusts NGOs, (i) PM, Judiciary, should be kept out of the jurisdiction Lokpal. CLAUSE 23-29 & 56 (ii) Complainants and Public servants must be given the right to present their cases themselves in Special Courts. Even if need arises, weak complainant or public servant to be provided legal assistance. Petitions in the special court to be allowed in both Hindi as well English languages and there should be a provision for allowing complaints and petitions in regional languages with their Hindi and English translation. (iii) Lokpal Bill must have provision to provide security the complainants and time bound disposal of complaints. CLAUSE 49-50 (iv) For false or frivolous complaints, the complainant to be punished as per the gravity of case and not to punished with severe punishment in comparison to punishment as the alleged public servant would have punished on establishment of charges. It would be better if the false complaints are disposed off by imposing fine on the complainants. All corrupt public servants to be prosecuted in a (v) uniform manner irrespective of their status or position. Health Worker Association, B 89/21, Main Road, Swatantra Nagar, Narela, Delhi-40. 97. All India Community 440 No comments. However, it is stated that the No comments. However, Lokpal shall inquire into allegations of corruption against certain public functionaries. The individual has pointed out the plight of Dalits, women and discrimination between Upper Caste/Class Lower caste/class people in implementation of various laws like SC&ST (Prevention of Atrocities) Act, CrPC etc. Also he has mentioned that Police is reluctant in registering the Act against the Upper Caste/Class cases under SC/ST people and also misuses the powers of Section 46 CrPC to carry out fake encounters of hundreds hapless detainees. But as such he has not given any suggestion regarding provisions of Lokpal. Lenin Raghuvansi, Secretary General, PVHCR, SA 4/2, Varanasi–02 Daulatpur, (UP) 12 3 4 98. 441 Comments of DoPT (i) In the proposed Bill, Prime Minister will come within the purview of Lokpal once he/she demits the office [Clause 17]. are also within and above officers Group ‘A’ Clause 19 the purview of Lokpal. Further, of the Bill provides for setting up Benches by the Lokpal. Since, Lokpal will have its own Investigation Anti there Wing; and Prosecution Wing of CBI may not be placed Wing Corruption under Lokpal. Accountability Bill is and Judicial Standards already before the Parliament. As regards the corruption by Corporate/ (ii) MNCs and paid news of both print electronic media are concerned, it is stated that the scope of Lokpal is to enquire into the complaints of alleged corruption against certain public functionaries. If MNCs and Media are also to be covered under the Lokpal, in that case, the definition of public servant would be required to modified to include such entities. In order ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL Suggestions/Comments Large Corporate houses and activities of corporate CLAUSE 17 must be under Wing Anti Corruption (i) PM, CBI at least the purview of Lokpal. Central Government officers upto Group “A” or equivalent should be under Lokpal and for a separate bench of Lokpal below Group ‘A’ the officers should be established in every state capital of zone-wise so that all the Central Government servants could be covered. The Higher Judiciary should be excluded from the purview of Lokpal but should be within control National Judicial Commission. (ii) lobbyists, complaints pertaining to “Paid News” of Electronic Media should be brought both Print and definition Accordingly, under the purview of Lokpal. Act 1988 or “Complaint” in the of “corruption” in PC, Lokpal Bill needs to be amended. Even, the conduct of MPs amounting to Corruption even within the Parliament should come under the ambit of Lokpal. But, the jurisdiction/ MLAs to be under Lokayukta. would regarding MPs/MLAs by the Lokpal/Lokasyukta Assam ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, Name of Individual Shri Nilay Dutta, President, All Lawyer’s Association (AALA), Guwahati-01 12 3 4 99 No. Organisation/ COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda 442 to tackle corruption by private parties, which include MNC and media, Ministry of Home Affairs, in consultation with the States, is already examining amendment to the IPC. Clause 17(3) of the Bill provides However, that the Lokpal may inquire into any act or conduct of any person other than those referred to in sub-section (1) of Clause 17, if such person is associated with the allegation of corruption under the Prevention The Government Act, 1988. of Corruption has also introduced Prevention of Bribery Foreign Public Officials and of Bill, 2011 Public International Organisations, As far as the conduct of in the Lok Sabha. MPs on the floor of House is concerned, they are already subject to Ethics Committee of the respective House, and it would be desirable if the matter is left to respective House for appropriate action in this regard. (iii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (iv) Constitutional requirement of reservation for filling the various posts in Lokpal would have to be followed. (v) For matters relating public grievances, a A YUKT be dependent on a referral by the Speaker of respective House. (iii) Lokpal Bill itself should annex a draft Model to be enacted by the respective State Governments for establishing of Lokayukta leaving sufficient scope for the States to customize different provisions of Model Bill according to their peculiar needs. (iv) The constitutional requirement of reservation should be complied with while constituting the Lokpal, so Section 8 of the Lokpal Bill needs to be accordingly, amended. LOKA CITIZENS’ CHARTER charter for the There should be separate citizens’ (v) 12 3 4 443 separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (vi) The issue of Electoral Reforms requires to be examined separately by the concerned Ministry/Department. (vii) The issue of Police Reforms requires to be examined separately by the concerned Ministry/Department. (viii) Public consultations are done as per the standard procedure. (i) This may be examined by the Ministry of may not have any DOP&T However, Law. objection to it. nstitutions and the State ernment i nstitutions. order to ensure clean and responsive……….In the Government i Central Gov ELECTORAL REFORMS Act to bring Electoral Reforms in the (vi) First of all, R.P. Committee Report to be amended in order Vohra light of to break the crime syndicate/mafia linkages with Government machinery. POLICE REFORMS (vii) Immediate steps to be taken regarding Police Reforms. All the State Government should separate Law & Order wing of Police from Investigation and Prosecution The Prosecution to be placed under High courts or Wing. atleast should be answerable to them for any act of negligence on their part. PUBLIC FEEDBACK (viii) It is extremely important to first gather the Public Feed Back on various important aspects of the Bill, by employing the machinery of Panchayati Raj Institutions and properly reflect such views of the public in proposed Bill. There should also be a nationwide debate on the various versions of Lokpal Bill. The individual has submitted a copy of draft Jan Lokap Bill version 1.8 submitted by Civil Society led Anna Hazare with JDC earlier. Preamble (i) In the first line words ‘Sovereign’ and ‘Socialist’ to be And the second line added before word ‘Democratic’. read as “AND WHEREAS the Government is satisfied that in third line after the word expedient, words “to bring in Vithal Rai Thakore, Rai Vithal 1-5-642, Kothapet, Hyderabad–60 Sanjay Saxena, 20 Vasant Mandir Marg, Enclave, Vihar Dehradun-06 100. 101. 444 (ii) In the proposed Bill, Prime Minister will come within the purview of Lokpal once he/she demits the office [Clause 17]. the judiciary may be kept outside However, the purview of Lokpal and a separate Bill, Accountability Bill is already Judicial Standards under consideration of the Parliament. (iii) Clause 27 of the Bill provides that previous sanction is not necessary for investigation and initiating prosecution by the Lokpal in certain cases. This provision has been incorporated with a view to speed up the process of investigations and prosecution. (i) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. – to be deleted. memorandum No. 40. vide Clause 27 WHISTLEBLOWER PROTECTION (i) Whistle Blower protection should include the of Public/Government servants against character assassination and deliberate defaming/tarnishing of image by media or interests groups, jeopardy to academic career of self or dependents by educational institutes, harassment by medical professionals and damage of interests the corrupts. Even protection to all coming in the ambit of Lokpal should be given against frivolous or false complaints especially government/public servants. before the Parliament an Act for establishing a strong….” before the Parliament an to be added. Clause 17 (ii) If the complaint is against PM, Lokpal shall refer matter with full details to President who will form an Enquiry Committee consisting of Speakers both houses, Leader of Opposition in LS & CJI. The Committee shall submit its report within 180 days to President who shall forward to Parliament for a decision. If the PM resigns after this report, Lokpal may further take up the case. (iii) These suggestions have already been submitted by this Samiti C.K. Pandey, Vice C.K. Pandey, Chairman, Bharastachar Niwaran Samiti, B-5/ Vihar, 121, Yamuna Delhi - 53 Nitin B Jawale, Dr. Ghatkopar (W), Mumbai - 86 12 3 4 102. 103. 445 (ii) The Bill provides [Clause 3] that the Chairperson or a Member shall not be Member of Parliament or a the Territory or Union Legislature of any State and shall not hold any office of trust or profit or be connected with any political party or carry on any business practice or MLA an MP, any profession. However, Minister would not be involved in any party work is not understood. Clause 9 of the Bill provides that on ceasing to hold office, the Chairperson and every Member shall be ineligible for reappointment as the Chairperson or a Member of Lokpal; any diplomatic assignment, appointment as administrator of a Union further employment to any other Territory; office of profit under the Government India or the Government of a State; and Vice contesting any election of President or President or Member of either House State Legislature or Municipality Panchayat within a period of five years from the date of cessation holding the office Chairperson or Member. In the present Bill, there is no provision for Women representation of SC/ST/Minority and as Member of the Lokpal. (iii) Clause 8 of the Bill provides for removal and suspension of Chairperson Members of Lokpal. The Chairman and Members can be removed by order of the President on CLAUSE 3 & 9 or Minister MLA (ii) Chairman of Lokpal can be an MP, not involved in any party work anymore and should be associated with media, NGOs, business body and will not be associated even relinquishment of post. Lokpal be posted as President or Governor after demitting of office. Whereas members can be retired civil servants/ officers including defense preferably of legal background, meeting the above mentioned criteria. Representation of SC/ST/Minority and women as members of Lokpal should be mandatory. CLAUSE 8 (iii) Lokpal and its members to be removed by impeachment like judges or can be removed by Rajya Sabha chairman, Governor & CJI. 446 grounds of misbehaviour after inquiry by the Supreme Court. The process of impeachment is lengthy and cumbersome which may defeat the purpose. (iv) Clause 42 provides for recovery of loss caused to the public exchequer on account of the action or decisions such public servant not taken in good faith. If the loss caused was pursuant to a conspiracy with the beneficiary or beneficiaries of actions decisions of the public servant, then such loss may also be recovered from such beneficiaries proportionately. (v) The Bill provides that after investigations, the Lokpal will file a report in Special Court and also send a copy of the report to the competent for appropriate action/ proceedings against the public servant. (vi) The intent of the suggestion is not every complaint has to be However, clear. substantiated by facts. (vii) Declaration of assets by the functionaries of NGOs/Trusts etc. may be made mandatory by the authorities registering such organisations by suitably amending the conditions for registrations of such organisations. (i) & (ii) The procedure for appointment of Chairperson and Members as prescribed in CLAUSE 42 (iv) Recovery not to be made from near relatives, if they acquire the property through their own individual earnings. CLAUSE 28 & 29 Appeal against the order of Lokpal can be made with (v) High Court or Supreme Court. (vi) Onus of proof laying should be on the complainant. CLAUSE 47 (vii) Like Government servant others who are under Lokpal ambit have to furnish declaration about their assets and liabilities to the Government through Commissioner/ or District Magistrate as Tax Commissioner Income Dy. per their convenience. CLAUSE 4 (i) The selection of Chairperson and 8 members should be done from a panel of 27 persons recommended by the D. Satyananda Rao, Flat 201, Plot 7, SVS homes, LIC Colony, 12 3 4 104. 447 Clause 4 is adequate. (iii) The Bill envisages for setting up of the institution of Lokpal at Centre level. In the proposed Bill, the Prime Minister will come within the purview of Lokpal once he/ she demits the office [Clause 17]. Central Ministers and MPs are within the ambit of if the As regards lower bureaucracy, Lokpal. same is also included within the purview of Lokpal, it will overburden the system. Bringing all State Intelligence, Public Sector ACB, CBI, IB, Lok- PSUs vigilance, Vigilance ayuktas, procurement by Defence forces, would lead to concentration of powers in one institution which may ultimately be counterproductive. (iv) This would mean that the Lokpal be supervising day to working of all Government departments, PSUs, corporate etc., which is beyond the scope of this will overburden the Lokpal Bill. Further, resources of the Lokpal with crippling affects. government to order any AL LOKP deptt./PSU/Trusts/Corporates need to be notified Lokpal shall have a right VISION BY deptt., PSUs or corporates to computerize systems and procedures for approval, sanction, tendering, sale of assets, purchase etc. and make them available to Lokpal whenever All the related files of all departments shall asked for. Any tender be made available to Lokpal for online access. above 5 crore or sale of assets such value by any government to Lokpal. Committee of all the Judges Supreme Court by seeking the names through general public advertisement (online or any other means). (ii) The persons recommended should have a track record social service and sincerity, of exceptional honesty, missionary activity or persons of exceptional judicial background as eminent judge or persons with very good practicable administrative experience. CLAUSE 17 MPs/ All the Ministers (both Central and State), (iii) PM, MLAs all the Government servants, public sector officials, corporate sector officials should come under the Intelligence, Also all State investigating powers of Lokpal. ACB, CBI, IB, PSUs vigilance, Vigilance, Public Sector etc should be directly under Lokpal. Ayuktas Lok Procurement of Defense forces shall also be under Lokpal but these will not be under public domain for verification. All the actions, if needed, to be done by defense forces after mutual discussion between PM, Defense Minister, Armed Forces and Lokpal. SUPER (iv) The west maredpalli, Secunderabad – 26. 448 . [CLAUSE 30-37] (v) The powers and functions of the Chairperson of Lokpal are well defined in the Bill. It has powers for search and seizure, powers of civil courts, to utilize services of officers the Central Government and State Government, attachment of assets, powers to recommend transfer suspension of public servants, give directions to prevent destruction of records, etc. The powers of Chairperson Lokpal cannot be equated with the powers of Judge of Supreme Court. (vi) Clause 8 of the Bill provides for removal and suspension of Chairperson Members of Lokpal. The Chairman and Members can be removed by order of the President on grounds of misbehaviour after inquiry by the Supreme Court. The process of impeachment is lengthy and cumbersome which may defeat the purpose. (vi) The judiciary may be kept outside the purview of Lokpal as a separate Bill, Judicial Accountability Bill is already under Standards consideration of the Parliament. (vii) Clause 49 and 50 of the bill provide for prosecution and penalties for false complaints. But, DOPT is open to suggestion POWERS EQUALENT TO JUDGE OF SUPREME COURT (v) Chairperson of Lokpal shall have all the powers equivalent to a judge of Supreme Court. Lokpal should be at par with executive, judiciary and Parliamentary establishment and shall be independent without any control. CLAUSE 8 (vi) Lokpal members can be removed through impeachment procedures by Parliament and majority decision among Supreme Court Judges. CLAUSE 17 Any corruption case among judiciary should be allowed (vi) for investigation by Lokpal, but all the high court and above judges can be removed through impeachment by Parliament after getting recommendation from Lokpal as well as majority of Supreme Court Judges. CLAUSE 49 & 50 (vii) No punishment against any public citizen lodging complaints it is the responsibility of Lokpal to verify the complaints prior to launching any prosecution. 12 3 4 449 in this regard and can be modified suitably. (viii) The Lokpal may make suggestions for modifications of systems and procedures, the final decision should rest with however, the concerned competent authority. (ix) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it maybe left for the States to decide. (i) The Bill provides that the Chairperson and Members shall be appointed by the President after obtaining the recommendations of the Selection Committee. The procedure for selection and removal as prescribed in Clause 4 and 8 of the Bill is sufficient. (ii) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (iii) The Lokpal is meant to inquire into allegations of corruption against certain public servants and not work as coordination wing. (iv) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. i.e. A A YUKT YUKT (ix) All the states should have a uniform regional Lok (ix) with similar establishments under direct control Ayuktas ACBs The state intelligence agencies & of Central Lokpal. Ayuktas. will be directly under Lok (iv) There will be a Lokayukta in every state, having similar powers and functions, appointed by Governor for five years on the advice of Chief Justice High Court concerned. 30 days, which can be extended on request by Lokpal. (iii) If anyone doesn’t know where to send application/ complain or in case of refusal application from Government servant, it will be submitted to Lokpal who shall send it concerned government official. (viii) Lokpal shall have powers to order modification of systems and procedures for improving the efficiency of the system over a period of time. LOKA CLAUSE 4 & 8 (i) Lokpal will be appointed by the President on advice of CJI for a period five years unless he/she is removed by the President on advice of CJI. If monitoring is not entrusted to Supreme Court, ten members Lokpal Committee by President on the advice of Lokpal. CITIZENS’ CHARTER (ii) Government must make a Citizens Charter by prescribing a time limit for disposal of every work, LOKA irendra Kumar, C-5/ irendra Kumar, 9-1, Vrindavan Appts, 9-1, Vrindavan Sector 5, CBD Navi Belapur, Mumbai -14 105. V 450 [Clause of the Bill Clause 42 . The Special Courts are to decide provide for assessment and recovery of loss caused to the public exchequer on account of the actions or decisions such public servants not taken in good faith and for which he stands convicted. (vii) The Bill provides that the words and Act expressions used but not defined in this (v) The Lokpal Bill provides for inquiry/ investigations by the Lokpal on receipt of a complaint. The punishment has to be awarded to the public servants by appropriate courts/ authorities once the commission of offence is established. Monitoring of investigations by the Supreme Court in all such cases, appears to be not the Prime Minister will practicable. Further, come within the purview of Lokpal once he/she demits the office [Clause 17]. The intent of the suggestion to increase strength of the Supreme Court instead members of Lokpal Committee is having 11 Anti Corruption bringing Further, not clear. of CBI under the Supreme Court is Wing Apex Court is not expected not feasible as the to engage in day working of investigating agencies. (vi) The Bill provides that the Lokpal shall submit a report to the Special Court. 28 & 29] the cases and award punishment as per the established law. CLAUSE 23-29 All investigations of corruption against PM, Ministers, (v) MPs, CMs and State Ministers, MLAs will be monitored by the Supreme Court. Therefore, strength of Court Judges may be increased by more instead Wing Anti Corruption of members Lokpal Committee. of CBI will be directly under “Supreme Court”. CLAUSE 28, 29 & 42 (vi) Trials of corruption against Government members, Parliament and State Legislature will be conducted in the High Court within a period three months. No bail in such cases and the punishment will be life imprisonment where as punishment in other corruption cases may ten years. Also losses due to corruption will be recovered out of the properties of the guilty. DEFINITIONS corrupt act will include all acts of commissions A (vii) and omissions done, attempted to have aided or 12 3 4 451 [Clause 32]. and powers of Civil Courts in The composition and tenure of [Clause 38]. certain cases (vii) The punishments and fines also assessment of loss to the exchequer is be decided by the Courts. (vi) Lokpal would be a qusai-judicial body, and will have powers for search seizure [Clause 30] (iii) & (iv) the Selection Committee as prescribed in Clause 4 of the Bill is adequate. (v) The Bill provides for setting up an by Lokpal. CBI to continue Wing Investigation Special a separate investigating agency. Courts are to be constituted by the Central Government on the recommendations of Lokpal but defined in PC Act, 1988, shall have the but defined in PC same meaning as assigned to them in that Act. (i) This would render the Clause 2(1)(c) meaningless. (ii) Since, the Prime Minister while holding the office of PM is outside purview the Lokpal, definition of Minister as prescribed in Clause 2(1 )(i) does not include the Prime Minister. – Lokpal to have all the powers – PM to be included in the definition – “Competent Authority” to be replaced – “Competent – Selection Committee should have 7 – Assessment and quantification of loss – – Investigation Wing: The clause to be Wing: – Investigation Clause 42 Clause 4(1) Clause 30 & 32 Clause 12 Clause 2.1 (i) Clause 2.1 (c) members comprising PM, Speaker of Lok Sabha, both Leaders of Opposition in Lok Sabha & Rajya Sabha, Sitting Judge/Chief Justice of Supreme Court, Judge/ Chief Justice of High Court and C&AG India. (iv) The Selection Committee should be permanent (v) under Criminal Procedure Code. (vii) replaced by bringing CBI as Lokpal Investigation Wing replaced by bringing CBI as Lokpal Investigation and CBI courts as special under Lokpal Bill. (vi) should be with Lokpal. abetted with intent to wrongful gain oneself or loss to others. (i) by word “Lokpal”. (ii) of Ministers. (iii) D. Krishna Rao, Flat 202, Suryamitra, Yellareddyguda, Hyderabad - 73 106. 452 prima evidence of the commission an (viii) The provisions made in Clause 49 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (i) The provisions made in Clause 49 and 50 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (ii) Clause 41 of the Bill provides on if there is completion of the inquiry, facie offence under the PC Act, 1988 or of any under the PC offence wrongdoing, the Lokpal shall order to prosecute such officer or employee of the Lokpal or such officer employee of agency engaged or associated with the Lokpal and initiate disciplinary proceedings against the official concerned. Same procedure is applicable in respect of other Government servants. (iii) In the present scenario, there is need to have institution of Lokpal to deal with the allegations of corruption. AL LOKP EMPLOYEES OF – Why there is no imprisonment of AGAINST
Clause 49 (viii) (ii) If any Lokpal Officer or staff is found indulged in Corruption, they will be investigated under IPC, why not Govt. servants can be investigated under IPC. Then what is the need of Lokpal separately? CLAUSE 49 & 50 (i) There is no provision of punishment for the complainants for complaining against the State/Central Govt. servants, if he/she fails to gather evidence whereas there is a provision of punishment if this happens in case of complaints against Chairperson or member Lokpal. Why is it so? COMPLAINT Suggestions to curb corruption (iii) Instead of Lokpal, implementation the provisions of Constitution India in true spirit is sufficient to eradicate corruption. So, the constitution to be implemented Also the persons working against constitution correctly. must be punished. guilty public servant and only loss of recovery where as there is provision of fine ranging from Rs. 25,000 to 2,00,000 and imprisonment from 2- 5 years for false or frivolous complaints. This most subversive clause. Bechar Bhai Rathore, National President BAMSEF 12 3 4 107. 453 This is outside the scope of These issues relate to public gnevances (vi) & (vii) Lokpal. Appointment of Judges is not covered (viii) by the Lokpal. (i) The Bill provides that the Prime Minister will come within the purview of Lokpal once he/she demits the office. The NGO/ Trust etc. are also within the purview of Lokpal. (ii) The Lokpal is being established to enquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. (iii) (iv) Action against the corrupt persons has (iv) to be taken after following due process of law. (v) The employees of the trusts wholly or partly financed or aided by the Government and also the trusts in receipt of donations the from the public are covered. However, societies, associations or trusts constituted for religious purposes are excluded. TION PERSONS EDUCA Y ANCES CORRUPT OF AL (vi) There should be free compulsory education till the age of 18 years and free higher education without any age restriction and in accordance with the reservation of OBC & religious minority. SC, ST, (iv) Corrupt persons to be removed from their posts and all the property & business of country to be nationalized. REMOV CLAUSE 17 Ashrams, Math etc. must be under the All trusts, (v) control of the Govt. and their money utilized for Also the Media must be education in the country. controlled. FREE & COMPULSOR SOCIAL CORRUPTION (vii) Social corruption to be curbed by taking strict steps. APPOINTMENT OF JUDGES (viii) Judges at all the levels to be appointed through Judicial service. CLAUSE 17 (i) PM & MPs and Govt officials above Director Level, NGOs/Schools etc. receiving funds from Govt. and Advocate/Lawyers to come under the purview of Lokpal. (ii) Lokpal Bill needs to consider the necessity of quicker Also the court fees be revised upwards justice at all levels. considerably in criminal cases to reduce frivolous litigation and extra earned money be partially used for BPL cases. PUBLIC GRIEV (iii) Corrupt practices of all kinds like graft to file FIR, Grahak Sahayak Gurgaon, B 6/6, DLF Phase – I, City, Gurgaon – 02 108. 454 redressal mechanism. Department of Administrative Reforms is working on the same separately. (iv) The Lok Pal Bill into the allegations of corruption against certain public functionaries. As per collection and findings is concern it is part of electoral reforms which being examined by the Government separately. (i) This is a matter for which rules are to [Clause 60] be framed separately. Action against the accused public servants (ii) has to be taken as per the provisions contained in Clause 23-29 of the Bill. Further the procedure to handle complaint is given in Clause 23 to 29. (iii) The Bill provides that the organizations which are wholly/partly funded or added by the Government and also trust etc. in receipt donations from the public are under the Lokpal. getting dates in courts, graft to obtain driving licenses; registration of property or change land use, all such should be covered in one form or other. APPOINTMENTS CORRUPTION IN (iv) The Bill needs to study the cases of corruption in appointments to Govt. Jobs and also elections needs maximum vigilance including the revision of procedure or legitimatising money sourcing to parties. (i) The Bill must expressly provide (other than implied by other provision of the Bill) provide that Lokpal shall not entertain any complaint filed by an unknown person or filed under a false name and address. There must be along with ID proofs Affidavit a provision of providing an of address by the complainant. The complaint must be self-contained and with detailed statement of facts. CLAUSE 23-29 (ii) If the complaint is valid, accused must be prosecuted and to be suspended till the final decision. If found guilty, must be awarded punishment and should automatically compensation dismissed from service. But if not held guilty, to be provided the accused and penalties imposed on complainant. If the complaints are found false or frivolous, the complainant would compensate not only to Lokpal for its expenses but also to the accused of reputation loss and mental harassment. monetary, CLAUSE 17 aids out of (iii) Everyone who receives grant, salary, taxpayer’s money must come under the ambit of Lokpal. Highly value corruption charges to be given priority for investigation. Sughosh Bansal, Heights, 704, Avalon Anna CGHS Ltd., Plot No. GH-6, Sector 47, Gurgaon - 01 12 3 4 109. 455 Clause of the Bill Clause 32 of the bill is sufficient. of the bill is adequate. of the Bill provides that Lokpal may empowers the Lokpal to utilize services of officers of the Central/State Government. (ii) The Selection Committee as proposed in Clause 4 (iii) The Bill provides for setting-up of As far institution of Lokpal at Central level. as State Governments are concerned it is for the respective State Government to set- up the Lokayukta as subject matter falls within the domain of State Governments. The composition of Lokpal as given in Clause 3 (i) The Bill provides for setting up of the institution of Lokpal at Central level. exercise its jurisdiction by through Benches. In so far States are concerned, it is for respective State Government to set-up the institution of Lokaykut. Clause 12 the bill provides that the Lokpal will have an Investigation Wing. 19 ALS shall have 11 members, shall have 11 LOKP & ZONAL AL LOKP TIONAL (i) The institution of Lokpal to be established with one Central, West, National Lokpal, 5 Zonal Lokpals (i.e. East, South and North) One Nodal Officer for each state in Zones. Each zone will have separate administrative support staff. Lokpal shall have its own investigating agency supported by CBI, State level police, CBCID etc. at all levels in zones. The same suggestions have already been submitted by Bharat Patil vide memorandum no. 67. NA CLAUSE 4 The Lokpal Selection Committee (ii) with PM as its head. The members would be 4 Central cabinet ministers or retired PM, President equivalent, 3 retired Judges of Supreme court or High Court equivalent and 3 eminent social personalities. (iii) National Lokpal committee shall have total 10 members including Chairman and shall include 3 retired central cabinet ministers, 3 judges of Supreme court or High Court and 3 eminent social personalities. The Zonal Lokpal committee too shall have 10 members comprising 3 retired MPs or union ministers, 3 retired Judges of Supreme Court or High and 3 eminent social personalities. The nodal committee will be the same as Zonal Lokpal Committee. Dr. Pravin H Dr. Khobragade, F-147, 2, Sector Vihar Nar 34, Noida – 06 Vajrakavach Strategic Solutions Pvt. Ltd., Mumbai 111. 110. 456 (iv) The composition of the Selection Committee as provided in clause 4(1) appears to be sufficient. (v) The Lokpal as proposed in the Bill will be a statutory body. (vi) Clause 12 of the Bill provides setting-up such by the Lokpal.Till Wing of Investigation time the investigation wing within Lokpal, Central Government shall make available investigating officers and other staff as may be required by the Lokpal for carrying out investigation. Clause 38 of the Bill provides that the Central Government shall constitute such number of special courts has recommended by the Lokpal to hear and decide the cases investigated by Lokpal. (vii) These are the matters for which rules are to be framed separately in Clause 60 or 61. profit or corruption. (a) No criminal track record of pending cases (b) Age not less than 45 years (c) Preferably should have legal background (d) Must be a citizen of India & NRI not permitted. (e) Should not hold any position in office of (iv) The eligibility criteria for selection committee, National Lokpal Committee & Zonal will be same and reads like this:- Functioning of Lokpal (v) Lokpal will function as an autonomous institution like judiciary and election commission. Investigation & Prosecution CLAUSE 12 (vi) Lokpal shall have separate investigation wing supported by existing investigation agencies within India. There will be special courts and the prosecution will as constitutional powers of judiciary. Flow of Complaints & Disposal CLAUSE 60 & 61 (vii) Complaints received through letters, phone calls, website or personal visit shall be made with Nodal Officers of concerned state and would be investigated by Zonal Lokpal Investigating agencies and prosecuted as per the 12 3 4 457 (viii) The time limit for completion of the inquiry are given in Clause 23. The preliminary inquiry is required to be completed within 30 days which may be extended for a period of 3 months. The inquiry is to be completed within a period of six months which may be extended for a further period of six months. (ix) Clause 17 of the bill provides that Prime Minister after he demits the office of Prime Minister; person who is/was of the member either of the Parliament; any Group “A” officer equivalent or above; certain of Corporation Company, officers Act of Autonomous body set-up by an Parliament; certain functionaries of Societies, Associations or Trust which are partly/wholly funded by the Government; and certain functionaries of trust etc. which are in receipt of donation but are not set-up for religious purposes are within the purview of the Lokpal. The President or Governors of States after they demit office are not within the purview of Lokpal. (i) The selection procedure as prescribed in Bill is sufficient. constitutional laws. There will be a provision for appeal against the judgment of Zonal Lokpal only to National Lokpal. CLAUSE 23 (viii) National Lokpal has to dispose off all kind of complaints within 3 years whereas one & half year by Zonal Lokpal. Jurisdiction CLAUSE 17 (ix) President & Governors after demitting office, PM, Union Ministers, CMs , MPs, MLAs Governor of RBI, all Central/State Govt. servants, autonomous PSUs, NGOs all levels Judiciary, bodies of Central/State, and organizations fully or partially funded by govt. CLAUSE 4 (i) The search, selection, appointment and removal of Lokpal not be controlled by Govt. and to Against structured according to the UN Convention Corruption 2003 while looking at the provisions of President, Senior Citizens Council, 255, Sector 2, Rohtak (Haryana) – 01 112. Prem Singh Dahiya, 458 (ii) Clause 1(3) of the Bill provides that it shall come into force at such date as Central Government made notification to appoint the Act. provisions of the different (iii) The jurisdiction of the Lokpal as provided in Clause 17 is adequate. In the proposed Bill, the Prime Minister will come within purview of the Lokpal once he/she demits the office [Clause 17]. The organisations funded by the Government are also within the purview of Lokpal. (iv) The Lokpal will have its own Wing. and Prosecution Wing Investigation Therefore, CBI and CVC may not merge with Lokpal. (v) Setting up of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. Ministries/Departments may Various (vi) for issues However, frame Citizens Charter. relating to public grievance redressal mechanism, separate machinery is required Administrative for which Department of Reforms and Public Grievances is examining the issues. AS YUKT Independent Commission Against Corruption of Hong Independent Commission Kong. CLAUSE 1 Act to be implemented within 120 days on its (ii) Lokpal enactment. CLAUSE 17 All the public servants, lower & higher bureaucracy, (iii) MPs, Ex-MPs, Ministers including PM & only regd. NGOs with turnover of Rs. 1 crore or those getting foreign aid/donations etc. should be under the ambit of Lokpal whereas certain functions of PM like foreign security matters may be outside relations, law & order, Lokpal ambit. Anti Corruption branch of CBI to be merged (iv) CVC & with Lokpal and to have its own investigation, prosecution & research wings. LOKA CITIZENS’ CHARTER etc should Govt. offices/deptts./PSUs All Central/State (vi) have Citizens’ Charter and to enforced through Grievance Redressal Mechanism at District level under the supervision of Lokpal/Lokayukta. (v) Each state/UT should have a Lokayukta on the pattern of Lokpal. 12 3 4 459 (vii) The meaning of the corruption will have the same meaning as is contained in Act, 1988. the Prevention of Corruption (viii) The eligibility conditions for appointment as Chairperson and Member of Lokpal provided in Clause 3 of the Bill seems to be adequate. The provisions for attachment of property of corrupt public servants are provided in Clause 49-50 of the Bill. (ix) Lokpal would be a qusai-judicial body and will have powers of Civil Courts in certain cases [Clause 32]. On completion of investigation, if commission of offences has been established the Lokpal shall file a report in the Special Court and also send copy of The the report to competent authority. Special Court will decide the sentence and competent authority may initiate appropriate disciplinary proceedings under the relevant rules for appropriate penalty. (x) Clause 49 & 50 of the Bill provides for prosecution and penalties for false complaints but DOPT is open in this regard. (xi) The punishment will be awarded as per The Bill proposes to amend prevailing law. Act, 1988 to Section 13 and 14 of the PC -II T AR action in all matters, except the conviction & (xi) There should be a provision of minimum 2 years imprisonment extended upto life for guilty corrupt public servant, whereas in case of politician- DEFINITION (vii) The definition of Corruption should be comprehensive Act, 1988, Prevention of Money enough as given in PC Act, 2002 while covering misuse of office, Laundering substandard construction of buildings, roads, commissions, kickbacks ect. CLAUSE 3, 33 & 34 (viii) The provisions regarding eligibility conditions/criteria qualifications & confiscation of property corrupt public servants as mentioned in Jan Lokpal Bill to be adopted. CLAUSE 31 (ix) Lokpal should have powers of a civil court and powers to take disciplinary action against the accused including removal/dismissal and it shall powers to take suo motto Lokpal should special anti- confiscation of property. corruption courts in each district, where cases by Loka- yukta would also be heard. CLAUSE 49 & 50 (x) Lokpal to look into anonymous complaints but shall have the powers to impose fine upto Rs. 1 lakh for frivolous or false complaints instead of the provisions given in Lokpal Bill draft. SECOND SCHEDULE, P 460 provide for maximum imprisonment of 10 years instead of 7 years. (xii) Clause 47 & 48 of the Bill provides for declaration of assets by the public servant. (xiii) This relates to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (xiv) Clause 8 provides for removal and suspension of Chairperson and Members the Lokpal. (xv) Clause 61 of the Lokpal Bill provides that the Lokpal may make regulations to Act, namely carry out the provisions of this – conditions of services the secretary and other offices staff of the Lokpal; place of sittings Benches the Lokpal; manner for displaying on the website of Lokpal the status of complaints, etc.; the manner and procedure of conducting an inquiry or investigation. (i) The Selection procedure as prescribed in Clause 4 of the Bill is sufficient. bureaucrat – criminal nexus minimum sentence would be 5 years. CLAUSE 47 & 48 (xii) Each public servant covered by Lokpal shall have to declare his/her property including of dependent children along with an affidavit that he/she is not holding any on public domain. Benami property, WHISTLEBLOWERS PROTECTION (xiii) The provisions regarding “Whistleblowers” to be modified in conformity with Jan Lokpal Bill. CLAUSE 8 (xiv) President shall have the powers to remove erring members of Lokpal/Lokayukta, on the recommendations made by Supreme Court after an appropriate enquiry on the complaints of anyone. CLAUSE 61 (xv) Lokpal should frame the Rules for itself which shall be duly approved by Parliament/Parliamentary Standing Committee. Clause 4(1) (i) Selection must include only the PM, Leaders of CJI & senior, opposition in LS & RS, Home Minister, most Chief Justice of High Court. Nayagaon Housing Jabalpur Society, 12 3 4 113. Agrawal, 118, V.K. 461 (ii) The provisions of Clause on removal and suspension of Chairperson Members of Lokpal have adequate safeguards. the (iii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To the Governments' set up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. If lower bureaucracy is also included within the purview of the Lokpal, it will overburden the resources of Lokpal. (iv) MPs are included within the ambit of their actions on the floor Lokpal. However, of the House are outside purview Lokpal. (v) This would render the proviso redundant. (vi) The Lokpal has to take action on receipt of complaint. . ‘suo motto’ Clause 8(1) (ii) President shall take action against the Lokpal or any member on the report of CJI only when complaint Also it is to be mentioned that what action is found true. would be taken if the complaint is false or baseless. Clause 17(1) (a) & (d) (iii) Serving PM also to be included and Group ‘B’ officers also to be covered. Clause 17(2) (iv) Exception to be allowed and MPs investigated for cash vote in a particular manner consideration of financial gains. Clause 17 (3) (v) Proviso to be there that if consent of State Govt. is not conveyed within 3 months, Lokpal will be free to initiate investigation against such officer of the State Govt. Clause 23(1) (vi) Lokpal to be authorized take action 462 (vii) The Bill provides for the competent authority to send a report the Lokpal within six months of initiation disciplinary proceedings against the delinquent public servants. It does not mandates that the disciplinary proceedings must be completed within six months. (viii) The Courts have to decide the cases Act and other relevant clauses of as per PC Criminal Laws, whereas the competent authority has to examine the issue from administrative angle. (ix) The provisions made in Clause 49 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (x) On completion of investigation, if commission of offences has been established the Lokpal shall file a report in Special the Special Court will Court. Thereafter, decide the quantum of sentence, etc. as per the established procedure. (xi) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. AS YUKT Clause 28 (2) (vii) There should be some provision for punishment/ disciplinary action if the competent authority fails to take action against delinquent officer or fails to take complete the action within specified period. Clause 29(3) (viii) When the Lokpal shall file case with a Special there is no Court with a copy to competent authority, need for Govt. to take further action as proposed, in Lokpal Bill. Clause 49(1) (ix) Punishment, in case of false or frivolous complaint (with intention to defame a person is established, should be reduced to 3 months or fine of Rs. 25,000/- both. CLAUSE 28 & 29 (x) It is not clear in the Draft Lokpal Bill whether Lokpal shall have the powers to lodge FIR & prosecute or not. If not, Lokpal should have the authority to lodge of Lokpal looking after Also the staff FIR & prosecute. the anti corruption cases should be placed under control of the Lokpal. LOKA (xi) State Govt. to appoint Lokayukta look into the cases of State Govt. employees. 12 3 4 463 (i) In the proposed Bill, Prime Minister will come within the purview of Lokpal once he/she demits the office [Clause 17]. Clause 29 of the Bill provides that on if the commission of completion of inquiry, Act is established, under the PC offence may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority, of the Lok Table which shall be laid on the Sabha/Rajya Sabha. (ii) The judiciary is not within the purview of Lokpal. (iii) The Bill provides for a maximum term of Lokpal and its Members to be five years or until he attains the age of seventy years whichever is earlier. (iv) The Bill provides that the Special Courts shall ensure completion of each trial within a period of one year from the date filing in case the trail case in the court. However, cannot be completed within a period of one the Special Court shall record reasons year, therefor and complete the trial within a further period of three months or such further periods not exceeding three months each, for reasons to be recorded in writing, before the end of each such three months period, but not exceeding a total period of two years. The appointment of Judges to the Special Courts has to be done as per the extant rules. CLAUSE 29 (i) If Lokpal makes any recommendation to take action against PM, Ministers or MPs, then the report to be placed before both the houses of Parliament who would consider it within six months. Parliament shall have the power to send the report for reconsideration with reasons but only once. If it happens, Lokpal would again consider the report and take action in terms of as per this Act. CLAUSE 17 (ii) Judges of Supreme Court High should not be brought under within the ambit of Lokpal. CLAUSE 6 for Lokpal members should not more than 3 Term (iii) years and one-third of the total members should retire The person who has given his after every one year. views on the subject should not be made member of Lokpal. CLAUSE 38 (iv) Time frame for completion of trials to be fixed and Special Court to be set up by appointing retired High Against Court Judges to conduct trial on day-to-day basis. the decision of such court, appeal to be made only before the Supreme Court. Justice Tejinder Singh Doabia (Retd.), C-4/45, Safdarjung Development Area, New Delhi 114. 464 (i) For Media and Press, it is felt that a separate mechanism, perhaps under the Press Council of India, may be required. The NGOs receiving Government funds or As far as lower donations are covered. bureaucracy is concerned, if it also brought under the ambit of Lokpal, it would put strain on the resources of Lokpal. (ii) One single institution covering all the States as well may not be workable proposition. (iii) & (iv) The Bill proposes to set up the institution of Lokpal to enquire in the allegations of corruption against certain public functionaries. the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, CLAUSE 17 (i) The Media, Press, all NGOs and Lower bureaucracy should also be included under the jurisdiction of Lokpal Bill. CLAUSE 3 (ii) There should be one single Lokpal in the whole country while merging the Local Lokayukta to root out corruption. (iii) India should have a strong Lokpal as the custodian of hopes and aspirations like our constitution. (iv) There must be clear-cut instructions for discharging functions by Lokpal and there should be very limited scope for discretion in any public office. CLAUSE 17 (i) Lokpal should have powers to investigate allegations of and MPs (for taking corruption against PM, Judiciary, bribe to vote or speak in Parliament). But special safeguard to be provided PM & Judiciary against frivolous & mischievous complaints and to preserve judicial independence. Memoranda No. 115 not received from the Rajya Sabha Secretariat S.K. Sharma, Dr. Associate Professor, Govt. Girls’ PG College, Ghazipur (UP) – 233001 K.K. Swami, President, Vice Akhil Bhartiya Grahak Panchayat, 51 Samrat Eclave, Pitampura, New Delhi - 34 12 3 4 115. 116. 117. 465 [Clause , merger of Anti Corruption Branch of of , merger may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. The conduct MPs on the floor of House is also not within the purview of Lokpal. For judiciary, a separate Bill, Judicial Standards Accountability Bill is already under consideration of the Parliament. (ii) The NGOs funded by the Government are covered by the Lokpal. If lower bureaucracy is also included within the purview of the Lokpal, it will overburden the resources of Lokpal. Since Lokpal Wing will have its own Investigation 12] CBI is not required. For matters relating public grievances, a separate mechanism is required to be set up for which the Administrative Reforms and Department of Pensions is working on the same. (iii) The Selection procedure as prescribed in Clause 4 of the Bill is sufficient. Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (iv) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (ii) NGOs funded by Govt. only and Lower Bureaucracy Anti corruption branch of CBI to be included in the & does not do a citizen’s jurisdiction of Lokpal. If an officer work in prescribed time, he should be penalized and the delay to treated as corruption. CLAUSE 4 (iii) Selection committee should be independent of Govt. influence. There should be provision of Lokayuktas in all the states in Lokpal Bill. PROTECTION TO WHISTLEBLOWERS (iv) There should be provisions in Lokpal Bill to ensure protection of whistleblowers, witnesses & victims Also there should be only fines for false corruption. complaints. 466 . (v) The punishment will be awarded as per The Bill proposes to amend prevailing law. Act, 1988 to Section 13 and 14 of the PC provide for maximum imprisonment of 10 years instead of 7 years. (vi) The procedure in respect of inquiry and investigation as provided Clause 23-29 is adequate. (vii) Clause 8 of the Bill provides for removal and suspension of Chairperson Members of the Lokpal. (viii) The procedure in respect of inquiry and investigation as provided Clause 23-29 is adequate. (ix) On completion of inquiry by the Lokpal, the competent authority has to take action as per the relevant disciplinary rules. (x) The expenses of the Lokpal shall be charged on the Consolidated Fund of India [Clause 16] -II T AR (v) Maximum punishment for corruption should be 10 years, higher punishment for accused official and higher punishment for accused business entity and such entities to be black listed for future contracts after conviction. CLAUSE 23-29 (vi) Lokpal members will only hear cases against senior official and politicians or cases of huge amount. Officers working under Lokpal will do rest of the work. CLAUSE 8 citizen should have power to seek removal of A (vii) Lokpal from Supreme court. Complaint against should be heard by an independent authority. staff SECOND SCHEDULE, P CLAUSE 23-29 After (viii) Method of enquiry should be as per CrPC. an FIR to be lodged and case preliminary inquiry, registered and presented before the court after due investigation. High courts will set up special branches to hear corruption cases. (ix) In addition to filling a case in court after investigation, Lokpal will hold open hearing to decide the removal of Govt. servant. It will also be the duty of Lokpal to if brought to prevent corruption in an ongoing activity, notice. CLAUSE 16 (x) Lokpal should financially independent and to decided its budget. 12 3 4 467 and , merger of , merger [Clause 12] [Clause 15] CBI and CVC with Lokpal is not required. have served these two organisations Further, the purpose and have expertise, they should be strengthened. (iii) The Lokpal would be a quasi judicial The punishment has to be awarded authority. by the appropriate courts as per prevailing laws. Any Law can be introduced from the (iv) prospective date and not from the retrospective date. Clause 33 and 34 of the Bill provides for attachment of property the accused public servant. (i) The Bill envisages for setting up of the institution of Lokpal at Centre level. In the proposed Bill, the Prime Minister will come within the purview of Lokpal once he/ she demits the office [Clause 17]. Central Ministers and MPs are within the ambit of if the As regards lower bureaucracy, Lokpal. same is also included within the purview of Lokpal, it will overburden the system. Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (ii) Since the Lokpal will have its own Investigation Wing Prosecution Wing AL AL O LOKP WITH LOKP T
AND CVC CBI PUNISHMENT O BE EFFECTIVE FROM 1950 T
AL (ii) CBI & CVC to be merged with Lokpal and Lokayukta should be independent with a unit at District level. (iii) Lokpal & Lokayukta should have powers to prosecute and to punish. Guilty corrupt person be punished with minimum 5 years imprisonment, and in serious bribery cases to be punished with death sentence or life imprisonment along with the recovery of embezzled money from assets/property. (iv) Lokpal Bill to be made effective since 1950 and the illegal property/assets gained by the Govt officials to be seized and taken over by the State/Center as case may be. CLAUSE 17 (i) From a Group ‘D’ servant to all those who come in the definition Public servant should be investigated and punished severely for corruption by Lokpal at center and by Lokayukta at state level. Lokpal to investigate and dispose off the complaints against PM, Ministers, MPs, defence/Central Govt. officials. The Central official working with State Govt. to be heard & punished by Lokayukta of that State. MERGER OF POWERS OF LOKP President, Jan Chetna & Bharastachar Unmoolan Manch, Rajasthan Jodhpur, 118. 468 (v) The time limits for completion of inquiry as given in Clause 23(2) and 23(8) The preliminary inquiry is required to be completed within 30 days which may be extended for a further period of 3 months. The inquiry is to be completed within a period of six months which may be extended for a further period of six months. Action will have to be taken by the (vi) As competent authority as per relevant rules. far as awarding the compensation to victim is concerned, it for the concerned Court to decide as per law. (vii) For matters relating public grievances, a separate mechanism is required to be set up for which the Department of Administrative Reforms and Pensions is working on the same. (viii) Clause 47 and 48 of the Bill provides for declaration of assets by the public servants. (ix) This has to be tackled through the the appropriate relevant rules. However, allegations of corruptions against the public servants would be investigated by the Lokpal. CLAUSE 23 to be disposed All the complaints against Govt. officials (v) off within 1 year and not more than 2 years in any case. CLAUSE 28 (vi) Convicted Govt. servant should be removed from Also service immediately and no appeal against the order. the victim to be compensated by convict. CITIZENS’ CHARTER (vii) There should be fixed time to do the work of any citizen. If the Govt. offical fails to do work even after prescribed time limit without any proper reason, fine of Rs. 500 per day to be imposed. CLAUSE 47 & 48 (viii) The assets/property of Govt. servants to be verified time to time. In case of disproportion, property/asset should be confiscated. SUPERVISION OF CIVIL WORKS ETC. (ix) The Roads, Buildings and Dams are built on Govt. expenses and gets deteriorated or damaged with 10 years, concerned contractor or Govt. Observer should be held responsible and the reconstruction of repairing work should be done by recovery money from them or heavy fine and punishment be imposed. 12 3 4 469 (x) This relates to the day administration and is outside the purview of the Lokpal. (xi) This is beyond the scope of Lokpal as the subject matter is of administrative nature. (i) Clause 17(3) of the Bill provides that Lokpal may inquire into any act or conduct of any person other than those referred to in sub-section (1) of Clause 17, if such person is associated with the allegation of corruption under the Prevention of Corruption Act, 1988. (ii) Public consultations are done as per the standard procedure. (iii) Clause 49 and 50 of the bill provide for prosecution and penalties for false complaints. But, DOPT is open to suggestion in this regard and can be modified suitably. (iv) The composition of the Lokpal and selection procedure as prescribed in Clause 3 and 4 of the Bill is sufficient. THE BILL . EMPLOYEES TION ON A ACANCIES T V
GOVT OF UP (xi) There should be adequate staff in all the offices, courts of the Central and State Governments on vacation of any post, the same should be filled up immediately. (x) No transfers of State Govt. servants before 3 years excluding exception. If it happens, concerned HOD or State Govt. to be held responsible for doing so by taking bribe. (ii) Final draft prepared by Parliamentary Standing Committee to be placed before the general public for its final observation, before placing the Parliament for approval. TRANSFER OF FILLING CLAUSE 17 Amassing unlawful wealth, misuse of power and (i) authority to directly or indirectly benefit the favoured individuals/groups should be included in the jurisdiction of Lokpal. PUBLIC CONSUL CLAUSE 49 & 50 (iii) Provision of jail and punishment to the complainants to be removed from the Bill as it deterrent those who want to bring out the truth of corruption. Composition of Lokpal CLAUSE 3 (iv) Out of 8 members, 4 should be from judicial/legal 2 from NGOs, Public non-political organizations category, and 2 representatives form Govt. If any seat falls vacant, it should be filled from the respective category. Council Trust, A 205/206, Tirupati Plaza, Nanpura, Surat - 01 119. Surat Citizens’ 470 and , merger of , merger [Clause 12] [Clause 15] CBI and CVC with Lokpa1 is not required. have served these two organisations Further, the purpose and have expertise, they should be strengthened. (vi) The Bill envisages for setting up of the institution of Lokpal at Centre level. In the proposed Bill, the Prime Minister will come within the purview of Lokpal once he/ she demits the office [Clause 17]. Central Ministers and MPs are within the ambit of if the As regards lower bureaucracy, Lokpal. same is also included within the purview of Lokpal, it will overburden the system. On completion of investigation, if commission of offences has been established the Lokpal shall file a report in the Special Court. (vii) Clause 30 of the Bill provides powers to search and seizure Clause 33 34 provides powers to confiscate the assets of corrupt public servants. Disqualification of guilty persons to hold any office, contest The elections etc. has to be as per the Law. (v) Since the Lokpa1 will have its own Investigation Wing Prosecution Wing For this purpose, Lokpal Bill should have provision for wait list of eligible persons for filling a vacant seat. Investigation & Prosecution Wing (v) CBI & CVC should be free from Govt. Control. There should be specific time frame for disposing off corruption complaints. Officers & staff for investigation must be other than the Govt. employees. Lokpal provisions should prevail over/ supersede existing laws wherever applicable. CLAUSE 17 (vi) MPs, PM with entire Executive, Judiciary and other must be accountable to Lokapl investigation and All prosecution and that is to without any exemption. proceeding of Lokpal should be made available on its website for public. Powers to Search & Seizure CLAUSE 30. 33, 34 (vii) There should not any limitation on Search, Seizure and confiscation powers of Lokpal. The Lokpal Bill should also include confiscation of properties culprits including overseas assets and their permanent disqualification to hold any office, contest elections and Govt. service. Present cases handled by CVC & CBI should be 12 3 4 471 [Clause and Prosecution Wing Wing and Prosecution , merger of CBI and CVC with Lokpal is not required. Further, these two organisations not required. Further, have served the purpose and expertise, they should be strengthened. (viii) Clause 47 and 48 of the Bill provides for declaration of assets by the public servants. Non-declaration of assets by public servants in certain cases will be presumed as to acquisition of assets by corrupt means. (ix) The issue of Black Money has to be tackled effectively through separate As regards the monitoring appropriate Laws. large orders, contracts in all Government dealings etc., this would amount to enlarging the scope of Lokpal whereby it may become unwieldy and may ultimately be counterproductive thereby defeating the very purpose of having the institution Lokpal. 15] Lokpal will have its own Investigation Wing Lokpal will have its own Investigation [Clause 12] automatically accessible to Lokpal Office for their monitoring. Declaration of Property CLAUSE 47 & 48 (viii) The mandatory provision of declaring the property of Ministers, MPs & civil servants should also include strict provision of dismissal form their posts, positions and permanent disqualification to hold such posts or positions in future, deprivation of service benefits etc., if they fail to declare true facts in the time limit of one month. Such persons shall not option to appeal in any court. Limitation RECOVERY OF BLACK MONEY (ix) The Lokpal should also include recovery of Black Money in India and from foreign deposits by the corrupts. As the corruption is not limited to categories, areas of Govt. operations, Lokpal should also take preventive steps to supervise/monitor large orders, All political parties shall contracts in all Govt. dealings. have to restrain from infusing vast amount of money in elections. 472 Comments of DoPT (i) In the context of the Indian polity, the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that the To set-up. the Government’s Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. MPs are included their within purview of Lokpal; however, actions on the floor of House are outside the purview of Lokpal since they are subject to disciplinary mechanism of the and above officers A’ ‘Group House. Further, including employees of PSUs, NGOs funded by the Government are covered under The lower bureaucracy Lokpal Bill 2011. has not been included as the inclusion of same will over burden the system. The judiciary is also kept outside the purview of the Lokpal as a separate Bill, Judicial Accountability Bill, is already under Standards consideration of the Parliament. (ii) For matters relating to public grievances, a separate mechanism is required to be set- ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL Suggestions/Comments Jurisdiction CLAUSE 17 (i) PM (except some strategic decisions), all Ministers, MPs (including their conduct in the parliament or outside), all bureaucrats from top to bottom, Judiciary at levels, PSUs and Govt. funded NGOs including Investigating agencies must come under the Lokpal Bill. CITIZENS’ CHARTER (ii) There should be a fixed time frame for every public dealing of the Govt. servants as well time frame for of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, Individual Wg Cdr (Retd.) UK Munshi 12 3 4 No. Organisation/ 119(I) COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda Name 473 . [Clause 6] of the bill are adequate. Clause 3 Clause 49 and 50 of the Bill provides for The eligibility conditions for appointment up for which the Department of Administrative Reforms and Pensions is working on the same. (iii) Setting up of the institution Lokayukta falls within the domain of States. Keeping in view federal structure of our constitution, it may be left for States to decide. (iv) The Bill envisages that on completion of investigation, if commission of offences has been established the Lokpal shall file a report the Special Thereafter, in the Special Court. Court will decide the quantum of sentences etc. as per established procedure. (v) as Chairperson and Member of Lokpal given in The tenure of 5 years the Chairperson and Member of Lokpal is adequate (vi) Clause 8 of the bill provides for removal and suspension of Chairperson Member of Lokpal. The provision provided in the Bill seems to be adequate. (vii) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (viii) prosecution and penalties for false complaints. setting the cases by judiciary. Any delay should be treated setting the cases by judiciary. as culpable corrupt action. Regular performance audit to outfit. be carried out by the Lokpal’s LOKAYUKTAS All Lokayuktas must become a part of the Lokpal. (iii) Powers CLAUSE 23-29 (iv) Lokpal must not have only recommending powers but also the prosecution powers whereas case to be The investigation and the processed in the courts only. court cases should be finalized within a pre-decided time frame. CLAUSE 3, 6 Lokpal may have 7 to 9 members of non- (v) Ideally, political background for 6 years term while 1/3rd members retiring every two years. The members can be eminent persons like writers/retired SC Judges/social activists. CLAUSE 8 system to impeach corrupt members must be in A (vi) place. Whistleblowers (vii) Lokpal shall be responsible for the protection of Whistleblowers. If the complainant is not able to present convincing evidence, Lokpal shall have to make honest effort to collect evidence. CLAUSE 49 & 50 (viii) The punishment, in case of a frivolous complaint, should not be deterrent to the future complainants. 474 the Centre. Setting-up of the institution Lokayukta falls within the domain of States. Keeping in view the federal structure of our constitution, it may be left for the States to decide. (ii) For matters relating to public grievances Charter etc., a separate including Citizen’s mechanism is required to be set-up for which DOPT is open to suggestions in this regard and the provisions can be modified suitably. (ix) The time line for completion of inquiry and completion of trial has given in Clause 23 and 38. The preliminary inquiry is required to be completed within 30 days which may be extended for a further period of 3 months. The inquiry is to be completed within a period of 6 months which may be extended for a further period of 6 months. The Bill provides that the Special Court shall ensure the completion of each trial within a period of one year from the date filing in case the the case in Court. However, trial cannot be completed within a period of the Special Court shall record one year, reasons thereon and complete the trial within a further period of not more than 3 months or such further period not exceeding 3months each, but not exceeding a total period of 2 years. (i) The present Bill envisage the setting-up of the institution Lokpal at SYSTEM ANCE REDRESSAL (ii) Preparation and Display of Citizen’s Charter by Public (ii) Preparation and Display of Citizen’s Authority and complaints related thereto. General Point CLAUSE 23 & 38 (ix) The investigation and prosecution process must be time bound & quick and the punishment should be exemplary to serve as a deterrent. (i) The suggestion is for brining a composite Bill setting up the institution of Lokpal at Centre level and the Lokayuktas at State level. GRIEV Luxmi Kant Shukla 12 3 4 120. 475 Department of Administrative Reforms and Department of Pensions is working on the same. Whistleblowers As far as protection to (iii) Bill is concerned, it covered under the protection of Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the bill are under does not The Lokpal Bill 2011 consideration. contain any provisions for rewards to the complainants. The system of rewards may lead to a flurry of false/incomplete complaints. Exposing corruption should be adequate reward in itself. (iv) Since, rules and regulations for handling the complaints are to be confirmed under Clause 60 & 61 of the Bill, there appears to be no need to define the term 'Lok Complaints Officer'. (v) The Bill envisages that the Lokpal shall enquire into the allegations of corruption against certain public functionaries. There is no need to define the term of ‘public authority’ in the Bill. WHISTLE O T ARD – means an independent means any authority of body or AND REW AND COMPLAINANTS State legislature Govt. or the State Association, Trust, Contactor, Society, Educational Institution, Hospitals, Business House, Firm/Shop/ Press Media (Print or Electronic) rendering any type of service to the people Union India or the State therein. “Lok Complaints Officer” (a) by or under the Constitution (b) by any other law made Parliament or the (c) by notification issued or order made the Central (d) Corporation, Company, by any NGOs, Industry, “Public Authority” (iii) Protection and Reward to whistleblowers complainants by Lokpal & Lokayukta PROTECTION BLOWERS DEFINITIONS (iv) officer appointed by Lokpal or the Lokayukta for registration of complaints in the manner prescribed by Lokpal or Lokayukta. (v) institution of self Government established or constituted. 476 The Lokpal Bill 2011 is to provide The Lokpal Bill 2011 establishment of the institution Lokpal to enquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. The issues relating to voluntary disclosure of ill-gotten money and grant amnesty to such persons are beyond the scope of Lokpal. (vi) The suggestions would imply that all sorts of workforce would be included in the term public servant. It would make the The term public public servant unwisely. servant as define in [Clause 2(1) (I)] of the Bill is adequate. (i) to (vii) (vi) ‘Public servant’ – means a person engaged in any type of service rendered to the people Union India or States therein, whether in Public Sector Private Corporation, Society, Company, Sector including Industry, Educational Institution, Contactor, Trust, Association, Hospitals, Business House, Firm /Shop, resource managers, supervisors, representatives, sales agents, representatives, service providers, paid volunteers, commission agents, employees, correspondents etc., NGOs, Press media - Print or Electronic including in clauses (a) to (g) of sub-section (l) section 17. (i) For redemption of Corrupt, the Lokpal should be armed with two hands (Carrot and Stick theory) – one that distributes prosecution and deterrence the other should be a hand that coerces persuades the public servants and all those who come under the ambit of Lokpal to submit their ill-gotten wealth to the Govt. agencies who can easily display the amount collected on a website with all its transparency and accountability intact. (ii) These corrupt individuals should voluntarily or if the need be, by the Govt. intervention should be forced to submit their ill-gotten wealth to a treasury chest under the proper official supervision with in a stipulated time frame decide by the Central or State machinery for redemption particular time frame should be specifically A procedures. declared to the entire nation through mass media, after which no redemption procedure to be allowed. Such collected money to be used for national welfare. (iii) The decision of publicizing the names persons adopted this redemption procedures should be vested with Rakesh, Assistant Professor 12 3 4 121. 477 Clause are sufficient. Clause 3 to deal with false complaints are adequate. (ii) to (iv) The provisions made in 49 (i) The eligibility conditions for appointment as Chairperson and Member of the Lokpal as given in Government Such wealth to be collected from such persons. These individuals will have to sign a Promissory note or any such declaration prepared by the Government that they will not do any thing amounting to corruption. (iv) Such individuals to be given barcode numbers and a receipt, after redemption procedure, for future identification/ tracing by Lokpal or Lokayukta officials regarding their conduct. (v) Such persons not to be called corrupt thereafter while keeping intact their dignity and respect. (vi) This clause should not be applicable to those against whom any investigations are carried out or petitions filed thereof, related to their corrupt practices in any court of law or any competent authority vested with investigation, prosecution and conviction powers. (vii) Lokpal or Lokayukta shall have the powers for future investigation and prosecution of such persons after redemption procedure, taking into consideration the heinous nature of crime. Lokpal or Lokayukta officials shall take the decision that who should come under redemption procedure clause. Clause 3(3) (b) (i) The words “twenty five years” may be replaced with “fifteen years” as it is very difficult to find such experienced persons and also the Constitution prescribes Advocate to become the only ten years qualification as Judge of Supreme Court. Clause 49 (1) (ii) The words ‘five years’ may be replaced with “three years” as the five-year punishment appears very high for Amman Karthikeyen 52, Gangai Koil Street, Vadapalani, Chennai - 26 122. R 478 body. does not include quasi judicial Clause 2(1)(i) But, DOPT is open for suggestions in this regard. (v) This is covered under the protection to Whistleblowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (i) Since the Prime Minister while holding of office of Prime Minister is outside the purview of Lokpal, definition 'Minister' as given in the Prime Minister. The Lokpal will be a (ii) Special Courts are to be setting up under Sub-Section (1) of Section 3 Prevention Act. 1988. of Corruption (iii) The suggestion is of drafting nature. false or frivolous complainants. Also the words “two false or frivolous complainants. lakh” may be replaced with “one lakh”. Clause 49(3) After the words “was made”, “with (iii) to be included. express consent of the LOKPAL” Clause 49(5) (iv) This clause may be deleted completely since prima facie it appears to attract the Doctrine of Double Jeopardy. PROTECTION TO WHISTLEBLOWERS (v) There should be a provision in the Bill for protection of the Complainants and his family members. Clause 2(i) The term ‘minister' should include ‘Prime Minister’.(i) Clause 2(p) (ii) The special court to be designated as ‘Lokpal Court’. Clause 3(4) (iii) The words “shall not be” should be replaced with the words “shall not be and shall have been”. The institution of Lokpal be kept non political. Adv. Sudhir Adv. Deshpande, FJ-38, Thakkar Near New Bazar, CBS, Nasik – 02 12 3 4 123. 479 The provisions made in the for removal and suspension of the (iv) to (v) Clause 8 Chairperson and Members of Lokpal are sufficient. the (vi) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that the To the Government's set-up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of Lok after the Prime Minister has Pal. However, demitted the office, he will come within purview of the Lok Pal. (vii) Clause 17(2) of the Bill provides that Lokpal shall not enquire into the conduct of Members of Parliament on the floor Article 105 This is inconformity of house. of the Constitution. (viii) Clause 61 of the Bill provides that Lokpal may make regulation regarding the manner and procedure of conducting an inquiry or investigation. There is no need to make such provisions in Clause 24. (ix) The provisions made in Clause 42 of the Bill for recovery of loss from convicted public servant are adequate. Clause 8 (iv) The removal of Chairperson or any Member Lokpal be by the process of impeachment only. Clause 8(3) (v) The chairperson or any member of Lokpal be given opportunity of being heard before his removal. Clause 17 (vi) The incumbent PM should also be covered under the Lokpal Bill. Whereas some conditions like clearance from Supreme Court may be introduced in the Lokpal Bill to Also all the public prevent black mailing of the PM. servants to be covered and the term "Public Servant" should expressly include 'retired public servants' as well. Clause 17(2) be deleted completely. To (vii) Clause 24 (viii) The person against whom investigation or inquiry is proposed should be given express right to defend his case by engaging any Lawyer of his choice. Clause 42 (ix) The estimated loss should be recovered as an arrear of Land Revenue. 480 (x) The Bill provides for declaration of assets by public servants including that of spouse and dependent children publication of the same on website of department. (xi) The Bill does not provide any exception Act. to Lokpal under RTI (xii) The punishment as proposed in the Bill seems to be adequate. (xiii) This issues relates to electoral reforms which is being examined separately by the concern ministry. (xiv) Clause 38 of the Bill provides that Central Government shall constitute such number of Special Courts as recommended by the Lokpal. (xv) to (xvi) This has be decided by the Courts on merit in each case. II T AR (xii) The punishment for proved corruption acts must be minimum 7 years imprisonment (simple or rigorous) extendable up to life imprisonment. (xiii) If any case is pending against political person, he may be allowed to contest election, but if is found guilty afterwards, he should be deemed to have resigned Also if occasion of bye-election from his elected post. arises, whole expenditure should be recovered from him. Clause 47 (x) The assets of the Public Servant along that spouse and children should be declared on the website of concerned Department. Other Suggestions (xi) The whole institution of Lokpal be brought under the Act. purview of RTI SECOND SCHEDULE P CLAUSE 38 (xiv) The sufficient number of Special Courts to be designated for timely trial of cases. The full part expenditure of setting up more Courts may be met from the fines recovered from convicted public servants. (xv) The accused should not be acquitted due to very tiny loopholes in the investigation, and if cash is recovered from the accused during raids, then it should be presumed if the traces of chemical powder that it was bribe money, are seen in ultra violet light on the notes as well the fingers of acceptor. 12 3 4 481 (xvii) The Lokpal Bill 2011 does not contain The Lokpal Bill 2011 (xvii) any provisions for rewards to the complainants. The system of rewards may lead to a flurry of false/incomplete complaints. Exposing corruption should be adequate reward in itself. (i) The date from which as such come into force shall be decided and notified by the Central Government. (ii) The Bill proposes to exclude the Prime Minister so long as he/she holds the office No exception has been of Prime Minister. provided for personnel or other Minister In- charge of the Prime Minister office. (iii) This may not be inconformity with This may also federal polity of the country. lead to confrontation between Central Government and the State Government. A' officers The expression 'Group (iv) incorporate all the ranks falling in or above regard to With the specified pay scales. certain organizations which are only or partly financed or aided by the Government Clause 17(3) should be deleted. (xvi) The defense of money landing should not allowed in trials before the Special Courts merely by saying that complainant had been lent the money by accused in the past. (xvii) 10% money should be rewarded to the complainant out of the total recovered assets/money. Clause 1(3) (i) The entire act should enforced from one dated instead of partial implementation provisions. Clause 2(i) proviso need to be added in the definition of A (ii) minister which reads: ‘Personnel of Prime Minister’s Office, including: Minister in-charge shall be included within this clause.” Clause 12 (iii) In sub clause (2) substitute words “giving notice to” of words ‘obtaining consent of’ as it should not be necessary for Central Government to obtain the consent of the State Government for investigation Central Government. Servants working under the State Government As a corollary to this modification, the proviso Clause 17(1) should be A’ (iv) In sub clause (d), the expression ‘Group replaced by expression of specific rank Public Servants. In clause (f) & (g), the expression ‘or aided by Central Government may by notification specify’ should be deleted along with second Proviso of sub clause (g). Justice (Retd.) Kamleshwar Nath Gandhian Seva & Satyagraha Brigade 124. 482 Government has to notify the annual income of such organization or the donation received by them which are to be covered under Lokpal so that only such organizations are brought within the ambit of Lokpal which utilizes substantial amount of such funds/ donations and the petty organizations are kept outside the purview of Lokpal. (v) Clause 17(2) of the Bill provides that Lokpal shall not enquire into the conduct of Members of Parliament on the Floor Article 105 This is inconformity of House. of the Constitution. Clause 61 Bill provides that the Lokpal may make regulation regarding the manner and procedure of conducting an inquiry or investigation. (vi) In the interest of natural justice it is necessary to provide opportunity the public servant of being heard, this has also to be seen in the light of fact that prior Act 1988 sanction for prosecution under PC Act is and permission U/s 6(A) of DSPE proposed to be dispensed with. (vii) Clause 27 provides that previous sanction is not necessary for investigation and initiating prosecution for Lokpal in certain cases. Sub-clause (3) provides exemption from Clause 27 for the persons holding office in pursuance of the provisions constitution and in respect of which a procedure for the removing of such persons should be deleted. (v) Clause 17(2) Clause 23 (vi) Sub clauses (4) & (6) should be deleted as it suffers from impropriety of unjust multiple opportunities to delinquent Public Servant in contrast to practically no opportunity to Complainant. Clause 27(3) (vii) Sub clause (3), which destroys the effect of sub clause (1) of 27, should be deleted, consequently reference to sub clause (3) in (4) should also be done away with. 12 3 4 483 has been specified therein. (viii) The Bill provides for laying of the report of Lokpal on the table House. It is for the respective House to decide further course of action on such reports. Clause 29(3) of the Bill provides However, Authority shall examine that the Competent the report and communicate to Lokpal within a period of 90 days the action taken or proposed to be taken on the basis of report. As the false and frivolous complaints (six) may cause irreparable loss to the innocent public servants, it is necessary that some deterrent is there to discourage motivated complaints. Therefore, the provisions made in Clause 49 to deal with false complaints is open to DOPT However, are necessary. suggestions in this regard. (x) During the course of discharge duty the public servants has to take certain actions in good faith. Therefore, it is necessary that no suit, prosecution or other legal proceedings are initiated in respect of anything which is done in good faith or intended to be done in the discharge of official functions or exercise of his duties. (xi) It is felt that legal assistance needs to be provided to defend the case such persons who makes request for the same. DOPT is open for suggestions in this regard. – The Lok Pal’s report should not The Lok Pal’s – Clause 29(3) (viii) only be laid before the Parliament but also should have some provisions for discussion/debate on the report to make the citizens aware how corruption issues are taken by their elected representatives and also the outcome of this debate should be reflected in the final orders the competent authority. (ix) Clause 49 should be deleted as it is unjust, excessively oppressive, uncivilized and denies opportunity of being heard to the complainant. Even, complainant has bear all the expenses of court proceedings on his part. (x) Clause 51 should be deleted as it destroys the entire fabric of Lok Pal Bill by providing immunity to accused Public Servant from any inquiry or investigation by Lok Pal and it should not be misunderstood with clause 52. (xi) Clause 56 should be deleted, as the officers of JS & above are capable to afford the legal assistance, why Lokpal should be obliged to afford them requisite of the Constitution or section Article 39A assistance. Even 484 . The Lokpal is [Clause 32] meant to enquire into allegations of corruption against certain public functionaries. Agencies are Therefore, other Investigating also required to investigate the matters which (xii) The judiciary is not within the purview of Lokpal (xiii) It is not correct to say that the Bill more inclined towards accused public servant rather than complainant citizen. The Bill has tried to strike a balance for administration efficiency as well to curb the tendency of corruption within the system. (xiv) The Lokpal will be having its own It may also utilize Wing. Investigation services of officers Central or State Government 304 of Code Criminal Procedure, 1973 says legal aid to indigent persons. Other Suggestions JUDICIARY (xii) Higher Judiciary should be left out of Lokpal as independent Judiciary is a basic feature of the Constitution. CLAUSE 49 & 50 (xiii) Lokpal Bill is more inclined towards accused public servant rather than complainant citizen. Provisions of clauses 17(1) (f) & (g), 49, 50, 51 by creating terror atmosphere for the complainant and imposes artificial This needs to be addressed with fairness and criminality. justice. CLAUSE 12 (xiv) Lokpal shall be competent to supervise and give directions regarding investigation by any agency of Central Government or the utilized by it for corruption cases. 12 3 4 485 The Bill seeks to establish the institution of Lokpal to enquire into allegations of corruption against certain public functionaries. It will be a Statutory body The Wing. having its own Investigation expenses of Lokpal are to be charged on the Consolidated Fund of India. Therefore, the proposed Lokpal is an independent body to enquire into the charges of corruption against public servants. (i) The Bill to seek establish the institution of Lokpal to enquire into allegations corruption against certain public functionaries. It will be statutory body having its own investigation wing. The expenses of Lokpal are to be charged on the Consolidated Fund do not fall in the category of cases investigated by the Lokpal and there independence is also required to be maintained. (xv) The institution of Lokpal is meant to enquire into the allegations of corruption against certain public functionaries. Therefore, it may not be feasible to extend the jurisdiction of Lokpal to other offences. (xvi) Clause 19 of the Bill provides for setting up of benches Lokpal and the Lokpal may notify the area in relation to which each Bench of Lokpal may exercise jurisdiction. (i) & (ii) AL LOKP All the agencies dealing with corruption or economic OFFENCES UNDER IPC (xv) Jurisdiction of Lok Pal shall extend to offences Act, also to those under Sections besides those under PC 166 to 171 of IPC 1860. REGIONAL (xvi) There should be Regional Lokpals to cover the remaining personnel of Government India (Below DS level). One Regional Lok Pal may consist of a group some States with, Head Quarters in an accessible city with the same set up of Central Lok Pal. It The nature of the Lokpal to be defined clearly. (i) should be guided by the principle of separation powers as globally it has been seen that will lead to creation of an institution to check corruption. Thus, such to be created either as an independent ombudsman or an independent anti-corruption agency (ACA) with investigating and prosecutorial powers. (ii) The model of an independent anti-corruption agency vested with powers of investigation, prevention and education is the ideal institutional structure for Lokpal. Under this model, Lokpal will be functionary within executive branch that exercises limited judicial powers. (i) offence should be free from the control of executive/ Government but not to be put in the hands of any single members The each agency should have 7-11 person of group. who should be selected on the by way of referendum/vote public putting their particulars on print or electronic media. Prashant Reddy T. B.R. Lal, IPS (Retd.) H.No. 150, Sector 31, Gurgaon – 01 125. 126. 486 of India. Therefore, the proposed Lokpal is a independent body to enquire into the charges of corruption against public servants. the (ii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that the To the Government's set-up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of Lok after the Prime Minister has Pal. However, demitted the office, he will come within purview of the Lok Pal. In so far as lower bureaucracy is concerned, if the same is also included within the purview of Lokpal, it will over burden system. Further Clause 27 of the Bill provides that previous sanction is not necessary for investigation and initiating prosecution by Lokpal in certain cases. (iii) The Bill do not propose to invest all the powers of investigation, prosecution, vigilance, administrative punishment in one institution. (iv) The CBI and Enforcement Directorate are two different entities. The anti corruption work of CBI is supervised by CVC which The independent body. another Statutory CVOs are reporting to CVC. The existing system is adequate. CLAUSE 17 All the public servants from peon to PM be treated (ii) PM must come under Lokpal. No permission equally. under Section 26 of CVC to investigate or prosecution sanction under Section 19 is required and both the provisions need to be repealed. Judiciary not brought under Lokpal. (iii) The principle of separation powers to be followed instead of vesting the powers investigation, prosecution, vigilance, administration including the powers of punishment only in Lokpal. of Wing and Economic Offence Anti Corruption Wing (iv) CBI not to be separated and brought under different agencies as proposed in Jan Lokpal Bill but should be under a and made accountable to an independent body that statue will be free from the Government functionally as well The CBI along with ED should look after all financially. and Lokpal to administrative vigilance. the investigations The CVOs of PSUsto be put directly under Lokpal. 12 3 4 487 (v) The Bill also seeks to amend PC Act The Bill also seeks to amend PC (v) 1988 and to enhance the punishment from 7 years to 10 years. The laws relating black money are to be examined separately by the concerned department. (vi) Clause 42 of the Bill provides for recovery of the loss from convicted public servant. the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that the To the Government's set-up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of Lok after the Prime Minister has Pal. However, demitted the office, he will come within purview of the Lok Pal. Ministers, State As regards Chief Minister, (ii) MLAs and MLCs it is stated that they are to be covered under the Lokayukta of respective state. Setting up of Lokayukta falls in the domain of States and the respective have to take decision in this regard. Regarding conduct of MPs on the floor the house, it is stated that same has to be kept outside the purview of Lokpal in light of the Constitutional provision as Lokpal shall create a mechanism for grievances redressal for PSUs and the cases in this regard referred by Lokpal shall be registered and investigated by investigation agencies. (v) The corruption and black money related laws need to Act should be stricter and the punishment under PC increase with the quantum of corruption extending up to life imprisonment. The law need not be inclined towards accused person rather should protect the whistle blower. (vi) The whole money involved in corruption or economic offence should be recovered from the accused or his family members. CLAUSE 17 (i) PM should be covered in the jurisdiction of Lokpal but Any complaint there should be checks and balances. against PM to verified by the full Lokpal Bench for prima facie vidence and then be referred to the full bench of After position opinion from SC, Lokpal Supreme Court. will notify the ruling dispensation of imminent inquiry proceedings with a few days notice giving the time to re- elect a new PM. (ii) Ministers, MPs, CMs, State MLAs & MLCs including their conduct inside the respective houses should come under the jurisdiction of Lokpal but sufficient protection needs to be given members for their behavior Any complaint against a member of any in the house. house to be sent the Presiding Officer of by Lokpal, who, within a well defined time, either approve the conduct of inquiry or if wants to reject, he will refer it to the bench of Supreme Court/High Court for validation of the rejection. inay Avasthi 127. V 488 contained in Article 105. contained in are A' and above officers All the 'Group (iii) within the purview of Lokpal. (iv) The judiciary is not within the purview of Lokpal. (v) The bill provides that the words and Act expressions used but not define in this Act 1988 shall have the but defined in PC same meaning as assigned to them in that Act. (i) Setting up of the institution Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution it may be left for the State to decide. (ii) The provisions for appointment and TES A AS IN ST YUKT (iii) All the officers of supervisory positions need to be All the officers (iii) brought under Lokpal. For this, CVC & other equivalent agencies in states need to be merged into Lokpal. For the non-supervisory officials (like clerks, peon etc.) should All be handled with departmental disciplinary mechanism. the supervisors should be held responsible for corruption within a department and if there more than certain number of complaints against the non-supervisory employees, automatically it should trigger an inquiry against the Supervisor by Lokpal. JUDICIARY (iv) Judiciary should not come under Lokpal, else it Accountability Judicial should be covered under an effective Bill. DEFINITION OF CORRUPTION (v) Corruption to be defined in terms of money or favour demanded to get something done. Incompetence or decision gone wrong with best intentions should not be the issue of Lokpal. LOKA (i) There is no provision in the Bill for appointment of Lokpal or Lokayukt at the State level. Even Selection committee is Government dominated with 5 members directly from Government CLAUSE 4 & 8 (ii) The appointment as well removal of Lokpal in Sushil Kumar Mishra, Chairman, Indian Civil Adv. Union & Allahabad High Court, Allahabad 12 3 4 128. 489 [Clause 8] (iii) Clause 12 of the Bill provides that Wing Lokpal shall constitute an Investigating for the purpose of conducting investigation. is to be Wing Since, the Investigation constituted by the Lokpal itself, it is quite natural that it will be answerable to Lokpal itself. (iv) It is not understood that how the preliminary inquiries will lead to wiping of offence by the accused. The time lines for completion of inquiry have been provided in Clause 23. (v) In the proposed Bill Prime Minister will come within the purview of Lokpal once he/she demits the office. the MPs are within purview However, of Lokpal. The conduct MPs on the floor of the house is not within purview Lokpal in view of the provisions contained Article 105 of the Constitution. in (vi) Clause 35 of the Bill empowers Lokpal to recommend transfer or suspension of the public servant. Sub-Section 2 Clause 35 provides that the Central Government shall ordinarily accept the recommendations of the Lokpal, except for the reasons to be recorded in writing case where it is not feasible for administrative removal of Lokpal and its Members as provided in the bill are adequate. Lokpal Bill is in the hands of executive which shall make the Lokpal a Dummy of Government CLAUSE 12 (iii) The Bill does not tell whether the investigation wing shall be answerable & accountable only to Lokpal or not. Act to the Even there is no provision for extension of this states unless the consent of State is taken. CLAUSE 23 (iv) The provision of preliminary inquiry before full fledge inquiry may lead to wiping out of evidence by the accused. Even there is no fixed time limit for completing the Investigation. CLAUSE 17 (v) PM to be kept out of the Lokpal and why has no authority to enquire into any matter in respect of MPs. CLAUSE 35 (vi) The power given to Central Government under clause 35(2) of accepting or rejecting the recommendation as no guidelines have been provided. Lokpal is arbitrary, 490 Clause 49 & 50 Lokayukta falls i.e. is reasonable. Clause 54 The proposed institution of Lokpal will reasons. Since, the Central Government has to record its reasons if a decision is taken contrary to the recommendations of Lokpal under Clause 35, there is no reason to say that the powers to the Government are arbitrary. (vii) The provisions made in to deal with false complaints are adequate but DOPT is open to suggestions in this regard. (viii) The limitation period of 7 years as provided in be a Central level Lokpal. The State and District level institutions in the domain of States. Keeping view the federal structure of Constitution, it may be left for the States to decide. (ix) It is felt that no such assistance required by the complainant. (x) The punishment has to be as per the prevailing laws. (xi) Since, the conditions of services Chairperson shall be the same as those of Chief Justice of India and that Members shall be the same those of Judges Supreme Court, the rules applicable in their case will also applicable in the case of Lokpal and its Members. (xii) at i.e. lause 49 C Clause 54 (viii) Fix period of 7 years, for reporting old corruption cases, is unreasonable. Clause 56 (ix) There is no provision for providing defense assistant to the complaint. (x) The punishment for a convicted officer should not be less than life imprisonment. (xi) Lokpal should be under constitutional obligation to declare the assets & property while entering into office as well as after end of tenure. (xii) There should a three tier Lokpal System, Central level, State level & District and the term of Lokpal should be fixed for 3 years extendable up to 2 years. (vii) Provision of 2 to 5 years punishment and fine for false complaints would discourage honest complaint. 12 3 4 491 12 & 13]
[Clause Comments of DoPT (i) Distribution of work between the Benches of the Lokpal and Members is a matter to be decided by the Lokpal itself. Further, the area of functioning in respect Lokpal is the Central Government whereas the Lokayuktas are meant for State level matters. (ii) In the proposed Bill, Prime Minister will come within the purview of Lokpal once he/she demits the office [Clause 17]. The judiciary is not within the ambit of as per proviso to Clause Lokpal. Further, 17(1), the trusts/societies created for religious purpose are outside the purview of Lokpal. (iii) The Bill envisages setting up of by Wing and Prosecution Wing Investigation the Lokpal and investigation officers of the Lokpal shall have powers of police officers in the matter of investigations offences under the Prevention of Corruption Act, 1988. (iv) The Bill provides that the Lokpal may ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL Suggestions/Comments CLAUSE 19 (i) The area of Investigation, Enquiry all the Members of Lokpal should be fixed according to the ranks officers against whom the enquiry is being conducted. Also there should not be any clash between the powers and functioning of the Lokpal at Centre Lokayukta State level. CLAUSE 17 (ii) PM, Judiciary and the Organizations created for religious purposes and receiving public donations should be outside the purview of Lokpal. CLAUSE 12 (iii) Lokpal should have its own agencies like Police or Para Military Forces. CLAUSE 35 (iv) The Lokpal should have the liberty of recommending of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, Individual Dr. (Maj) Balbir Dr. Singh Bhasin, Flat No. 212, Dhudial Appt. Madhuban Chowk, Pitrampur, Delhi-34 12 3 4 No. Organisation/ 129. COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda Name 492 The power to [Clause 38] [Clause 35] [Clause 47 & 48]. (vi) The Bill provides for declaration of assets by the Public Servants and action against the public servants for non-declaration of assets. recommend transfer or suspension of public servant connected with the allegation of corruption. The recommendations ordinarily shall be accepted by the Government, in case of it is not feasible for however, administrative reasons, and the Government will have to record the reasons for not agreeing to the recommendations of Lokpal. (v) The Bill provides that the Government shall constitute such number of Special Courts as recommended by the Lokpal to hear and decide the cases arising out of Act, 1988 or under Prevention of Corruption this Act. punish false and frivolous complainant lies with the Special Court. (i) Placing the public servants as mentioned in Clause 17 (d) & (e) under jurisdiction of the Lokpal may require amendment to CVC Act. 2003. This is under consideration of the Government. (ii) The limitation provided in Clause 54 of Bill appears to be adequate. This does not debar initiation of action as per the provisions – Group “A” public servants are Clause 17 (d) & (e) under the jurisdiction of Lokpal to inquire into offences Act, 1988 as the Jurisdiction of committed under PC All India Service, & CVC has also extended to Group ‘A’ Act, 2003 has not been amended to accordingly CVC remove Group “A” from the jurisdiction of CVC. CLAUSE 38 (v) The Lokpal should have right to set up Special Courts to decide corruption cases without any unnecessary delay under the proposed Lokpal Bill. CLAUSE 47 & 48 (vi) The Lokpal should have the full right to make public servants to declare their assets and liabilities Also Lokpal should have powers defaulters to be punished. for prosecution of false or frivolous complaints. (i) CLAUSE 54 Act, 1988 does not have any (ii) It may be noted that PC statute of limitation for any the offences. It means that the offences committed by public servants under transfer or suspension of public servants in corruption cases and an independent power to do so in case of urgency. 12 3 4 129. 493 The Bill provides that the words . Official Secrets Act, etc. would . Official Secrets automatically be applicable in this case as well. (iv) The provisions made in Clause 49 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. of other applicable Laws for the time being in force. (iii) The exemptions available in normal laws, viz (i) to (iv) and expressions used but not defined in this Act 1988 shall have Act but defined in PC the same meaning as assigned to them in As regards the extent of jurisdiction Act. that of the Lokpal, provisions made in Clause 17 of the Bill are adequate. 25,000 to ` – This Bill do not – The penalty amount of servant; Clause 49(1) (a) has indulged in misconduct, if he is a government (b) has indulged in corruption Clauses 17(1), 23(7), 24, 26 & 57 2 lakh for false complaints may act as a deterrent jurisdiction of Lokpal will not be investigated if the complaint is made 7 years after the alleged offence. This limit can be extended to 10 years as recommended in 1998 and 2001 Bills. (iii) include any provision to safeguard information related For example, the Lokpal national security and public safety. Act will override other existing laws such Official Secret Act, 1923, which penalizes any person for committing certain acts, deemed to be prejudicial the safety or interest of the state. Even Bill gives accused right to inspect any record in relation the case and exact information that is considered necessary to defend his case etc. (iv) ` people to complain against a public official. Definitions (i) “Actions” – Means any action taken by a public servant while discharging his functions and includes decision, recommendation or finding in any other manner and includes willful failure or omission to act all other expressions relating to such action shall be construed accordingly. (ii) “Allegation” – In relation to a public servant includes any affirmation that such public servant – Bharat Bharti Bhagyodaya Foundation, Bangalore 130. 494 the
Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for (v) to (viii) States to decide. The proposed Bill is for setting up of the institution Lokpal at Central level and its composition method of appointment etc. are given in Chapter II of the Bill. [Clause 3 to 11] 1 (v) The Institution of Lokpal shall consist a The Lokpal shall & UT. and Lokayuktas for each State consist of one individual office known as Lokpal (elected Adult by the citizens of India on basis Universal Franchise by Election Commission. The will not only be of Ayuktas Chairperson of Lokpal body but also Lok (elected by the citizens of State/UT & UTs all States treating it as one constituency) along with its officers and employees. (vi) The President shall appoint first Lokpal and Lokayuktas Act and within three months after the enactment of this Government of India would set up this institution with all its logistics and assets. Lokpal/Lokayukta shall hold the office for a non-renewable 5 years term or upto the age of 70 years. (iii) “Misconduct” – means misconduct as defined in relevant conduct rules, which has vigilance angle. (iv) “Public Servant” – Includes PM, Ministers, MPs, CM & Ministers, MLAs, Speakers/Chairman of the Houses Parliament & State Legislatures, Judges of SC HCs, Chairman or a member of local authority/ Chairman/Vice body/corporation established by a law or under the control of Government including co-operative society and company Act, 1956, and members of any under Companies Also the Committee/Board constituted by the Government. Media House, print/electronic, a member of governing body/Management Committee including Editors/Group Editors/Chief Editor/Managing Editor are included in the category of Public Servants. Institutions of Lokpal and Lokayukta CLAUSE 3-1 12 3 4 495 (ix) The procedure in respect of inquiry and investigations by the Lokpal has been prescribed in Chapter VII [Clauses 23 to 29] and the same appears to be adequate. (x) Complaints against the officials of Lokpal will have to be processed as per Clause 41 of the Bill. As far as the allegations of corruption (xi) against the public servants as given Clause 17 of the Bill are concerned, procedure as given in Clause 23-29 of the Bill will As far as public have to be followed. grievances are concerned, a separate mechanism is required to be set up for Administrative which the Department of prima facie evidence. Act, as those private entities included in the incumbent such vacancy arising. (b) Initiate prosecution against public servants as well (a) Retirement, 3 months before the retirement of (b) Any other unforeseen reason, within a month of (a) to close the case in absence of (vii) The President and Election Commission of India shall ensure the filling up a vacancy of Lokpal or Lokayukta caused due to – Functions and Powers of Lokpal Lokayukta CLAUSE 23-29 (ix) Lokpal/Lokayukta shall be responsible for receiving complaints where there are allegations of acts omission Act, financial or commission punishable under PC misconduct by a government servant, grievances and the complaints against the respective staff of Lokpal/Lokayukta including the complaints from whistle blowers. CLAUSE 41 (x) Lokpal shall ensure the integrity of its own staff and employees (temporary or otherwise) and shall be competent enough to take all actions ensure that. CLAUSE 23-29 (xi) Lokpal will be authorized to send a complaint/ and get a report Ayukta grievances to the concerned Lok on the enquiries or investigations. Lokpal Lokayukta, as the case may be, shall have powers: (viii) Lokpal or the Lokayukta shall not be a member of either the Parliament or State Legislature and never been a member of any political party and shall not hold any office or trust of profit carry on business practice any profession. 496 Reforms and Pensions is working on the same and a Draft Bill has been prepared by that department. The matters relating to the States are to be looked into by the Lokayuktas of the concerned State. the
issue
lease or permission contract agreement, which was the subject matter of investigation. in corruption activities. redressal of grievances and directions, from time to time, appropriate authorities make necessary changes in their work practices, administration or the other system so as to reduce the scope and possibility of corruption, misconduct, public grievances and whistleblower victimization. and to impose fine on the officials responsible for non-compliance of orders. Act shall be investigations/prosecution under any deemed to have been granted once Lokpal/ Lokayukta grants such permission. while trying a suit under the Code of Civil Procedure, 1908. 154 to 173 of CrPC, 1973, Lokpal, Lokayukta and the offices their investigation wing shall be deemed to be Police Officers. Letters Rogatory in any case pending with them. government in all matters including administrative, financial and functional. (c) Recommend imposition of appropriate penalties (d) Order cancellation or modification of a license (e) Blacklisting of the company or contractor involved (f) Issue appropriate directions to the authorities for (g) Invoke its powers for the compliance of orders (h) All the permissions required for initiating (i) Lokpal shall have the powers of a civil code (j) For the purpose of Section 36 read with (k) Lokpal/Lokayukta shall have powers to (l) Lokpal shall be completely independent of (m)Lokpal, in consultation with Lokayuktas, shall 12 3 4 497 (xii) Clause 46 of the Bill stipulates that Lokpal shall furnish returns and statements and such particulars in regard to any matter under the jurisdiction of Lokpal as prescribed from time to time. The matter of Lokayuktas falls in the domain of State Governments. (xiii) Clause 23(13) of the Bill provides that the website of Lokpal shall display to the public status of number complaints pending before it or disposed of by it. (xiv) The Bill provides for the accused to be heard. [Clause 23]. (xv) For public grievance redressal, a separate mechanism is required to be set up for Administrative which the Department of Reforms and Pensions is working on the same and a Draft Bill has been prepared by that department. (xvi) On receipt of the complaint Lokpal has to make a preliminary inquiry or investigation to ascertain whether there exists the
India the
various officials in Lokpal, the accused Right of
Silence. various functionaries etc.
the cases including action taken on its website
ANCE REDRESSAL the Lokpal. Subsequently, the report shall be placed the Lokpal. Subsequently,
on monthly basis. Adult Citizens of (xiv) Lokpal shall give the take all the Policy level decisions including formulation of regulations, developing internal systems for functioning of Lokpal, assigning functions to Reports of Lokpal CLAUSE 46 (xii) The Lokpal shall submit annually a consolidated report in the prescribed format on its performance to CLAUSE 23 (xiii) The Lokpal/Lokayukta shall publish the complete details of Right to Response and Defense and Right to Complaints Mechanism GRIEV CLAUSE 23 (xvi) On receipt of the complaint, Lokpal shall decide whether it is an allegation or a grievance request for whistle blower protection or a mixture of two more President whereas the Lokayuktas would submit a detailed to before the Parliament. (xv) Any citizen may make a complain to any office of Any citizen may make a complain to any office (xv) supported by an Lokpal/Lokayukta on a plain paper, but should contain all with Proof of Identity, Affidavit such details as prescribed by Lokpal. It shall be the duty of that office Lokpal/Lokayukta to transfer it the concerned Lokpal/Lokayukta. delegation powers to 498 case for proceeding in the prima facie matter. [Clause 23(1)]. matter. (xvii) The punishment as proposed in the the Bill seems to be adequate. Moreover, quantum of the punishment is to be decided by the Courts depending upon facts of each case. (xiii) The judiciary is outside the purview of the Lokpal Bill as a separate Bill, Judicial Accountability Bill, is already under Standards consideration of the Parliament. (xix) The recommendations of the Parliamentary Standing Committee on the Whistle Blowers’ Bill are under consideration. a and three other Lokayukta to
evidence. Then the findings of will prima facie these. Every complain shall have to be compulsorily disposed off by Lokpal/Lokayukta. Punishment THE SECOND SCHEDULE (xvii) Punishment shall not be less than one-year rigorous imprisonment and may extend upto life it will be more severe for high rank official. Same way the loss caused due if a business entity is found guilty, to corruption shall be charged five times more from the accused and recovery may be done from the assets of the business entity and from personal assets of all its if the assets of accused are inadequate. Director, Dealing with complaints against Judges of SC/HCs Any complaint against any judge of SC/HC shall be (xiii) dealt only by the office of Lokpal. Each complaint shall be screened by the Lokpal in consultation relevant Lokayukta of State/UT determine be submitted to the full bench of Lokpal with atleast 9 Lokayuktas in case of SC Judge and 7 HC Judge apart from Lokpal. The case of SC judge shall not be investigated by an office below the rank of IG and in The case would be case of HC Judge, not below DIG. registered only after the approval of Full bench and also it will decide whether to initiate prosecution on completion of investigation. Whistle Blower Protection (xix) Lokpal/Lokayutka shall provide protection to whistle blowers against threat, professional or physical victimization. 12 3 4 499 (xx) For public grievance redressal, a separate mechanism is required to be set up for Administrative which the Department of Reforms and Pensions is working on the same and a Draft Bill has been prepared by As far as appointment of that department. CVOs is concerned, it has to be done by the appropriate appointing authority. (xxi) CVC has served the purpose and expertise, and it is felt that should be mechanism has to be worked A strengthened out whereby the supervision of complaints of corruption against lower bureaucracy is done by CVC. (xxii) Clause 12 of the Bill provides for by the Wing setting up of Investigation Grievance Redressal (CVO) Officer Vigilance (xx) Lokpal Shall appoint a Chief in each public authority who will not be from the same the CVO will designate sufficient Further, public authority. Appellate Grievance known as number of vigilance officers Officers. The CVO shall be responsible for accepting complaints against any public authority and shall transfer the complaints related to other public authorities within All the grievances shall be received two days of receipt. if citizen is Officer, Vigilance and disposed by the Chief (Vigilance not satisfied from Public Grievance Office Officer) on behalf of Lokpal who will be assisted by the Authorities. Officers of the concerned Public Vigilance Repeal and Savings things Act shall stand repealed. However, The CVC (xxi) Act shall be deemed to have been done done under this Act and all inquiries, investigations other under this disciplinary proceedings pending before CVC and which have not been disposed off, shall stand transferred to and and officers The Secretary, be continued by the Lokpal. Staff of CVC shall stand transferred to the Lokpal office. Even all vigilance administration under the control of Deptts. of Central Government, Ministries, corporations, Authorities Government Companies, Societies and Local owned or controlled by the Central Government shall stand transferred, along with its personnel, assets and liabilities to Lokpal for all purposes and such personnel shall be deemed to on deputation for all purpose period of 5 years from the date transfer. Investigation Wing CLAUSE 12 (xxii) Lokpal shall have its own investigation wing with the offices as decided by Lokpal. That part of Delhi 500 Lokpal. Since, the Lokpal will have its own the anti corruption unit Wing, Investigation of CBI need not be merged with the Lokpal. (xxiii) The Bill provides that the Lokpal may for the purpose Wing constitute a Prosecution of prosecution public servants in relation to any complaint by the Lokpal under this Act. [Clause 15]. (xxiv) The provisions for complaints against the officials of Lokpal have been given in Clause 41 and seems to be adequate. (xxv) Clause 52 of the Bill provides that no suit, prosecution or other legal proceedings Special Police Establishment, which deals with offences Act, shall stand transferred, along with its under PC employees and assets to Lokpal for all purposes. Prosecution Wing CLAUSE 15 (xxiii) Lokpal shall have a prosecution wing. This bench will decide whether the cases forwarded by investigation should be prosecuted or not within a fortnight, else prosecution wing shall be deemed to have decided initiate prosecution. Certain categories of cases as prescribed by Lokpal, the permission to prosecute or deny shall be decided by the a bench of Lokpal. Complaints against Officers/Employees of Lokpal CLAUSE 41 (xxiv) Complaints against officers/employees of Lokpal shall be heard by a three member bench of Lokpal & in case of CVO & above, the full bench Lokpal. Investigations into such complaints shall be completed within a month of its receipt. If during the investigation, it is felt that the charges are likely to be sustained, such officer shall be divested of all his responsibilities and powers and would be suspended. If the charges are established, it is decided to prosecute that person under Act or for any misconduct dishonest enquiry/ PC investigation, that person shall not work with Lokpal anymore. Lokpal shall either dismiss that person or repatriate him (if on deputation), with an appropriate recommendation. Protection CLAUSE 52 (xxv) No suit or prosecution/legal proceedings shall lie or against any office, Ayukta against the Lokpal/Lok 12 3 4 501 Clause 47 and 48 of the [Clause 28 & 29] Bill provides for declaration of assets by public servants and presumption as to acquisition of assets by corrupt means in certain cases. (xxvii) & (xxviii) shall lie against the Lokpal or any employee, agency or any person, in officer, respect of anything done in good faith or Act or the intended to be done under this rules or the regulations made there under. As per the procedure proposed in (xxvi) Bill, the Lokpal is to file a report in Special Courts. June of every year. And the June of every year. th August of that year. If the public August of that year. st HOD shall ensure that all such statements are placed on the website by 31 agency in respect of any thing which is done good Act. their duties under this faith while discharge CLAUSE 28 & 29 (xxvi) No proceedings or decision of Lokpal shall be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction. Miscellaneous CLAUSE 47 & 48 (xxvii) Every public servant shall declare his assets & liabilities including of his family members in a form, Authority prescribed by Lokpal, to HOD of his Public Act within three months from the commencement of this and thereafter before 30 servant fails to do so, HOD shall direct him declare within one month otherwise his salary to be stopped till such statement is submitted. Lokpal may initiate prosecution against such public servant under section 176 of IPC. which not declared by public servant Also if any property, at the time of declaration and found owned by him, such property shall be deemed to have been acquired by corrupt means. (xxviii) In the above case, if public servant does not give Lokpal shall immediately confiscate satisfactory answer, all such properties and inform IT deptt. for appropriate All properties confiscated shall be auctioned and action. proceeds shall be deposited in the Consolidated Fund of India. 502 (xxix) The time line for completion of inquiry has been given in Clause 23. The preliminary inquiry is required to be completed within 30 days, which may be extended for a further period of 3 months. The inquiry is to be completed within a period of 6 months, which may be extended for a further period of 6 months. (xxx) Clause 23(13) of the Bil1 provides that the website of Lokpal shal1 display to the public status of number complaints pending before it or disposed of by it. (xxxi) The provisions made in Clause 49 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (xxxii) The criminal misconduct as defined Act, 1988 seems to in Section 13 of the PC be adequate. 1 lakh. A complaint or allegation once made A 1 lakh. ` CLAUSE 23 (xxix) The preliminary enquiry to be completed within one from the date of complaint and investigation into any allegation to be completed within six months, in any case, not more than one year from the date of receipt And the trial in any case filed by Lokpal complaint. Adjournments should should be completed within one year. be granted in rarest circumstances. (xxx) Lokpal shall post all the records of cases on its website for public scrutiny except such info which may cause threat to whistle blower or lead external internal security threat. CLAUSE 49 (xxxi) If the Lokpal finds that a complaint lacks any basis or evidence and it is meant only to harass certain authorities, Lokpal may impose such fine on the complainant as it deems fit, but total fine should not exceed Act shall not be allowed to withdrawn. under this Act, 1988 Amendment in PC (xxxii) It shall be an offence for any person under sections I3(1)(d)(iv), (v), (vi), (vii) & (viii), to suppress the knowledge or evidence of corruption for personal gain, to deny the citizens knowledge about incidents of corruption through misuse official position, to exert pressure or exercise his/her personal influence on any public servant for private interests, to grant affiliation/ license to any private individual/body/institution/NGO/trust to carry out any public service, that is without prescribing the preconditions. 12 3 4 503 (i) The Judicial Standards Accountability Bil1 The Judicial Standards (i) and the Public Interest Disclosure & Protection to Persons Making the Disclosures Bil1 have already been introduced and are under consideration the (ii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that the To set-up. the Government’s Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of Lok after the Prime Minister has Pal. However, demitted the office, he will come within purview of the Lok Pal. (iii) In order to curb the corruption, it is necessary that the provisions as contained in the Clause l7(1)(g) are retained. (iv) The number of Members the Lokpal as proposed in the Bill is adequate. [Clause 3(2)(b)]. (v) The composition of the Selection Committee as provided in the Clause 4 of - Replace word “eight” with - Selection Committee to be reconstituted Clause 17(1)(2). against PM unless a reference has been made by a full bench of the Lokpal to CJI and that CJI has formed a full bench of Supreme Court which has examined the complaint and relevant grounds & evidence and has reached to the conclusion that such an investigation is warranted. that some information is asked for by the Lokpal as part of an investigation is such that its disclosure might compromise national security or other critical national interests, the PM would in confidence brief the CJI, whose decision whether the information should be disclosed to Lokpal, and if so, under what conditions, would be final. Clause 3(2)(b) (a) Provided that no investigation would be launched (b) Provided that where the PM is of opinion Clause 4(1) (i) To create adequate legal framework to tackle the (i) To corruption, it is necessary that Bills like Judicial Accountability Bill and The Public Interest Disclosure & Protection to Persons Making the Disclosures Bill are also introduced and passed. DEFINITIONS (ii) “Minister” means a Union Minister including PM; and add the following proviso: (iii) Delete (iv) “ten” (v) as under:- Maj (Retd.) S.K. Lamba 131. 504 the Bill is adequate. Further, associating the the Bill is adequate. Further, Chief of Defence Staff in the process selection of Lokpal may not be desirable as it may lead to politicization of the armed forces. (vi) This would debar all such persons who are advocating the need to have institution of Lokpal. (vii) The political class, or any class of be effective, To society cannot be alienated. all sections of society have to work in cooperation and on the basis of mis-trust, an effective and viable institution to fight corruption may not be effective. the (viii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that the To the Government's set-up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of Lok NGO’s who have NGO’s
– Delete the words “after he has – to be deleted as it stipulates – The following to be added at the last” nominated by CJI – member Clause 17(1)(a) Clause 8(1)(ii) (a) PM – Chairperson (b) Speaker of Lok Sabha (c) Leader of Opposition in Lok Sabha (d) Chief of Defence Staff or COAS/CNS/CAS (e) One sitting Judge of Supreme Court to be (f) Advocate General of India (g) CEC (h) C&AG (i) Chairman, UPSC Clause 4(3) intervention by political class. (viii) (vi) “Provided that no member of Search Committee shall be considered from amongst the members/ submitted their draft versions of Lokpal Bill or offered comments to the Govt. on Lokpal Bill. (vii) demitted the office of Prime Minister”. 12 3 4 505 Pal. However, after the Prime Minister has Pal. However, demitted the office, he will come within purview of the Lok Pal. (ix) In order to curb the corruption, it is necessary that the provisions as contained in the Clause 17(1)(g) are retained. (x) In the interest of natural justice, opportunity has to be provided the public servant of being heard, especially in view dispensing with prior sanction for prosecution Act and permission under under the PC Act. of DSPE Section 6A (xi) Protection to the complainants acting as Whistle Blowers is to be provided as per the Whistle Blowers' Bill and the recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (xii) The provisions of Clause 38 the Bill do not contemplate closing of the trial if it not completed within two years. However, the suggestion needs to be examined by Legislative Department and the Affairs. of Legal – following to be added in – to be deleted as the office bearers – to be deleted as there is no statutory – The following proviso to be added :– Clause 38(2) Clause 24 Clause 17(1)(g) Clause 23(4) of NGOs that do not receive Govt. funds cannot be treated as Public Servants. (x) continuation: – “Provided further that no case would be closed on the basis of the trial not having been completed within two wherever a trial continues beyond two years. However, years, a mandatory reference would be made to the High Court which shall examine matter and pass such directions as it might deem necessary to bring the trial to an early conclusion and, where the High Court (ix) right given to the accused even under Code of Criminal Procedure. (xi) “Provided that where the complaint involves allegations or information from a whistleblower or witness who wishes to have his identity protected, the Lokpal shall ensure that advance notice is given to whistleblower and/or witness and they are given an opportunity of being heard prior to the accused being given access to any records: provided further there in no case would the identity be revealed without their prior consent in writing. (xii) 506 to Clause 49 (xiii) The provisions made in deal with false complaints are adequate but DOPT is open to suggestions in this regard. (xiv) DoP&T may not have any objections to add the suggested proviso. (i) The tenure of Chairman and Members the Lokpal has been restricted to five years. if any Member has not completed However, the tenure of five years, he would be eligible for appointment as Chairman. (ii) The provisions proposed for recovery of loss appears to be adequate. (iii) The provisions made in Clause 49 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. make an will order recovery of will fine and/or imprisonment – the words “two years to be – Chairperson or Member of Lokpal – The person making false or frivolous – Add proviso as under:– – – to be reconstituted as under:– – In this clause the sentence “It may make Clause 49 (1) Clause 56 Clause 49 (1) Clause 42 Clause 9 (1) (i) complaint to be punished with assessment...” and the “and may order recovery of such be replaced with” and To loss....” thinks it appropriate, pass strictures against the trial judges.” (xiii) for any amount or term as may be decided by the Special Court based on the severity of crime. Clause 49 (1) replaced with the words “one month” and “five years” with the words “six month”. (xiv) “Provided that where the accused is finally found guilty of any the charges made against him, by special Act, and subject to further court provided for in the appeals, the accused would be required to refund total cost of assistance so provided” (i) “The person of public servant against whom false or frivolous or vexatious complaint has been made; may may be eligible for reappointment next subsequent term(s) based on his/her performance during the tenure as outstanding & unbiased performers might and always be given another chance. (ii) an assessment....” To be read as” It To an assessment....” loss...” (iii) C.M. Kushwaha, D-7, Pusa Campus, New Delhi – 12 12 3 4 132. 507 (iv) These are covered under the protection to Whistle Blowers Bill. The recommendations of the Parliamentary Standing Committee on the Bill are under consideration. (v) Under Clause 42 of the Bill, any person who conspired with the public servant and seek, if he so desires the conduct of prosecution by public prosecutor and all expenses connected with such prosecution shall be borne by the Central Government. Whistle Blowers (iv) The provisions regarding Whistle Blowers as proposed in Jan Lokpal Bill (Chapter XI) with amendment that the identity of the whistle blower might be protected thruhg out his life and any loss in form to whistle blower may be treated as breach of protection and consequently be a punishable offence, and the following may adopted: or any other person having Any public official (a) information of any corruption in public authority would be encouraged to send information confidentially the Lokpal, which shall be inquired by Lokpal and if to be investigated. necessary, (b) Lokpal to provide full protection whistle blower against any physical harm or administrative harassment. Also the identity of whistle blower to be protected whistle blower desires so. In this regard, the Lokpal shall have the powers to pass suitable direction/orders, within a month from the date of complaint and to any security agency for providing security as well to any other authority for not causing any harassment. Immediate action will be taken in cases of a threat physical victimization. (c) The investigations in complaints by whistle blowers facing physical or professional victimization shall be fast tracked and completed within three months. CLAUSE 42 (v) No immunity should be granted to any bribe giver after paying bribe and taking illegitimate benefits whatever 508 has obtained benefits is also liable to make good the loss to exchequer. (i) There is no concept of reservations for & Minorities in the Search SCs/STs/OBCs Committee or appointment as Chairman and normal Member in such institution. However, rules of reservations to fill up the various posts under the Lokpal will have to be followed as per the policy of Government. (ii) The bill provides that the words and Act expressions used but not define in this Act 1988 shall have the but defined in PC same meaning as assigned to them in that Act. Non-earmarking of funds under SC/ST Sub-Plan in proportion to the population, non formulation of schemes exclusively for non utilization of the benefit of SC and ST, funds, diversion of these funds for schemes other than the welfare of SC/ST etc., cannot be said to act of corruption. (iii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (iv) The suggestion does not appear to be practicable. the reason may be. (i) There should be appropriate representation of SCs/ & Minorities in the Search Committee STs/OBCs Selection Committee as well in the appointment of Lokpal & its members. DEFINITIONS (ii) Definition of Corruption to be expanded include Non-earmarking of funds under SC Sub Plan/ST Plan in proportion to the population, Non formulation of non Schemes exclusively for the benefit of SC & ST, utilization of funds, diversion these funds for the deprivation of schemes other than the welfare of SC/ST, rights and safeguards provided in the Constitution of Assembly India and other laws passed by Parliament, State and official Orders/Notification. (iii) The same provisions must be made in the constitution of Lokayukta in the States. (iv) The prescribed qualification of Lokpal or its member must have the provision that Lokpal or any Member must be free from caste bias and no Judge or Chief Justice will be eligible for such appointment, if he/she has even passed adverse judgment on important dalit issues. P.L. Punia, MP & Punia, MP P.L. Chairman, National Commission for SCs 12 3 4 133. 509 For investigation of cases, the (i) & (ii) Lokpal will have its own Investigation Wing Lokpal will have its own Investigation Clause 32 of the Bill [Clause 12]. However, provides that for the purpose of conducting the Lokpal may utilize services any inquiry, of any officer or investigation agency the Central Government or any State Government. (iii) In order to curb corruption, it is necessary that the provisions as contained in the Clause 17(1)(g) are retained. Action against the associates of (iv) has corrupt public servants, if found guilty, debar such To to be taken as per the law. persons/entities from participation in Government contracts/tenders etc. provision has to be made in the appropriate laws. (v) In the interest of natural justice, opportunity has to be provided the public servant of being heard, especially in view – There is a need to bestow upon – a proviso to be added in the bill that – As there is no bar for including any – – There should be no access to inspection Clause 17 Clause 17 (3) Clause 13 & 32 Clause 24 CLAUSE 12 & 32 Anti- institutional experience and expertise in (i) CBI’s Corruption Investigation and Prosecution needs to be administrative/operational utilized, be it under the statutory, mandate & control of the Lokpal or outside. CBI’s Act, needs to be jurisdiction, after promulgation of Lokpal clarified. (ii) the similar powers to investigation officers who come from within the Lokpal and offices outside Lokpal for conducting inquiry/ investigation. (iii) person of any society/association or trust, be they constituted for religious purposes, within in the ambit of Act, 1988, if they found to be sections 8 & 9 of PC engaged in criminal misconduct. Therefore, the clause 17 (1) (g) to be deleted in order bring the Lokpal Bill Act, 1988. line with the PC (iv) any person including those referred in 17 (1) who is charged and/or convicted of any offence under the PC Act, their acts and omissions to be administratively addressed by the victims (be they Govt. Deptt., Ministry, Board or Body), by empowering them to employ suitable administrative actions and deterrent measures such as barring him/her and all commercial entities he/she is associated with from participating in the Govt. contracts for time period or endless advising changes in management practices or personnel. (v) of documents at the preparatory stage, unless Act are fully met. provisions of section 8 & 10 RTI J.B. Mohapatra 134. 510 dispensing with prior sanction for prosecution Act and permission under under the PC Act. of DSPE Section 6A (vi) The provisions made in Clause 28 provide that competent authority shall initiate disciplinary proceedings within thirty days, and also sent a report to the Lokpal intimating the action taken or proposed to be of within six months of initiation such disciplinary proceedings. (vii) These are typographical mistakes which will be rectified at the time of finalization final draft. (viii) There seems to be no harm in bestowing the Lokpal with powers to attach property of the corrupt public Act self- make the Lokpal To servants. sufficient it is necessary that such powers Act itself. are specified in the Action against the entities mentioned in (ix) Clause 17(1) (c) and (d) has to be taken by the respective House to which these persons belong. – In these clauses, the public – There is an overlap of the – A provision to be incorporated, which A – Clauses 33 & 34 Clause 28 Clauses 28, 29 & 35 will allow the Disciplinary Authority to consider the will allow the Disciplinary recommendations of Lokpal, and after objective consideration of the facts on record, to arrive at a determination whether disciplinary proceedings are attracted, and if yes, the specific nature of proceeding, major or minor. The public servants referred in clauses 28 & Also, (vii) 29, since incorrectly mentioned, needs to be corrected. Public servants mentioned in clause 17(1) Accordingly, (d) & (e) should come in clause 28 and Public servants in Clause 17(1) (b) & (c) too come clause 29. (viii) Even it will adversely affect the complainant who has Also, it is detrimental to the process of sought anonymity. investigation/inquiry to allow the public servant right of un-hindered access any information under this clause. (vi) provisions contained in these clauses of Lokpal Bill regarding attachment/confiscation of any proceeds Act, with the provisions of corruption under the PC Therefore, Act. Prevention of Money Laundering (PML) the powers of attachment/confiscation tainted property being proceeds of corruption should remain either with Act. the Lokpal Bill or with PML (ix) servants mentioned in Clause 17 (c) & (d) are only subject to the Disciplinary proceedings such suspension under the Disciplinary Rules apart from proceedings Act, on disclosure of commission an offence under PC Act, after the inquiry/investigation of Lokpal under PC 12 3 4 511 There is no concept of reservations (i) & (ii) for Women & for SCs/STs/OBCs/Minorities appointment as Chairman and Member or on the Selection Committee in such institution. (iii) The jurisdiction of the Lokpal as provided in Clause 17 of the Bill is adequate. If its jurisdiction is extended to lower bureaucracy and also to private operators engaged or connected with the Government functions, it would over burden the institution of Lokpal which may put undue stress on the resources, thereby making the system ineffective. Women and Minorities & – The following should be added after Sub – to be amended giving suitable representation other Members, not less than 15% shall be from and not the SCs, not less than 7.5% from STs less than 27% from the BCs including of Religious Minorities, in such a way that the total number of these social classes does not exceed 50% of the total strength Lokpal. other Members, not less than one-third shall be women. (a) Of the total number including Chairperson and (b) Of the total number including Chairperson and Clause 4 Clause 3 there should be a similar provision for suspension of the entities mentioned in sub clauses (b) & (c) of clause 17. (i) Clause 2(b) :– (ii) & Minorities of one member belonging to OBCs, SCs, STs Also the Selection in the Selection Committee. Women & Committee should include the Chairmen of National Commission for BCs, SCs, STs, to ensure unbiased selection of Lokpal members. CLAUSE 17 (iii) The Lokpal/Lokayukta and its constitutional framework should cover all Government/public functionaries, Public servants, private operators engaged or connected with Government functions or performing any function related NGOs, Media with the public, such as Private Sector, or any organization Trusts Charitable-Religious Sector, dealing with the public money. Hanumantha Rao, MP (RS) & Convenor Parliamentary Forum of OBC MPs 135. V. 512 CVC [Clause 12]. (i) The right to defend and appeal under the appropriate laws will be available to the public servants. (ii) The bill provides that the words and Act expressions used but not defined in this Act 1988 shall have the but defined in PC same meaning as assigned to them in that Act. (iii) CVC has served the purpose and expertise, and it is felt that should be mechanism has to be worked A strengthened out whereby the supervision of complaints of corruption against lower bureaucracy is done by CVC. (iv) The Lokpal will have its own Investigation Wing exercises superintendence over the functioning of the CBI in so far as it relates to the investigation of offences alleged have been committed under the Prevention with Act, 1988 or an offence of Corruption which a public servant specified in sub- under the Code of Criminal section (2) may, Procedure, 1973, be charged at the same trial, it is felt that the existing system may continue. As regards the corruption by Media/ (v) Corporate are concerned, it is stated that the scope of Lokpal is to enquire into CLAUSE 23 (i) The guilty Govt. servant should be given one chance of appeal. DEFINITION (ii) The definition of corruption should be wide and should be measured by a device like the Ritcher Scale. This Scale of corruption would relate to acceptance hard cash, opening of accounts in India & abroad, flats etc. (iii) CVC to be attached the Lokpal and deal with lower bureaucracy. CLAUSE 12 (iv) There should be an independent investigating agency attached to the Lokpal investigate independently and also supervise the CBI. CLAUSE 17 (v) The Media, NGOs getting foreign contributions & Corporate houses should be brought under the purview of Lokpal. Dr. G. Sundaram, G. Dr. IAS (Retd.), to Former Secy. GOI, A-601, Dugar Appartments, KP Puram, Greenways Road, Chennai – 28 12 3 4 136. 513 [Clause are covered in the present the complaints of alleged corruption against certain public functionaries. If MNCs and Media are also to be covered under the Lokpal, in that case, the definition of public servant would be required to modified to include such entities. In order to tackle corruption by private parties, which include MNC and media, Ministry of Home Affairs, in consultation with the States, is already examining amendment to the IPC. Clause 17(3) of the Bill provides However, that the Lokpal may inquire into any act or conduct of any person other than those referred to in sub-section (1) of Clause 17, if such person is associated with the allegation of corruption under the Prevention The Government Act, 1988. of Corruption has also introduced Prevention of Bribery Foreign Public Officials and of Bill, 2011 Public International Organisations, As far as NGOs are in the Lok Sabha. concerned, NGOs receiving government monies and public donations 17(1)(f) & (g)] Bill. (vi) Clause 33 and 34 of the Bill provide for attachment of assets the corrupt public servants. (vii) The judiciary is outside the purview of the Lokpal in proposed Bill. In context the Prime Minister of the Indian polity, occupies a pivotal position in the ensure that Prime To set up. Governments’ Minister is able to discharge his functions CLAUSE 33 & 34 (vi) There should be provision to attach and confiscate the ill-gotten wealth and punishment should be severe. Also (vii) Judiciary must be out of Lokpal Jurisdiction. PM to be excluded but with the safeguards. 514 without any interference from any quarter, it without any interference from quarter, is felt that the Prime Minister may be kept outside the purview of Lokpal. However, after the Prime Minister has demitted office, he will come within the purview of Lokpal. (viii) On conclusion of investigations/inquiry, the Lokpal has to file a report in Special Court, and the Court is to pass appropriate Appeals etc. are to be preferred as orders. per the laws. (ix) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. The intent of the suggestion is not clear. (x) (xi) The restriction on contesting the elections by the Chairperson and Members of Lokpal as proposed in Clause 9 of the Bill seems to be adequate. (xii) The Selection Committee as proposed in Clause 4 of the Bill is adequate. Further, it may not be desirable that the Selection Committee works under the Supreme Court wherein Prime Minister and Leaders of the Opposition are the Members. (viii) Appeals against the decisions of Lokpal should (viii) be to the Supreme Court. (ix) There should be separate Lokayuktas for the States on the same line of Lokpal. (x) If a Lokpal exceeds limits, the Collegium of Supreme Court should be able to intervene. The “Institutional Integrity of Lokpal should be justifiable as in the recent case of the CVC. CLAUSE 9 (xi) The members of Lokpal, after demitting the office, can contest election only as an independent candidate. No nominations by the Govt. to Rajya Sabha. CLAUSE 4 (xii) The Selection Committee should be body of people of proven integrity and should be small under the Supreme Court with the PM & Leaders of Opposition. 12 3 4 515 [Clause 17] (i) The proposed institution of Lokpal is to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. (ii) The judiciary and the conducts of MPs inside the House are outside purview of the Lokpal. The Prime Minister will be within the ambit of Lokpal after he demits the office. (iii) For matters relating public grievances, a separate mechanism is required to be set up Administrative for which the Department of Reforms and Pensions is working on the same. (iv) The CVOs are reporting to CVC. existing system is adequate. (v) Clause 23(13) of the Bill provide that the website of Lokpal shall display to the public, status of number complaints pending before it or disposed of by it. Further as per Clause 46, the Lokpal has to furnish annual report giving a summary of its activities during the previous year to the Central Government. (vi) The bill provides that the words and Act expressions used but not defined in this Act 1988 shall have the but defined in PC same meaning as assigned to them in that Act. for analyzing the performance of Lokpal. (i) The proposed Lokpal Bill should not be a standalone law nor should it be an all-encompassing legislation for the anti-corruption framework. There should be separate legislations for each aspect of anti-corruption strategy and integrate them with the Lokpal Institution. CLAUSE 17 (ii) Lokpal Bill should not apply to Judiciary and the conduct of the Members Parliament inside House. for the reasons of stability Govt., it should Further, be applied to PM after he demits the office. PUBLIC GRIEVANCES (iii) The Lokpal Bill should include the function of enquiring into maladministration and grievance redressal. There is need to keep vigil on the administrative actions for fixing the responsibility on wrongdoers. The Lokpal institution needs to be utilized improve preventive vigilance. (iv) CVOs to be made the part of Lokpal undertake preventive vigilance activities and exposing corruption maladministration. CLAUSE 23 (v) There should be a provision to collect and publish performance data on public domain, which ought to be sine qua non The monitoring and reporting system provided under Act is a good example. Section 25 of RTI Clause 2(1) (vi) The definition should refer to an “action” as well an allegation of “act Corruption”. It means that the definition part should include the of “action” and “act of corruption” too. The definition “action” can be taken from the Lokpal Bill, 1968 and “act of Madhumit D. Mitra, Advocate, C-4/8, Sahyadri Appartments, Plot 5, Sector 12, Dwarka, New Delhi – 78. 137. 516 [Clause 12] (vii) CVC has served the purpose and expertise, and it is felt that should be mechanism has to be worked A strengthened out whereby the supervision of complaints of corruption against lower bureaucracy is done by CVC. (viii) The Bill proposes to set up independent by Lokpal Wing Investigation which seems to be adequate. corruption” could include the various sections on bribery Act, 1988. Even and criminal misconduct contained in PC the definition of “Maladministration” & “grievances” may drawn from Lokpal Bill, 1968 and included in the If the “National Grievance Redressal Bill, 2011” Bill, 2011. is enacted, the definition of “grievance” in that law could Also the be referred to in the Lokpal Bill for uniformity. appropriate authority under the “National Grievance should enable to file a complaint. Redressal Bill, 2011” before Lokpal seeking investigation based its findings on the grievances of citizen. The definition “Public Act, 1988. servant” should be as mentioned in PC Establishment of Lokpal (vii) CVC should be entrusted the task of enquiring into by giving the officers A the complaints against non-group same powers as Lokpal and under the supervision control of Lokpal. Investigation Wine CLAUSE 12 of Lokpal should be created Wing The investigation (viii) Act, 1946 under the Delhi Special Police Establishment with and retained under CBI, but a separate entity, supervision, control and discipline of the Lokpal. For purpose of Lokpal, the investigation to be done by an investigation officer or the rank of DSP above. The should Wing of the Investigation appointment of officers be made by the Lokpal whereas President will appointing authority. 12 3 4 517 The Bill provides for attachment of assets of the corrupt public servants by Lokpal in the manner provide Second Schedule the Act, 1961. Further, Tax to the Income Act, 1988 question of amendments to the PC to incorporate the provisions for attachment of property corrupt public servants is under consideration of the Government. (ix) Clause 15 of the Bill provides for and Wing constitution of Prosecution appointment of Director Prosecution and such other officers and employees for the purpose of prosecution public servants in relation to any complaint by the Lokpal under this Act. In the interest of natural justice, (x) opportunity has to be provided the public servant of being heard, especially in view of dispensing with prior sanction for Act and prosecution under the PC Act. of DSPE permission under Section 6A Hence, provision for being heard are incorporated in Clause 23. (xi) The Bill specifically provides that no sanction or approval shall be required by the Lokpal for the purpose of making inquiry by the Lokpal or investigation by its Investigation into any complaint against public Wing servant or for filing of any complaint in respect thereof before the Special Court Act. under this (xii) Report) th of Criminal Law Amendment of Criminal Law The public servant should be given Section 6A of the Delhi Special Police Clause 27 – Clause 23 (6) – Prosecution Wing CLAUSE 15 (ix) The Bill should make provisions for maintaining panel for Special Councels. (x) a single opportunity of being heard during the preliminary enquiry stage and once a regular investigation confirms the wrongdoing, charge sheet should be filed in Special Court. Such public servant will have the opportunity of being heard in court. (xi) Establishment Act, 1946 requiring prior approval of Central Establishment Govt. for investigation against the officers of decision level making should be deleted in the spirit of this provision. Clause 33 – Powers of Lokpal (xii) This clause does not address the issues like security its disposal, appeals and administration of attached property, against attachment etc. The of property should be dealt under the provisions Ordinance, 1944 and not as per IT Act and the Special Ordinance, 1944 and not as per IT Act. Judge is empowered to order attachment under PC The PC Bill 2008 to be resurrected, with the recommendations of the Law Commission (166 518 (xiii) The provisions made in the Bill to letter of request to a contracting state seem to be adequate. (xiv) The provisions made in the Bill respect of declaration assets by the public servants are adequate. (xv) It is felt that legal assistance needs to be provided to defend the case such persons who makes request for the same. DOPT is open for suggestions in this regard (i) The selection procedure as prescribed in the Bill is adequate. There should The point regarding “contract state” is – Declaration of Assets. – Declaration of
– Legal assistance to be provided only it refers to Letters Rogatory (LR), the
against corruption Clause 47 Clause 39 – Clause 56 (a) Eminence, credibility and integrity (b) Experience, record of service and insights in fights (c) Impartiality and non-partisan selection the poor Public Servants. Selection Panel of the Lokpal Clause 4 - (i) The following three criteria to be satisfied in the selection of the Lokpal members:– dealing with the proceeds of corruption, and passed to take care of this Issue. (xiii) not clear. If not clear. procedure under section 166A of CrPC may be maintained Also the Act. with the Special Court under PC combined wisdom of CVC & CBI to be considered make provisions in this Clause that would address the problems relating to LR. (xiv) also be provision under this clause for supervision and scrutiny of assets declared by the public servants. CVO’s office be used on a regular basis for integrity checks public servants through these reporting measures. (xv) Foundation for Democratic Reforms – Lok Satta 12 3 4 138. 519 (ii) In the context of the Indian polity, the (ii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To the Governments' set up. Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (iii) The conduct of the MPs on floor the House is kept outside purview of Lokpal in view of the immunity available to Article 105(2) of the Constitution. them under i.e, prima facie – (ii) If the serving PM is to be brought under Jurisdiction of Lokpal, for enquiry against the allegations against PM, the following Proviso to be inserted in this clause of Lokpal Bill:– “Provided that specific allegations backed by evidence against the serving PM may be enquired into bu the Lokpal, if a majority of not less than two-third total membership of Lokpal refers the matter to a President, the Vice sanctioning committee comprising the Speaker of Lok Sabha and the Leader Opposition in Lok Sabha and if that sanctioning committee on the basis of material available sanctions the enquiry Lokpal.” “Provided no such sanction of enquiry be sought or given against the serving PM for allegations on matters related to the sovereignty and integrity of India, security of the State, friendly relations with Foreign States and public order. Clause 17(2) – be deleted as such a provision will destroy the To (iii) credibility of Legislatures, and defame the fair name and reputation of the vast majority MPs/MLAs just for the bribe taking by few of them. Also, two nominees under section 4 (1) (h) & (i), one eminent jurist and person from public life, to be nominated by the other seven members of Lokpal and not by the Central Govt. Jurisdiction Clause 17(1) (a) 520 (iv) The Judiciary has been kept outside the purview of the Lokpal. (v) The Chief Ministers are to be covered under the Lokayuktas of respective States. (vi) The proposed Bill is to set up the Hence, the current institution of Lokpal only. setting up the name is appropriate. Further, institution of Lokayukta falls within the domain of the States. Keeping in view federal structure of our Constitution, it may be left for the States to decide. (vii) The provisions made in Clause 28 regarding action on inquiry in relation to public servants not being Ministers or Members of Parliament is adequate. (iv) The Judiciary to be kept out of the Lokpal and shall Also be accountable to the National Judicial Commission. if the judiciary is brought under Lokpal, provision of the Lokpal Bill for removal of members by President on the grounds of misbehavior after Supreme Court has held an enquiry is contradictory as how it can held enquiry once it is already under the Jurisdiction of Lokpal. (v) Chief Ministers to be brought under the Lokpal at national level. (vi) The Bill to be renamed as “Lokpal and Lokayuktas separate chapter on Lokayukta in each State A Bill, 2011”. and Local ombudsman in each City/District under Lokayukta should be incorporated as Parliament, under Article 253 of the Constitution India, has power to make legislation on matters relating to corruption, a strong, independent authority to curb corruption in States Against pursuance of the United Nations Convention Corruption. Clause 28 – (vii) The following proviso to be added in this clause: - “Provided that the Lokpal/Lokayukta may make a recommendation to the appointing authority impose a punishment of dismissal or removal reduction in rank on a public servant if he is satisfied that the evidence warrants such an action on grounds of commission offence or misconduct, willful omission to perform a duty or gross incompetence in preventing an offence.” 12 3 4 521 (viii) CVC has served the purpose and expertise, and it is felt that should be mechanism has to be worked A strengthened out whereby the supervision of complaints of corruption against lower bureaucracy is done by CVC. (ix) Since Lokpal will have its own it is felt that Wing, independent Investigation there is no need to split the CBI. (x) Clause 27 of the Bill provides that no sanction or approval shall be required by the Lokpal for the purpose of making inquiry by the Lokpal or investigation by its Investigation into any complaint against public Wing servant or for filing of any complaint in respect thereof before the Special Court Act. under this (xi) This needs to be examined by the Ministry of Law. members ex-officio “Provided further that no such recommendation recommendation shall be made without giving such public servant a reasonable opportunity of being heard further that such a recommendation of Lokpal/Lokayukta shall be and such a public binding on the appointing authority, servant shall be awarded the punishment forthwith without further enquiry.” (viii) CVC to be integrated with the Lokpal and Chairman & Members should be made of Lokpal, and they should be appointed removed in the same manner as member of Lokpal and when new members of CVC are appointed. (ix) CBI should be split into two separate agencies. The agencies dealing with corruption cases, money laundering and benami properties should be accountable to CVC should function under its overall superintendence and guidance. Enforcement Directorate too should be under the superintendence and guidance of CVC. CLAUSE 27 Act of Delhi Special Police Establishment (x) Section 6A should be repealed. (xi) Section 197 of the Code Criminal Procedure, 1973 Act, 1988 should be amended by and section 19 of PC Act to provide for ordering of the Lokpal and Lokayukta and Prosecution by the CVC and Lokayukta respectively, not the respective Governments. 522 , therefore, there is no [Clause 12] need that ACB function under Lokpal. The ACB function under Lokpal. need that appointments to any post is be made as per the statutory rules. (xiii) Clause 15 of the Bill provides for and Wing constitution of Prosecution appointment of Director Prosecution and such other officers and employees for the purpose of prosecution public servants in relation to any complaint by the Lokpal under this Act. (i) Clause 2(l)(d) defines the meaning of “complaint”. (ii) The bill provides that the words and Act expressions used but not define in this Act 1988 shall have the but defined in PC same meaning as assigned to them in that Act. (iii) The qualification of the Lokpal and Members cannot be left to the discretion of the Selection Committee. (iv) The composition of the Selection Committee and the Search as given Clause 4 of the Bill is adequate. (xii) Lokpal will have its own Investigation Wing – Definition of Corruption to be
– The Lokpal should be empowered to – Qualifications for the Lokpal and – The selection committee should consist initiate a complaint. Clause 3(2) Clause 2(1)(q) (a) PM or nominee (b) Leader of Opposition Clause 4(1) Clause 2(1)(d) CLAUSE 12 ACB should (xii) Likewise, the law should provide that function under the supervision and guidance of ACB should be made by All appointments in Lokayukta. a committee comprising of Lokayukta and Chief Secretary of the State. Prosecution shall be ordered by Lokayukta. CLAUSE 15 (xiii) Lokpal/Lokayukta shall appointment independent prosecutors to prosecute all corruption, money laundering and benami properties cases, the prosecutors shall function under their overall supervision and guidance. (i) suo-moto (ii) inserted in this clause. The definition of corruption, along with the definitions existing in various laws, should include opportunity loss to the exchequer as mentioned above and to citizen(s) who suffer at the hands of officials on account of their motivated actions. (iii) members to be left the wisdom of Selection Committee. (iv) of the following:– IITians for Clean India C/o Somnath Bharti, Advocate, NIL-26AB, Malviya New Delhi-17 Nagar, 12 3 4 139. 523 There is rampant corruption in the NGOs (v) There seems to be no justification provide for age group of 35-60 years Lokpal. (vi) The system of complaint against the Lokpal and his staff as proposed in the Bill is adequate. (vii) The Lokpal is meant to inquire into the For other allegation of corruption only. vigilance related matters, the departmental vigilance set up is required to cater needs of the Department concerned. (viii) and the NGOs utilizing public funds needs to be brought under the purview of Lokpal. (ix) In the interest of natural justice, opportunity has to be provided the public servant of being heard, especially in view dispensing with prior sanction for prosecution Act and permission under under the PC Act. of DSPE Section 6A – No special treatment – The complaints against the – NGOs need not be covered under – Investigation Wing of CBI dealing Wing – Investigation – Lokpal should be a person of 35 60 eminence in public life with wide knowledge and public experience in anti corruption policy, administration, vigilance, policy making, finance who are apolitical and not drawing or law, The any remuneration from the Public Exchequer. selection should be transparent and in consultation with citizens. Clause 17(1) Clause 12(1) Clause 8(1) & 40 Clause 23 (4), (11) & 24 Clause 23 (4), (11) (c) to (j) people should be persons of integrity and Clause 6 Lokpal and his staff should be made directly to Supreme Fraudulent Court and hearing should be made mandatory. complaints can be discouraged by imposing heavy fines. (vii) years of age. (vi) The Search Committee to be formed often people with similar background as in (c) to (j). (v) with Corruption cases, all departmental vigilance and CVC to be integrated with Lokpal. (viii) Lokpal as there is no impediment in the present system to protect them for their wrongdoings. (ix) should be given to the accused. The CrPC followed in respect of showing evidence to the accused, as for the other citizens. No sanction required Lokpal to investigate any case of corruption. 524 to [Clause 42]. Clause 49 is reasonable. Clause 54 deal with false complaints are adequate but DOPT is open to suggestions in this regard. (xvi) The limitation period of 7 years as provided in the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his (x) The competent authority has to take disciplinary action as per rules. (xi) The Bill provides for laying of the report on the table of House. (xii) The Bill provides for attachment of assets which have been acquired by corrupt means. (xiii) The Lokpal has powers to recommend transfer or suspension of public servant connected with allegations of corruption till such period as may be specified in the order. (xiv) The loss to be recovered has assessed by the Special Court. (xv) The provisions made in – When the case is filed as per – The Immovable assets and bank – The losses should be fully recovered – Accused should remain suspended till – – Fraudulent complainants with ulterior – There should not be any time limit for – Copy of report along with findings to Clause 33 Clause 35 Clause 42 Clause 54 Clause 49 Clause 29 Clause 28 (b) &(c) from Group “A” to “D”) of Central Govt., i.e the Competent Authority should be kept confidential and the Competent Accused. not be shown to the (xii) from the accused and his family members victim to Also the provisions of Benami be compensated adequately. Act are incorporated for recovery of properties Property purchased in the name of relatives and others. (xv) reporting cases of corruption. CLAUSE 17 (i) The serving PM to be under the ambit of Lokpal but he/she should hold office till proved guilty to run Govt. Apart from this all category of Public Servants smoothly. ( the case final and on proven guilty should be dismissed. (xiv) motives should be penalized financially only. (xvi) (x) Clause 28 (a); disciplinary action should not be initiated. (xi) accounts of the accused and his family members need to be attached till the case is over. (xiii) Prashant Shriram Narwade, Sankalpit CHS Ltd., Polt No. 1240, Chincolo Vitthalpadaq, 12 3 4 140. 525 (Prohibition) Act 1988. [Clause 23]. (vi) Due procedure for inquires/investigations etc. has to be followed by following the principles of natural justice. (vii) In interest of natural justice, due opportunity has to be provide the accused of being heard. functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (ii) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (iii) The Bill provides for inquiry/investigation by Lokpal on receipt of complaint. On conclusion of inquiry/ investigations, the Lokpal has to file a report in the Special Court. (iv) The records of the case are to be retained as per the standard practice. (v) Benami property is covered under the Benami Transactions on the complaints of Suo Moto State Govt. PSUs, Local Self like Municipalities etc. should come in the ambit of Lokpal/Lokayukta. (ii) There should be Lokayukta in all the States, functioning under Lokpal. CLAUSE 23 (iii) Lokpal should act corruption which come to its notice by news etc. The complaint/FIR to be made after the consultation with Chairman and all members (action on complaint by majority of members). All the documents of Lokpal Proceedings to be (iv) scanned and copy to be preserved; extra copies made for references. These documents along with original one should be kept safely. (v) There must be a clause of “Benami” Property in this Bill. (vi) Procedure should be transparent & short and all process activities to be recorded or CCTV installed. (vii) There is no need of giving opportunity to the accused of being heard at every stage. If the prima facie is found, sheeted without any delay. the accused to be charge Bunder Road, Malad (W), Mumbai – 64 526 Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from (ix), (x) & (xi) (viii) If lower bureaucracy is also brought under the purview of Lokpal, it will over burden the system, and may put undue the strains on the resources. Further, employees of the State Governments are to be covered under the Lokayuktas of respective States. CLAUSE 17 (viii) The following sub-clauses has been added in Clause 17 in the jurisdiction clause: (a) any Group “B” to “D” public servants working in Central and State Govt. undertakings; (b) any public servant from Group “A” to “D” public servants working in Local Self Central/State Govt., Municipalities, Mahanagarpalika or Municipal Corporation; LOKAYUKTA OF CHAPTER : “ESTABLISHMENT NEW STATES” IN ALL Act, there shall As from the commencement of this (ix) be established, for the purpose of making inquiries in Act, an institution respect of complaints made under this to be called the “Lokayukta” under Lokpal in every State of India. DEFINITIONS (x) The definition of Minister – means a Union Minister. or State (xi) in the last line of sub-clause (d) clause 17 Lokpal Bill, the words” or State” to be added after word “Union”. CLAUSE 17 (i) PM to be brought under Lokpal Jurisdiction and PM’s corrupt acts must be inquired into but there should strong safeguard to protect him against motivated complaints. For this, a full bench of the Supreme Court should hear a complaint of corruption against the PM. If inod K. Maurya, IC Centre for Governance 12 3 4 141. V 527 therefore, [Clause 12], there is no need to put the Anti Corruption there is no need to put the As far as Branch of CBI under the Lokpal. are concerned, it is for ACBs of States the the respective State Governments to take a view in the matter. (v) The Selection Committee and Search Committee as provided in the Bill are adequate. It is to be noted that the affairs of the State cannot be run on ‘trust deficit’. quarter, it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (ii) The judiciary and the conduct of Members of Parliament on the floor House is outside the purview of Lokpal. If the lower bureaucracy is also brought under the purview of Lokpal, it will over burden the system, and may put undue As far as the NGOs strains on the resources. are concerned, those of the NGOs who utilizing the Government monies or public donations are covered under the ambit of the Lokpal. (iii) The complaints mechanism as prescribed in Clause 8 and 40 of the Bill is adequate. (iv) The Lokpal will have its own independent Investigation Wing the Supreme Court finds sufficient merit in complaint, it could entrust the investigation to Lokpal. (ii) Judiciary to be kept out the purview of Lokpal and Act. Accountability there should be a separate Judicial The conduct of MPs inside the house to should be out of Lokpal powers. Lower bureaucracy to be included in p the jurisdiction of Lokpal. NGOs funded by Govt. and accepting foreign remittances should be covered under Lokpal. CLAUSE 8 & 40 (iii) The complaints against the members of Lokpal should Team lie in the Supreme Court and Special Investigation constituted by the Supreme Court should investigate investigation in corruption cases against them CLAUSE 12 ACBs Anti – Corruption Branch of CBI as well the (iv) of States should be transferred to the Lokpal and Lokayukta The sole focus of Lokpal and Lokayuktas respectively. should be on detection, investigation and prosecution of persons involved in corrupt acts. CLAUSE 4 (v) Selection Committee as well Search should not be controlled by the Govt. of day. Constitutional authorities like CEC, Chairman UPSC and CAG apart from Judges of the Supreme Court should be in the Selection Committee. 528 to Clause 49 (vi) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to Act has decide. The Whistleblowers been introduced by the Government and recommendations of the Parliamentary Standing Committee are under examination. As per the provisions of Bill, on (vii) conclusion of the inquiry/investigation, Lokpal will send a report to the Special Court and also recommend to the competent authority for initiation of disciplinary proceedings under the relevant rules. The Bill does not propose to give powers the Lokpal to tap the telephones. (viii) The provisions of Clause 37 the Bill are quite clear. (ix) The provisions made in deal with false complaints are adequate but DOPT is open to suggestions in this regard. (i) The selection process as provided in Clause 4 of the Bill is adequate. (ii) These matters falls in the domain of State Governments and keeping in view the federal structure of the Constitution, respective State Governments have to take a (vi) Lokayuktas to be created under this Act and if not (vi) Lokayuktas to be created under this possible, a model bill should be suggested for the Also there should Governments. consideration of the State The Act. Whistleblower Protection be a separate responsibility to deal with whistleblowers should be on the Lokpal/Lokayukta. CLAUSE 28 (vii) Lokpal should not order the removal of Govt. servants, as it would amount to usurping the powers of Also appointing authority including the President of India. Lokpal should not have powers to tap the phones and Lokpal should follow the normal procedure followed by CBI. CLAUSE 37 (viii) Powers of delegation by Lokpal to explained clearly in this Bill. CLAUSE 49 (ix) False or frivolous complaints should punishable with fine upto Rs. l lakh or imprisonment 6 months both. CLAUSE 4 it is crucial to make Lokpal impartial and effective, To (i) have the kind of rigorous screening and selection that Jan Lokpal Bill proposes in its Clause 4. Act for the There should be a uniform anti-corruption (ii) State Governments and Legislatures too. Krishna Rao, 12 Shiv Krupa, Kulupwadi Road, Borivli East, Mumbai – 66. 12 3 4 142. 529 Clause 49 and to deal with false complaints are adequate 50 decision in the matter. (iii) The provisions made in but DoPT is open to suggestions in this does not The Lokpal Bill, 2011 regard. contain any provisions for rewards to the system of rewards may lead A complainants. to a flurry of false/incomplete complaints. Exposing corruption should be adequate reward in itself. (iv) The Lokpal is not empowered to pronounce departmental penalties. It is for the competent authority to do so after following the due process of law. (v) The judiciary is outside the purview of the LokpaI. (vi) The concept envisages covering the public servants both at centre and States. Further the matters relating protection to whistleblowers are covered under the Whistleblowers Bill. Authorities by PM, CMS (after i.e. eation of Multi Lokpal type Cr they demit office), Ministers/past Ministers, MPs, MLAs (except to vote and speeches in the House), Group “A” CLAUSE 49 and 50 (iii) The proposed punishment/fine for frivolous or false complaints in Lokpal Bill should be reduced to a maximum punishment of one month and fine should be a maximum of Rs. 5000/-, otherwise it will discourage the genuine complaints too. There should also be a provision in Lokpal Bill for rewarding the whistle blowers – may be rewarded with minimum Rs. 20000/- or maximum of @% the estimated savings to the exchequer in one year along with a citation and place in hall of fame. CLAUSE 28 (iv) Lokpal not to attempt replace departmental vigilance, enquiry and disciplinary action. Therefore, it must not be empowered to pronounce departmental penalties like demotion, suspension etc. (v) Judges of Supreme Court and High must not be under Lokpal Bill whereas they shall subjected to a Accountability Bill which under separate Judicial consideration. (vi) Three Separate Laws. Aam Lokpal These can be called: (1) Khaas Lokpal (2) (3) Whistleblower Lokpal. Khaas Lokpal It shall be almost exactly as Govt. Lokpal Bill and cover both the Centre and States, 530 is adequate. [Clause 3] (i) The definition of ‘complaint’ as provided in the Bill is adequate. (ii) The composition of the Lokpal as given in the Bill – The composition of Lokpal to be – “Complaint” should include complaint – Should have jurisdiction over the Center Clause 3(1) Clause 2(d) of ‘any kind abuse discretionary powers by public functionary’ and of offence coverable under IPC sections Chapters IX, X, XVIII and Sections 403, 409, 420 119, and complaint of a whistle blowers against victimization. (ii) officers in Central and State Govt., heads of all PSUs etc. The complaints should be entertained only under Prevention Act & IPC. of Corruption Aam Lokpal Whistleblowers’ Lokpal It shall have both the above jurisdictions, but only where applications etc. has resulted in backlash complaints, RTI or threat. The main focus of this Lokpal must be on the need to issue directions for providing protection and investigation victimization, including murder of whistleblowers. For the investigation and prosecution of corruption, the case must be transferred to either Khaas Aam Lokpal. Lokpal or (i) and States in respect of Govt. officers the rank file of employees and should entertain complaints made Act and breach of Act, IPC, Public Record under PC provisions of specific GRS, Govt. circulars, directives, guidelines and Manual of Procedure as per the procedure in Govt. Lokpal Bill. It will take care of open and hidden forms of corruption. considered as per Jan Lokpal Bill’s clause 4(2). considered as per Jan Lokpal Bill’s B.L. Bairwa, National President, All India SC and ST Railway Employee Association, 167/A, Devi Nagar, New Sangner Road, Jaipur – 19 12 3 4 143. 531 (iii) As per the provisions of Bill, (iii) Chairman or a Member shall not be of Parliament or a member the Legislature or Union territory. of any State (iv) The provisions for appointment of Chairperson and Members of Lokpal as provided in Clause 4 of the Bill is adequate. – Clause 4 and 5 of Jan Lokpal Bill – Provisions to debar ex-politicians be Clause 3(4) Clause 4 and 5 made. (iv) along with the following amendments to be adopted:– (iii) CLAUSE 4 (a) The search committee shall call for applications/ nominations by publishing an advertisement in widely circulated newspapers and on the website of Lokpal. (b) The Search committee shall adopt the following parameters of eligibility criteria:– Individual Integrity - 10 marks Intolerance to Corruption - 50 marks Professional Efficiency - 10 marks Knowledge of cause corruption - 20 marks Intention behind joining - 10 marks (c) Each member of Search Committee shall have freedom of evaluation for each candidate and the merit list will All the records of proceeding to be be prepared. maintained for atleast three years after short listinga and publish the short list. (d) Now the Selection Committee finalize names from the short list by awarding numerical ratings and shall keep the record of proceedings. (e) if any candidate tries to influence of the member of the Search/Selection committee, he/she may declared ineligible. 532 (v) The provisions for removal of the Chairperson and Members of Lokpal, as provided in Clause 8 of the Bill are adequate. (vi) The provisions to deal with the complaints against the staff of Lokpal as given in Clause 41 of the Bill are adequate. (vii) The procedure in respect of inquiry and investigation by Lokpal as given Clause 23-29 are adequate. Lokpal shall prescribe and publish For the complaints against Lokpal The Chairperson or a member shall not Chapter VII – Clause 41 – Clause 41 Clause 8 – be removed from his office except by an order made the President on ground of proved misbehavior or incapacity or corruption after an inquiry made by committee consisting of the CJI and two other judges Supreme after informing the court next to the CJI in seniority, Chairperson/Member of their charges and giving opportunity of being heard. (vi) rules for procedure for conducting inquiry, which cannot rules for procedure conducting inquiry, be deviated in any case without recording cogent and germane reasons. The complaint received by the Lokpal Act. should be treated as FIR under CrPC (v) officials, the clauses 15 and 16 of Jan Lokpal Draft with the following modifications in clause 15(4) of Jan Lokpal :– After investigation, the competent authority shall not (a) impose punishment less than (a) dismissal and launch criminal prosecution if found guilty of misconduct or disproportionate assets, dishonest/unfair/incorrect investigation (b) removal if found guilty of gross negligence/unreasonable delay in more than 20% cases completing the investigation. (b) Citizens will also be entitled to file a complaint before a first class Magistrate under section 200 of Cr PC against any Lokpal official for the offences attracting IPC Act. Act or any other or PC (vii) 12 3 4 533 to Clause 49 is reasonable. Clause 54 [Clause 42]. the appointing authority cannot be (viii) In the interest of natural justice, opportunity has to be provided the public servant of being heard, especially in view dispensing with prior sanction for prosecution Act and permission under under the PC Act. of DSPE Section 6A The powers of the competent authority, (ix) i.e. of the Bill provide that (xi) Clause 11 appointment of Secretary and other officers and staff of the Lokpal shall be made by Chairperson or such Member of officer the Lokpal as Chairperson may direct. the appointment in respect of any Further, post or posts as may be specified in the rule, shall be made after consultation with the Union Public Service Commission. (xii) The provisions made in exercised by the Lokpal. Even various Apex Court, give courts, including the recommendations for compliance by the competent authority. (x) The assessment of loss and recovery thereof is to be decided by the Special Courts. deal with false complaints are required but DoPT is open to suggestions in this regard. (xiii) The limitation period of 7 years as provided in – No opportunity of hearing should This clause to be deleted as IPC Lokpal should have the authority to Instead of its recommending powers, – The exemption from the time limit of The provisions of Jan Lokpal Bill for Clause 23(4) Clause 54 Clause 49 – Clause 44 – Clause 44 Clause 28 – Clause 42 – Clause 42 grant sanction for deciding the strength of staff, creation of posts, acquisition resources, equipments etc. necessary for meeting the prescribed time limits completion of investigation into the complaints received. (xii) (viii) Sections 177, 182, 203 etc. can take care of criminal prosecution for false complaints. There should not be more that Rs. 20,000 fine for false complaints but higher fine can be imposed on habitual false complainants. (xiii) Lokpal should have the powers to conduct inquiry and order of removal/dismissal after taking into consideration Authority. the opinion of Disciplinary (x) be given to accused before search and seizure, whichever so that accused could it may be considered necessary, not get opportunity to disappear or temper with the evidence and illegal assets etc. (ix) recovering five times the loss to exchequer from private body to adopted in this clause. (xi) seven years should be provided in the cases where 534 (xiv) The normal reservation will have to be provided as per the policy of Government on the subject. (i) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (ii) The Prime Minister is kept outside the after the purview of the Lokpal. However, Prime Minister has demitted the office, he will come within the purview of Lokpal. Other Ministers, including those working in the PMO are covered under Lokpal. The conduct of the MPs on floor House is not within the purview of Lokpal Article 105(2) as they enjoy immunity under of the Constitution. (iii) It may not be feasible to expand the to include private definition of ‘public duty.’ entities role in providing public services. at State to be instituted in all Local Bodies Lok Ayukta Local Bodies Lok Lokpal or Rashtriya Lok Ayukta Rashtriya Lok Lokpal or Pradesh or State Lok Ayukta Lok State Pradesh or Ombudsman. Ombuds Office at National level, contracts/MoUs/Lease/Deed/Sanction etc. are still in effect or not closed completed. (xiv) There should be provisions for reservation SCs in the institution of Lokpal from top to bottom and STs level posts, to protect the interest of these classes, whether it filled by deputation or the recruitment. There should be a (i) Jurisdiction of Lokpal CLAUSE 17 (ii) PM and Judiciary should remain outside the jurisdiction but there should an appropriate mechanism to be put in such place to eliminate corruption and abuse of authority, as National Judicial Commission or Standard and Accountability Bill for judiciary and all the personnel including MoS in PMO to be brought under the Lokpal. The Conduct of MPs amounting to corruption in respect of any thing said or a vote cast by MP in Parliament or in any committee thereof. Act to be redefined incorporate (iii) “Public Duty” in PC the private entities role of providing public services. Therefore, all institutions, bodies, groups, organizational and associations NGOs that exists or operates in the level and in the grassroots or organizations/institutions that operates in public sphere, public interest or welfare, deals with Govt. money for redress of grievances and in all Public or Govt. offices at the Local level. Dr. Sowesh Pattanaik, Dr. New Delhi 12 3 4 144. 535 (iv) The NGOs utilizing Government funds and public donations are within the ambit of it will not be practicable the Lokpal. However, to include private sector within the ambit of Lokpal. (v) The composition of the Lokpal as given in Clause 3 of the Bill is adequate. (vi) The composition of the Selection Committee as provided in the Bill is adequate. (vii) The composition of the Search Committee as provided in the Bill is adequate. public sphere – public, private/Govt. and non-Govt. that deals with the public money and involved or engaged in public affairs and interests, should come under the Lokpal Act. (iv) Private sector and NGOs too come under the Jurisdiction of Lokpal. Establishment of Lokpal CLAUSE 3 (v) Lokpal should have as many members equivalent to that of full Constitutional Bench the Supreme Court. The “Impeccable Integrity” should be must criteria for all the members including Chairperson with no exemption or exception. CVC to be made a member of Lokpal. Selection Committee CLAUSE 4 (vi) This Committee under the chairmanship of PM should Leader of Opposition in both comprise Home Minister, a member of UPSC, one eminent the Houses, CVC, C&AG, jurist, who shall not ever been a Law Officer in the Centre/State Govt. and two persons of eminence in public life with knowledge and expertise on governance, public policy making and 15 years of administration, law, experience in public or social work. No person to be selected on the ground of being a recipient award or title, national or international. Search Committee CLAUSE 4 it may (vii) If Selection Committee feels it necessary, constitute a three member Search Committee for preparing a panel of persons for the consideration appointment of Lokpal members. 536 provides for setting
up of an independent Investigation Wing by Wing up of an independent Investigation the Lokpal and Clause 32 provide for utilization of services officers the Central or State Governments by the Lokpal. (xi) For matters relating to public grievances, a separate mechanism is required to be set- up for which the Department of Administrative Reforms and Pensions is working on the same. (viii) The oath as prescribed in the First Schedule of the Bill is adequate. (ix) It may not be desirable to make ineligible the Chairperson from contesting elections The restriction of fives to contest for ever. the election is sufficient. (x) Clause 12 of the Bill – Any member including Chairperson – – The prescribe form of oath should Clause 3(5) Citizens’ Charter to be brought out immediately by Clause 9(1)(iv) Oath or Affirmation Oath or (viii) who has been in Lokpal, shall be ineligible forever to contest any election. Investigation (x) Lokpal to have its own independent investigation agency and when it uses the services of existing central/State Govt. agencies, the concerned investigation agency shall function under the direct control and supervision of the Lokpal. No Investigation Officer shall serve for more than five years in the Lokpal Investigation and shall not handle more than 6 full fledged cases Wing per year to ensure quality and timely completion of investigation. Citizen charter/citizen rights (xi) all the Departments and Institutions whether public or dealing in public welfare private or non-Govt., Govt., Also to formulate and ensure immediate etc. implementation of Code Ethics for Ministers, MPs, also include: “an undertaking of oath by the Chairperson and every member that he/she has never committed any act of corruption and shall never commit act during his/her tenure in Lokpal and shall show zero tolerance towards corruption including total transparency and accountability in its functioning. (ix) 12 3 4 537 Setting up the institution of is for the State Governments is for the State
Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the the provisions of to decide. Further, States the Bill are to be in addition other laws. units Vigilance Anti Corruption and The (iv) are already in place so far as the Central Government is concerned. For State level it machinery, to take appropriate steps. (xii) The Lokpal will file its report with the Special Courts. Therefore, the appeals etc. are to be made as per the applicable law. (i) The Lokpal is intended to inquire into the allegations of certain public functionaries. The jurisdiction of the Lokpal has been elaborated in Clause 17 of the Bill which is adequate. (ii) and (iii) i.e. MLAs, Political parties, Govt. servants, Citizen and voters MLAs, Political parties, Govt. servants, Citizen and Industry. and and Trade Appeal Appeal from Lokpal shall lie in the High Court and (xii) subsequently to Supreme Court as per the appeal provisions of Code Criminal Procedure including section 372 CrPC. (i) It should be decided whether Lokpal shall limited or to extend their authority all officers upto Group ‘A’ other employees in the Union Govt. either directly or set up of the Vigilance Anti corruption and through the Govt., primarily CBI and CVC. The future of these statutory bodies to be decided while ensuring that they continue to serve the purpose for which they were created. (ii) Regarding creation and functions to be performed by it should be decided the Lokayuktas in States/UTs, whether to leave this matter entirely the State Acts, or moded Legislatures to formulate their respective Act. bill to be formulated within or outside the Lokpal (iii) While discussing the Lokpal and Lokayukta legislations, the related administrative and judicial processes will have Also, the local self-Governments, to be looked into. Panchayats, Muncipal bodies should not be over looked. Anti There is a need to identify or set up the (iv) units right from the Central level Vigilance corruption and to Local self-Government level including State, District and the block level, while creating an independent chain of Lokpal at resulting in the office of accountability, Centre and in the offices of Lokayuktas State/UT Govts. Shri Amod K. Kanth, Shri Chairman Delhi Commission for Protection of Child Rights, Govt. of NCT of Delhi, Delhi 145. 538 (v) These issues are to be examined separately. Wealth) Ordinance Wealth) (a) Whistle Blowers Protection Bill, 2010 (b) Judicial Accountability Bill (c) Administrative Reforms Bill (d)Act Amendments in the Representation of People (e) Benami Transactions Prohibition Ordinance, 1989 (f) The Corrupt Public Servant (Confiscation of Illegal (v) Simultaneously, in order to strengthen our machinery (v) Simultaneously, and to fortify our strategy fight against corruption, the following Draft Laws which are already under process, to be made:– 12 3 4 539 The Department may not have
Comments of DoPT (i) and (xiv) any objection for making Lokpal a constitutional body. Amendment) and Sixteenth A YUKT ‘THE LOKPAL BILL, 2011’ ‘THE LOKPAL Suggestions/Comments AND LOKA
A AL t XV Par LOKP 329C.Lokpal The There shall be a Lokpal for Govt. of India and UTs. (iii) powers of superintendence, direction, control investigation and prosecution of any alleged offence corruption under and all powers necessary incidental thereto any law, shall vest in the Lokpal accordance with and as specified by law made Parliament in that behalf. (i) Hon’ble justices has advocated for the establishment of a Constitutional body to combat corruption, citing some such as key advantages of constitutional body, Independence, immunity from influence, protection challenges in court of law etc. For this purpose, they have put a draft for discussion to amend the constitutions to make provisions for the establishment of Lokpal and Lokayukta. Act, to be called the Constitutional amendment A (ii) “Constitutional (One Hundred Act, 2011, be enacted to insert a new Part XVA and be enacted to insert a new Part XVA Act, 2011, Article 329C and D after Part XV of the Constitution, with the following provisions:– of the ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE – EXAMINATION OF AND JUSTICE – EXAMINATION LAW ON PERSONNEL, PUBLIC GRIEVANCES, Individual Justice Venkatchaliah Verma and Justice 12 3 4 No. Organisation/ 196. COMMENTS OF DoPT ON THE SUGGESTIONS RECEIVED BY THE DEPARTMENT RELATED STANDING COMMITTEE STANDING RELATED THE DEPARTMENT THE SUGGESTIONS RECEIVED BY ON COMMENTS OF DoPT Memoranda Name 540 yukta A (ix) There shall be a Lok Ayukta for every State in India. for every State Ayukta There shall be a Lok (ix) The powers of superintendence, direction, control investigation and prosecution of any alleged offence and all powers under any law, corruption in the State necessary and incidental thereto, shall vest in the Lok in accordance and with as specified by law Ayukta (iv) Lokpal shall be an independent and autonomous body with a Chairperson and such number of members as prescribed by law made Parliament in this behalf. (v) The appointment of the Chairperson and Members the Lokpal shall, subject to provisions of any law made in that behalf by the Parliament, to be President of India. (vi) Subject to the provisions of law made by Parliament in this behalf, the conditions of service and tenure of the office Lokpal shall be such as President may by rule determine, provided that the Chairperson or a member shall not be removed from the office except in a manner and on the grounds as judge of Supreme Court and the conditions service shall not be varied to his/her disadvantage after appointment of Chairperson/Member. (vii) Every person appointed, as Chairperson and Members shall take oath or affirmation in a prescribed form before the President of India. (viii) The Chairperson and Members of Lokpal shall not be eligible for any Govt. office of State/Centre after demitting the office of Lokpal. 329D. Lok 12 3 4 541 made by the appropriate legislature in that behalf. shall be an independent and autonomous Ayukta (x) Lok body with a Chairperson and such number of members as prescribed by law made appropriate legislature in this behalf. (xi) The appointment of the Chairperson and Members shall, subject to the provisions of any law Ayukta the Lok made in that behalf by the appropriate Legislature, to be made by the Governor. (xii) Subject to the provisions of law made by appropriate Legislature in this behalf, the conditions of shall be Ayukta of Lok service and tenure of the office such as the Governor may by rule determine, provided that the Chairperson or a member shall not be removed from the office except in a manner and on grounds as a judge of High Court and the conditions service shall not be varied to his/her disadvantage after appointment of Chairperson/Member. (xiii) Every person appointed, as Chairperson and Members shall take oath or affirmation in a prescribed form before the Governor. shall Ayukta The Chairperson and Members of Lok (xiv) not be eligible for any Govt. office of State/Centre after demitting the office of Lokpal. Ambedkar has submitted its own draft Bill The Team called “Ambedkarite Multi-Lokpal Bill” rather than giving the However, suggestions on the Govt. Lokpal Bill 2011. new features of this Bill are as follows:– Prof. L. Karunyakara and Others, Ambedkar Team 197. 542 . viz (i) The structure and jurisdiction of the Lokpal as provided in the Bill are adequate. (ii) - (a) to (f) The concept of the Multi Lokpal is not feasible as it will require creating of multi organizations with overlapping functions, which may lead to this conflict amongst themselves. Further, will also involve logistics problems. The proposed institution of Lokpal is to enquire into the allegations of corruption against certain public functionaries as defined in the Bill. The judiciary is not within the ambit of a separate Bill, the Lokpal. For judiciary, Judicial Standards and Accountability Bill is and Judicial Standards already under consideration of the Parliament. Lokpals for creating different Further, different areas may not be effective as it may lead to conflict amongst multiple Regarding lower bureaucracy, organizations. it is stated that if lower bureaucracy also included within the purview of Lokpal, it will put strain on the resources, and Lokpal may be over burdened. However, CVC may be entrusted to conduct the PE and subsequent investigation through various As far as the question of issues agencies. Lokpal for prevention of corruption in higher Lokpal for prevention of corruption among political Lokpal for prevention of corruption in Higher Judiciary– Establishment of Multi Lokpal (i) The Multi-Lokpal shall consist of Jan Lokpal as administrative Head of Multi Lokpal and other Lokpals to deal with the specific jurisdiction to corruption cases. Every Lokpal shall have five members including Chairperson. Lokpal for inquiry against Public Servants (ii) The following Lokpal are envisaged in the Multi Lokpal Bill to inquire into any matter involved in or arising from, or connected with, any allegation of corruption by a public servant made in complaint any person:– (a) executives and legislature – to deal with the corruption complaints against PM, Minister and MPs. (b) bureaucracy – to deal with the corruption complaints of or equivalent in connection with the officers A any Group affair of the Union including those in any Board or Corporation, or authority company society Act autonomous body established or constituted under an of Parliament or wholly partially financed by the Central Govt. or controlled by it. to deal with the corruption complaints against Judges of Supreme Court and High court including CJI Chief Justices. (c) 12 3 4 543 The provisions proposed in the Lokpal Bill envisages to bring in its ambit such of the societies, trusts etc. which are receiving funds from the Government and also received donations from the public. in order to tackle corruption by Further, private parties needs house etc. MHA in consultation with the States is already examining amendment to IPC. Section 12 of Act 1988 deals with the matters the PC relating to SCs/STs, OBCs and Minorities relating to SCs/STs, are concerned, to deal with these, already independent bodies like National Commission for Scheduled Castes and Tribes, etc. are in place. (iii) (a) & (b) Component Plan for SCs, Tribal sub Plan (TsP) Tribal Component Plan for SCs, implementation of reservation in jobs for STs; To deal with the corruption complaints against To any employee of the Central Govt. except Group A officers as mentioned above. deal with the corruption cases related to To implementation of Govt. policies for BC castes and Minorities deal with the any act or conduct of a private To person or a private body other than referred above, associated with the allegation of corruption Act, 1988. under the PC To deal with corruption cases related to Special To Lokpal for inquiry against Private person** or Lokpal for prevention of corruption in lower ➣ ➣ ➣ ➣ Lokpal for prevention of corruption in SC/ST affairs– Lokpal for prevention of corruption in private body or Lokpal for prevention of corruption in BC and Minority (d) bureaucracy – affairs – society or trust company (a) society or trust company –- (f) (e) (iii) 544 connected with abetment of offences as Act of the PC defined in section 7 or 11 which may include bribe givers. Therefore, the jurisdiction of Lokpal as proposed in Clause 17 of the Bill is adequate. means a person referred above; and To deal with any act or conduct of society To or association trust company corporate or private persons engaged connected with Government functions or performing any function related with the public such as private sector, Charitable-Religious NGOs or Media sector, and bodies dealing with public money. Trusts, deal with corruption complaints against any To Chairperson or member in any private body Board or corporation authority company society wholly financed by the private management or controlled by it, MNCs, Media Companies, Board of Directors Board of a company, Act or company registered under the Companies any other related law for the time being in force. secretary or other officer manager, Any director, of every other society or association persons or trust wholly partly financed by the Govt. or in receipt of money under the Foreign Act or any donation Contribution (Regulation) from public. ➣ ➣ ➣ ** Private Person – engaged or connected with Government functions performing any function related with the public such as charitable trusts or NGO, media sector, private sector, bodies, any organization or society trust private Act and company within the meaning of Companies that deals with public money is given by Govt. or private persons. 12 3 4 545 (iii) (c) For matters relating to public grievances, a separate mechanism is required to be set-up for which the Department of Administrative Reforms and Pensions is working on the same. (iv) The structure and composition of the Lokpal as proposed in the Bill is adequate. (v) The affairs of the Lokpal are to be managed by the Lokpal itself. The concept of multi Lokpal is not feasible. (vi) Giving directions to the Lokpal any sort of management committee would mean to curtail the powers and functions of Lokpal. The proposed provisions for inquiry and investigation of complaints relating to corruption are adequate. To deal with the corruption cases against/in To IIMs and other premier Central Universities, IITs, Govt. institutions and higher educational under the management of private persons like Vice Private universities, colleges etc.; and Professors, Principals and Director, Chancellor, other teaching and non employees of academic institutions of central Govt. or private management. deal with the matter relating to public To grievances and protection of whistleblowers including the complaints of non-implementation of Citizens’ Charters. servant of State Govt. or private person society or trust company operating within the ➣ ➣ (a) to investigate a close of corruption against public Lokpal for dealing with cases of public grievances Lokpal for prevention of corruption in higher educational (b) institutions – and protection of whistleblowers – (c) (iv) Each Lokpal shall have five members, out whom at least one shall be a SC/ST member and judicial Member. (v) There shall be a Management Committee of the Multi Lokpal comprising all the members and Chairpersons of Lokpals, to supervise overall general administration of the Multi Lokpal. (vi) Management Committee of the Multi Lokpal by a majority of vote shall have powers to direct any Lokpal:- 546 (i) In the context of the Indian polity, the (i) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (ii) The judiciary has been kept outside the purview of the Lokpal. (iii) If lower bureaucracy is also included within the purview of Lokpal, it will put strain on the resources, and Lokpal may be over burdened. (iv) The Bill contains the provisions to bring such organizations under the purview of Lokpal. jurisdiction of any State; clause (a) above even if it is investigated by Govt. agency. Lokayukta or any other State (b) to intervene or investigate a case referred in Jurisdiction (i) PM shall be included in the ambit of Lokpal but will remain excluded for all the matters connected with public security. and energy foreign affairs national security, order, Permission of CJI shall be must to investigate against PM. MPs shall be included in the ambit of Lokpal except any thing done or said on the floor of House. (ii) Judiciary shall be kept out of the purview Lokpal Accountability but shall be subject to a separate Judicial and Standards Bill, which should be passed within six Act. months after this (iii) Lower Bureaucracy to be included in the ambit of Lokpal. (iv) NGOs, any society or association trust (whether registered or not) wholly partly financed by the Govt. or in receipt of any sums under the foreign Contribution Act or any donation from public. (Regulation) K.C. Law College, Dinshaw Bachha Road, Churchgate, Mumbai – 20 12 3 4 198. 547 (v) The Bill provides for independent by Wing and Prosecution Wing Investigation the Lokpal. The Bill also provides Lokpal may utilize services of any Central or State Government employee. (vi) Setting up the institution of Lokayukta falls within the domain of States. Keeping in view the federal structure of our Constitution, it may be left for the States to decide. (vii) Protection to the Whistleblowers is be provided as the Whistleblowers Bill which is under consideration of the Parliament. (viii) The Bill provides that on completion of the investigations, Lokpal shall file report with the Special Court for prosecution of the corrupt public servant. Timelines have been provided in the Bill to complete such inquiry/investigation and action thereon. [Clause 23-29]. (ix) The composition of the Lokpal and Selection Committee as proposed in the Bill are adequate. (v) CBI shall remain an independent agency and be Agency as used by the Lokpal as Principal Investigative and when directed by Lokpal. But for the purpose of investigation against PM or a Minister member of CBI, a separate investigation wing shall be set up directly under the Lokpal. (vi) There should be a model Lokayukta Bill for all the States. Whistleblower Protection and False complaints Whistleblower shall be given due protection if the All (vii) complaints are in good faith. The punishment for false/ frivolous complaints shall range from 6 months to 2 years and fine shall be Rs. 50000/- to 2 lakh. Punishment for Corruption (viii) Lokpal shall only be an investigative and prosecuting body whereas for imposing penalties, Special courts will All cases must be be set up to try the corruption cases. completed within one year and extensions only for special reasons. Composition of Lokpal and Selection Committee (ix) Lokpal shall consist of a chairperson and nineteen members with at least eight judicial members. The Chairperson and members shall be appointed by the President on the recommendations of Selection Committee consisting of:– 548 (x) Clause 31 of the Bill provides that Lokpal shall have powers of Civil Courts in certain cases such as summoning and enforcing the attendance of any person and examining him; production of any documents; receiving evidence as affidavits, etc. For phone tapping, no such powers are envisaged to be provided the Lokpal as existing procedure for phone tapping is adequate. (i) The jurisdiction of the Lokpal as proposed in the Bill is adequate. (ii) The Bill provides for setting up of by the Lokpal. Wing independent Investigation The Bill also provides that the Lokpal may utilize services of any the Central or State Government employees. (iii) The Superintendence of the Delhi Special Police Establishment (CBI) so far as it relates to investigation of offences alleged have been committed under the Prevention of (a) PM as Chairperson (b) Former chairperson Lokpal and in his absence the Speaker of Lok Sabha (c) Leader of Opposition in Lok Sabha (d) CJI (e) One sitting Judge of Supreme Court nominated by CJI (f) One sitting Chief Justice of High Court nominated by CJI (g) Senior Most National Professor of Law (h) Cabinet Secretary as Secretary (i) CEC of India. Powers (x) Lokpal shall have the powers to punish for contempt Lokpal to take permission from judiciary tape the phones and it would be kept secret (i) The Role of Lokpal should be limited to monitoring Ministers, MPs, Secretaries of Govt. India and Heads of PSUs. PM to be excluded from its jurisdiction. An anti-corruption cell selected by Lokpal from (ii) amongst Govt. officials should be formed to investigate against public servants under the Lokpal’s offences purview. (iii) Lokpal to supervise the functioning of CBI Act Performance appraisal under PC regarding offences of Director CBI and CVC to be initiated by the Chairman Lokpal. Lok Jan Sakti Party 12 3 4 199. 549 The rules for making complaints Corruption Act, 1988, vest in the Central Corruption Commission and the existing Vigilance provisions are adequate. (iv) The procedure for inquiry and investigation as provided by the Bill are adequate. The Lokpal, on completion of investigations, shall file a report in the Special Wing. Court through its Prosecution (v) Clause 33 and 34 of the Bill provides for attachment of property corrupt public servants. (vi) The Department may not have any objection for making Lokpal a constitutional body. (i) and (ii) are to be notified separately. The provisions are to be notified separately. made in Clause 49 and 50 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (iii) There are no justifications to exempt the Lokpal from provisions of RTI. (iv) Lokpal Board to sanction the prosecution of public servants under the Lokpal. (v) Lokpal to be empowered attach property or assets acquired by corrupt means, to recommend cancellation of lease, license or contract obtained by corrupt means and to recommend public authorities changes in work practices to reduce the scope of corruption. Even Lokpal to have contempt powers. (vi) Lokpal should have constitution status like CEC and Minorities, with adequate representation of SCs, STs, OBCs and Women. Complaints (i) Complaints must in the form of affidavit. The punishment for false complaints should not be of extreme nature and penalty/punishment should not be harsh or heavy. (ii) False complaints to be distinguished from the failure of the complainant to prove complaint. Complaint and name of the complainant and person against complaint is made should not be publicized in media till the final disposal by Lokpal. (iii) Lokpal should be exempted from the provisions of the RTI. Justice R. J. Kochar, Former Judge Bombay High Court, 10 DG Chambers, 100-104 First Floor, Nagindas Master Road, Nanik Motwani Lane, Fort, Mumbai-01 200. 550 (iv) The composition of the Lokpal, tenure of the Chairperson and Members Lokpal and their eligibility conditions as provided in the Bill are adequate. (v) The restrictions on employment after ceasing to Chairperson and Members of the Lokpal as provided in the Clause 9 of Bill are adequate. (vi) The Prime Minister and the judiciary is not within the ambit of Lokpal. (vii) The Bill provides for setting up of an by the Lokpal Wing independent Investigation to investigate the cases. (viii) On completion of investigations, the Lokpal shall file a report in the Special Court for prosecution Wing through its Prosecution of the offending public servant. (ix) The procedure for inquiry and investigations of the complaints provides that on completion of the inquiry/investigation shall file a report in the Special Court and also send it to the competent authority for taking disciplinary action as per the applicable rules and a report has to be made the Establishment of Lokpal (iv) There will be three members Lokpal. No politician or Tenure retired or bureaucrat should be a part of Lokpal. should be 5 years and till the age of 75 age. Lokpal. There must also be Dy. (v) No Lokpal shall hold any office or post after ceasing to work as Lokpal. Jurisdiction (vi) PM and Higher Judiciary to be excluded from the should come under Lokpal. Office ambit of Lokpal. PM’s Investigation (vii) Lokpal should have its own independent investigation Deptt. headed by a retired Police Commissioner and this to be vested with all the required powers under CrPC. Lokpal should be the prosecuting (viii) Lokpal and Dy. authorities. Other provisions All the decisions/reports of Lokpal must be (ix) accepted and implemented by the Central/State Govts, as the case may be, within a time frame not more than 3 months. 12 3 4 551 Lokpal by the competent authority of have Timelines action taken in the matter. been provided in the Bill for various activities. during the course of inquiry Further, Lokpal may also recommend suspension/ transfer of the accused public servant. Such shall be accepted recommendations, normally, by the concerned competent authority. (x) Setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. (xi) The Bill provides that the expenses of the Lokpal shall be charged on Consolidated Fund of India. [Clause 16] (i) This is in agreement to the provisions of the Bill. (ii) This is in agreement to the provisions of the Bill. the (iii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, included in the Jurisdiction but to be excluded (x) There must be provision for Lokayukta and Dy. (x) Lokayukta in every State. (xi) Lokpal should be financially independent under the Constitution. Clause 9(1) (i) The provision of restriction employment by Chairperson and members after ceasing to hold should be retained. Clause 12, 13 and 14 (ii) the provisions for investigation wing are sufficient. Clause 17 be to (iii) PM in matters related to defence and security issues. The NGOs receiving donation/aid from foreign countries and those receiving donations from corporate/private sector companies, of the amount not less than 5 crore too be brought under the Lokpal apart from NGOs aided by Govt. ABVP 201. 552 may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. The organizations receiving public donations and foreign Contribution are already included in the Bill. (iv) For matters relating to Public Grievance or separate mechanism is required to be set- Administrative up for which Department of Reforms and Pensions is working on the same. (v) The provisions made in Clause 49 and 50 to deal with the false complaints are adequate. But DOPT is open to suggestions the quantum of in this regard. Further, punishment provided in the Bill for various offences seems to be adequate. Citizens’ Charter Charter’ must declare ‘Citizens’ All the Govt. offices (iv) mentioning prescribed time schedules, procedure and Group “A” should A for every service. responsible officer be made responsible for the implementation of Citizens’ Charter equipped with the disciplinary authority on employees for failures and failure of the charter to be treated as corruption leading to prosecution of that Group A officer under Lokpal. Offences and Penalties (v) The prescribed punishment for false complaints is relatively more. Lokpal should promote and protect common people to come forward file complaints against corruption and non-performing public servants. However, the habitual false complainant after five times repeatedly doing so to be punished for misguiding Lokpal. The punishment of upto 10 years imprisonment for the corrupts is not sufficient and should be proportionate to the rank of Public servant and volume corruption, may extended upto life imprisonment and stopping all the further financial benefits of public servants. 12 3 4 553 (vi) Protection to the Whistleblowers is be provided as the Whistleblowers Bill which is under consideration of the Parliament. (vii) Setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. (i) The Bill does not provide such powers to the Lokpal. Act 1988 deals (ii) Section 12 of the PC with the matters connected abetment of as defined in section 7 or 11 of offences Act which may include bribe givers. the PC In order to tackle corruption by private parties needs house etc. MHA in consultation with the States is already examining amendment to IPC. The Bill proposes to bring Group ‘A’ (iii) and equivalent officers within the ambit of the Lokpal. If lower bureaucracy is also included within the purview of Lokpal, it will put strain on the resources, and Lokpal may be over burdened. cognizance suo moto Protection to Whistleblowers (vi) The Bill should have provisions for Whistleblowers. Lokayukta (vii) There must be Lokayuktas in every State. Jurisdiction for Inquiry (i) Lokpal should have powers to take Jurisdiction (ii) Corporate Sector/Corporates should be covered by Lokpal to the extent they are involved in Collusive Andhra Pradesh and Corruption like the Mining Scam in 2G Scam, and only in eventuality that such corrupt practices can not be dealt by any other law in existence. (iii) The ambit of Lokpal to extended officers all involved in initiating and All the officers rank and class. granting of Licenses and permissions must be covered under Lokpal irrespective of the level. of the corruption, investigate and trial. Shri Arun Chawla, Assistant Secretary General, FICCI, Federation House, New Marg, Tansen Delhi – 01. 202. 554 (iv) For matters relating to Public Grievance or separate mechanism is required to be set- Administrative up for which Department of Reforms and Pensions is working on the same. (v) The Bill provides that words and Act expressions used but not defined in this Act, 1988, shall have the but defined in PC same meaning as assigned to them in that Act. (vi) Setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. (vii) Protection to the Whistleblowers is be provided as the Whistleblowers Bill which is under consideration of the Parliament. (i) There is no need to change the name of the present Bill. ter s Char The definition to be widened by including “willfully (iv) The huge delay in discharging public services to be treated as corruption. Citizen’ Definition of Corruption (v) giving any undue benefit to person or entity, causing loss to the public exchequer and betraying public trust. Lokayukta (vi) The Bill should provide for a uniform Lokayuktas in the States just like establishment of Information Act. Commissions through a single RTI Protection of Whistleblower (vii) The Bill should have provisions for protection to Whistleblowers, witnesses and victims of corruption by concealing their identity etc. Reward may be considered for whistleblowers. Title Governance and Act may be called “Effective The (i) Counter Mechanism Bill” Ms. Srishti Purohit, R/o 33-C, Pocket-A, Enclave, G.T.B. Delhi – 93 12 3 4 203. 555 (ii) The composition and structure of the Lokpal as proposed in the Bill is adequate. (iii) The composition of the Selection Committee is adequate. (iv) The powers and functions of the Lokpal as given in the Bill are adequate. Regarding protection to the Whistleblowers is be provided as the Whistleblowers Bill which is under consideration of the Parliament. For matters relating to Public Grievance or separate mechanism is required to be set-up Administrative for which Department of Reforms & Pensions is working on the same. (v) The provisions for inquiry and investigations as given in the Bill are adequate. , the complaint is not made out or initiate e of Lok-Rakshak acts of omission or commission which are Act. punishable under PC govt. servant including complaints from whistle blowers and grievances within the deptt. or interdepartmental. (a) Complaints where there are allegations of such (b) Complaints of allegations misconduct by a tructur (ii) The Institution of Lok-Rakshak shall consist one Chairperson and a vice chairman 15 other members and its officers employees, it will be called as Lok- Rakshak Committee. This committee will have proportionate OBC and women representation from minorities, SC/ST, (Gen – 7, SC/ST 3, OBC 2, Minorities Female – 3). S Selection Committee (iii) The Selection Committee chaired by Chief Justice of Supreme Court shall consist of 5 senior most judges Supreme Court of India including Chief Justice and a joint parliamentary committee (number of members to be decided by Lok Sabha Speaker). Functions of Lok-Rakshak (iv) Lok-Rakshak shall be responsible for receiving: (v) Lok-Rakshak after getting such inquiries and investigations done as it deem fit, may close the case, if prima facie prosecution or impose appropriate penalties under CCS conduct rules, order cancellation or modification of a M.O.U. or license lease permission contract 556 (vi) No such powers are envisaged in the present Bill. (vii) Functions of the disciplinary authority and the appointing authority cannot be delegated to other authorities. (viii) Clause 13 of the Bill provides that Investigating Officers of the Lokpal shall have police powers. (ix) Clause 42 of the Bill provide for assessment of loss and recovery thereof by the Special Courts. The proposed provisions are adequate. (x) For matters relating to Public Grievance or separate mechanism is required to be set- Administrative up for which Department of Reforms & Pensions is working on the same. (xi) The existing provisions for appointment of CVOs through CVC is adequate. initiate appropriate action under this Act initiate appropriate action under this Suo moto and take necessary action to provide protection whistleblowers. (vii) Lok-Rakshak shall be deemed to “Disciplinary Authority” or “appointing authority” for the purpose of imposing penalties under CCS Conduct rules. (viii) Lok-Rakshak Committee shall be deemed to police officers for the purposes under section 36 of CrPC. agreement including blacklisting the concerned firm or company or contractor any other entity involved in Act on non corruption. Invoking its powers under this compliance of its orders. (vi) Recovery of loss to the Government (ix) The trial court will quantify the loss caused to govt. and aportion that amount to various convicts from whom this money must be recovered as arrears of land revenue. Citizens’ Charter (x) Each public authority shall be responsible for the within Charter, preparation and implementation of Citizens’ a reasonable time and to designate Public Grievance to look into the matter. Redressal Officer (xi) Lok-Rakshak to appoint CVO in each public authority or govt. undertaking. 12 3 4 557 (xii) CVC has served the purpose and developed expertise in dealing with the cases involving corruption. The measures to strengthen CVC may have to be explored. (xiii) This would amount to taking up the administrative powers of the various authorities, which may be counter productive in controlling the officers. (xiv) Since the Lokpal shall have its own there is no need to merge Wing, Investigation the any part of CBI with Lokpal. (xv) Clause 37 of the Bill provides that Lokpal may direct that any administrative or financial power conferred on it may also be exercised or discharged by such of its Members or officers employees as may be specified in the order. (i) The structure of the Lokpal as provided in the Bill is adequate. (xii) CVC Act shall stand repealed. All vigilance Act shall stand repealed. (xii) CVC administration under the control Deptt./Ministries of Central Govt. or Corporates/PSU etc under the established Act shall stand transferred with its under Central establishment to Lok-Rakshak for all the purposes. (xiii) Lok-Rakshak shall rotate the personnel and create vigilance wing of each deptt. and to ensure that no personnel from the same department get posted for vigilance functions in the same deptt. Investigation Wing (xiv) Lok-Rakshak shall have an investigation wing and that part of Delhi Special Police Establishment, in so far it relates to investigation and prosecution of offences Act, shall stand alleged to have been committed under PC transferred along with its staff and assets. Delegation of Powers (xv) Lok-Rakshak shall be competent to delegate its powers and assign function to officials working under it. Establishment of Lokpal (i) The Lokpal shall have a Chairperson and 10 members, appointed by the President on recommendations of the Selection Committee. Shri Vivek Garg, Shri Vivek Advocates International, Shakti Delhi Nagar, 204. 558 (ii) The mechanism for complaints against the Chairperson and Members of Lokpal; and the complaints against officers staff of the Lokpal as provided in Clause 40 and 41 of the Bill is adequate. (iii) The procedure for inquiry and investigation as given in Clause 23-29 of the Bill is adequate. After completion of an investigation, if (iv) there is prima facie case against the accused public servant, the Lokpal shall file a report before the Special Court and it is for appropriate Courts to impose the penalties etc. (v) The quantum of punishment provided in the Bill is adequate. (vi) Since the Lokpal shall have its own Authority (ii) There shall be one or more complaints authority consisting of 5 members under Lokpal to deal with the complaints against any officer or staff of the Lokpal. The Authority shall be chaired by retired High Court Complaint Judge and shall have two retired civil servants members from civil society. Independent Complaint Investigation and prosecution against High Functionaries (iii) No investigations or prosecution shall be initiated without obtaining permission from a 7 member bench of President, Prime Vice the Lokpal against President, any judge of Higher Judiciary or recognized Minister, political party of India. Punishment & Penalty After the completion of an investigation against any (iv) government servant the Lokpal may either initiate prosecution against such public servant or may initiate proceedings for imposition of penalty or both. (v) The punishment for any act of corruption shall not be less than one year of rigorous imprisonment and may extend upto life imprisonment. . Miscellaneous (vi) The part of Delhi Special Police Establishment, dealing 12 3 4 559 The structure and composition of (i) to (iv) the Lokpal as provided in Bill is adequate. As regards the Lokpal at State or District level is concerned, it stated that setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. Investigation Wing, there is no need to merge Wing, Investigation the any part of CBI with Lokpal. Separate comments are not required. (i) The composition of the Selection Committee as provided in the Bill is adequate. (ii) The Bill provides for setting up of by the Lokpal and Wing Investigation Bill provides that the Investigating Officers of the Lokpal shall have police powers. (iii) Clause 19 of the Bill provides for setting up of Benches by the Lokpal. vide Gram i.e. with investigation and prosecution of offences committed Act, shall stand transferred along with its staff under PC and assets it will be a part of Lokpal Investigation wing and the Govt. shall cease to have any control over the DSPE in this matter. The same suggestions/views are already submitted Memorandum No. 199. Selection Committee (i) The Selection Committee shall consist of Prime Minister (Chairperson), Leader of Opposition in Lok Sabha, CJI, The committee CVC Director and CEC. CBI Director, shall have its own transparent selection procedure. Investigation Wing (ii) Lokpal shall have its own investigation wing and the investigating officers shall have the Police Powers similar Act. to sub sections (2) & (3) of Section 5 DSPE Judicial Bench of Lokpal (iii) Powers of Lokpal shall be exercised through its Judicial Benches/Courts. There will be three Benches of Lokpal and each Bench shall have one Chairperson and five members including one jurist. (i) Lokpal Samiti shall have 5 tier system, Lokpal, Central/Ward Lokpal, District Lokpal, State Lokpal Lokpal, District State Lokpal, Central/Ward and Centre Lokpal. Lokpal Samiti shall monitor and control (ii) Central/Ward the development work of amount upto Rs. 5 Crore. Shri Abdul Khaliq, Lok Jan Shakti Party Hansraj Jain, Chairperson, JGM Public School Shri Tukaram Omkar Distt. Jadhav, Jalgaon, Maharashtra 205. 206. 207. 560 (v) The function of the Lokpal is to enquire into the allegations of corruption against certain public functionaries and not to monitor and control development work. (i) Setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. (ii) The composition of the Selection Committee as provided in the Bill is adequate. (iii) District Lokpal Samiti shall monitor and control the development work of amount from Rs. 5 crore.to Rs. 100 crore. (iv) State Lokpal Samiti shall monitor and control the development work of amount upto Rs. 100 crore to Rs. 1000 crore. (v) Centre Lokpal Samiti shall monitor and control the development work of amount upto Rs. 1000 Crore & above. (vi) The public money shall be utilized under the control and monitoring of the concerned Lokpal Samiti in their respective area of jurisdiction. The Lokpal Samities shall monitor the activities of Govt. servants to ensure that they are working honestly. Lokayukta in States uniform institution of Lokayukta to be set up in each A (i) Act incorporating the similar provisions through this State for Lokayukta in the States to deal with public servants in the respective states. Selection Committee (ii) The Selection Committee shall consist of PM (Chairperson), Leader of Opposition in Lok Sabha, two Judges of Supreme Court and two permanent Chief Justices of the High courts selected by collegium Supreme Court, CEC, C&AG and last three Chairperson of Lokpal. Representatives of Anna Team 12 3 4 208. 561 (iii) The Lokpal shall have its own the CBI Further, Investigation Wing. investigates the cases other than corruption cases, hence the existence of CBI is also required. Therefore, the need not be merged with the CBI. (iv) The jurisdiction of the Lokpal as given in Clause 17 of the Bill is adequate. make Lokpal independent, the Bill To (v) provides that the expenses of Lokpal shall be charged on the Consolidated Fund of India. Further Clause 61 the Bill provides that the conditions of service the secretary and other officers staff of the Lokpal and matters which in so far as they relate to salaries, allowances leave or pensions, require the approval of President. Hence, the existing provisions are adequate. (vi) Clause 41 of the Bill provides for provisions relating to complaints against the officers and staff of the Lokpal. Authority each State, one or more complaints authority
CBI (iii) The DSPE shall stand transferred along with its employees and assets to the Lokpal it will form investigation wing of Lokpal. Jurisdiction (iv) The entire bureaucracy must be covered within the purview of Lokpal Judiciary may be brought under the purview of anti corruption system through a separate Bill. “Minister” to be defined as means a Union Minister. Independence and autonomy of Lokpal (v) Lokpal shall have administrative, financial and functional independence from the Govt. Lokpal shall have powers to make rules for the terms and conditions of service officers and staff of Lokpal shall have the powers the recruit judicial officers, prosecutors, senior counsels etc. Independent Complaints (vi) In would be established by the Lokpal to entertain complaints similar A of the Lokpal. or staff against any officer authority at National level to be made. 562 clause 49 and provides that the
adequate.
of the Bill to deal with false complaints are adequate. However, DOPT is open to DOPT are adequate. However, suggestion in this regard. (viii) The Bill does not provide such powers to the Lokpal. (ix) Clause 31 of the Bill Lokpal shall have powers of Civil Courts in certain cases such as summoning and enforcing the attendance of any person and examining him; production of any documents; receiving evidence as affidavits, etc. (x) The powers for phone tapping are not envisaged for the Lokpal. The existing system of phone tapping is adequate. (xi) The quantum of punishment provided in the Bill is (vii) The provisions made in 50 malafide suo motu complaints malafide Action
apping T complaints as it deems fit but total fine in any case shall not exceed Rs. One lakh. (vii) Lokpal may impose such fines on frivolous/ Punishment for frivolous or Suo motu Compliance of Orders Lokpal bench may punish a public servant with A (ix) imprisonment up to 6 months or with fine both, if it fails to comply with its orders for ensuring their compliance. Phone Punishments (xi) For any act of corruption, the punishment shall not be less than six months of rigorous imprisonment and may extend upto life imprisonment. appropriate action under the Act on receipt of any appropriate action under the information form any source. (viii) Lokpal shall have powers to initiate (x) Lokpal Bench shall be deemed to designated authority to allow phone tapping etc for the purpose of investigation of offences corruption under Section 5 Act. Indian Telegraph 12 3 4 563 (i) The judiciary has been kept out side the As regards the Prime purview of the Lokpal. it is to seen that in the context of Minister, the Prime Minister occupies the Indian polity, a pivotal position in the Governments’ set ensure that Prime Minister is able to To up. discharge his functions without any it is felt that interference from any quarter, the Prime Minister may be kept outside after the purview of the Lokpal. However, Prime Minister has demitted the office, he will come within the purview of Lokpal. in view of the Constitutional Further, provisions, the conduct of MPs on floor of the House has to kept out side purview of the Lokpal. (ii) The do not proposes to bring whole of the bureaucracy under ambit of Lokpal. (iii) The Lokpal shall be enquiring into the allegations of corruption against certain public functionaries. The NGOs which financed by the government, or are in receipt of donations, and foreign contributions are covered under the Lokpal. (iv) The provisions of the Bill do not envisage merger of the CVC and CBI with Lokpal. Jurisdiction (i) Higher judiciary to be kept out of Lokpal. PM may included but with specific safeguards. MPs for corruption cases whether outside or inside the Parliament to be included in the jurisdiction of Lokpal. (ii) Whole bureaucracy not be brought under the Lokpal as suggested by Jan Lokpal. Act and The Lokpal to have jurisdiction beyond PC (iii) also to cover offences under sections 166-177 of IPC. Also NGOs to be brought under the Lokpal. CVC & CBI (iv) CVC & CBI not to be merged with Lokpal. Lokpal to have supervisory powers not control in matters linked with corruption as High Court have the powers under article 227 of the Constitution. Gandhi Seva & Satyagraha Brigade, New Lajpat Nagar, Delhi 209. 564 (v) In the context of the Indian polity, the (v) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (vi) Clause 30 of the Bill provides for powers of the Lokpal to search and seizure. (vii) Clause 49 and 50 of the Bill provides for action against false complaints. However, it is felt that there scope for improvement Clause 51 of in these provisions. Further, the bill Protection of action taken in good faith by any public servant, which, it is felt is necessary to prevent unnecessary victimization of the public servants. (viii) The Lokpal shall, on completion of the investigations, file report before the Special Courts, and also give it to the competent for taking disciplinary authority authority, taking action under the applicable rules. Uniform Lokayukta Legislation (v) The Lokpal bill should not cover the Lokayukta concept but a uniform Lokayukta Legislation in all States can be made compulsory by Central Legislation as in case of Act. Human Rights Suggestions specific to Govt. Lokpal Bill (vi) Lokpal to have adequate powers search and seizure documents and property on pattern of section 10 Act. Ayukta Karnataka Lok (vii) Section 49, 50, 51 to be deleted. (viii) There should also be discussion on the Lokpal Report and the findings recommendations of Lokpal should have finality and be binding on Govt. 12 3 4 565 The jurisdiction as given in Clause (i) to (iii) 17 of the Bill is adequate. (iv) The Chief Ministers of the States are to be covered under the Lokayuktas. Setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. (v) The composition and structure of the Lokpal as provided in the Bill is adequate. ex-officio evidence prima facie tates (iv) A Chapter should be incorporated in the Lokpal Bill A (iv) dealing with Lokayuktas and Local ombudsman under Article 253. Lokayukta should have powers to appoint local ombudsman for each district and city to deal with the Govt. matters and lower bureaucracy under supervision of Lokayukta. Jurisdiction (i) Judges of Higher Judiciary not be brought under Lokpal. PM not be included in Lokpal Jurisdiction but if included the following provision to be made under section 17(1 )(a) :– Provided that specific allegations with Lokayuktas in S Seamless integration of CVC (v) CVC (Chairman + 2 members) should be members of Lokpal, and should be appointed in the same manner as Lokpal. CVC will perform all functions except that the allegations against envisaged under law, and above will be referred to the Lokpal. officers A Group against the serving PM may be enquired into by Lokpal, if referred by a two-third the Lokpal Committee President, to a sanctioning committee comprising Vice Speaker of Lok Sabha and Leader Opposition in Sabha if this committee on the basis of evidence available sanctions the enquiry. (ii) Section 17(1) (g) and 17(2) to be removed. should be under All the Chief Ministers of States (iii) Lokpal (preferably) or the Lokayukta. Foundation for Democratic Reforms and Lok Satta 210. 566 (vi) (vii) Clause 27 of the Bill provides that previous sanction not necessary for investigation and initiating prosecution by sanction Lokpal in certain cases. However, would be required where CBI initiates cases on its own. (viii) The existing provisions of the supervision of CVC over CBI are adequate. (ix) It is for the State Governments to decide. (x) The Bill provides for setting up of the by the Lokpal. Wing Prosecution (xi) The provisions made in Clause 49 and 50 to deal with false complaints are adequate. But, DOPT is open to suggestions in this regard. (xii) For matters relating to Public Grievance or separate mechanism is required to be set- Administrative up for which Department of Reforms & Pensions is working on the same. Agencies Complaints
(vi) Section 10 of PC Act should be amended empowering (vi) Section 10 of PC CVC. Act should be repealed. of DSPE (vii) Section 6A Investigating False Citizens’ Empowerment (xii) Citizens’ charter to be enacted by law in the lines of of Act enacted by the States Public Service Guarantee Bihar and MP. (viii) CVC to exercise superintendence over CBI. CBI Anti Corruption and Wing be divided in Crime Investigation Anti Corruption wing should be accountable wing and the to CVC and not the Govt. ACB will be directly under Lokayukta (ix) In states, supervision and accountable to it. (x) Lokpal/Lokayukta to appoint independent prosecutors to prosecute all corruption cases. (xi) Moreover, the penalty specified in this clause is (xi) Moreover, Act. harsher than that stipulated in PC 12 3 4 567 (i) There is no need to change the definition of the Minister as provided in Bill. (ii) The eligibility criteria for selection as Chairperson and Members of the Lokpal as provided in the Bill are adequate. (iii) The composition of the Selection Committee as given in the Bill is adequate. (iv) The provision for process of selection of the Chairperson and Members setting up of Search Committee are adequate. Clause 2 (1)(i) (i) It is believed that there no legal or moral justification in excluding the Prime Minister from purview of we recognize that public and national Lokpal Bill. However, interest requires some safeguards. Thus, the clause should be, “Minister means a Union Minister and includes the Prime Minister”. Clause 3 (ii) Suggestion: Broaden the eligibility criteria of those As there is who can become Chairperson and Members. no justification in restricting the position to judges, eligibility criteria for the chairperson must be widened to include person otherwise qualified to be a member of the Lokpal. Preference would be given to a member of the Scheduled Caste or Tribe to a woman. Clause 4 (1) (iii) In the existing committee five out of nine members would be either part of ruling party and/or the Central have a balance between the Government, To Government. the Selection Committee the Opposition and Judiciary, may consist of the PM (as Chairperson), Leader the opposition in House of People and one sitting Judge of the Supreme Court to be nominated by Chief Justice of India (as members). Clause 4(3)-(6) Selection Committees do not have the time (iv) Normally, to search out appropriate candidates leaving the final selection to be done by dealing department resulting in selection of inadequate and/or inappropriate set choices. Therefore, there should be a search committee to assist the Selection Committee with members drawn from Chief National Campaign Right to for People’s Information (NCPRI), New Delhi. 211. 568 (v) There is no concept of representation minorities, women and weaker sections in such institutions. (vi) The provisions for removal and suspension of Lokpal as provided in the Bill are adequate. Justice of India, Judges Supreme Court, CAGs, CECs, CICs, former/outgoing Chairpersons of the Lokpal and former members of the Lokpal. (v) It may be ensured that minorities, women and weaker sections of the society are represented in search committee, short listed candidates and appropriately considered for membership of the Lokpal - in a transparent and participatory manner so as to minimize the chances of wrong sorts people getting in. Clause 8-Addition of 8(1) and 8(2) (vi) The independence of Lokpal would be compromised if there is any other authority involved in the removal As the Lokpal would be responsible for process. investigating the executive, to give power executive to remove Lokpal would lead conflict of interest. The involvement of Supreme Court would further ensure transparency in the process of removal. Thus the, following two sub-classes would be amended: “8(1) Subject to the provisions of sub-section (3), Chairperson or any other Member shall be removed from his office by order of the President on grounds misbehaviour after the Supreme Court, on a complaint held in accordance with the made to it has, on inquiry, procedure prescribed in that behalf, advised the as the case may be Chairperson or such other Member, ought to be removed on such ground. (2) The President may suspend from office the Chairperson or any other Member in respect of whom a complaint has been made to the Supreme Court under sub-section (1), if the Chief Justice of India so advises, until the President has passed orders on receipt of 12 3 4 569 (vii) In the context of the Indian polity, the (vii) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (viii) The provisions in the Bill to include such of the NGOs who are in receipt government funds, donations and foreign contribution under the ambit of Lokpal are adequate. report of the Supreme Court on such a complaint.” Clause 17 (1) Jurisdiction of Lokpal on PM (vii) The jurisdiction of Lokpal shall include incumbent Prime Minister unless a reference has been made by full bench of the Lokpal to Chief Justice India and that CJI has constituted a full bench of the Supreme Court which examined the complaint and relevant grounds and evidence come to the conclusion that such an investigation is warranted. Provided further that complaints regarding actions done by others where the Prime Minister is not directly involved but can only be held responsible as the head of Government or Cabinet would not be entertained (no vicarious liability). Provided further that where the Prime Minister would but be held liable for non disclosure of information asked by the Lokpal as a part of an investigation when in opinion of the Prime Minister such disclosure might compromise national security or other critical interests. The Prime Minister would be obliged to brief the CJI in confidence, whose decision on whether information should be disclosed to the Lokpal and if so, under what conditions, would be final. bearers of NGOs and movements declare office To (viii) that do not receive any Government funds as public servants is neither desirable nor practicable. Hence, those receive any form of concession, including tax, land or rental, and those receive foreign funds should be covered Act. by an amendment to the PC 570 provides the time line
The Bill within which the trial should be completed. The proposed provisions are adequate. (ix) The provisions made in the Bill are conformity with the Constitutional provisions Article 105 (2) of the as contained in Constitution. (x) The apprehensions of the petitioner are unfounded. It is felt that such powers are required to ensure smooth functioning of the Lokpal. (xi) This is very much justified as the protection available to public servants under the provisions of prior sanctions is removed. Act system has to be provided in the A (xii) itself to provide for inspection of documents etc. to the accused person. (xiii) & (xiv) Clause 17 (2) (ix) The concession to MPs is unjustified but as its deletion would involve amendment to the Constitution, there should be a Government undertaking to move an amendment within a year. Clause 21 (x) This would give enormous power to the Chairperson which could be used arbitrary to the determent of justice or of members Lokpal. This clause needs to be deleted. Clause 23(4) (xi) Opportunity of being heard. This need not be a statutory right of the accused at this stage as is not provided under any other criminal procedure. However, there is nothing to stop Lokpal from hearing an accused at any stage. Clause 24 (xii) This needs to be deleted as the accused would in any case have the right to obtain information under RTI. Clause 38 (2) (xiii) The Law should not create a situation where if there is delay that becomes a basis for the case being closed. Hence, the clause should include: “Provided that no case would be closed on the basis of the trial not having been completed within two years”. 12 3 4 571 (xv) The provisions for complaints against the Chairperson and Members of Lokpal as provided in Clause 40 are adequate. (xvi) The provisions for complaints against the officers and staff of Lokpal as provided in Clause 41 are adequate. (xvii) The provisions as contained in Clause 49 of the Bill to deal with false complaints are adequate. But, DOPT is open for suggestions in this regard. (xviii) Clause 56 of the Bill provides for legal assistance to such person, who make request for the same. DOPT is open and malafide 38 (3) (xiv) If a trial is not completed within period of two years, a mandatory reference would have to be made the High Court which shall examine matter and pass such directions as it deems fit. Clause 40 keep Lokpal independent of Central Government, (xv) To these powers and functions related to complaints against Members of the Lokpal be given to Supreme Court. Thus complaints be made to and acted upon by the CJI under 40(2) and 40(3). Clause 41(2) (xvi) In keeping with the philosophy that no institution should be wholly responsible for investigating and prosecuting its own officers in matter related to corruption, an alternate system of Ombudsman appointed for the purpose by an independent committee be replaced in clause 41(2) to 41(4). Clause 49 (1) As it is impossible to objectively define “frivolous” (xvii) or “vexatious”, they may be replaced with “ Clause-56 (xviii) In order to insure that the innocent do not have spend large amounts of money that they cannot afford, the following condition may be added: – false complaints, with malicious intent”. The penalty would be “with fine which shall not less than five thousand rupees but which may extend to one lakh rupees”. 572 suggestions in this regard. Act 1988 deals (xix) Section 12 of the PC with the matters connected abetment of as defined in section 7 or 11 of offences Act which may include bribe givers. the PC In order to tackle corruption by private parties needs house etc. MHA in consultation with the States is already examining Prevention of amendment to IPC. Further, Bribery of Foreign Public Officials is under Bill 2011 International Organizations, consideration of the Parliament. Act evention of Corruption “Where any person including a private body, “Provided that where the accused is finally found corporation or profit seeking entity, or any NGO corporation or profit seeking entity, receives from any public authority grants, concession or dispensation, including licenses, subsidies, contracts, orders, quotas, allocations and clearances and such receipt or its subsequent disposal is in violation of the law or any prevailing rules, such an entity would be deemed to have abetted corrupt practices and also deemed to have indulged in corrupt practices”. guilty of any the charges made against him by Act, and subject to special court provided for in the further appeals, the accused would be required to refund the total cost of assistance so provided. In exceptional circumstances where the Lokpal so determines that the recovery of such dues might result in unwarranted hardship to the accused or his the amount can be adjusted against confiscation family, of property as specified under sections 33 and 34”. (xix) In order to strengthen the efficacy of anti-corruption including NGOs, measures in relation to the private sector, Act it is recommended that .the Prevention of Corruption be amended and in section 12 a sub-clause added, ensuring that: Amendment to Pr 12 3 4 573 (i) & (ii) Setting up of the institution Lokayuktas falls within the domain of States keeping in view the federal structure of our Constitution, it may be left for the States to decide. (i) The Lokpal is to enquire into allegations of corruption against certain public functionaries. The provisions made in the Bill in this regard are adequate. Further, Act 1988 deals with Section 12 of the PC the matters connected with abetment of of the as defined in section 7 or 11 offences Act which may include bribe givers. In PC order to tackle corruption by private parties needs house etc. MHA in consultation with the States is already examining amendment to IPC. (ii) There is no doubt that a need being felt that the institution like Lokpal is required for combating menace of corruption in public life. (iii) This is an issue requiring examination by the concerned Department. Competence of Parliament to legislate on matters relating to Lokpal, Lokayukta and Grievance Redress. Central law for establishment of Lokpal at the A (i) Centre and Lokayuktas at States be considered for Article 246 read with Entries 1, 2 and enactment under in List-III of the Constitution. 11A Lokayukta in Jammu and Kashmir (ii) Parliament does not have the legislative competence to make a law requiring the State to establish Lokayukta- such a law may be extended to type institution. However, J&K at the request of State Legislature. Any law like Lokpal only could control slightly (i) corruption of lower level and effective provisions are required in the Bill to install powerful vigilance over big industrial houses to combat corruption at higher level. (ii) The present Bill will only burden on tax-payers and would not be able to combat corruption. solve problem of political financing and election To (iii) funding, electoral reforms are the need of day. Commonwealth Human Rights Initiative (CHRI) (Shri Venkatesh Nayak) Shri Bharat Gandhi Political reformer and author. 212. 213. 574 (iv) The Bill provides that words of Act but advised expression not defined in this Act 1988 shall have the same as in PC Act. assigned to them in that the (v) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (vi) The composition and selection procedure, jurisdiction of the Lokpal as provided in Bill is adequate. (i) The existing provision in the Bill is adequate. (ii) The composition and structure of the Lokpal as provided in the Bill is adequate. The Lokpal shall consist of Chief May be substituted with- It shall come Clause 3 (2) Clause 1 (3) into force on such date the day President accords his assent. (ii) Justice of India or a Judge Supreme Court as Chairman, (iv) Definition of corruption in the Lokpal Bill should be improved. (v) The post of Prime Minister should come under Lokpal. (vi) The Lokpal must be elected. Only Chief Justice of Supreme Court on election should occupy Lokpal. There should be participation of SC/ST and OBC. Provision should be made to enquire taking cognizance in matters of charitable trust, voluntary organizations and political parties who are taking various concessions like tax, land, funds, etc. from the Government. There should be vice Lokpal for the vigilance of international parking artificial funds, international exchange of black money, international dearness, and unemployment created by international competition, terrorism etc. (i) Rajeev Dhavan and PILSARC 12 3 4 214. 575 (iii) The composition of the Selection Committee as proposed in the Bill is adequate. (iv) The suggestion may be accepted. the (v) In the context of Indian polity, Prime Minister occupies a pivotal position in ensure that To set up. the Governments’ Prime Minister is able to discharge his functions without any interference from it is felt that the Prime Minister quarter, may be kept outside the purview of after the Prime Minister Lokpal. However, has demitted the office, he will come within the purview of Lokpal. (vi) The jurisdiction of the Lokpal as given in the Clause 17 of Bill is adequate. (vii) The existing provision in the Bill is adequate. Any other class of employees The Provision for the consent of Shall include the incumbent Prime The Selection Committee shall consist Substitute the word ‘may’ with ‘shall’. (1)
Clause l7 (1) (3) Clause 4 Clause l7 (1) (d) (i) Clause 15(1) Clause 17 (1) (a) the State Government to take action on a person serving in connection with the affairs of State may be deleted. (v) a Supreme Court Judge or Chief Justice of High as Member and a who has special interest, knowledge or expertise in matters relating to anti-corruption public administration, vigilance, finance and policy, management with impeccable integrity. (iii) of the Union of India (other than Group A officers) as officers) A of the Union India (other than Group notified by the Government Of India in consultation with the Lokpal. (vii) of the PM (Chairperson), ex-officio Chairman Council of States, Speaker Lok Sabha, Leader Opposition in Lok Sabha and one sitting judge of Supreme Court nominated by CJI in consultation with the other judges. (iv) Minister. (vi) 576 (viii) The existing provisions for constitution of Benches the Lokpal [Clause 19], Powers of Chairperson to transfer cases [Clause 20]; and Decision by majority [Clause 21] are required for efficient and effective working of the Lokpal. (ix) The provisions relating to complaints and inquiry investigation as given in Clause 23 of the Bill are adequate. case is made out prima facie May be substituted with a new clause to recommending course of action. for further investigation to be carried out by an officer from the investigation wing who shall deemed to have all the powers of an officer in- charge of a police station. case is made out, it shall give notice to a person(s) implicated to be heard with a copy of investigation report. a) reject the complaint: or b) order that a chargesheet be filed: and c) send a report to competent authority to ascertain if it falls within the jurisdiction of Lokpal. consider whether Clause 19, 20 and 21 to be deleted Clause 23 3. Following investigation; if the Lokpal feels that a 4. the Lokpal may Following the inquiry, 1. A complaint shall be vetted by a single member 2. If found within the jurisdiction, Lokpal, shall include the following:– (ix) (viii) 12 3 4 577 (x) The provisions provided in the Bill for declaration of assets by the Public Servants are adequate. (xi) The limitation period of seven years provided in the Bill is adequate. May be substituted with:– Substitute the period of ‘seven years’ in public sector bodies that constitute ‘state’ within article 12 of the Indian Constitution shall make a declaration of his assets and liabilities in the manner Act. as provided by or under this for safe custody of the documents relevant to the inquiry as it deems fit. disposed off by Lokpal shall be displayed on its website. evidence, which are likely to impede the process of inquiry or conduct a case by it the Special Court. investigation shall be as specified regulations. respect of the period prior to commencement Act. of the Provided further that nothing shall bar the Lokpal form inquiring into a complaint as referred to under section 54 (1) beyond three years for special reasons to be stated in writing. Clause 54 1. Every public servant, including all those employed 5. at any stage, pass appropriate orders Lokpal may, 6. The status of complaints received, pending and 7. The Lokpal may withhold the records and 8. The manner and procedure of conducting inquiry/ (i) Provided that no complaint shall be entertained in (ii) Clause 47 (1) (xi) with ‘three years’ the following provisos: - (x) 578 (xii) The Lokpal Bill is meant to provide for an institution to enquire into the allegations of corruption against certain public functionaries. These provisions are in addition to the existing laws. Hence, retention of this clause is required. (xiii) The Department may not have any objection for making Lokpal a constitutional It is felt that the Parliament body. competent to pass such law. (i) The Department may not have any objection for making Lokpal a constitutional body. (ii) The composition of the Selection Committee as provided in the Bill is adequate. to be deleted. Clause 58 We should consider not just on the unconstitutionality We but also the constitution impropriety to develop a constitutional morality. While the Lokpal falls under List-l Entry 70, Lokayuktas would fall under List-2 Entry 41. It be both unconstitutional and improper to legislate for Lokayuktas (xiii) As per Article-253 Parliament has power to make As per (xiii) any law for the whole or part of territory India agreement or convention for implementing any treaty, with any other country etc. this is strengthened by Schedule List-2 Entries 13 & 14. (i) The proposed Lokpal shall be made a constitutional body like Election Commission. (xii) Clause 4 (1) (h) (ii) One eminent jurist nominated by Central Government be replaced with CVC. National Student’s Union of India (NSUI) 12 3 4 215. 579 of clause 49 The Bill provides that words and the Bill to deal with false complaints are is open to DoPT adequate. However, suggestion in this regard. (i) The Lokpal is meant to enquire into the allegations of corruption, and any act falling under this category shall be looked into by the Lokpal. (ii) Clause 51 of the Bill provides for protection of action taken in good faith by any public servant. (iii) Act expressions used but not defined in this Act, 1988, shall have the but defined in PC Act. same meaning as assigned to them in that (iii) The provisions made in the Bill are adequate. (iv) The existing provision in the Bill is adequate. (v) The provisions made in 1 (1) Clause 1 Clause 17(e) (iv) The Provision for the consent of State Government to take action on a person serving in connection with the Instead Lokpal shall is not necessary. of the State affairs initiate inquiry against such officers by intimating State Government. Clause 49 (v) The Bill is too harsh on frivolous complaints. Whistle blowers might be deterred from making complaints fearing harsh repercussion if they are unable to convince the court. Hence the penalty be reduced. (i) The aspect of clear and transparent process allocation of resources may be covered. (ii) Policy decisions taken in good faith and the public interest must be encouraged and promoted without any fear of victimization. enable our legislature and bureaucracy to take To (iii) bold and innovative decisions, the conduct that is prohibited by the statute and subject to investigation be precisely The Prevention and exacted defined without any ambiguity. (iii) The appointment of Secretary, other officers and other officers The appointment of Secretary, (iii) staff of Lokpal shall be made by Chairman or such officers as the Chairman may direct provided President may by rule require that such appointments be made after consultation with UPSC/SSC. ASSOCHAM India New Delhi 216. 580 clause 49 and of the Bill to deal with false complaints 50 DoPT is open to are adequate. However, suggestion in this regard. (vi) The judiciary has been kept outsider the purview of the Lokpal. (iv) The matters relating to Whistleblowers are covered under the Whistleblowers Bill, which is under consideration of the Parliament. (v) The provisions made in of Corruption Act may be suitably amended. of Corruption (iv) Corporate may be encouraged to come forward with the deviant practices by a strong whistle blower mechanism with the necessary protection from victimization and harassment. As necessary safeguards exists to curb false and (v) malicious complaints, the proposed mechanism of awarding prison sentences need reconsideration. (vi) Judiciary may be kept outside the purview of Lokpal Bill. 12 3 4 581
ANNEXURE-D [Vide Para 2.5 of the Report]
STATUS NOTE ON THE LOKPAL BILL, 2011
4th August, 2011 – Bill introduced in Lok Sabha. 8th August, 2011 – Referred to the Department Related Parliamentary Standing Committee on Personnel, Public Grievances. Law and Justice by Hon’ble Chairman, Rajya Sabha.
10th August, 2011 – I. Presentation by the Secretary, Department of Personnel and Training on the Bill.
II. Oral evidence of :–
(i) Anna Hazare;
(ii) Shanti Bhushan,
(iii) Prashant Bhushan; (iv) Arvind Kejriwal; and
(v) Kiran Bedi.
23th September, 2011 – Oral evidence of :–
(i) Shrimati Aruna Roy, National Campaign for People’s Right to Information; and
(ii) Shri Jayaprakash Narayan, President, Lok Satta Party
24th September, 2011 – Oral evidence of :–
(i) Shri Jayaprakash Narayan, President, Lok Satta Party;
(ii) Shri Ashok Kumar Parija, Chairman, Bar Council of India;
(iii) Shri Pratap Bhanu Mehta, President, Centre for Policy Resarch, New Delhi;
(iv) Shri Harish N. Salve, Senior Advocate, Supreme Court of India; and
(v) Dr. Udit Raj, President, Indian Justice Party.
1st October, 2011 – Oral evidence of :–
(i) Central Vigilance Commissioner: and
(ii) Director, CBI.
581 582
13th October, 2011 – Oral evidence of :–
(i) Justice M.N. Venkatachalaiah, Former Chief Justice of India; and
(ii) Justice J.S. Verma, Former Chief Justice or India.
14th October, 2011 – Oral evidence of :–
(i) Confeteration of India Industry
(ii) FICCI
(iii) ASSOCHAM
21st October, 2011 – Oral evidence of :–
(i) National Commission for Scheduled Castes
(ii) Delhi Commission for Protection of Child Right’s
(iii) Federation for Economic Freedom
(iv) United Nations Development Programme (UNDP)
(v) Transparency International India
(vi) PRS Legislative Research
(vii) Akhil Bhartiya Vidhyarthi Parishad (ABVP)
(viii) Shri P.S. Krishnan (IAS Retd.)
(ix) Indian Social Institute
(x) Gandhian Sewa and Satyagraha Brigade
(xi) Bharat Raksha Manch
(xii) All India Council of Human Rights, Liberties & Social Justice
(xiii) Consumer Online Foundation
(xiv) Public Interest Legal Support and Research Centre (PILSARC)
(xv) Shri J.B. Mohapatra, former Joint Secretary, Judges Inquiry Committee
(xvi) Civil Society for Truth
(xvii) Confederation of All India Traders
(xviii) 1. Ms. Sandhya Jain, Journalist; and
2. Shri Rohit Srivastava, Journalist.
(xix) Shri Ranjit Singh
(xx) Akhil Bhartiya Sant Samiti
(xxi) Editors Guild of India 583
3rd November, 2011 – Oral evidence of:-
(i) Civil Society headed by Anna Hazare
(ii) NSUI
4th November, 2011 – Further interaction/Question and Answer Session with Civil Society headed by Anna Hazare.
14th November, 2011 – In-house Discussion.
15th November, 2011 – In-house Discussion.
24th November, 2011 – In-house Discussion.
30th November, 2011 – In-house Discussion on Draft Report
1st December, 2011 – In-house Discussion on Draft Report
7th December, 2011 – Consideration and adoption of the Draft Report. 584
ANNEXURE-E [Vide Para 7.21 of the Report]
OPINION OF JUSTICE J.S. VERMA
As desired on behalf of the Standing Committee of the Parliament, I reiterate my views expressed personally before it on 13 October 2011, and answer the specific issues addressed to me for my response.
Preface
I am of the firm view that the unanimous demand of the people as well as the avowed commitment of all political parties for a strong Lokpal can be best met by conferring constitutional status to the proposed Lokpal for the Union and the Lokayuktas for the States, akin to the Election Commission and the Union Public Service Commission/State Public Service Commissions. To avoid any delay in making the needed constitutional amendment for the purpose, the Constitution Amendment Bill must eschew any contentious issue (all of which can be addressed in the consequent legislation with all details) containing only the bare minimum required for the purpose.
I have already circulated a rough draft of the suggested Constitution Amendment Bill for consideration of the Standing Committee before our above meeting, which does not contain any contentious issue while mandating the Union to constitute the Lokpal and the States to constitute the Lokayukta. It provides for all the details to be incorporated in the contemplated accompanying legislation to complete the task.
Such a constitutional amendment would not attract the Proviso to Sub-Article (2) of Article 368 of the Constitution, and, therefore, it would not require ratification by the States. For ease of reference, Article 368(2) is extracted below:
“An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two- thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in–
(a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
584 585
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.”
As would be evident on a plain reading of Article 368(2), the only requirement is for it to be passed by the majority of total membership of each House and by a majority of not less than two-thirds of members present and voting.
With the unanimous demand in the people supported by unanimity of all political parties in the Parliament to constitute a strong Lokpal/Lokayuktas, there can be no doubt of unanimous support for a constitutional body, which would obviously be the strongest visualized in the constitutional scheme. Once the constitutional amendment is made. It would become a part of the indestructible ‘basic structure’, immune from any future attempt to erode its status. The exercise for the accompanying consequent legislation providing the details dealing with the contentious issues can continue simultaneously since it must follow to complete the process.
There is no occasion to doubt the sincerity of the commitment and resolve or the people and the political will in this behalf. Therefore, there can be no risk of any delay in this method.
With the above preface, my answers to the specific Issues referred for my opinion are as under:
Issues
(i) Whether the proposed Lokpal legislation to be enacted by Parliament can include in it the structure for and content of State Lokayuktas by invocation of Articles 253/254 and/or entries 1, 2 and llA of List III of the Constitution and/or any other legal or constitutional basis?;
(ii) Would such a national legislation be constitutionally valid (with reasons there for) and, if not, the reasons thereof ?;
(iii) Would it be constitutionally and legally feasible to follow the model of the NHRC and/ or the RTI Act, 2005 and/or the Consumer Protection Act, 1986 etc. and/or any other appropriate central legislation to provide for Lokpal and Lokayuktas in one central enactment and the basis on which the validity and constitutionality of such a legislation can be sustained?
Answer
These three issues being connected are combined for their answer.
Consequent upon the aforesaid constitutional amendment the proposed Lokpal legislation to be enacted by the Parliament by invocation of Article 253 does not require any additional legislative support. For ease of reference, Artic1c 253 is quoted below:
“Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” 586
This confers the legislative competence needed to implement the UN Convention Against Corruption, which has been signed and ratified by India. It is relevant to highlight that Article 6 of the Convention enshrines a specific obligation for member–States to establish bodies that prevent corruption. Article 6 of the Convention is quoted in full below:
“Article 6. Preventive anti-corruption body or bodies
1. Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as:
(a) Implementing the policies referred to in article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies;
(b) Increasing and disseminating knowledge about the prevention of corruption.
2. Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided. 3. Each State Party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that may assist other States Parties in developing and implementing specific measures for the prevention of corruption.”
The directive principle of State policy in Article 51(c), as a principle fundamental in governance is available as an aid. (Article 51 states: “The State shall endeavour to…(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another...”.) There is, therefore, no need to look for any additional support for the legislative competence of the Parliament to legislate on the subject for the whole territory of India. In addition, it would not be out of place to mention that the failure to take effective steps with respect to tbe establishment of such institutions could lead to India being considered to be in breach of its obligations under international law, which must obviously be avoided at all costs.
The Protection of Human Rights Act, 1993 providing for the constitution of the NHRC and the SHRCs was enacted by the Union Parliament for the whole territory of India to implement the Paris Principles, 1991 for the ‘better protection of human rights’, in addition to the existing constitutional guarantees and statutory rights with the machinery to enforce them. This was done by invoking Article 153 for the whole territory of India. Similarly, for ‘combating corruption’ in a more effective manner a uniform legislation enacted by the Union Parliament by invoking Article 253 can provide for the Lokpal and the Lokayuktas.
The Parliamentary central enactment made by invoking Article 153 would be constitutionally valid, such legislative competence in the Union Parliament being expressly provided as a part of the constitutional scheme, consistent with the nature of federalism created by the Constitution.
Issue No. (iv):
If the answer to the aforesaid is in the affirmative, whether by virtue of Article 254 of the Constitution of India and/or any other available power, the aforesaid proposed Lokpal Act to be enacted by Parliament would also be entitled to repeal the existing State Lokayukta enactments? 587
Answer
Once the Union Parliament enacts the central legislation by invoking Article 253 for the whole territory of India, the existing State legislations relating to the Lokayuktas being repugnant to it shall be void, by virtue of Article 154(l), which states as under:
“If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.”
In the light of the above provision, it would be advisable, in order to avoid needless litigation, for the central law to indicate - with reference to the above Article – that the existing State laws shall be treated as void and inoperative. It may however be added that this question would become purely academic in the event that the route or a constitutional amendment (along the broad lines I have suggested) is adopted, since the proposed amendment envisages parallel laws being enacted by Parliament and by the State legislatures. 588
ANNEXURE-F [Vide para 13.12 (d) of the Report]
THE CONSTITUTION (ONE HUNDRED AND SIXTEENTH AMENDMENT) BILL, 2011
An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Sixty Second Year of the Republic of India as follows:-
1. Short title and commencement.– (1) This Act may be called the Constitution (One Hundred and Sixteenth Amendment) Act, 2011
(2) It shall come into force on such date as the Central Government may by notification in the Official Gazette, appoint.
2. Insertion of new Part XVA after Part XV of the Constitution. The fol1owing Part XVA shall be inserted, namely:-
PART XVA
LOK PAL AND LOK AYUKTA
329C. LOK PAL (1) There shall be a Lok Pal for the Government of India and the Union Territories. The powers of superintendence, direction and control of investigation and prosecution of any alleged offence of corruption under any law, and all powers necessary and incidental thereto, shall vest in the Lok Pal in accordance with and as specified by law made by Parliament in that behalf.
(2) The Lok Pal shall be an autonomous and independent authority with a Chairperson and such Number of other Members as Parliament may by law prescribe.
(3) The appointment of the Chairperson and Members of the Lok Pal shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(4) Subject to the provisions of any law made in that behalf by Parliament, the conditions of service and tenure of the office of Lok Pal shall be such as the President may by rule determine, provided that the Chairperson or a Member shall not be removed from his/her office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chairperson and Members shall not be varied to his disadvantage after his/her appointment.
(5) Every person appointed as Chairperson or Member of the Lok Pal shall, before he enters upon office, make and subscribe before the President of India or some person authorized by the President in that behalf, an oath or affirmation in the form set out in Schedule xxx.
588 589
(6) The Chairperson and Members of Lok Pal shal1 not be eligible for any other office under the Government of India or the Government of any state after he has ceased to hold office as Chairperson or Member of Lok Pal as the case may be.
329D. LOK A YUKTA (1) There shall be a Lokayukta for the Government of every State in the Union of India. The powers of superintendence, direction and control of investigation and prosecution of any offence of corruption in the State under any law, and an powers necessary and incidental thereto, shall vest in the Lokayukta of that State in accordance with and as specified by law made by the appropriate legislature in that behalf.
(2) The Lokayukta shall be an autonomous and independent authority with a Chairperson and such number of other Members as the appropriate legislature may by law prescribe.
(3) The appointment of the Chairperson and Members of the Lokayukta shall, subject to the provisions of any law made in that behalf by the appropriate legislature be made by the Governor.
(4) Subject to the provisions of any law made in that behalf by the appropriate legislature, the conditions of service and tenure of the office of Lokayukta shall be such as the Governor may by rule determine, provided that the Chairperson or a Member shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the Chairperson and Members shall not be varied to his disadvantage after his appointment.
(5) Every person appointed as Chairperson or Member of the Lokayukta shall, before he enters upon office, make and subscribe before the Governor of the concerned State, or some person authorized by the Governor in that behalf, an oath or affirmation in the form set out in Schedule xxx.
(6) The Chairperson and Members of Lokayukta shall not be eligible for any other office under the Government of India or the Government of any State after he has ceased to hold office as Chairperson or Member of Lokayukta as the case may be.
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