Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Gave Its Recommendations

REPORT NO. 77

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

SEVENTY-SEVENTH REPORT

The Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014

(Presented to the Rajya Sabha on 7th December, 2015) (Laid on the Table of Lok Sabha on 7th December, 2015)

Rajya Sabha Secretariat, New Delhi December, 2015/Agrahayana, 1937 (Saka) Hindi version of this publication is also available

CS (P & L) - 153

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

SEVENTY-SEVENTH REPORT

The Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014

(Presented to the Rajya Sabha on 7th December, 2015) (Laid on the Table of Lok Sabha on 7th December, 2015)

Rajya Sabha Secretariat, New Delhi December, 2015/Agrahayana, 1937 (Saka) Website : http://rajyasabha.nic.in E-mail : [email protected] CONTENTS

PAGES

1. COMPOSITION OF THE COMMITTEE ...... (i)-(iv)

2. INTRODUCTION ...... (v)-(vii)

3. ACRONYMS ...... (viii)

4. REPORT ...... 1-23

5. RECOMMENDATIONS/OBSERVATIONS – AT A GLANCE ...... 24-31

6. MINUTES ...... 33-58

7. ANNEXURES...... 59-112 (I) Lokpal And Lokayuktas And Other Related Law (Amendment) Bill, 2014 ...... 61-73

(II) Lokpal And Lokayuktas Act, 2013 ...... 74-112 COMPOSITION OF THE COMMITTEE (Constituted on 1st September, 2014)

1. Dr. E.M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Ms. Anu Aga 3. Shri Majeed Memon 4. Shri Parimal Nathwani 5. Shrimati Rajani Patil 6. Shri Sukhendu Sekhar Roy 7. Shri Ramchandra Prasad Singh 8. Dr. Abhishek Manu Singhvi 9. Shri K.T.S. Tulsi *10. Shri Bhupender Yadav

LOK SABHA 11. Shri Suvendu Adhikari 12. Shri Subrata Bakshi 13. Adv. Sharad Bansode 14. Shri P.P. Chaudhary 15. Shri Abu Hasem Khan Chowdhury 16. Choudhary Mehboob Ali Kaiser 17. Shri Shanta Kumar 18. Shri Santosh Kumar 19. Shri Bhagwant Mann 20. Shri Anoop Mishra 21. Shri B.V. Naik 22. Shri Vincent H. Palla 23. Shri V. Panneerselvam 24. Shri Vithalbhai Hansrajbhai Radadiya 25. Dr. A. Sampath 26. Shri Bharat Singh 27. Shri Udhayakumar M.

* Nominated vice Shri Aayanur Manjunatha w.e.f. 30th September, 2014.

(i) (ii)

28. Dr. Varaprasad Rao Velagapalli 29. Dr. Anshul Verma #30. Shri Tariq Anwar $31. Adv. Joice George

SECRETARIAT Dr. D.B. Singh, Secretary Shri K.P. Singh, Joint Secretary Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

# Vacancy existing since the constitution of the Committee and filled-up on 11th September, 2011. $ Change in the nomination of Shri Innocent w.e.f. 22nd December, 2014. COMPOSITION OF THE COMMITTEE (Re-constituted on 1st September, 2015)

1. Dr. E.M. Sudarsana Natchiappan — Chairman

LOK SABHA 11. Shri Suvendu Adhikari 12. Shri Tariq Anwar 13. Shri Subrata Bakshi 14. Adv. Sharad Bansode 15. Shri P. P. Chaudhary 16. Shri A.H. Khan Choudhary 17. Adv. Joice George 18. Choudhary Mehboob Ali Kaiser 19. Shri Santosh Kumar 20. Shri S. Bhagwant Mann 21. Shri Anoop Mishra 22. Shri B.V. Nayak 23. Shri Vincent H. Pala 24. Shri Vittalbhai Hansrajbhai Radadiya 25. Shri V. Panneer Selvam 26. Dr. A. Sampath 27. Shri Bharat Singh 28. Shri M. Udhayakumar 29. Dr. Varaprasad Rao Velagapalli

(iii) (iv)

30. Dr. Anshul Verma *31. Shri Shanta Kumar

SECRETARIAT Dr. D.B. Singh, Secretary Shri K.P. Singh, Joint Secretary Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

* Resigned from Committee w.e.f. 9th October, 2015. INTRODUCTION

I, Chairman of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, having been authorised by the Committee on its behalf, do hereby present the Seventy-Seventh Report on the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014.

2. In pursuance of the Rules relating to the Department-related Parliamentary Standing Committees, the Hon'ble Chairman, Rajya Sabha referred the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014 (Annexure-I), as introduced in the Lok Sabha on the 18th December, 2014 to the Department- related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on the 25th December, 2014, for examination and report to Parliament within three months i.e. by the 24th March, 2015. In order to solicit the views of stakeholders, the Committee issued a Press Communiqué on 7th January, 2015. In response thereto the Committee received several memoranda containing suggestions from various organizations/individuals/experts. Comments of the Department of Personnel and Training on the views/suggestions so received, were placed for the consideration of the Committee.

3. The Committee heard the views of Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions and Director, Central Bureau of Investigation during its meeting held on 8th January, 2015. The Committee then heard the views of Secretary, Central Vigilance Commission and Director of Prosecution of Central Bureau of Investigation during the meeting held on 3rd March, 2015.

4. The Committee heard the views of Shri Ashok Kapur, Director, Institute of Directors; Professor, K Elumalai, Director, School of Law, Indira Gandhi National Open University; Smt. Anjali Bhardwaj and Shri Nikhil Dey of National Campaign for Peoples' Right to Information and Ms. Guninder Gill during its meeting held on the 15th April, 2015. The Committee also heard Dr. Jayaprakash Narayan, General Secretary, Lok Satta on 26th May, 2015.

5. The Committee again heard the Secretary, Department of Personnel and Training and Director, Central Bureau of Investigation; Chairperson, Central Board of Direct Taxes; Secretary, Central Vigilance Commission and Director, Enforcement Directorate on 16th July, 2015.

6. The Committee wrote to all the recognised National and State Political Parties to hear their views on the Bill and particularly on Clause 6. The Committee received written views from Bharatiya Janata Party, Communist Party of India, Shiromani Akali Dal, YSR Congress Party, All India Trinamool Congress, All India Anna Dravida Munnetra Kazhagam, Indian National Lok Dal and Aam Aadmi Party. All India Anna Dravida Munnetra Kazhagam, All India Trinamool Congress and Indian National Lok Dal presented their views on the Bill during its sittings held on 14th October and 16th November, 2015.

7. The Committee also heard the views of Indian Revenue Service Association, Indian Civil Accounts Service Association, Confederation of Central Government Gazetted Officers' Organisations and Confederation of Civil Service Association during the meeting held on 14th October, 2015. It has received written views of Central Secretariat Non-gazetted Employees Union, Central Secretariat Service Group A Officers Association and Central Secretariat (Promotee) Assistants' Association.

(v) (vi)

8. The Committee during its local study-visit on 8th April, 2015, visited the Central Vigilance Commission Headquarters in New Delhi, interacted with the Chief Vigilance Commissioner. The Committee, during its study visit from 14th to 23rd June, 2015 to Kolkata, Mumbai, Hyderabad, Tirupati and Chennai, interacted with management together with Chief Vigilance Officers (CVOs) of Steel Authority of India Limited (SAIL), Allahabad Bank, UCO Bank, Balmer Lawrie & Company, Oil and Natural Gas Corporation (ONGC), Union Bank of India, Shipping Corporation of India (SCI), Life Insurance Corporation, New India Assurance Company Ltd., Central Bank of India, State Bank of Hyderabad (SBH), National Mineral Development Corporation (NMDC), Bharat Dynamics Limited (BDL), Electronics Corporation of India Limited (ECIL), Mishra Dhatu Nigam Limited (MIDHANI), Andhra Bank, National Atmospheric Research Laboratory (NARL), Chennai Petroleum Corporation Limited (CPCL), Hindustan Petroleum Corporation Limited (HPCL), Bank of Baroda and Madras Fertilisers Limited. It also heard views of Defence Research and Development Organization (DRDO), Bharat Heavy Electrical Limited (BHEL) and THDC India Limited during its study- visit to Dehradun, Mussoorie and Haridwar on 4th to 7th November, 2015.

9. The Committee had final consultation with Department of Personnel and Training, Legislative Department and Department of Legal Affairs on certain issues connected with the provisions of the Bill and the Lokpal and Lokayuktas Act, 2013 on the 26th November, 2015.

10. While considering the Bill, the Committee took note of the following documents/information placed before it:-

(i) Background note on the Bill submitted by the Department of Personnel and Training;

(ii) Views/suggestions contained in the memoranda received from various organisations/ institutions/individuals/experts and recognized National and State Political Parties on the provisions of the Bill and the comments of the Department of Personnel and Training thereon;

(iii) Comments of Department of Personnel and Training to the questionnaire made by the Secretariat;

(iv) Replies of Public Sector Undertakings, Financial Institutions and Department of Personnel and Training to questions raised by Members of the Committee during its meetings and study-visits;

(v) Views expressed during the oral evidence tendered before the Committee by various official and non-official witnesses;

(vi) Views of Justice M.L. Tahaliyani, Lokayukta, Maharashtra;

(vii) Representation of Peoples Act, 1951;

(viii) The Salary and Allowances of Leader of Opposition in Parliament Act, 1977;

(ix) Central Vigilance Commission Act, 2003;

(x) The Members of Rajya Sabha (Declaration of Assets and Liabilities) Rules, 2004;

(xi) All India Service (Conduct) Rules,1968; and

(xii) Central Civil Service (Conduct) Rules, 1964. (vii)

11. The Committee considered and adopted its Report in its meeting held on the 3rd December, 2015 and decided to present verbatim proceedings of the meetings held to examine the Bill.

12. For the facility of reference and convenience, the observations and recommendations of the Committee have been printed in bold letters in the body of the Report.

DR. E.M. SUDARSANA NATCHIAPPAN NEW DELHI; Chairman, 3rd December, 2015 Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Rajya Sabha ACRONYMS

UNCAC — United Nations Convention Against Corruption

DoPT — Department of Personnel and Training

DSPE — Delhi Special Police Establishment

CVC — Chief Vigilance Commissioner

LoP — Leader of Opposition

NJAC — National Judicial Appointments Commission

CVOs — Chief Vigilance Officers

IAS — Indian Administrative Service

IPS — Indian Police Service

IFoS — Indian Forest Service

CBDT — Chairperson of Central Board of Direct Taxes

ED — Director of Enforcement Directorate

DoI — Director of Inquiry

NGOs — Non Government Organisations

PAN — Permanent Account Number

APAR — Annual Performance Appraisal Report

PSUs — Public Sector Undertakings

DRDO — Defence Research and Development Organisation

BJP — Bharatiya Janata Party

CPI — Communist Party of India

AIADMK — All India Anna Dravida Munnetra Kazhagam

AAP — Aam Aadmi Party

AITC — All India Trinamool Congress

INLD — Indian National Lok Dal

SAD — Shiromani Akali Dal

ACR — Annual Confidential Report

(viii) 1

REPORT

Lokpal and Lokayuktas Act, 2013 was enacted to setup an independent and empowered anti- corruption institution, namely, Lokpal at union level and for making enabling provision for establishment of Lokayukta for States for prompt inquiry and investigation into allegation of corruption by public functionaries and to fulfil the obligations of our country under the United Nations Convention Against Corruption (UNCAC). The Lokpal and Lokayuktas Act, 2013 came into force w.e.f. 16th January, 2014. Pursuant thereto the Union Government framed and notified the following Rules thereunder to implement the provisions of the said Act:- (i) The search Committee (Constitution, Terms and Conditions of Appointment of Members and the Manner of Selection of Panels of Names for Appointment of Chairperson and Members of Lokpal) Rules, 2014; and (ii) The Public Servants (Furnishing of Information and Annual Returns of Assets and Liabilities and Limit for Exemption of Assets in Filing Returns) Rules, 2014

In order to remove certain difficulties in making Lokpal functional and to make certain other changes, amendments to the Lokpal and Lokayuktas Act, 2013 have been proposed under the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014 (Annexure-I).

2. The Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014, seeks to amend the Lokpal and Lokayuktas Act, 2013 (Annexure-II) and the Delhi Special Police Establishment (DSPE) Act, 1946. The relevant Sections of the abovesaid Acts along with corresponding Clauses of the Bill making amendments in those Sections, are presented below in a tabular form:-

Amendments Proposed to the Lokpal and Lokayuktas Act, 2013 and Delhi Special Police Establishment Act, 1946 — At a Glance

Sl. Area of Provisions in Relevant Provisions in the Relevant Extent of Amendment No. Concern the Lokpal and Section Bill Clause proposed Lokayuktas Act, 2013 and Delhi Special Police Establishment Act, 1946 1 2 3 4 5 6 7

1. Composition Prime Minister, 4(1) of Prime Minister, 2(a) (i) Inclusion of Leader of Selection Chief Justice of Lokpal Chief Justice of of largest Opposition Committee India or Judge and Lok- India or Judge of Party in Lok Sabha in of Supreme ayuktas Supreme Court, lieu of Leader of Court, Speaker, Act, Speaker, Lok Sabha, Opposition in Lok Lok Sabha, 2013 Leader of largest Sabha in Selection 1 2

1 2 3 4 5 6 7 Leader of Op- Opposition Party, Committee position, Lok Lok Sabha and Sabha and eminent jurist eminent jurist

2. Tenure of No mention of 4(1)(e) Fixed tenure of 2 (b) Limiting tenure of eminent jurist tenure of Lok- three years with eminent jurist to in Selection pal and no renomination single term in the Committee Lokayu- Selection Committee ktas Act, 2013

3. Proceedings Proceedings not 4(2) of No invalidation of 2(b) To validate the pro- of Search to be invalidated Lokpal proceedings of & ceedings of Search and Selection due to vacancy and Lok- Search and Selec- 2 (c) and Selection Com- Committees in the Selection ayuktas tion Committees mittees in the event Search Act,2013 due to vacancy or of absence or Committees absence therein vacancy of any member arising therein in future

4. Rank of Secretary to 10 (1) Additional Secretary 3(a) Rank reduced. Secretary Government of of Lokpal to Government of to Lokpal India and Lok- India ayuktas Act, 2013

5. Rank of Additional 10(1) of Joint Secretary to 3(b) Ranks reduced by Director of Secretary to Lokpal Government of one level. Inquiry and Government and Lok- India Director of of India ayuktas Prosecution Act, 2013 of Lokpal

6. Disclosure All Public ser- 44(1) & Public servants to 6(a) Immovable assets of assets vants to declare 44(2) of declare the (i) im- acquired by the and liabilities assets and liabi- Lokpal movable assets public servant whe- by public lities of self, and Lok- owned/acquired/ ther in his/her name servants spouse and dep- ayuktas inherited by the or in the name of endant children Act, 2013 public servant in any family member in the manner his/her name, in or any other person provided under the name of any to be declared. the Act within member of his/her Movable assets of 30 days of the family or in the only public servant to Act coming into name of any other be declared. force to their person; (ii) mov- 3

1 2 3 4 5 6 7 Competent Auth- able property ority and to file owned/acquired/inherited Annual Return by him/her and; of movable and (iii) Debts and other immoveable as- liabilities incurred by sets and liabilities him/her directly or of self, spouse indirectly. Such and dependant declaration to be children as on made to Competent 31st March by Authority under 31st July of that Act/Rules/Regula- year to the Com- tions governing petent Authority their appointment/ which is to be election. The Com- put in public petent Authority to domain by 31st publish the declara- August of that tion filed by public year. servant in prescribed manner by 31st August of that year.

7. Seat of New Delhi 16(f) of NCR of Delhi. 4 To facilitate setting Lokpal Lokpal up of Headquarters in and Lok- the NCR of Delhi. ayuktas Act, 2013

8. Eligibility Rank of Direc- 4BA of Indian Legal Ser- 9(a) Makes the eligibility Criteria of tor of Prosecu- DSPE vice Officer eligible criteria more strin- Director of tion is Joint Act, to be appointed as gent. Allows only Prosecution Secretary to 1946 Special Public Pro- officers with legal (DoP) of Government of secutor. In absence background to head CBI India of such officer, the prosecution wing an advocate having of the Central Bureau at least 15 years of of Investigation practice, and experience in handling Government cases relating to offences related to economic offences and corruption. 4

1 2 3 4 5 6 7 9. Difference No provision 4BA of To be settled by 9(b) New provision. of opinion DSPE Attorney General between Act, for India whose Director, 1946 decision would and Director be binding. of Prosecu- tion of CBI

Leader of Single Largest Opposition Party to be Part of Selection Committee in the Absence of Leader of Opposition (LoP) in Lok Sabha

3.0. Clause 2 inter alia seeks to amend Section 4 of the Lokpal and Lokayuktas Act, 2013 allowing the leader of the single largest opposition party in the House of People (Lok Sabha) to be part of the Selection Committee for Lokpal when there is no recognized Leader of Opposition (LoP) in that House.

3.1. The Department of Personnel and Training (DoPT) has stated that the amendment is necessitated keeping in view the political exigencies which emerged after the Sixteenth General Election to Lok Sabha as there is no Leader of Opposition in Lok Sabha in the current Lok Sabha. Similar amendment was made to Section 4A of the Delhi Special Police Establishment (DSPE) Act, 1946 in November, 2014 enabling leader of largest opposition party to be part of the selection process for appointment of a new Director of CBI. Similar provisions also exist for the appointment of Chief Vigilance Commissioner (CVC) under Section 4 of CVC Act, 2003.

3.2. Several Members of the Committee raised questions regarding a situation wherein two or more parties have the same strength in the House of People and wondered, in that situation, who would become a part of the Selection Committee for Lokpal. In response thereto, the DoPT has submitted that such a situation is a rare one. In such a situation, the selection of Lokpal can either be made by treating the position of Leader of Opposition (LoP) as vacant and proceeding with making the selection or to wait for the decision of the Hon'ble Speaker, Lok Sabha to recognise the leader of one party as per the provisions of the Salary and Allowances of Leader of Opposition in Parliament Act, 1977. The Explanation to Section 2 of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 permits the Presiding Officer of the House (Lok Sabha/Rajya Sabha) to recognize the leader of one political party in opposition to the Government as Leader of Opposition when there are two or more parties having similar numerical strength in that House. 3.3. Most of the non-official witnesses who appeared before the Committee also agreed with the amendment.

Recommendations/Observations of the Committee

3.4. The Committee notes that in the present Lok Sabha, there is no recognized Leader of Opposition and such a situation can arise in future as well. In the absence of Leader of Opposition it is not possible to constitute the Selection Committee of Lok Pal as per provisions of the Lok Pal and Lokayuktas Act, 2013. In order to overcome such a situation, amendment is proposed to provide that the Leader of Opposition recognised as such in the Lok Sabha or where there is no such Leader of Opposition, the leader of the single largest 5 opposition party in that House shall be a Member of the Selection Committee. Similar provision exists for the appointment of Chief Vigilance Commissioner (CVC) under Section 4 of CVC Act, 2003. The Committee is of the view that the amendment is both necessary and appropriate and accordingly recommends it.

Fixed Tenure for the Eminent Jurist in Selection Committee of Lokpal

4.0. Clause 2 of the Bill proposes to amend Section 4 (1) (e) of the Lokpal and Lokayuktas Act, 2013 to insert a proviso which fixes a three year tenure for the eminent jurist with bar on re- nomination.

4.1. The DoPT has stated that it is essential to fix the tenure of the eminent jurist which was not provided in the Lokpal and Lokayuktas Act, 2013. The DoPT has further submitted that three years tenure has been prescribed in the case of the eminent jurist in the National Judicial Appointments Commission (NJAC) by the Ninety-ninth Constitution Amendment Act, 2014.

4.2. Some non-official witnesses suggested that the post should not be of a permanent nature and that the eminent jurist should be invited only when the Selection Committee meets for the purpose of making the appointments of Members of Lokpal. Suggestions have also been received for fixing qualification for the eminent jurists.

Recommendations/Observations of the Committee

4.3. The Committee is in agreement with the proposed amendment.

VALIDITY OF PROCEEDINGS OF SELECTION AND SEARCH COMMITTEES

5.0. Clause 2 of the Bill seeks to amend Sections 4(2) and 4(3) of the Lokpal and Lokayuktas Act, 2013 to provide that nomination of an eminent jurist or the appointment of Chairperson or a Member either in the Lokpal or in the Search Committee or the proceedings of Search Committee shall not become invalid merely by reason of any vacancy or absence of a member in the Selection/ Search Committee.

5.1. The DoPT has stated that the clause has been introduced to address a situation when a member is not able to participate in the proceedings of the Selection or Search Committee due to any reason or unforeseen circumstances, and the appointment process cannot be delayed any more.

5.2. Some stakeholders suggested prescribing a quorum in Selection/Search Committee for the meeting. It was also suggested that the absentee members of the Selection Committee may also be given adequate opportunity to present their views in writing to the Chairman. Some other stakeholders have submitted that this provision may be misused to bypass particular member of the Selection Committee especially when that member is of an opinion which is not to the liking of some others.

Recommendations/Observations of the Committee

5.3. The Committee is of the view that whenever a Member is unable to attend the meeting either of the Selection Committee or of the Search Committee, he/she should be 6 accorded adequate opportunity to send his/her views in writing to the Selection/Search Committee and such views of the absentee Member should be taken into account while taking a decision by the Committee. Only in rare situations where despite affording adequate opportunities to the absentee Member, he/she fails to send his views to the Search/ Selection Committee in writing, decision may be taken in absence of views of the absentee Member after recording the reasons for non-availability of views of the absentee Member.

5.4. The Committee, however, is firmly of the opinion that Search/Selection Committee should not take any decision unless vacancy, if any, in Search/Selection Committee is filled up. The Committee sees no reason for not filling any vacancy quickly that may arise in the Search/Selection Committee. The Committee accordingly recommends that the Bill may be modified accordingly.

UNIFIED STRUCTURE FOR ANTI CORRUPTION SETUP

6.0. The Committee observes that with the setting up of Lokpal, multiple agencies such as Lokpal, Central Vigilance Commission (CVC), Central Bureau of Investigation (CBI), Chief Vigilance Officers (CVOs) of concerned organisation would be dealing with complaints of corruption. The Committee notes that the Lokpal and Lokayukta Act, 2013 and amendments proposed thereto make an attempt to integrate CVC and CBI (anti corruption functions) with Lokpal, but it falls short of a fully integrated setup for dealing with corruption cases.

6.1. The Committee notes that there is an overlapping between the functions of CVC and Lokpal. For example, Section 20 of Lokpal and Lokayuktas Act, 2013 provides that Lokpal, if it decides to proceed with the preliminary inquiry shall refer the complaint in respect of public servants belonging to Groups 'A', 'B', 'C' or 'D' to the Central Vigilance Commission who shall after making preliminary inquiry submit a report to Lokpal in case of public servants belonging to Groups 'A' and 'B' and shall deal with complaints in respect of other two groups as per the provisions of CVC Act, 2003. Under Section 25(1) of Lokpal and Lokayuktas Act, 2013, Lokpal has also been made competent to exercise powers and superintendence and to give directions to CBI. Under Sections 8(1)(a) and 8(1)(b) of CVC Act, 2003, CVC is empowered to exercise superintendence over the function of Delhi Special Police Establishment (CBI) and to give it directions in relation to the investigation of offences alleged to have been committed under Prevention of Corruption Act, 1988. Similarly, under Sections 8(1)(c) and 8(1)(d) of CVC Act, 2003, CVC can inquire or cause an inquiry or investigation to be made for alleged offences under Prevention of Corruption Act, 1988 against an official. Further, under Section 14(1) of the Lokpal and Lokayuktas Act, 2013, Lokpal can also inquire or cause an inquiry to be conducted in such cases. Complaints of corruption against any government servants may be lodged with Lokpal, CVC, CBI or the vigilance department of the concerned organization. This may give rise to same complaint being examined by different organizations and may cause unnecessary harassment of public servant apart from causing functional problems. The Committee notes that Section 15 of the Lokpal and Lokayuktas Act, 2013 provides that after commencement of the said Act, if any matter or proceedings related to allegation of corruption under the 7

Prevention of Corruption Act, 1988 is pending before any authority prior to commencement of any inquiry it shall continue with such authority. It is, however, not clear how other authorities would have such knowledge until concerned public servant is informed of it and he takes up with such authorities. The position, therefore, as it exists provides for overlapping of functions and powers of CVC and Lokpal in certain areas.

6.2. The Committee notes that under the second proviso to Section 20(1), the Central Vigilance Commission is required to submit a report to the Lokpal. Under Section 25(1), the powers of Lokpal override Section 8 of the Central Vigilance Commission Act, 2003 and under sub-Section 2 of Section 25, the Central Vigilance Commission is required to send a statement to the Lokpal at such intervals as the Lokpal may direct in respect of action taken on complaints referred to it and Lokpal is made competent to issue guidelines for effective and expeditious disposal of such cases. Further, power to grant prosecution has been vested in Lokpal under Section 20(7) of the Lokpal and Lokayuktas Act, 2013. This sub-Section provides that a Bench consisting of not less than 3 members of Lokpal shall consider the investigation report received by it from any investigating agency including CBI and after obtaining the comments of the Competent Authority and the public servant, shall decide the further course of action i.e. either to grant sanction for prosecution or direct the closure of report before the Special Court or direct the Competent Authority to initiate the departmental proceedings or any other appropriate action. These provisions show that the scheme of Lokpal and Lokayuktas Act, 2013 places Lokpal on a higher pedestal than CVC notwithstanding overlapping of jurisdictions and functions as stated above.

6.3. The Committee is of the view that institutions of CVC and the CBI (in so far as its anti corruption functions are concerned), be fully integrated with Lokpal and the institution of anti corruption watchdog may be architecturally created vertically with the Lokpal at the apex level and CVC and CBI (anti-corruption wing) working directly under its command and control. The functions of Lokpal and CVC be clearly specified and overlap between functions and powers of CVC and Lokpal be addressed. Lokpal in turn should utilize these organizations for conduct of inquiry, investigation and prosecution.

6.4. The Committee notes that a post of Director of Inquiry was created in CVC by inserting Section 11A in the Central Vigilance Commission Act, 2003 through the Lokpal and Lokayuktas Act, 2013. On such integration, the post of Director of Inquiry which is available in CVC can be utilized by the Lokpal and there would be no need for creation of another post of Director of Inquiry for Lokpal as provided under Sections 10(2) and 11 of the Lokpal and Lokayuktas Act, 2013. The Committee is also aware that apart from anti- corruption, the Central Bureau of Investigation is also handling cases relating to economic offences, special crimes, bank security and fraud and cyber-crime, etc. The Committee is only recommending integration of Anti-corruption Branch of CBI with Lokpal which on such integration may be placed under the Director of Inquiry of Lokpal. For investigation of crimes, other than corruption crimes, the existing structure and procedures may continue to operate. The Government if it so considers necessary for the purpose, may come up with a comprehensive legislation on CBI for effective performance of other functions of the agency as recommended in the Twenty Fourth Report of this Committee on 'Working of CBI' (2008). The Committee feels that such an integrated structure would be more practicable setup and cause least financial burden on the exchequer. 8

RANK AND STATUS OF SECRETARY TO LOKPAL, DIRECTOR OF INQUIRY AND DIRECTOR OF PROSECUTION OF LOKPAL

7.0. The Clause 3 of the Bill proposes amendment to Sections 10 (1) and 10 (2) of the Lokpal and Lokayuktas Act, 2013 to reduce the rank and status of Secretary to Lokpal from the rank of Secretary to Government of India to Additional Secretary. Similarly, the rank and status for Director of Inquiry (DoI) and Director of Prosecution (DoP) of Lokpal, is proposed to be reduced from Additional Secretary to Joint Secretary.

7.1. The DoPT has stated that a Secretary rank officer generally serves for a year or two before his/her retirement. In order to provide continuity, a minimum tenure of three to four years for Secretary to Lokpal is required which is possible if he is of the rank of Additional Secretary. Correspondingly, the ranks of DoI and DoP of Lokpal have been reduced to the level of Joint Secretary.

7.2. Members, however, felt that the rank and status of Secretary to Lokpal should be of the rank of Secretary to the Government of India and Director of Inquiry and Director of Prosecution of Lokpal should not be less than the rank and status of Additional Secretary to the Government of India. Further these officers may be provided fixed tenure.

7.3. The Committee took note of the fact that a Director of Inquiry was created in CVC by inserting Section 11A in the Central Vigilance Commission Act, 2003 by the Lokpal and Lokayuktas Act, 2013.

Recommendations/Observations of the Committee

7.4. The Committee is of the view that since the Secretary to Lokpal would be dealing with high ranking officials of the Government of India, and as such it is absolutely necessary that he/she should not be lower than the rank and status of Secretary to Government of India so that he is not unduly influenced by his/her seniors or colleagues from the Civil Service and is able to function independently. The Committee is further of the view that for effective functioning the Director of Inquiry and the Director of Prosecution of Lokpal, they should not be lower than the rank and status of Additional Secretary to the Government of India. The Committee does not favour the changes proposed by Clause 3 of the Bill. The Committee further recommends that Director of Inquiry created in CVC by insertion of Section 11A in the Central Vigilance Commission Act, 2003 should be used for purposes of inquiry by Lokpal and there is no need for creation of another Director of Inquiry in Lokpal.

OMISSION OF MENTION OF SECTION 6A OF DSPE ACT, 1946

8.0. The Clause 5 seeks to amend Section 23 (1) of the Lokpal and Lokayuktas Act, 2013 to delete the Section 6A of the DSPE Act, 1946 from therein.

8.1. The DoPT has stated that in view of the decision of Supreme Court of India invalidating Section 6A of DSPE Act, 1946, this provision in the Lokpal Act has become infructuous. The amendment is thus only a sequel to the judgement of the Apex Court. 9

Recommendations/Observations of the Committee

8.2. The Committee agrees with the proposed amendment.

DECLARATION OF ASSETS AND LIABILITIES BY PUBLIC SERVANTS

9.0. The Clause 6 seeks to amend Section 44 of the Lokpal and Lokayuktas Act, 2013 relating to declaration of assets and liabilities by public servants. The Section provides for declaration of assets and liabilities to the Competent Authority for all categories of public servants including Union Ministers and Members of Parliament within thirty days of affirmation of oath or assuming office. In accordance with the Lokpal and Lokayuktas Act, 2013 all public servants are required to provide an Annual Return of their assets and liabilities as on 31st March of every year by 31st July of that year. The same needs to be published in the websites of the organizations by 31st August of that year by the Competent Authority concerned. The declaration would comprise the details of the both movable and immovable assets and liabilities of the public servant and his/her spouse and dependent children.

9.1. Clause 6 of the Bill seeks to provide that the asset-liability declaration should be filed by the public servants in the manner prescribed under the provisions of the existing Statutes/Rules/ Regulations governing their service conditions or election. This means that the manner and form of such declaration will be governed by respective Statute/Rules/Regulations. For instance, the Union Ministers and Members of Parliament currently declare their assets and liabilities within ninety days from the date of taking oath of affirmation by them in the manner prescribed under the Section 75A of Representation of People Act, 1951 and Rules made thereunder, to Presiding Officer of the respective House. Rules have accordingly been framed under Section 75A of Representation of People Act, 1951 viz. The Members of Rajya Sabha/Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004, which prescribes the manner and form of such declaration. Such declaration is akin to the provisions of Section 44 of the Lokpal and Lokayuktas Act, 2013.

9.2. Rule 3 of The Members of Rajya Sabha/Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004 stipulates that:-

"(1) Every member of the Council shall, within ninety days from the date on which he makes and subscribes an oath or affirmation for taking his seat, furnish as in Form-1 the following information as required to be furnished by him to the Chairman in pursuance of sub-Section (1) of Section 75A, namely:-

(i) The movable and immovable property of which he, his spouse and his dependent children are jointly or severally owners or beneficiaries;

(ii) His liabilities to any public financial institution; and

(iii) His liabilities to the Central Government or to the State Governments.

(2) Every Member shall notify changes, if any, in the information furnished by him under sub-rule (1) as on 31st day of March every year, by the 30th June of that year." 10

9.3. The declaration of assets and liabilities by government servants are currently regulated by All India Services (Conduct) Rules, 1968 (framed under the All India Services Act, 1951) and Central Civil Services (Conduct) Rules, 1964 (framed under Articles 148 and 309 of the Constitution of India). Rule 16 of All India Service (Conduct) Rules, 1968 which applies to the officers of Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS) and Rule 18 of Central Civil Services (Conduct) Rules, 1964 which applies to all other officials of the Union Government, provide for manner and form of particulars that are required to be submitted.

9.4. Existing provisions for government servants under the All India Service (Conduct) Rules, 1968 and Central Civil Services (Conduct) Rules, 1964 require the public servant to submit a return, giving the full particulars regarding:-

(a) "The immovable property owned by him, or inherited or acquired by him or held by him on lease or mortgage, either in his name or in the name of any member of his family or in the name of any other person;

(b) Shares, debentures, postal Cumulative Time Deposits and cash including bank deposits inherited by him or similarly owned, acquired or held by him;

(d) Debts and other liabilities incurred by him directly or indirectly."

9.5. It may be pointed out that the information required to be submitted by Members of Parliament under Representation of People Act, 1951 is broadly similar to the provisions of Section 44 of the Lokpal and Lokayuktas Act, 2013 whereas the information required to be furnished under the Lokpal and Lokayuktas Act, 2013 is substantially different from that of the information required to be furnished by government servants under the aforesaid Conduct Rules, applicable to them. Under Representation of People Act, 1951, every elected Member of Parliament is required to furnish the information relating to moveable and immoveable property of which he, his spouse and his dependent children are jointly or severely owners or beneficiaries whereas under Conduct Rules applicable to government servants, they are not required to furnish information of moveable and immoveable assets owned by their family members if those have not been acquired from the income of government servant.

9.6. The Lokpal and Lokayuktas Act, 2013 though has an over-riding effect over Section 75A of the Representation of People Act, 1951, it does not repeal Section 75A of the Representation of People Act, 1951. An elected Member of Parliament, therefore, may be required to furnish information of assets and liabilities both under Section 75A of the Representation of People Act, 1951 as well as under Lokpal and Lokayuktas Act, 2013. Further, under Representation of People Act, 1951 they would be required to furnish information in ninety days from the date on which they take oath while under the Lokpal and Lokayuktas Act, 2013, they may be required to do so within thirty days. Similarly, there may be difference in manner and content of declaration of assets and liabilities under Conduct Rules or other Rules applicable to other public servants. This is not a desirable situation and a uniform system of declaration of assets and liabilities should be made 11 applicable to all public servants. The Committee further observes that Section 75A of the Representation of People Act, 1951 is applicable only to elected Members of the Parliament. It has no application to nominated Members. Nominated Members may also be required to file a declaration of their assets and liabilities similar to the one to be filed by elected Members of Parliament. Necessary provision in this regard may be incorporated in the Bill and the Committee recommends accordingly.

9.7. In DoPT's view, Rule 16 of All India Services (Conduct) Rules and Rule 18 of the Central Civil Services (Conduct) Rules which are in operation for the last fifty years have been operating successfully. These Rules provide for declaring movable and immovable assets acquired by the public servant in the name of any other person. The same is also reflected in the Bill. However, the Rules do not cover any property which is held/acquired independently by any family member.

9.8. The Department further is of the view that putting the details of assets and liabilities of public servants in public domain may jeopardize the security of government servants. The Secretary of DoPT in his deposition before the Committee stated that they had received representations from several Civil Services Officers' Associations stating that putting the details of officers in the public domain has the potential of hampering their effective working. They have stated that this can also compromise the personal security of the government servants as well as that of their family members. This is especially true for the civil servants posted in sensitive institutions like Indian High Commissions in various countries and sensitive national security related agencies and installations.

9.9. The Secretary, Central Vigilance Commission has supported the amending Clause.

9.10. The Chairperson of Central Board of Direct Taxes (CBDT), in her deposition, stated that as per the Income Tax Act, 1961 and the rules framed thereunder, every person having a Permanent Account Number (PAN) is considered as a separate individual. The returns filed by individuals are confidential and are held by the department as a safe keeper of this information. The Income Tax Returns thus filed cannot be disclosed to any third party (including the spouse of the filer). Such details can be shared only when a larger public interest is involved. The Chairperson applied the same analogy to the Lokpal and Lokayuktas Act, 2013 and said that the Government cannot bind the spouse of a public servant to disclose information related to his/her assets and liabilities as the contract of employment and related service conditions binds only the public servant and not his/her spouse. Therefore, the amendment is necessitated. Only the assets acquired by the public servant using his/her funds in his name or in the name of anyone of his family members or in the name of any one else must be disclosed. The Chairperson further stated that the information regarding the assets and liabilities of public servants must not be put in the public domain as this could jeopardize the security of the public servant as well as the members of the family.

9.11. The Director of Enforcement Directorate (ED) during his deposition stated that the Directorate is in agreement with the views of CBDT on Clause 6 and stated that the amendment would bring it in consonance with the existing provisions which have stood the test of time. He, however, stated that the manner of publication of information filed by the public servant must not be left to the discretion of the Competent Authority and must be clearly defined in the Act itself. 12

9.12. Some Non Government Organisations (NGOs) have suggested that the declaration of assets and liabilities of the public servant, his/her spouse and children made by the public servant should be published in the website and therefore opposed the amendment. They have also suggested that the existing manner of disclosure as prescribed under Section 44 of Principal Act appears to be better than those prescribed under their respective Statutes/Rules/Regulations governing their service conditions.

9.13. Some employees associations during their depositions have stated that the Immovable Property Return (IPR) is furnished by the government servant every year along with submission of Annual Performance Appraisal Report (APAR) to the Competent Authority. In case of complaint to Lokpal, such information may be forwarded to the Lokpal by the Competent Authority. Alternatively, the Central Vigilance Commission may audit property returns of government servant every year in the manner Comptroller and Auditor General carry out audit of government accounts. The CVC may refer disproportionate assets cases to Lokpal to take appropriate action against corrupt government servants. They have also cited several barriers in submitting the declaration of movable assets of their spouse and dependent children. Firstly, it would be difficult for a public servant to correctly assess the value of movable property owned by him or his spouse and dependent children every year. Assessing the correct value of goods like gold and valuable metals would require the services of a professional valuator. This would entail a recurrent expenditure on the part of the government servant. Secondly, in the case of streedhan, the Supreme Court in the case of Pratibha Rani Vs. Suraj Kumar (1985 AIR 628), has held that the position of the streedhan in Hindu marriage is clear and unambiguous and she is the absolute owner of such a property and deal with it in any manner she likes without any reference to her husband. Thus, keeping this in mind, a public servant may not be in a position to reveal the correct information regarding the streedhan. Thirdly, the spouse of a government servant is an independent entity and cannot be forced by the government to reveal personal information relating to his/her property. The Section 44 of the Lokpal and Lokayuktas Act, 2013 has already been challenged by Mrs. Vinita Singla (spouse of a government servant), who has approached the Hon'ble High Court of Delhi. That Court in an interim observation on 9th September, 2014 has held that:-

"...... prima facie, there is merit in the petitioner's contention that as a private citizen, the indirect method adopted by Section 44 in compelling disclosure, which is essentially falling within her exclusive control, results in violation of Article 21..."

Lastly, even if the spouse of the government servant reveals some information to him/her, there is no method available with him/her to verify the authenticity of the information provided. Holding a public servant accountable for such information is harsh and impractical. On the issue of publishing the declaration of assets and liabilities filed by the public servant to the competent authority, the Convener of Confederation of Civil Services Associations, made the following submission before the Committee:-

"...If we start giving each and every information in the public domain and on the website, what will happen is that this information will not only be there for each and every member of the public, it will also fall into the hands of all sorts of criminal elements. As of now, it is very difficult to perceive as to what assets each person may be having. Once it is out in the public domain, it will be very easy to target the person and the victims would be 13

his family members, his children who can be kidnapped. There could be extortions and there could be dowry demands. Right now any father can just say that he does not have anything and somehow can escape any dowry demand. There can be very specific dowry demands. This new provision about revealing of such information may cause problems. There are some officers who are tackling Naxalism, Maoism and terrorism. Their details and their whereabouts may lead to revealing of other information about them, about their family members and that will pose a threat. Then, particularly, the officers who are tackling such sorts of crimes, the forest officers who are deep in the forests, plus revenue officers who are collecting revenue from other people, may be targeted. Also, once the information is there, there will be a plethora of false and malicious complaints. Anybody can take the information from the net, add something to it and file a complaint. Once a complaint is lodged, it takes years and years, and, in fact, the entire career of an officer can be marred. It is very different for a bureaucrat because for government servants, with the system of constant appraisals and promotions, once some allegation about corruption is made, some false allegation is made, it takes years before it is finally settled. Right now, any person, having a genuine complaint can come forward. But if we start giving all the information, people having mala fide intentions take information from the net, add something to it and start filing false complaints. And that complaint cannot be brushed aside because there will be so much of data in the complaint that it will not be entirely baseless…"

Thus, they have opposed the publication of asset-liabilities of the public servant and his/her spouse. Baseless allegations of corruption levied on the public servant will reduce his efficiency and make his work suffer due to the proverbial Damocles' sword of vigilance inquiry.

9.14. The Committee during its study visit, interacted with several public sector banks and Public Sector Undertakings (PSUs) on the provisions of the Bill. All the stakeholders have agreed to the clause in principle. They are of the view that asset and liability statement of public servants should be with the competent authority, rather than putting them in public domain, sensing threat to the members of the family by anti-social elements. The Defence Research and Development Organisation (DRDO) has stated the following in respect of Clause 6 of the Bill:-

"….(a) DRDO is a sensitive organization. It is engaged in research and development of critical/frontier defence technologies. Publication of assets/liabilities of self and dependent family members on websites may make them vulnerable to anti-social elements with social repercussions.

(b) It may lead to invasion of privacy or intrusion into details of family's assets and liabilities acquired through inheritance/gift with which the general public may have no concern. While these details may be kept with the Government for vigilance purposes, but sharing these confidential information especially relating to movable assets viz gold/ jewellery with general public may amount to violation of confidentiality.

(c) Quantifying gold/silver jewellery (especially streedhan) of spouse which are inherited through generations, may be difficult, due to prevailing customs/traditions. Possibility of family disputes cannot be ruled out and may lead to harassment of Government servant by disgruntled elements. There may also be reluctance on the part of the spouse to share details 14

of her assets/liabilities including jewellery with the Government servant, with which the general public may have no concern..."

9.15. The Lokayukta, Maharashtra, in his written submission made to the Committee, has appreciated the concerns raised by public servants and stated that:-

"...I have come to the conclusion that there is nothing wrong in the amendments, particularly considering the provisions of the Old Conduct Rules of 1935. However, the apprehension of certain sections of public servants with regard to the Sub Section 6 appears to be reasonable. In my opinion, publication of the information is not necessary to achieve the ends which the Act is seeking to achieve. The provisions of Sub Section 6 may be used by some unscrupulous persons for dubious purposes. In brief, publication in respect of assets of public servants and his family members may be avoided to be published..."

9.16. As per the current rules, Immovable Property Returns of the government servant are to be filed by 31st Jaunary every year to the Competent Authority without which, vigilance clearance is denied and promotion and empanelment to higher grades is withheld. The Immovable Property Returns of All India Services Officers have been uploaded by the Competent Authority even though their Conduct Rules have no specific provisions for such disclosure. However, as per data available, 23.98% of Indian Police Service (IPS) Officers, 8% of Indian Administrative Service (IAS) Officers and 54% of Indian Forest Service (IFoS) Officers have not disclosed details of their immovable property returns for the year 2014 to the Competent Authority under their Conduct Rules.

9.17. The Committee also reviewed certain other barriers which discourage suo motu disclosure of assets by public servants. Chief among them are the myriad of complex rules and regulations which govern such disclosures. For example, the acquisition of movable property by the Government servant is governed by Rule 18(3) of the Central Civil Services (Conduct) Rules, 1964 which states:-

"(3) Where a government servant enters into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds two months' basic pay of the government servant:

Provided that the previous sanction of the prescribed authority shall be obtained by the government servant if any such transaction is with a person having official dealings with him".

This rule is antiquated and not in line with the current reality of price rise and market dynamics. This rule would cover almost all consumer durable items that a government servant would purchase. Keeping a track of all such purchases would be a tedious task for the government servant. Further, the time limit prescribed of one month is illogical and too short. Failure to comply with the instructions within the prescribed time frame results in disciplinary proceedings against the official. Thus, public servants do not disclose purchase of movable items. The rule also does not take into cognizance, the existence of finance schemes, which make several consumer durables accessible to people with limited incomes. The procedures and practice in governing the conduct 15 of public servants reflect the colonial mentality of doubt and mistrust which the colonial masters had upon its employees wherein, the government servants were viewed with suspicion. The rules thus drafted were meant to harass the public servant. The complicated procedures set by the various conduct rules act as barriers to self disclosure. Even if a public servant makes a suo motu disclosure, more often than not, he is harassed on some procedural issue. If a government servant has acquired an asset with just means, he should not be harassed unnecessarily. Thus, rules need to be made user-friendly, simplified and easy to comply with.

9.18. The Committee approached all the recognised National and State Political Parties to hear their views on the provision of the Bill particularly on Clasue 6. Amongst the National Parties, Bharatiya Janata Party (BJP) and Communist Party of India (CPI) responded to the request and submitted written memoranda. While BJP has extended support to the Bill, the CPI has objected to the provisions of the Bill and has stated that:-

"…This amendment will defeat the purpose of declaration of assets."

All India Anna Dravida Munnetra Kazhagam (AIADMK) has agreed in principle but has proposed some amendments to Clause 6. The Party in its written submission has stated the following:-

"…party proposes a modification to sub-clause (6) of Clause 6 of the amendment Bill which relates to publication of the returns filed under this provision of the Lokpal Act. It is essential to place restrictions on the disclosure of the property returns filed, in keeping with the privacy and security issues of the individuals concerned which would be in the overall public interest. Hence, the property returns may be disclosed by the competent authority only in specified cases where enquiry into disproportionate assets cases or similar issues are involved and not as a matter of routine under the Right to Information Act. The proposed amendment may be modified to this effect."

Aam Aadmi Party (AAP) while supporting the amendment has suggested that the salary of public servant may be stopped in case Immovable Property Return is not submitted by 31st January of that year. In case any property is not disclosed by the public servant, if found to be his at a later date, it may be confiscated by the Janlokpal. The All India Trinamool Congress (AITC) has stated the following:-

"…This clause is irrational and unreasonable in view of the following reasons:-

(a) Assets and liabilities of an independent child and/or any other person of family, excluding dependent children, cannot be assets and liabilities of public servant. Independent children enjoy all statutory or constitutional rights which cannot be surrendered for controlling a public servant under any statute.

(b) A public servant does not have any control over his independent children. Public servant cannot force his independent children and/or like others to disclose such assets and liabilities to him.

(c) Independent children of public servants do not derive any benefits of government concession or allowance or medical benefits, since he/she is children of public servant. 16

We are therefore of the view that independent children and like others cannot be included in declaration of public servant's assets and liabilities but declaration of such assets and liabilities of the dependent children should remain as stands today."

The Indian National Lok Dal (INLD) has suggested that the movable and immovable property returns of the public servant and his family members may be filed every year on affidavit. Shiromani Akali Dal (SAD) has supported the proposed amendment. YSR Congress Party has also agreed with the amendments.

Recommendations/Observations of the Committee

9.19. Clause 6 of this Bill seeks to amend Section 44 of the Lokpal and Lokayuktas Act, 2013 to provide for declaration of assets acquired by the public servant using his/her funds in his/her name, in the name of any of his/her family member or in the name of any other person. The Committee notes that under the provisions of the Income Tax Act, 1961, every person who files an income tax return is regarded as a separate entity and details of his/ her return are not disclosed to anyone else including his/her spouse unless it serves some public good. Further, a public servant cannot compel his/her spouse or child to disclose to him the details of assets acquired by them independently of the public servant. In today's world considering increasing avenues available in the fields of arts, entertainment and even business ventures even minor children of a public servant may have income of their own. Moreover, more and more spouses of public servants are working and having their independent sources of income. In such a scenario, compelling declaration of assets acquired by the spouse or children of a public servant from his/her own income may even be held to be in breach of their right to privacy guaranteed under Article 21 or even violative of Article 14 of the Constitution of India. As such any provision that seeks declaration of assets acquired by family members of public servant through their own income may not be legally sustainable. Family members of public servant are under no obligation to disclose to him/her, the assets acquired by them through their own income and it may, therefore, not be appropriate to even expect that all public servants would have knowledge of assets acquired by his/her family members through their own incomes. It may, therefore, not be feasible to hold the public servant accountable in case the information furnished by him regarding assets of his family members turns out to be factually incorrect and, therefore, any exercise of compelling a public servant to declare assets of his/her family members independently acquired by them, may turn out to be an exercise in futility. The Committee, therefore, agrees with the proposed amendments in so far as the declaration of assets acquired by the family members of the public servants through their own income or from sources independent of the public servant is sought to be excluded from disclosure to be made by the public servant.

9.20. The Committee further agrees that the public servant should declare the assets and liabilities to their Competent Authority. The Committee, however, is of the opinion that the Competent Authority of the public servant should forward a copy of the assets and liabilities so declared by the public servant to the Lokpal who shall keep these declaration in a fiduciary capacity. Both competent authority of public servant and Lokpal would be 17 competent to review the returns filed by the public servants particularly in suspicious cases including through use of digital surveillance software to detect any disproportionate growth in assets and liabilities of a public servant beyond his known sources of income. This, however, should be done in a professional manner so as not to give rise to a feeling that every government servant is suspect and under surveillance. Further, it should be ensured that government servants are not subjected to unnecessary clarifications/queries as a result of such scrutiny. Any feeling amongst public servants that they are not trusted and are working under surveillance is bound to affect their morale and productivity and would not be in public interest.

9.21. The Committee is further of the opinion that the provision of double scrutiny by the Competent Authority of the public servant and by the Lokpal would serve the purpose sought to be achieved by making such declarations public while at the same time it would safeguard the public servant from the misuse of such information by miscreants and criminals and avoid any danger to the security and safety of the public servants and their family members.

9.22. The Committee, therefore, feels that public disclosure of assets and liabilities of public servants may not be necessary and recommends accordingly.

9.23. The Committee is further of the view that public servants need to spend less time on routine and non-productive activities and more time on productive activities. It is in this light that the Committee feels the need to revisit the rules which currently govern the manner and form of declaration of assets and liabilities by a government servant as these rules reflect the colonial mindset of doubt and mistrust which the colonial masters had regarding their employees. The extant Rules and procedures are at present being used more to harass government servants than as a safeguard against corruption and often act as barriers against true and fair disclosure by government servants.

9.24. Clause 6 of the Bill seeks to amend Section 44 of the Lokpal and Lokayuktas Act, 2013 and interalia provides that the public servants referred to in Clauses (a) to (f) of sub- Section 1 of Section 14 shall discloses their assets and liabilities in the manner provided under the relevant provisions, rules or regulations of the Act applicable to them and for other public servants in the manner specified by Lokpal. As stated in para 9.6 above, this would not lead to uniformity either in the contents or form or manner of declaration of assets and liabilities by the public servants.

9.25. The Committee is accordingly of the view that a uniform provision may be made and incorporated in the Lokpal and Lokayuktas Act, 2013 for declaration of assets and liabilities by the public servants and contents, format, manner of declaration and other details thereof may be specified in the rules made under the Act. Existing provisions for declaration of assets and liabilities made under any Act, Rules, Regulations or Instructions may be omitted so that there is no duplication in declaration of assets and liabilities by public servants. The Committee further recommends that a public servant may be required to furnish declaration of assets and liabilities owned by him/her, his dependent spouse, dependent children and any other person dependent on him/her. In addition, he may also be required to declare assets acquired by him/her from his/her income/resources in the 18 name of any other person. The first declaration may be made within ninety days of coming into force of the Lokpal and Lokayuktas and Other Related Law (Amendment) Act, 2014 or joining public service or taking oath as a public servant. Thereafter, such declaration may be made every year and the last date for filing such a declaration may be kept a month after the last date for filing Income Tax Return.

AMENDMENTS TO DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946

ELIGIBILITY CRITERIA FOR DIRECTOR OF PROSECUTION, CENTRAL BUREAU OF INVESTIGATION

10.0. The Clause 9 seeks to amend Section 4BA (1) and 4BA (2) of the Delhi Special Police Establishment Act, 1946 to provide eligibility conditions for the appointment of Director of Prosecution. The amendment prescribes that an officer from the Indian Legal Service, holding the post of Joint Secretary and who is eligible for appointment as Special Public Prosecutor as per Section 24 (8) and Section 24 (9) of the CrPC, 1973, shall be eligible for appointment as a Director of Prosecution of CBI. In the absence of such an officer, an advocate with minimum fifteen years of experience in handling cases relating to Prevention of Corruption Act, 1988, Prevention of Money Laundering Act, 2002 and other such laws relating to economic offences on behalf of the government, may be appointed.

10.1. The DoPT has provided historical background leading to the creation of an independent Directorate of Prosecution. The DoPT has stated that before the enactment of CrPC, 1973, even police officers officiated as public prosecutor. Subsequently, the Law Commission in its Fourteenth Report on 'Reforms of the Judicial Administration' (September, 1958) recommended that prosecutors should be lawyers and the prosecuting agency must be independent of the police. CrPC, 1973 made it mandatory that a public prosecutor must be a lawyer. The Supreme Court reiterated this in the SB Shahane case (AIR SC 1628). Similar recommendation was also made by the Second Administrative Reforms Commission. Several State Governments have established a separate Directorate of Prosecution manned by either an officer belonging to Higher Judicial Service or by IPS Officers.

10.2. Some Members of the Committee suggested raising the rank of the Director of Prosecution to the level of Director of CBI to ensure independence of Director of Prosecution in the Bill. Some Members raised concerns about limiting the zone of consideration to advocates handling only economic offences. Keeping in mind the myriad nature of cases being referred to the CBI by the Judiciary, they felt that it is not appropriate to limit the zone of consideration to specified areas.

10.3. The CVC has stated that it would be prudent to set up an independent Director of Prosecution. It feels that in view of the responsibilities of the post, the post should be atleast of the rank of Additional Secretary or above. In amendment clause (b), the CVC feels that a minimum experience should be 20-25 years as this is usually the time taken by Government officers to reach the rank of Additional Secretary. Further, maximum age limit should be fixed at 55-58.

10.4. The CBI has not made any comments on Clause 9(a) about the eligibility norms. CBI feels that in view of the sensitive nature of the cases handled by the organization where several sensitive documents pertaining to national security are handled, the appointee should not be on contractual 19 basis as this may compromise national security. It further suggested that law officers holding analogous rank and working in State Vigilance and Anti Corruption Bureaus should also be considered.

10.5. The Committee in its Twenty-fourth Report on 'Working of CBI' (March 2008) had observed the following:-

"....The Committee observers that autonomy of the Directorate of Prosecution will guarantee independence of the prosecution, thereby clearing out many bottlenecks existing in the present system which result in acquittal in many cases.

16.4.1. The Committee strongly feels that the decision as to whether prosecution should be initiated against the accused on the basis of evidence gathered during the investigation and whether the case under consideration is sustainable in Court of law should be left solely to the Directorate of Prosecution. The Committee is of the view that the Prosecutors are the best judge in this regard and any interference in this process should be avoided to the extent possible.

16.5. The Committee recommends that the observation of the Supreme Court in Vineet Narain's case that a panel of competent lawyers of experience and impeccable reputation shall be prepared with the advice of the Attorney General and that their services shall be utilised as Prosecuting Counsels in cases of significance and that even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the CBI/Enforcement Directorate, should be examined by the Government and appropriate action should be taken in this regard...."

Recommendations/Observations of the Committee

10.6 The Committee is of the opinion that in order to secure effective functioning and independence of the Director of Prosecution, his rank should be at par with that of Director, CBI and it recommends accordingly. The Committee further is of the opinion that field of selection for appointment to the post of Director of Prosecution of the CBI or of the Lokpal should also extend to the Advocates having at least fifteen years experience of conducting criminal cases on behalf of the Government in the capacity of Public Prosecutor, Assistant Solicitor General, Defence Lawyer, etc. The Committee is of the view that practical knowledge of conduct of criminal cases in the court should be preferable to desk knowledge. The Committee further feels that officers of Indian Legal Service in order to be eligible should also have experience of at least fifteen years of handling cases on behalf of the Government under the Prevention of Corruption Act,1988, Prevention of Money Laundering Act, 2002 and other laws relating to economic offences or criminal cases. Considering that the Committee has recommended that the rank of Director of Prosecution should be at par with the rank of Director, CBI, it is of the opinion that eligibility conditions as proposed in the Bill should be revised to bring them in consonance with the level of the post of Director of Prosecution and experience of at least fifteen years.

10.7. The Committee further recommends that appointment to this post should be made through detailed and proper enquiry into integrity, credibility and competence of the persons in the zone of consideration for the post. 20

RESOLUTION OF DIFFERENCE OF OPINION BETWEEN DIRECTOR, CBI AND DIRECTOR OF PROSECUTION, CBI

11.0. Clause 10 seeks to insert sub-Section (5) after sub-Section (4) in Section 4BA of the Delhi Special Police Establishment Act, 1946 to provide that in case of difference of opinion between the Director and the Director of Prosecution of CBI, the matter shall be referred to Attorney General for India for his advice and such advice shall be binding.

11.1. The DoPT has expressed its view that this amendment would help in establishing independence of the Directorate of Prosecution of the CBI and at the same time would eliminate departmental dysfunctionality by providing for faster and efficient resolution of differences between the two functionaries. The Department believes that the Attorney General being a constitutional authority with sufficient legal background, will be in a better position to arbitrate differences between the two functionaries. The Department has cited landmark judgements of the Supreme Court, namely, (i) Sushil Kumar Modi Case (AIR 1999 SC 500) and (ii) ML Sharma Case (Writ Petition (CRL.) No. 120 of 2012), wherein, similar views have been expressed by the Supreme Court.

11.2. Several Members of the Committee have however expressed their opinion against this provision of the Bill. The Members feel that referring a matter to the Attorney General, may result in undue interference from the Government as the Attorney General is an appointee of the Union Government and is its chief law officer.

11.3. The CBI has stated that as per the provisions of the CrPC, there is no mandate for the role of a prosecutor at the stage of investigation, i.e., till filing of the final report before the competent court. The role of the prosecutor commences thereafter. This position has been stated by the Supreme Court in the MC Mehta Case, R Sarala Case, Nirmal Yadav Case etc. The CBI has also quoted the OM of DoPT dated 9th July, 2001 which provides that in important cases where the Director, CBI disagrees with the advice of the Director of prosecution, the decision taken by the Director, CBI after consulting the Attorney General for India shall be deemed to be final.

11.4. The CVC does not agree with the amendment. It believes that the amendment would affect the independence of both Director CBI and Director of Prosecution, CBI. The Commission has stated that this would invite undue interference from the Government. The Commission feels that in case of difference of opinion, the opinion of the Director, CBI should prevail and no reference should be made to the Attorney General.

Recommendations/ Observations of the Committee

11.5. The Committee has already recommended that anti corruption wing of the CBI should be integrated with Lokpal and in that situation, Director of Prosecution of Lokpal should handle cases under the Prevention of Corruption Act and if there is a difference of opinion between the Director of Enquiry of Lokpal and Director of Prosecution of Lokpal, the difference would naturally be resolved by Lokpal under whom both of them would work. For cases other than those under the Prevention of Corruption Act, the resolution of differences between Director of Prosecution, CBI and Director, CBI may be done as per advice of Attorney General for India. The Committee recommends accordingly. 21

ANNUAL PERFORMANCE APPRAISAL REPORT (APAR) OF THE DIRECTOR OF PROSECUTION OF CENTRAL BUREAU OF INVESTIGATION

12.0. Clause 9 further seeks to insert sub-Section (6) in Section 4BA of Delhi Special Police Establishment Act, 1946 to provide that the Annual Performance Appraisal Report of the Director of Prosecution of CBI shall be recorded and maintained in the Ministry of Law and Justice in such a manner as may be prescribed.

12.1. The DoPT has expressed the view that this measure shall help in ensuring independence of Director of Prosecution of CBI. Director, Central Bureau of Investigation would be the reporting authority and Secretary, Department of Legal Affairs would be the reviewing authority for recording the APAR of Director of Prosecution. The Department also cited the affidavit filed by the Government of India in Supreme Court in the course of the M.L. Sharma Case (Coal Mines Case). In that affidavit, it has been stated that the Annual Confidential Report (ACR) of the Director of Prosecution shall be written by the Director of CBI and the Secretary, Department of Legal Affairs shall be the reviewing authority. Necessary administrative orders in this regard have already been issued by the CBI on 10.10.2013 on DoPT's advice.

12.2. The CVC has said that it is opposed to the changes being made by the Bill. It has suggested that the APAR of the Director of Prosecution of CBI should be recorded and maintained by the Director, CBI. The Commission has also objected to the dropping of the words "the Director of Prosecution shall function under the overall supervision and control of the Director" from the Section 4BA (2) of the Delhi Special Police Establishment Act, 1946 via the amendment. The Commission believes that the Director of Prosecution should function under the supervision of the Director of CBI.

12.3. The CBI is also opposed to this Clause and state that the Supreme Court of India in the matter of Manohar Lal Sharma v/s Union of India vide its order dated 10th September, 2013 has directed the Government of India to issue orders to provide for writing of APAR of Director of Prosecution by Director, CBI and submission to Law Minister directly. The CBI has further stated that the provision is in contravention of the existing law and Government Instructions. The Section 4BA (2) of the Delhi Special Police Establishment Act, 1946 states that the DoP shall function under the overall supervision and control of Director, CBI.

12.4. The Director of Prosecution has stated that he is in agreement with the amending clause and that such a move would be one of the steps required for ensuring independence of the Director of Prosecution.

12.5. Some other Stakeholders have opposed to the clause and stated that the APAR of the DoP should be maintained by the Lokpal.

Recommendations/ Observations of the Committee

12.6. The Committee is of the view that Director of Prosecution of Lokpal should be responsible for handling all cases under the Prevention of Corruption Act, 1988 being handled by it and his Annual Performance Appraisal Report is to be recorded by the Lokpal. The Committee is further of the view that cases other than those falling under the Prevention of Corruption Act, 1988 should be handled by Director of Prosecution of CBI for 22 purposes of deciding the prosecution and the Annual Performance Appraisal Report of the Director of Prosecution of CBI may be recorded and maintained in the Ministry of Law & Justice in such a manner as may be prescribed.

HEADQUARTERS OF LOKPAL

13.0. The Bill seeks to amend Section 16 (1)(f) to provide that the location of the Headquarters should be in NCR of Delhi.

13.1. The DoPT has stated that the provision will allow for setting up the Headquarters of Lokpal at any location in National Capital Region of Delhi. In case land is not available in Delhi or is prohibitively expensive, the Headquarters may be set up anywhere in NCR area.

Recommendation/Observation of the Committee

13.2. In view of the recommendations of the Committee to have an integrated setup for anti corruption watchdog, the Committee is of the view that the Headquarters of the Lokpal should be established within the CVC Headquarters.

13.3. The Committee, therefore, recommends that the Headquarters of the Lokpal should be established within the CVC headquarters as the apex body of anti corruption setup with CVC, CBI, Director of Prosecution (CBI) providing support to it.

Other Observations of the Committee

13.4. The Committee during its interactions with the political parties received suggestions from the All India Trinamool Congress to review the role and functioning of the Central Bureau of Investigation (CBI). The AITC stated that the CBI is an extra constitutional body and that there is a need to review the Delhi Special Police Establishment Act, 1946. The party questioned the practice of referring law and order related cases to the Bureau as a matter of routine. The party also said that the agency has already been provided enough independence to investigate cases which is unwarranted and unconstitutional. Thus, there is a need to create another independent pool of investigators which would work under the overall supervision of the Lokpal.

13.5. The Committee notes that various High Courts and Supreme Court of India are frequently issuing directions to CBI to handle cases relating to Prevention of Corruption Act, 1988 as also of "Public Order". As a result, the jurisdiction and powers of CBI have widened and deepened and have far exceeded than what was contemplated under the Delhi Special Police Establishment Act, 1946. The superior courts who are courts of appeal under Section 374 of the Code of Criminal Procedure, 1973 are even directing CBI in a number of cases to report day-to-day progress in a sealed cover bypassing Sections 172 and 173 of the Criminal Procedure Code, 1973 and performing functions envisaged under the criminal justice system of the country for the lowest rung of criminal court and also appreciating the evidence which under Section 173 of Criminal Procedure Code is required to be done by the Magistrate. Judicial activism of higher judiciary by taking pains of overseeing an investigation and passing interim directions to CBI and even pre-empting the rights and remedies available to affected persons under criminal justice system. It may, therefore, 23 appear to affected persons as a pre-emptive and colourable exercise of power by the superior courts. The Committee also notes that CBI Courts are being established in various districts of the States giving rise to a new culture of "Federal Criminal Investigation Agency and Federal Criminal District Courts" akin to the system prevailing in USA. This in effect is leading to introduction of dual judicial system which is not contemplated under our Constitution. This is not only encroaching upon the constitutional powers and jurisdiction conferred by the Constitution upon the States but also obliterates their obligations and accountability in the subjects allocated to them under the Constitution. It impinges upon the division of power and the Federal character of our Constitution and destabilises the Seventh Schedule of the Constitution. This trend is making CBI as the most sought after investigating agency for investigation of all sorts of crimes and is relegating the State Police to the mere level of Home Guards. The Committee is afraid that this trend if allowed to persist may lead to inversion of pyramidical structure of governance provided under the Constitution of India and it may get crumbled under the weight of over-burdened Judiciary, Executive and Parliament. The Committee, therefore, feels that there is a need to revisit Delhi Special Police Establishment Act, 1946 which was enacted for the limited purpose of dealing with corruption cases. The Committee feels that with the setting up of institution of Lokpal and in the light of its suggestion that anti-corruption set up of the country may be unified by creating an architecture in which Lokpal is at apex level and CBI and CVC as its arms to carry out inquiry, investigation and prosecution etc. in offence relating to corruption under Prevention of Corruption Act, 1988. The Committee is of the opinion that Delhi Special Police Establishment Act, 1946 may be repealed and suitable provisions incorporated in the Lokpal and Lokayuktas Act, 2013 to set up a unified architecture for the purpose. The Committee further notes that under Section 3 of the Lokpal and Lokayuktas Act, 2013, the Chairperson of the Lokpal would be a serving or former Chief Justice of India or a judge of the Supreme Court and at least 50% of its members would be judicial members who are serving or former judges of Supreme Court or Chief Justices of High Courts. The Committee feels that with setting up of such an institution of Lokpal there should be no occasion in cases under Prevention of Corruption Act, 1988 for the judiciary to issue directions to CBI of the nature referred to above and to monitor the progress of investigation which is essentially the job of a Magistrate or a lowest rung of criminal court. In the proposed set up, the Lokpal would have sufficient powers to monitor the investigation being carried out by its agencies as the agencies would only be its organs. For other type of cases now being conducted by the CBI, a separate legislation may be brought and a new agency created for those purposes. This new agency may use the existing infrastructure, personnel, etc of CBI. 24

RECOMMENDATIONS/OBSERVATIONS — AT A GLANCE

1. The Committee notes that in the present Lok Sabha, there is no recognized Leader of Opposition and such a situation can arise in future as well. In the absence of Leader of Opposition it is not possible to constitute the Selection Committee of Lok Pal as per provisions of the Lok Pal and Lokayuktas Act, 2013. In order to overcome such a situation, amendment is proposed to provide that the Leader of Opposition recognised as such in the Lok Sabha or where there is no such Leader of Opposition, the leader of the single largest opposition party in that House shall be a Member of the Selection Committee. Similar provision exists for the appointment of Chief Vigilance Commissioner (CVC) under Section 4 of CVC Act, 2003. The Committee is of the view that the amendment is both necessary and appropriate and accordingly recommends it. [Para 3.4]

2. The Committee is in agreement with the proposed amendment. [Para 4.3]

3. The Committee is of the view that whenever a Member is unable to attend the meeting either of the Selection Committee or of the Search Committee, he/she should be accorded adequate opportunity to send his/her views in writing to the Selection/Search Committee and such views of the absentee Member should be taken into account while taking a decision by the Committee. Only in rare situations where despite affording adequate opportunities to the absentee Member, he/she fails to send his views to the Search/ Selection Committee in writing, decision may be taken in absence of views of the absentee Member after recording the reasons for non-availability of views of the absentee Member. [Para 5.3]

4. The Committee, however, is firmly of the opinion that Search/Selection Committee should not take any decision unless vacancy, if any, in Search/Selection Committee is filled up. The Committee sees no reason for not filling any vacancy quickly that may arise in the Search/Selection Committee. The Committee accordingly recommends that the Bill may be modified accordingly. [Para 5.4]

5. The Committee observes that with the setting up of Lokpal, multiple agencies such as Lokpal, Central Vigilance Commission (CVC), Central Bureau of Investigation (CBI), Chief Vigilance Officers (CVOs) of concerned organisation would be dealing with complaints of corruption. The Committee notes that the Lokpal and Lokayukta Act, 2013 and amendments proposed thereto make an attempt to integrate CVC and CBI (anti corruption functions) with Lokpal, but it falls short of a fully integrated setup for dealing with corruption cases. [Para 6.0]

6. The Committee notes that there is an overlapping between the functions of CVC and Lokpal. For example, Section 20 of Lokpal and Lokayuktas Act, 2013 provides that Lokpal, if it decides to proceed with the preliminary inquiry shall refer the complaint in respect of public servants belonging to Groups 'A', 'B', 'C' or 'D' to the Central Vigilance Commission

24 25 who shall after making preliminary inquiry submit a report to Lokpal in case of public servants belonging to Groups 'A' and 'B' and shall deal with complaints in respect of other two groups as per the provisions of CVC Act, 2003. Under Section 25(1) of Lokpal and Lokayuktas Act, 2013, Lokpal has also been made competent to exercise powers and superintendence and to give directions to CBI. Under Sections 8(1)(a) and 8(1)(b) of CVC Act, 2003, CVC is empowered to exercise superintendence over the function of Delhi Special Police Establishment (CBI) and to give it directions in relation to the investigation of offences alleged to have been committed under Prevention of Corruption Act, 1988. Similarly, under Sections 8(1)(c) and 8(1)(d) of CVC Act, 2003, CVC can inquire or cause an inquiry or investigation to be made for alleged offences under Prevention of Corruption Act, 1988 against an official. Further, under Section 14(1) of the Lokpal and Lokayuktas Act, 2013, Lokpal can also inquire or cause an inquiry to be conducted in such cases. Complaints of corruption against any government servants may be lodged with Lokpal, CVC, CBI or the vigilance department of the concerned organization. This may give rise to same complaint being examined by different organizations and may cause unnecessary harassment of public servant apart from causing functional problems. The Committee notes that Section 15 of the Lokpal and Lokayuktas Act, 2013 provides that after commencement of the said Act, if any matter or proceedings related to allegation of corruption under the Prevention of Corruption Act, 1988 is pending before any authority prior to commencement of any inquiry it shall continue with such authority. It is ,however, not clear how other authorities would have such knowledge until concerned public servant is informed of it and he takes up with such authorities. The position, therefore, as it exists provides for overlapping of functions and powers of CVC and Lokpal in certain areas. [Para 6.1]

7. The Committee notes that under the second proviso to Section 20(1), the Central Vigilance Commission is required to submit a report to the Lokpal. Under Section 25(1), the powers of Lokpal override Section 8 of the Central Vigilance Commission Act, 2003 and under sub-Section 2 of Section 25, the Central Vigilance Commission is required to send a statement to the Lokpal at such intervals as the Lokpal may direct in respect of action taken on complaints referred to it and Lokpal is made competent to issue guidelines for effective and expeditious disposal of such cases. Further, power to grant prosecution has been vested in Lokpal under Section 20(7) of the Lokpal and Lokayuktas Act, 2013. This sub-Section provides that a Bench consisting of not less than 3 members of Lokpal shall consider the investigation report received by it from any investigating agency including CBI and after obtaining the comments of the Competent Authority and the public servant, shall decide the further course of action i.e. either to grant sanction for prosecution or direct the closure of report before the Special Court or direct the Competent Authority to initiate the departmental proceedings or any other appropriate action. These provisions show that the scheme of Lokpal and Lokayuktas Act, 2013 places Lokpal on a higher pedestal than CVC notwithstanding overlapping of jurisdictions and functions as stated above. [Para 6.2]

8. The Committee is of the view that institutions of CVC and the CBI (in so far as its anti corruption functions are concerned), be fully integrated with Lokpal and the institution of anti corruption watchdog may be architecturally created vertically with the Lokpal at the apex level and CVC and CBI (anti-corruption wing) working directly under its command and 26 control. The functions of Lokpal and CVC be clearly specified and overlap between functions and powers of CVC and Lokpal be addressed. Lokpal in turn should utilize these organizations for conduct of inquiry, investigation and prosecution. [Para 6.3]

9. The Committee notes that a post of Director of Inquiry was created in CVC by inserting Section 11A in the Central Vigilance Commission Act, 2003 through the Lokpal and Lokayuktas Act, 2013. On such integration, the post of Director of Inquiry which is available in CVC can be utilized by the Lokpal and there would be no need for creation of another post of Director of Inquiry for Lokpal as provided under Sections 10(2) and 11 of the Lokpal and Lokayuktas Act, 2013. The Committee is also aware that apart from anti- corruption, the Central Bureau of Investigation is also handling cases relating to economic offences, special crimes, bank security and fraud and cyber-crime, etc. The Committee is only recommending integration of Anti-corruption Branch of CBI with Lokpal which on such integration may be placed under the Director of Inquiry of Lokpal. For investigation of crimes, other than corruption crimes, the existing structure and procedures may continue to operate. The Government if it so considers necessary for the purpose, may come up with a comprehensive legislation on CBI for effective performance of other functions of the agency as recommended in the Twenty Fourth Report of this Committee on 'Working of CBI' (2008). The Committee feels that such an integrated structure would be more practicable setup and cause least financial burden on the exchequer. [Para 6.4]

10. The Committee is of the view that since the Secretary to Lokpal would be dealing with high ranking officials of the Government of India, and as such it is absolutely necessary that he/she should not be lower than the rank and status of Secretary to Government of India so that he is not unduly influenced by his/her seniors or colleagues from the Civil Service and is able to function independently. The Committee is further of the view that for effective functioning the Director of Inquiry and the Director of Prosecution of Lokpal, they should not be lower than the rank and status of Additional Secretary to the Government of India. The Committee does not favour the changes proposed by Clause 3 of the Bill. The Committee further recommends that Director of Inquiry created in CVC by insertion of Section 11A in the Central Vigilance Commission Act, 2003 should be used for purposes of inquiry by Lokpal and there is no need for creation of another Director of Inquiry in Lokpal. [Para 7.4]

11. The Committee agrees with the proposed amendment. [Para 8.2]

12. The Lokpal and Lokayuktas Act, 2013 though has an over-riding effect over Section 75A of the Representation of People Act, 1951, it does not repeal Section 75A of the Representation of People Act, 1951. An elected Member of Parliament, therefore, may be required to furnish information of assets and liabilities both under Section 75A of the Representation of People Act, 1951 as well as under Lokpal and Lokayuktas Act, 2013. Further, under Representation of People Act, 1951 they would be required to furnish information in ninety days from the date on which they take oath while under the Lokpal and Lokayuktas Act, 2013, they may be required to do so within thirty days. Similarly, there may be difference in manner and content of declaration of assets and liabilities under Conduct Rules or other Rules applicable to other public servants. This is not a desirable 27 situation and a uniform system of declaration of assets and liabilities should be made applicable to all public servants. The Committee further observes that Section 75A of the Representation of People Act, 1951 is applicable only to elected Members of the Parliament. It has no application to nominated Members. Nominated Members may also be required to file a declaration of their assets and liabilities similar to the one to be filed by elected Members of Parliament. Necessary provision in this regard may be incorporated in the Bill and the Committee recommends accordingly. [Para 9.6]

13. Clause 6 of this Bill seeks to amend Section 44 of the Lokpal and Lokayuktas Act, 2013 to provide for declaration of assets acquired by the public servant using his/her funds in his/her name, in the name of any of his/her family member or in the name of any other person. The Committee notes that under the provisions of the Income Tax Act, 1961, every person who files an income tax return is regarded as a separate entity and details of his/ her return are not disclosed to anyone else including his/her spouse unless it serves some public good. Further, a public servant cannot compel his/her spouse or child to disclose to him the details of assets acquired by them independently of the public servant. In today's world considering increasing avenues available in the fields of arts, entertainment and even business ventures even minor children of a public servant may have income of their own. Moreover, more and more spouses of public servants are working and having their independent sources of income. In such a scenario, compelling declaration of assets acquired by the spouse or children of a public servant from his/her own income may even be held to be in breach of their right to privacy guaranteed under Article 21 or even violative of Article 14 of the Constitution of India. As such any provision that seeks declaration of assets acquired by family members of public servant through their own income may not be legally sustainable. Family members of public servant are under no obligation to disclose to him/her, the assets acquired by them through their own income and it may, therefore, not be appropriate to even expect that all public servants would have knowledge of assets acquired by his/her family members through their own incomes. It may, therefore, not be feasible to hold the public servant accountable in case the information furnished by him regarding assets of his family members turns out to be factually incorrect and, therefore, any exercise of compelling a public servant to declare assets of his/her family members independently acquired by them, may turn out to be an exercise in futility. The Committee, therefore, agrees with the proposed amendments in so far as the declaration of assets acquired by the family members of the public servants through their own income or from sources independent of the public servant is sought to be excluded from disclosure to be made by the public servant. [Para 9.19]

14. The Committee further agrees that the public servant should declare the assets and liabilities to their Competent Authority. The Committee, however, is of the opinion that the Competent Authority of the public servant should forward a copy of the assets and liabilities so declared by the public servant to the Lokpal who shall keep these declaration in a fiduciary capacity. Both competent authority of public servant and Lokpal would be competent to review the returns filed by the public servants particularly in suspicious cases including through use of digital surveillance software to detect any disproportionate growth in assets and liabilities of a public servant beyond his known sources of income. This, 28 however, should be done in a professional manner so as not to give rise to a feeling that every government servant is suspect and under surveillance. Further, it should be ensured that government servants are not subjected to unnecessary clarifications/queries as a result of such scrutiny. Any feeling amongst public servants that they are not trusted and are working under surveillance is bound to affect their morale and productivity and would not be in public interest. [Para 9.20]

15. The Committee is further of the opinion that the provision of double scrutiny by the Competent Authority of the public servant and by the Lokpal would serve the purpose sought to be achieved by making such declarations public while at the same time it would safeguard the public servant from the misuse of such information by miscreants and criminals and avoid any danger to the security and safety of the public servants and their family members. [Para 9.21]

16. The Committee, therefore, feels that public disclosure of assets and liabilities of public servants may not be necessary and recommends accordingly. [Para 9.22]

17. The Committee is further of the view that public servants need to spend less time on routine and non-productive activities and more time on productive activities. It is in this light that the Committee feels the need to revisit the rules which currently govern the manner and form of declaration of assets and liabilities by a government servant as these rules reflect the colonial mindset of doubt and mistrust which the colonial masters had regarding their employees. The extant Rules and procedures are at present being used more to harass government servants than as a safeguard against corruption and often act as barriers against true and fair disclosure by government servants. [Para 9.23]

18 Clause 6 of the Bill seeks to amend Section 44 of the Lokpal and Lokayuktas Act, 2013 and interalia provides that the public servants referred to in Clauses (a) to (f) of sub- Section 1 of Section 14 shall discloses their assets and liabilities in the manner provided under the relevant provisions, rules or regulations of the Act applicable to them and for other public servants in the manner specified by Lokpal. As stated in para 9.6 above, this would not lead to uniformity either in the contents or form or manner of declaration of assets and liabilities by the public servants. [Para 9.24]

19. The Committee is accordingly of the view that a uniform provision may be made and incorporated in the Lokpal and Lokayuktas Act, 2013 for declaration of assets and liabilities by the public servants and contents, format, manner of declaration and other details thereof may be specified in the rules made under the Act. Existing provisions for declaration of assets and liabilities made under any Act, Rules, Regulations or Instructions may be omitted so that there is no duplication in declaration of assets and liabilities by public servants. The Committee further recommends that a public servant may be required to furnish declaration of assets and liabilities owned by him/her, his dependent spouse, dependent children and any other person dependent on him/her. In addition, he may also be required to declare assets acquired by him/her from his/her income/resources in the name of any other person. The first declaration may be made within ninety days of coming into force of the Lokpal and Lokayuktas and Other Related Law (Amendment) Act, 2014 or joining public service or taking oath as a public servant. Thereafter, such declaration 29 may be made every year and the last date for filing such a declaration may be kept a month after the last date for filing Income Tax Return. [Para 9.25]

20. The Committee is of the opinion that in order to secure effective functioning and independence of the Director of Prosecution, his rank should be at par with that of Director, CBI and it recommends accordingly. The Committee further is of the opinion that field of selection for appointment to the post of Director of Prosecution of the CBI or of the Lokpal should also extend to the Advocates having at least fifteen years experience of conducting criminal cases on behalf of the Government in the capacity of Public Prosecutor, Assistant Solicitor General, Defence Lawyer, etc. The Committee is of the view that practical knowledge of conduct of criminal cases in the court should be preferable to desk knowledge. The Committee further feels that officers of Indian Legal Service in order to be eligible should also have experience of at least fifteen years of handling cases on behalf of the Government under the Prevention of Corruption Act,1988, Prevention of Money Laundering Act, 2002 and other laws relating to economic offences or criminal cases. Considering that the Committee has recommended that the rank of Director of Prosecution should be at par with the rank of Director, CBI, it is of the opinion that eligibility conditions as proposed in the Bill should be revised to bring them in consonance with the level of the post of Director of Prosecution and experience of at least fifteen years. [Para 10.6]

21. The Committee further recommends that appointment to this post should be made through detailed and proper enquiry into integrity, credibility and competence of the persons in the zone of consideration for the post. [Para 10.7]

22. The Committee has already recommended that anti corruption wing of the CBI should be integrated with Lokpal and in that situation, Director of Prosecution of Lokpal should handle cases under the Prevention of Corruption Act and if there is a difference of opinion between the Director of Enquiry of Lokpal and Director of Prosecution of Lokpal, the difference would naturally be resolved by Lokpal under whom both of them would work. For cases other than those under the Prevention of Corruption Act, the resolution of differences between Director of Prosecution, CBI and Director, CBI may be done as per advice of Attorney General for India. The Committee recommends accordingly. [Para 11.5]

23. The Committee is of the view that Director of Prosecution of Lokpal should be responsible for handling all cases under the Prevention of Corruption Act, 1988 being handled by it and his Annual Performance Appraisal Report is to be recorded by the Lokpal. The Committee is further of the view that cases other than those falling under the Prevention of Corruption Act, 1988 should be handled by Director of Prosecution of CBI for purposes of deciding the prosecution and the Annual Performance Appraisal Report of the Director of Prosecution of CBI may be recorded and maintained in the Ministry of Law & Justice in such a manner as may be prescribed. [Para 11.5]

24. The Committee is of the view that Director of Prosecution of Lokpal should be responsible for handling all cases under the Prevention of Corruption Act, 1988 being handled by it and his Annual Performance Appraisal Report is to be recorded by the Lokpal. The Committee is further of the view that cases other than those falling under the Prevention of Corruption Act, 1988 should be handled by Director of Prosecution of CBI for 30 purposes of deciding the prosecution and the Annual Performance Appraisal Report of the Director of Prosecution of CBI may be recorded and maintained in the Ministry of Law & Justice in such a manner as may be prescribed. [Para 12.6]

25. In view of the recommendations of the Committee to have an integrated setup for anti corruption watchdog, the Committee is of the view that the Headquarters of the Lokpal should be established within the CVC Headquarters. [Para 13.2]

26. The Committee, therefore, recommends that the Headquarters of the Lokpal should be established within the CVC headquarters as the apex body of anti corruption setup with CVC, CBI, Director of Prosecution (CBI) providing support to it. [Para 13.3]

27. The Committee notes that various High Courts and Supreme Court of India are frequently issuing directions to CBI to handle cases relating to Prevention of Corruption Act, 1988 as also of "Public Order". As a result, the jurisdiction and powers of CBI have widened and deepened and have far exceeded than what was contemplated under the Delhi Special Police Establishment Act, 1946. The superior courts who are courts of appeal under Section 374 of the Code of Criminal Procedure, 1973 are even directing CBI in a number of cases to report day-to-day progress in a sealed cover bypassing Sections 172 and 173 of the Criminal Procedure Code, 1973 and performing functions envisaged under the criminal justice system of the country for the lowest rung of criminal court and also appreciating the evidence which under Section 173 of Criminal Procedure Code is required to be done by the Magistrate. Judicial activism of higher judiciary by taking pains of overseeing an investigation and passing interim directions to CBI and even pre-empting the rights and remedies available to affected persons under criminal justice system. It may, therefore, appear to affected persons as a pre-emptive and colourable exercise of power by the superior courts. The Committee also notes that CBI Courts are being established in various districts of the States giving rise to a new culture of "Federal Criminal Investigation Agency and Federal Criminal District Courts" akin to the system prevailing in USA. This in effect is leading to introduction of dual judicial system which is not contemplated under our Constitution. This is not only encroaching upon the constitutional powers and jurisdiction conferred by the Constitution upon the States but also obliterates their obligations and accountability in the subjects allocated to them under the Constitution. It impinges upon the division of power and the Federal character of our Constitution and destabilises the Seventh Schedule of the Constitution. This trend is making CBI as the most sought after investigating agency for investigation of all sorts of crimes and is relegating the State Police to the mere level of Home Guards. The Committee is afraid that this trend if allowed to persist may lead to inversion of pyramidical structure of governance provided under the Constitution of India and it may get crumbled under the weight of over-burdened Judiciary, Executive and Parliament. The Committee, therefore, feels that there is a need to revisit Delhi Special Police Establishment Act, 1946 which was enacted for the limited purpose of dealing with corruption cases. The Committee feels that with the setting up of institution of Lokpal and in the light of its suggestion that anti-corruption set up of the country may be unified by creating an architecture in which Lokpal is at apex level and CBI and CVC as its arms to carry out inquiry, investigation and prosecution etc. in offence relating to corruption under Prevention of Corruption Act, 1988. The Committee is of the opinion that 31

Delhi Special Police Establishment Act, 1946 may be repealed and suitable provisions incorporated in the Lokpal and Lokayuktas Act, 2013 to set up a unified architecture for the purpose. The Committee further notes that under Section 3 of the Lokpal and Lokayuktas Act, 2013, the Chairperson of the Lokpal would be a serving or former Chief Justice of India or a judge of the Supreme Court and at least 50% of its members would be judicial members who are serving or former judges of Supreme Court or Chief Justices of High Courts. The Committee feels that with setting up of such an institution of Lokpal there should be no occasion in cases under Prevention of Corruption Act, 1988 for the judiciary to issue directions to CBI of the nature referred to above and to monitor the progress of investigation which is essentially the job of a Magistrate or a lowest rung of criminal court. In the proposed set up, the Lokpal would have sufficient powers to monitor the investigation being carried out by its agencies as the agencies would only be its organs. For other type of cases now being conducted by the CBI, a separate legislation may be brought and a new agency created for those purposes. This new agency may use the existing infrastructure, personnel, etc of CBI. [Para 13.5]

MINUTES

XII TWELFTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3.00 P.M. on Thursday, the 8th January, 2015 in Committee Room G-074, Parliament Library Building, New Delhi.

MEMBERS PRESENT 1. Dr. E.M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shri Majeed Memon 3. Shri Bhupender Yadav 4. Shri K. T. S. Tulsi

LOK SABHA 5. Shri P. P. Chaudhary 6. Choudhary Mehboob Ali Kaiser 7. Dr. A. Sampath 8. Shri Bharat Singh 9. Dr. Varaprasad Rao Velagapalli 10. Shri Santosh Kumar 11. Shri B. V. Naik 12. Shri Vincent H. Pala 13. Dr. Anshul Verma 14. Shri Tariq Anwar 15. Adv. Joice George

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati. Niangkhannem Guite, Assistant Director

I. Representatives of the Ministry Personnel, Public Grievances and Pensions Department of Personnel and Training 1. Shri Sanjay Kothari, Secretary 2. Shri Bhanu Pratap Sharma, Establishment Officer & Special Secretary

35 36

3. Shri T. Jacob, Additional Secretary 4. Shri Jishnu Barua, Joint Secretary 5. Shri P. K. Das, Joint Secretary 6. Ms. Mamta Kundra, Joint Secretary 7. Shri V. M. Rathnam, Director

II. CBI 1. Shri Anil Kumar Sinha, Director 2. Shri O. P. Verma, Director of Prosecution 3. Shri R. K. Dutta, Additional Director

2. The Chairman welcomed the Members and laid out the agenda of the meeting. He briefly introduced the Members to the amendments proposed in the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014 and sought their permission to call the witnesses to make their presentations.

3. The Secretary, DoPT made power-point presentation inter alia touching upon the need for amendments to Lokpal and Lokayuktas Act, 2013 and the Delhi Special Police Establishment Act, 1946, to address practical difficulties associated with selection process for appointment of Chairperson and Members of Lokpal and also to ensure functional independence of Director of Prosecution in Central Bureau of Investigation (CBI). He offered rationale for limiting the tenure of eminent jurists in Selection Committee and barring re-nomination of that person to that Committee, validating the decision of Search and Selection Committee in the absence of any Member thereof, lowering rank and status of Secretary to Lokpal and Director of Prosecution, maintenance and publication of property details of public servant in public interest by the Government, Annual Confidential Report of Director of Prosecution by Ministry of Law and Justice, Attorney General to be arbitrator in the case of difference of opinion between Director of CBI and Director of Prosecution, etc. He also covered comparative analysis of Director of Prosecution mechanisms in United Kingdom, United States of America, Germany and France viz- a-viz India in his deposition.

4.0 Members sought clarifications as to whether decision taken in the absence of any Member in Search and Selection Committee could be validated by giving an opportunity to the absentee to present his/her views in writing. Another clarification sought as to whether money released to Non- Governmental Organisations under MPLAD Scheme by Members of Parliament would be treated as ‘financed by Government’ for the purpose of the Bill.

4.1 It was suggested that Annual Confidential Report (ACR) of Director of Prosecution should be written by Chairperson of Lokpal instead of Law Secretary to Government of India. Another view in the Committee was that maintenance ACR by Ministry of Law and Justice might breed institutional indiscipline having direct bearing upon the investigation procedure of CBI. In that context, recommendations of Standing as well as Select Committee of Parliament on the Lokpal and Lokayuktas Bill was sought for.

4.2 Reduction of status and rank of Director of Prosecution and Secretary to Lokpal was a matter of concern amongst the Members. It was suggested that rank of Secretary to Lokpal and 37

Director of Prosecution should be the rank of Secretary and Additional Secretary to Government of India, respectively with a fixed tenure.

4.3 The Committee felt that difference of opinion between Director of CBI and Director of Prosecution should be referred to Chairperson of Lokpal rather than to Attorney General for India.

4.4 Some of the members apprehended that broadening of definitions of Assets and Liabilities owned and inherited by any member of the family of public servant may defame them. At the same time it was also felt that the properties held in other name (benami property) ought to be accounted for, to contain corruption.

4.5 A view emerged that the eligibility criteria for Director of Prosecution should include experience of Advocates in Criminal Law in addition to experience in handling corruption and money laundering cases and criteria laid down under Section 24 of CrPC, 1973. It was felt that it needs to be examined whether independence available to Queen’s Public Prosecution in the United Kingdom and Federal Public Prosecution in the United States of America should be made available to the Director of Prosecution.

5.0 The Director, CBI, while making power point presentation on the Bill mentioned that the Bill might erode the tenuous balance between investigation and prosecution wings of CBI leading to dysfunctionality. It was pointed out that the prosecution has no role during investigation which has been upheld by the Apex Court in many cases. In his view, the difference of opinion between Director of CBI and Director of Prosecution should be resolved by Director of CBI and opinion of Attorney General should not be binding upon Director of CBI. While writing ACR of DoP by Law Secretary, the note of Director of CBI about performance of DoP should be taken into account as DoP works under overall supervision of Director of CBI.

5.1 On the issue of appointing Advocates having experience in certain field, as DoP would allow them to have access to sensitive documents and materials in the area of space, atomic energy, external affairs, etc., it was suggested that the pool of candidates for DoP might be widened to include Law Offices, Officers of Vigilance and Anti-corruption Branch of State Governments.

6. The Chairman further directed the witnesses to submit written replies to questions raised by the Hon’ble Members within two weeks. The Committee decided to hear Director of Prosecution separately on a future date.

(The witnesses then withdrew)

7. Verbatim record of meeting of the Committee was kept.

8. The meeting adjourned at 05.13 P.M. to meet again at 3.00 P.M. on 22th January, 2015. 38

XVI SIXTEENTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3.00 P.M. on Wednesday, the 3rd March, 2015 in Room No. ‘63’, First Floor, Parliament House, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Ms. Anu Aga 3. Shrimati Rajani Patil 4. Shri K. T. S. Tulsi

LOK SABHA 5. Adv. Sharad Bansode 6. Shri P. P. Chaudhary 7. Shri B. V. Naik 8. Shri Santosh Kumar 9. Shri V Panneerselvam 10. Shri Udhayakumar M. 11. Shri Varaprasad Rao Velagapalli

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

OFFICIAL WITNESSES

A. Central Vigilance Commission (CVC) 1. Shri Alok Kumar, Secretary 2. Shri Salim Haque, Additional Secretary

B. Central Bureau of Investigation (CBI) 1. Shri O. P. Verma, Director of Prosecution 2. Shri Vidyasagar Shukla, Additional Legal Advisor

38 39

C. Department of Personnel and Training (DoPT) 1. Shri T. Jacob, Additional Secretary (S&V) 2. Shri V. M. Rathnam, Director

D. Legislative Department (M/o Law and Justice) 1. Dr. N. R. Battu, Joint Secretary 2. Shri K. V. Kumar, Deputy Legislative Counsel

2. The Chairman welcomed the Members of the Committee and the official witnesses to the meeting. He requested the Central Vigilance Commission and the Director of Prosecution to present their views on certain specific issues related to the Bill. The Chairman requested the CVC to submit clarification on the current role of CVC and its views on the possibility of a duplicity in the role of the CVC and Lokpal. The Chairman requested the Director of Prosecution to present his views on the suitability of having an independent prosecution wing.

3. The Secretary, CVC in his deposition to informed that while there would not be much overlap initially but such overlap could be possible once Lokpal starts functioning. However, he was of the view that the two institutions would rather complement each other in a way that normal misdemeanor would continue to be overseen by the CVC while matter relating to corruption charges will be handled by the Lokpal. He also stated the public servants engaged under the two institutions are different in that CVC covers only Group ‘A’ officers in the Government while the Lokpal Act covers all categories of Government employees.

4. The Chairman asked the Central Vigilance Commissioner and the Director of Prosecution to send written replies to the issues raised by the Members of the Committee within two weeks. He also told them that they would be asked to appear before the Committee again at a later date for a more in depth deliberation, which would be conveyed to them in due course.

(The witnesses then withdrew)

5. Verbatim record of meeting of the Committee was kept.

6. The meeting adjourned at 3.47 P.M. to meet again at 3.00 P.M. on 10th March, 2015. 40

XX TWENTIETH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11:00 A.M. on Wednesday, the 15th April, 2015 in Committee Room No. 139, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shrimati Rajani Patil 3. Shri Ramchandra Prasad Singh

LOK SABHA 4. Adv. Sharad Bansode 5. Shri P. P. Chaudhary 6. Choudhary Mehboob Ali Kaiser 7. Shri Santosh Kumar 8. Shri B. V. Naik 9. Shri Vincent H. Pala 10. Dr. A. Sampath 11. Dr. Varaprasad Rao Velagapalli 12. Shri Tariq Anwar 13. Adv. Joice George

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

A. NON OFFICIAL WITNESSES 1. Prof. K Elumalai, Director, School of Law, Indira Gandhi National Open University (IGNOU); 2. Shrimati Anjali Bhardwaj, Co-convener National Campaign for Peoples’ Right to Information (NCPRI); 3. Shri Nikhil Dey, Co-convener National Campaign for Peoples’ Right to Information (NCPRI);

40 41

4. Shri Venkatesh Nayak, Co-convener National Campaign for Peoples’ Right to Information (NCPRI); 5. Ms. Amrita Johri, Co-convener National Campaign for Peoples’ Right to Information (NCPRI); 6. Shri Ashok Kapur, Director General, Institute of Directors, New Delhi; 7. Ms Guninder Gill; and 8. Dr. L.S. Choudhury

B. DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS Shri Jishnu Barua, Joint Secretary

2. At the outset, the Chairman welcomed the Members, official and non-official witnesses to the sitting and requested them to confine themselves to the proposed amendments to the Lokpal and Lokayukta Act, 2013 under the Bill.

3. Prof. K. Elumalai, IGNOU made a power point presentation wherein he submitted that 25 years of active practice in the Bar or 25 years of experience in teaching or research in legal institution may be considered as essential qualification of the eminent jurist in the Lokpal. He also proposed reduction in tenure of eminent jurist from three to two years. He also pointed out that family members of the public servants needed to be defined in the Bill for the purpose of declaration of their assets and liabilities.

4. The representatives of National Campaign for People’s Right to Information (NCPRI), thereafter made presentation on the Bill. While pointing out the lack of will on the part of the Government to operationalise provisions of the Principal Act, they suggested that the Committee might like to indicate specified time period for making it mandatory for the Government to put in place Lokpal.

4.1. They opposed the amendment proposed to Section 44 of the Act on the grounds that existing Laws/Rules governing different categories of public servants have different manners of disclosure of assets while the Principal Act had attempted uniformity in disclosure of assets and liabilities of all public servants. The assets of elected representatives and their family members have been in public domain as they are required to submit the same in their affidavits under the Representation of the People Act, 1951 to Election Commission at the time of filing nomination for election. They were of the view that assets of Government Servants and their family members should be in public domain to enable citizen to make informed complaints about commissioning of corruption. Accordingly, they proposed deletion of Clauses 6 and 7of the Bill.

4.2. The representatives of NCPRI were of the view that the appraisal of APAR of Director of Prosecution of CBI may be made by the Lokpal in lieu of Law Secretary. A quorum of two-thirds or three-fourths in Selection Committee may be provided in the Bill. They further suggested that the rank of Secretary to Lokpal might not be lower than any Officer of Government of India except Cabinet Secretary.

4.3. The representatives of NCPRI also suggested amendment to the Principal Act to the extent that complaints needed to be inquired in to and investigated by the Lokpal through its own officers 42 rather than depending upon CBI and CVC for that purpose. They appealed to the Committee that jail term for filing false and vexatious complaints may be reduced to hefty fines where malicious intent of the complainant is established. The existing police station or district level Lokayukta office might be authorized to receive complaint of corruption against Group C and D employees at field levels.

5. Shri Ashok Kapur, dubbed the Principal Act as well as the amending Bill as unconstitutional as these upset the separation of power principle. He also panned proposed quota in Lokpal, unaccountability of the Lokpal in the Act.

6. Ms. Guninder Gill was of the view that backdoor amendment to DSPE Act through Lokpal Act is improper. The Director of Prosecution under the Act could not be fully independent and the Lokpal Act has failed to ensure complete separation of prosecution and investigation even though our country is a signatory to International Convention upholding independence of prosecutor.

7. Dr. L.S. Choudhury submitted that as regards the qualification of a judge deciding a case, it provides that he should have a standing of seven years at the Bar but in the case of Director of Prosecution, the minimum qualification prescribed is fifteen years of practice which appeared to be contradictory and therefore, he suggested that the qualification for appointment as Director of Prosecution should be reduced to seven years of practice. He further stated that officers of the Indian Legal Service must not be appointed as Director of Prosecution as they do not have the experience of handling cases in a court.

(The witnesses then withdrew)

8. Verbatim record of meeting of the Committee was kept.

9. The meeting adjourned at 1.03 P.M. 43

XXIII TWENTY THIRD MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3.00 P.M. on Tuesday, the 26th May, 2015 in Committee Room ‘C’, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shri Majeed Memon 3. Shri Sukhendu Sekhar Roy 4. Shri Ramchandra Prasad Singh

LOK SABHA 5. Choudhary Mehboob Ali Kaiser 6. Shri S. Bhagwant Mann 7. Shri Vincent H. Pala 8. Shri Udhayakumar M. 9. Dr. Varaprasad Rao Velagapalli 10. Dr Anshul Verma 11. Shri Tariq Anwar 12. Adv. Joice George

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director

A. Central Bureau of Investigation (CBI) 1. Shri O. P. Verma, Director of Prosecution; and 2. Shri V. S. Shukla, Additional LA;

B. Ministry of Personnel, Public Grievances and Pensions (DoPT) Shri T. Jacob, Additional Secretary.

C. Non-official Witnesses Lok Satta 1. Dr. Jayaprakash Narayan, General Secretary; 43 44

2. Ms. Ankita K. Verma; 3. Shri Amol Ratna; 4. Shri Pallav Pradyumn Narang; and 5. Shri Dushyant Arora.

D. Legislative Department (Ministry of Law and Justice) 1. Dr. M. Vijayawargiya, Additional Secretary; and 2. Shri Jose Thomas, Director (P).

2. The Chairman, at the outset, welcomed Members of the Committee, Director of Prosecution (DoP) of CBI and officers of DoPT to the sitting and requested Director of Prosecution to offer his opinion on the issue as to whether the proposed amendment to Lokpal and Lokayuktas Act, 2013 would ensure functional independence of Director of Prosecution. His views were also sought on the issue of resolution of difference of the opinion between DoP and Director, CBI by Attorney General for India and difficulties to be encountered by him while reporting to multiple authorities i.e. Lokpal, Law Secretary and CBI, Director.

3. The Director of Prosecution (DoP), CBI made a Power Point Presentation wherein he alluded to relevant recommendations of Law Commission contained in their 14th and 41st Reports and various judgements pronounced by Supreme Court including the one on Vineet Nairain case (1998) supporting independent Director of Prosecution, for the sake of free and fair trial. He submitted that independent Director of Prosecution have been set up in States in accordance with Section 25A of Code of Criminal Procedure, 1973. He expressed a firm view that DoP should not report to Director CBI to ensure from ... fair legal opinion. He further stated that DoP served be independent or investigation. He was of the view that the proposed amendment for appraisal of APAR of DoP, CBI by Union Law Secretary would not amount to separation of prosecution and investigation of CBI as envisaged under Section 25A of CrPC, however, the proposed amendments were small steps in that direction.

4. Members sought data regarding conviction rate of cases referred to CBI in pre and post 2000 phases. Cogent reasons were sought for narrowing down the zone of consideration for practicing lawyers to the field of economic and anti-corruption crimes for the post of DoP while CBI have been assigned the cases in the areas of criminal law, cyber law, etc.

(The witnesses withdrew and meeting adjourned for tea and reassembled at 4:30 P.M.)

5. The Committee, thereafter, heard views of non-official witnesses invited on the Lokpal and Lokayuktas and other Related Law (Amendment) Bill, 2014 and on the Subject – “Feasibility of Conducting Simultaneous Elections to House of People and State Legislative Assemblies”. The Chairman in his initial remark recapitulated the views offered in the memoranda submitted by invited witness and requested him to make submissions in respect of issues not covered it ... memoranda.

6. Dr. Jayaprakash Narayan suggested that an eminent jurist in Selection Committee for Lokpal need not be a full time functionary. The initial and annual declaration of assets and liabilities of Public Servant should be in public domain. He was of the view that amendment moved by Government to the Prevention of Corruption Act, 1988 to make Lokpal sanctioning authority for 45 prosecution of any group of government employees would unnecessarily over burden the high profile institution. He felt that there was a need for seamless integration of the institutions of Lokpal, Lokayuktas, and Vigilance Commisssions at national and state level to fulfil our international obligation under UNCAC. He, in that context, proposed stringent provisions relating to confiscation of property analogous to the provisions in the Smugglers and Foreign Exchange Manipulators Prevention Act, 1976 for corruption cases to create deterrant in the minds of corrupt public servants.

7. On the issue of simultaneous elections, he supported the proposition in principle as frequent elections had been disruptive of governance process and also encourages/competitive populism to the extent of offering freebies by the political parties. He referred to recent experiments undertaken in Germany, United Kingdom and Canada to avoid mid-term polls and constructive no-confidence motion was suggested as a measure to restrict the role of the Government to truncate the tenure of the Legislature. He suggested direct election of Chief Minister in the State for fixed tenure to achieve the objectives.

(The witnesses then withdrew)

8. Verbatim record of meeting of the Committee was kept.

9. The meeting adjourned at 5.33 P.M. 46

XXVII TWENTY SEVENTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 2:00 P.M. on Thursday, the 16th July, 2015 in Committee Room ‘D’, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shri Sukhendu Sekhar Roy 3. Shri K. T. S. Tulsi

LOK SABHA 4. Shri P. P. Chaudhary 5. Dr. A. Sampath 6. Shri Udhayakumar M. 7. Dr. Varaprasad Rao Velagapalli 8. Dr. Anshul Verma 9. Shri Tariq Anwar 10. Adv. Joice George

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

WITNESSES

A. * * *

B. The Lokpal and Lokayuktas and other related laws (Amendment) Bill, 2014

I. Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) 1. Shri Sanjay Kothari, Secretary; 2. Shri Jacob T., Addditional Secretary; 3. Shri Jishnu Barua, Joint Secretary; and 4. Shri Sandeep Jain, Director. 46 47

II. Central Vigilance Commission (CVC) 1. Shrimati Nilam Sawhney Secretary; and 2. Shri Salim Haque, Additional Secretary

III. Central Bureau of Investigation (CBI) 1. Shri Anil Kumar Sinha, Director; and 2. Shri R. S. Bhatti, Joint Director.

IV. Enforcement Directorate (ED) Shri Rajan Katoch, Director.

V. Central Board of Direct Taxes (CBDT) Ms. Anita Kapur, Chairperson.

2. At the outset, the Chairman welcomed Members of the Committee. He then apprised the Committee that * * * and the Department of Personnel and Training, Central Vigilance Commission, Central Bureau of Investigation, Enforcement Directorate and Central Board of Direct Taxes were also invited to present their views on the Lokpal and Lokayuktas and Other Related Laws (Amendment) Bill, 2014.

3. * * *

4. * * *

5. * * *

B. The Lokpal and Lokayuktas and Other Related Laws (Amendment) Bill, 2014

6. The Chairman welcomed the officers of the Department of Personnel and Training (DoPT), Central Bureau of Investigation (CBI), Central Vigilance Commission (CVC), Enforcement Directorate (ED) and Central Board of Direct Taxes (CBDT) to the meeting. He requested them to present their views on Section 44 of the Lokpal and Lokayuktas Act, 2013 and Clause 6 of the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014.

7. The Chairperson, Central Board of Direct Taxes submitted that under the Income Tax Act, every individual is considered an independent entity and the returns filed by him/her are held by the Income Tax Department in a fiduciary capacity which could not be disclosed to any other third party including the spouse of the individual except when it serves any public interest. She added that the Bill mandates disclosure of assets and liabilities of public servant and not the income. She also felt that publishing such information would jeopardise the safety of the public servant and his/ her family and therefore the Clauses in the Bill are more appropriate than Section 44 of the Principal Act.

8. The Secretary, Department of Personnel and Training concurred with the views expressed by Chairperson of CBDT and stated that the Government does not have any right to ask for details of assets of spouse. The Secretary informed that the provisions of Section 44 has already been

*** Relate to other matters. 48 challenged in the High Court of Delhi. The Secretary also informed that the immovable property returns of All India Services officers have been already put on the website. He also informed that the Department of Personnel and Training has received representations from Civil Services Employees’ Associations wherein they have opposed the publication of details of assets and liabilities on the website apprehending threat to their family members from unsocial elements.

9. The Director, Enforcement Directorate supported the views of Chairperson of CBDT. He felt that the amendments would bring the law in consonance with other existing laws which have stood the test of time and would make it easier to implement the provisions of the Lokpal and Lokayuktas Act, 2013. He opposed the publication of assets and liabilities of public servants as it could lead to unnecessary harassment or the public servants. He stated that whenever the Department investigates a case of disproportionate assets against an officer, they could use the Income Tax Returns filed by the government servant as the base document.

10. The Director, Central Bureau of Investigation, while supporting amendments, highlighted on the need to protect the honest public servants from frivolous and vexatious complaints. However, he requested the Committee to grant the Bureau more time to submit their views on Clause 6 of the Bill.

11. The Secretary, Central Vigilance Commission informed that after careful reconsideration of the Bill, the Commission found the clauses in the Bill to be more appropriate. However, they did not support publication of assets and liabilities of public servants on the websites.

12. The Chairman directed the Central Bureau of Investigation and Central Vigilance Commission to submit their views on the proposition of placing both the agencies under the supervisory control of the Lokpal instead of making them report to multiple institutions.

(The witnesses then withdrew)

13. Verbatim record of meeting of the Committee was kept.

14. The meeting adjourned at 4.52 P.M. 49

III THIRD MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3:00 P.M. on Wednesday, the 14th October, 2015 in Committee Room No. G-074, Ground Floor, Parliament Library Building, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shrimati Rajani Patil 3. Shri Sukhendu Sekhar Roy 4. Shri K. T. S. Tulsi

LOK SABHA 5. Adv. Joice George 6. Shri Bhagwant Mann 7. Shri B. V. Nayak 8. Dr. A. Sampath 9. Shri Bharat Singh 10. Shri Varaprasad Rao Velagapalli

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

A. Representatives of recognized Political Party

All India Anna Dravida Munnetra Kazhagam (AIADMK) Shri A. Navneethakrishnan, MP, Rajya Sabha.

B. Representatives of Central Government Employees Associations

I. Indian Revenue Service Association 1. Ms. Nirupama Kotru, IRS; 2. Shri B.R.R. Kumar, IRS; 3. Ms. Anchal Khandelwal, IRS; and 4. Shri Hemant Gupta, IRS. 49 50

II. Indian Civil Account Service Association 1. Ms. Sofia Dahiya, Deputy Controller of Accounts; and 2. Shri Alok Kumar Verma, Deputy Controller of Accounts.

III. Confederation of Central Government Gazetted Officers’ Organisations 1. Shri S. Mohan, Secretary General; 2. Shri Bhaskar Bhattacharjee, Additional Secretary; and 3. Shri Surendra Singh Chauhan, Joint Secretary.

IV. Confederation of Civil Service Associations 1. Shri Jayant Misra, Convenor; 2. Shri P. V. Rama Sastry, Indian Police Service; 3. Shri R. N. Singh, Indian Railway Service of Engineers; and 4. Ms. Ranjana Dev Sarmah, Indian Information Service.

C. Ministry of Personnel, Public Grievances and Pensions (DoPT) 1. Shri T. Jacob, Additional Secretary; and 2. Shri Rakesh Kumar, Director.

2. At the outset, the Chairman welcomed the Members of the Committee and the representative of the All India Anna Dravida Munnetra Kazhagam (AIADMK), Shri A. Navneethakrishnan, MP, Rajya Sabha. He outlined aspects of Clause 6 of the Bill and Section 44 of the Principal Act and requested the Member to submit his party’s views on the provisions of the Bill especially on Clause 6 of the Bill and Section 44 of the Lokpal and Lokayuktas Act, 2013.

3. Shri Navaneethakrishnan, MP, Rajya Sabha submitted that AIADMK agrees to the clause in principle but suggested amendments to sub-Clause of Clause 6 which relates to publication of returns filed by the public servants. He suggested that keeping in mind the security of the public servant as well his right to privacy, the asset and liability declaration made under the Act might not be put in the public domain. The declaration might be filed with the Competent Authority which may be disclosed only if an investigation is being carried out against a particular public servant.

(The witness then withdrew)

4. The Chairman welcomed the representatives of the Central Government Employees Associations and requested them to present their views on the Bill.

5. The Convenor, Confederation of Civil Service Associations submitted that it would not be appropriate to put the details of assets and liabilities of public servants in the public domain as it could jeopardize his safety as well as that of his/her family. Further, he added that publication of such information in the public domain would also lead to a rise in filing of malicious and false complaints against public servants to harass them. As per the Income Tax Act, 1961, details of an individual’s income cannot be disclosed to anyone including his/her spouse. He averred that putting the assets and liability details of the public servant in public domain might be discriminatory against the public servant. On the issue of inclusion of details of assets and liabilities of the spouse, he submitted that the exisiting provisions in Section 44 of the Lokpal and Lokayuktas Act, 2013 are 51 violative of the Right to Privacy of the spouse. He further stated a public servant does not have any device to get accurate information from his spouse including Streedhan. In that context, he pointed out that the Supreme Court in the Pratibha Rani V/s Suraj Kumar (1985 AIR 628) has stated that the position of the Streedhan in Hindu Marriage is clear and unambiguous and she is the absolute owner of such property and deal with it in any manner she likes without any reference to her husband. Therefore, a public servant could not force his spouse to divulge details regarding Streedhan. He also referred to the interim observation of the Hon’ble Delhi High Court in a petition challenging the validity of Section 44 filed by the wife of a civil servant wherein the Court has stated that forcing the spouse of a civil servant to divulge information of his/her assets and liabilities under Section 44 of the Lokpal and Lokayuktas Act, 2013 is violative of his/her Fundamental Rights. He also pointed out that in order to furnish accurate details of his/her assets every year, the public servant would have to get his property valuated professionally every year. This might impose an unnecessary fiscal burden on the public servant. The association members also suggested that the date of filing of returns under the Lokpal Act, Income Tax Returns and the returns to be filed under the respective Conduct Rules of Public Servants need to be harmonized.

6. While concurning with the views of the Convenor, Confederation of Civil Service Associations, the Secretary General of Confederation of Central Government Gazetted Officers’ Organisations submitted that public servants might not be burdened by making him file multiple declarations of his/her assets and liabilities. Instead, the details declared to the competent authority might be forwarded to the Lokpal by the competent authority.

7. The representative of Indian Revenue Service Association concurred with the views of the Convenor, Confederation of Civil Service Associations and stated that the declaration of assets and liabilities as envisaged in the Lokpal and Lokayuktas Act, 2013 is similar to filing an Income Tax Return under the Income Tax Act, 1961 and therefore confidentiality of the declaration must be maintained. She submitted that a public servant must get the same protection as any other tax payer of the country is entitled to.

7. The Chairman directed the Department of Personnel and Training (DoPT) to state their views on the apparent contradiction in the manner of declaration of assets and liabilities by public servants as prescribed under Section 75A of Representation of Peoples Act, 1951 and Clause 6 of the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014. The Department was further directed to state their views on the possibility of deletion of Section 44(3) of the Lokpal and Lokayuktas Act, 2013.

(The witnesses then withdrew)

8. Verbatim record of meeting of the Committee was kept.

9. The meeting adjourned at 4.03 P.M. 52

IV FOURTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3:00 P.M. on Monday, the 16th November, 2015 in Committee Room ‘B’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shri Sukhendu Sekhar Roy 3. Shri K. T. S.Tulsi 4. Shri Bhupender Yadav

LOK SABHA 5. Shri Tariq Anwar 6. Shri P. P. Chaudhary 7. Adv. Joice George 8. Choudhary Mehboob Ali Kaiser 9. Dr. A. Sampath 10. Dr. Varaprasad Rao Velagapalli

SECRETARIAT Dr. D. B. Singh, Additional Secretary Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

A. Representatives of recognized Political Party

I. All India Trinamool Congress (AITC) Shri Kalyan Banerjee, MP, Lok Sabha

II. Indian National Lok Dal (INLD) Shri Ram Kumar Kashyap, MP, Rajya Sabha

2. The Chairman welcomed the Members of the Committee and the representatives of political parties to the meeting. The Chairman requested the representatives to present their views on the Bill and specifically on Clause 6 of the Bill.

3. Shri Kalyan Banerjee, MP, Lok Sabha stated the views of the All India Trinamool Congress had already been forwarded in writing to the Committee wherein the position of the party was 52 53 clearly articulated. On Section 44 of the Lokpal and Lokyuktas Act, 2013, he stated that independent children of public servants enjoy their constitutional and statutory rights which cannot be surrendered in the name of keeping a check on public servants under any statute. Thus, he stated that the assets and liabilities of independent children of public servants must be excluded from the purview of the Act. He further stated that Lokpal should not become an institution where retired officials are accommodated. Instead, sitting judges and serving officers of the Government may be appointed in Lokpal. He further advocated the need to establish an independent investigation agency which would work under the supervision of Lokpal.

(One witness withdrew at this point)

4. Shri Ram Kumar Kashyap, MP, Rajya Sabha while representing the view of his party, viz. INLD stated that the public servant must declare the assets and liabilities in respect of immovable and movable property, including that of his/family member under oath or affirmation. Further, he stated that ‘Competent Authority’ should be clearly defined.

(The witnesses then withdrew)

5. The Committee held internal discussions on the provisions of the Bill.

6. Verbatim record of meeting of the Committee was kept.

7. The meeting adjourned at 4.22 P.M. 54

V FIFTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.00 P.M. on Thursday, the 26th November, 2015 in Room No. 63, First Floor, Parliament House, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Shri Majeed Memon 3. Shrimati Rajani Patil 4. Shri Sukhendu Sekhar Roy 5. Shri K. T. S. Tulsi

LOK SABHA 6. Shri P.P. Chaudhary 7. Adv. Joice George 8. Choudhary Mehboob Ali Kaiser 9. Shri Vincent H. Pala 10. Shri V. Panneer Selvam 11. Shri Bharat Singh 12. Shri M. Udhayakumar

SECRETARIAT Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

WITNESSES

A. Department of Legal Affairs, Ministry of Law and Justice 1. Shri P. K. Malhotra, Law Secretary; 2. Shri Dinesh Bhardwaj, Additional Secretary; 3. Shri M. Khandelwal, Additional Government Advocate; and 4. Shri Rajveer Singh Verma, Deputy Legislative Counsel.

B. Legislative Department, Ministry of Law and Justice 1. Shri G. Naryana Raju, Secretary; 2. Ms. Reeta Vasistha, Additional Secretary;

54 55

3. Shri R. Sreenivas, Deputy Legislative Counsel; and 4. Shri K.V. Kumar, Deputy Legislative Counsel.

C. Ministry of Personnel, Public Grievances & Pensions (Department of Personnel and Training)

1. Shri Sanjay Kothari, Secretary; 2. Shri T. Jacob, Additional Secretary; 3. Shri Jishnu Barua, Joint Secretary; 4. Ms. Meera Mohanty, Deputy Secretary; and 5. Shri A. K. Roy, Deputy Secretary.

2. At the outset, the Chairman welcomed Members of the Committee. He then apprised the Committee that Secretaries of Department of Personnel and Training, Department of Legal Affairs and Legislative Department have been invited to consult them on certain major issues on the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014. * * *

(After the arrival of the witnesses)

A. The Lokpal and Lokayuktas and other Related Law (Amendment) Bill, 2014

3. The Chairman welcomed Secretaries of Department of Personnel and Training, Department of Legal Affairs, Legislative Department and other senior officers of those Departments. The Chairman requested the Secretary, DoPT to focus on the apparent distinction between selected and elected public servants with regard to declaration of their assets and liabilities, the need for including independent spouse and children of public servants under Section 44 of the Act, the need for a separate Directorate of Inquiry and Directorate of Prosecution in the Lokpal, the justification for making Attorney-General for India to sort out difference of opinion between the Director of Prosecution of CBI and Director, CBI and the possibility of prescribing same ranks for the Secretary, Lokpal; Director of Inquiry and Director of Prosecution for ensuring their independence.

4. The Secretary, DoPT stated that the Department would examine the suggestion of the Committee to include only the dependent spouse and other dependent individuals of a public servant for making the declaration of assets and liabilities by the Public Servant. The Department requested the Committee that a recommendation might be made by the Committee so that the declaration sought under Section 44 of the Act may not be insisted for the last three financial years and only prospective effect might be given to Section 44 of the Act in view of recent amendments thereto. The Committee further suggested that the date of declaration of the asset and liabilities of public servant could be synchronised with that of filing of Income Tax Returns.

4.1. The Secretary, Department of Legal Affairs clarified that Section 44 of the Act did not create distinction between the elected and selected public servants. However, the amendments proposed thereto had been required to remove duplication of filing separate declarations of assets and liabilities under the respective Service Rules or Representation of People Act, 1951 and the Lokpal Act, 2013.

*** Relate to other matters. 56

5. On the issue of prescribing lower rank to Secretary, Lokpal and Director of Prosecution, Lokpal, the Secretary, DoPT stated that the reason for reducing the ranks in the Bill was to ensure continuity of tenure to the Secretary of Lokpal.

6. On the resolution of difference of opinion between the Director, CBI and Director of Prosecution, CBI by the Lokpal the Secretary, DoPT stated that anti-corruption cases are only one of the six types of cases that the Central Bureau of Investigation handles. He submitted that the Lokpal may resolve the difference of opinion arising on corruption cases but in other cases, the Attorney General for India happened to be better suited. The Members of the Committee expressed their reservations on the active participation of the Attorney General for India in the prosecution stage of cases as it had been expressly barred by the Supreme Court. The Members further stated that atleast in corruption cases coming under the purview of the Lokpal, the difference of opinion must be resolved by the Lokpal only. The Secretary, Department of Legal Affairs added that the provision of consulting the Attorney General for India had been included keeping in view the directions of the Supreme Court in the Sushil Kumar Modi V/s the Union of India case, 1999.

(Secretary DoPT withdrew)

B. ***

7. * * *

8. * * *

9. * * *

10. * * *

11. Verbatim record of meeting of the Committee was kept.

12. The meeting adjourned at 5.54 P.M.

*** relating to other matters 57

VI SIXTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 4.00 P.M. on Thursday, the 3rd December, 2015 in Room No. ‘67’, First Floor, Parliament House, New Delhi.

MEMBERS PRESENT 1. Dr. E. M. Sudarsana Natchiappan — Chairman

RAJYA SABHA 2. Ms. Anu Aga 3. Shri Majeed Memon 4. Shrimati Rajani Patil 5. Shri Sukhendu Sekhar Roy 6. Shri K. T. S. Tulsi 7. Shri Bhupender Yadav

LOK SABHA 8. Shri Tariq Anwar 9. Shri P. P. Chaudhary 10. Adv. Joice George 11. Choudhary Mehboob Ali Kaiser 12. Shri Santosh Kumar 13. Shri Vincent H. Pala 14. Shri V. Panneer Selvam 15. Dr. A. Sampath 16. Shri Bharat Singh 17. Shri M. Udhayakumar 18. Dr. Anshul Verma

SECRETARIAT Shri K. P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director

2. The Chairman welcomed the Members to the meeting. The Committee then took up the consideration and adoption of the draft Report on the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014. Members deliberated on the issues Contained in the Report, and thereafter, the Report was adopted with minor changes.

57 58

3. The Committee decided to present the Report to both Houses of Parliament on the 7th December, 2015. It authorized its Chairman, and in his absence, Ms. Anu Aga to present the Report to Rajya Sabha and Shri Vincent H. Pala and in his absence, Shri M. Udhayakumar to lay the same in Lok Sabha.

4. The meeting adjourned at 4.30 P.M. 59

ANNEXURES

ANNEXURE-I

AS INTRODUCED IN LOK SABHA

Bill No. 190 of 2014

THE LOKPAL AND LOKAYUKTAS AND OTHER RELATED LAW (AMENDMENT) BILL, 2014 A BILL

to amend the Lokpal and Lokayuktas Act, 2013 and further to amend the Delhi Special Police Establishment Act, 1946.

BE it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:—

1. (1) This Act may be called the Lokpal and Lokayuktas and Short title and Other Related Law (Amendment) Act, 2014. commencement.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

CHAPTER I

AMENDMENT OF THE LOKPAL AND LOKAYUKTAS ACT, 2013

1 of 2014. 2. In the Lokpal and Lokayuktas Act, 2013 (hereinafter referred Amendment of section 4. to as the principal Act), in section 4,—

(a) in sub-section (1),—

61 62

(i) for clause (c), the following clause shall be substituted, namely:—

“(c) the Leader of Opposition recognised as such in the House of the People or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in that House —Member;”;

(ii) after clause (e), the following proviso shall be inserted, namely:—

“Provided that the eminent jurist shall be nominated for a period of three years and shall not be eligible for re-nomination.”;

(b) for sub-section (2), the following sub-section shall be substituted, namely:—

“(2) No appointment of a Chairperson or a Member or the nomination of an eminent jurist shall be invalid merely by reason of any vacancy or absence of a Member in the Selection Committee.”;

“Provided also that no appointment of a person in the Search Committee or the proceedings of the Search Committee shall be invalid merely by reason of any vacancy or absence of a Member in the Selection Committee or absence of a person in the Search Committee, as the case may be.”.

Amendment of 3. In section 10 of the principal Act,— section 10. (a) in sub-section (1), for the words “in the rank of Secretary to the Government of India”, the words “in the rank of Additional Secretary to the Government of India” shall be substituted;

(b) in sub-section (2), for the words “not below the rank of Additional Secretary to the Government of India”, the words “not below the rank of Joint Secretary to the Government of India” shall be substituted.

Amendment of 4. In section 16 of the principal Act, in sub-section (1), for section 16. clause (f), the following clause and Explanation shall be substituted, namely:—

“(f) the headquarters of the Lokpal shall be in the National 63

Capital Region and the benches thereof shall sit at such other places as the Lokpal may, by regulations, specify.

Explanation.—The expression “National Capital Region” shall have the meaning assigned to it in clause (f) of section 2 of 2 of 1985. the National Capital Region Planning Board Act, 1985.”.

5. In section 23 of the principal Act, in sub-section (1), the Amendment of 25 of 1946. words, figures and letter “or section 6A of the Delhi Special Police section 23. Establishment Act, 1946" shall be omitted.

6. In section 44 of the principal Act,— Amendment of section 44. (a) for sub-section (2), the following sub-section shall be substituted, namely:—

“(2) A 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) all his assets, including—

(i) immovable property owned by him, or inherited or acquired by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person;

(ii) movable property inherited by him or similarly owned, acquired or held by him; (b) all his debts and other liabilities, incurred by him directly or indirectly; under the relevant provisions of the Acts or the rules or regulations, in case of—

(A) public servants referred to in clauses (a), (b) and (c) of sub-section (1) of section 14, in the manner provided 43 of 1951. in the Representation of the People Act, 1951 and the rules made thereunder;

(B) public servants referred to in clauses (d) and (e) of sub-section (1) of section 14, in the manner provided in the 61 of 1951. All India Services Act, 1951 and the rules and regulations made thereunder or the rules made under the provisions of article 148 or article 309 of the Constitution, as the case may be;

relevant Acts and the rules and regulations respectively applicable to them; and

(D) public servants not specifically covered under (A) to (C), in such manner as may be specified, by regulations by the Lokpal.”;

(b) sub-section (5) shall be omitted;

“(6) Notwithstanding anything contained in any other law for the time being in force, the competent authority shall, in public interest, ensure that the information referred to in sub-section (2), is published in such manner as may be prescribed, by 31st August of that year.”.

Amendment of 7. In section 59 of the principal Act, in sub-section (2), for section 59. clause (k), the following clause shall be substituted, namely:—

“(k) the manner of publication of information, in public interest, relating to assets and liabilities of public servants under sub-section (6) of section 44;”.

Amendment of 8. In section 60 of the principal Act, in sub-section (2), after section 60. clause (d), the following clause shall be inserted, namely:—

“(da) the manner of furnishing information to the competent authority by public servants under clause (D) of sub-section (2) of section 44;”.

CHAPTER II

AMENDMENT OF THE DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946

Amendment of 9. In the Delhi Special Police Establishment Act, 1946 25 of 1946. section 4BA. (hereinafter referred to as the Special Police Act), in section 4BA,—

(a) for sub-sections (1) and (2), the following sub-sections shall be substituted, namely:—

“(1) There shall be a Directorate of Prosecution, headed by a Director, for conducting prosecution of cases under this Act.

(2) The following persons shall be eligible for consideration for appointment as Director of Prosecution, namely:—

(a) an officer from the Indian Legal Service holding the post of Joint Secretary and who is eligible for 65

appointment as Special Public Prosecutor within the meaning of sub-sections (8) and (9) of section 24 of 2 of 1974. the Code of Criminal Procedure, 1973;

(b) in the absence of an eligible officer referred to in clause (a), a person who has been in practice as an advocate for not less than fifteen years and has experience in handling cases on behalf of the government relating to offences under the Prevention of Corruption 49 of 1988. Act, 1988, the Prevention of Money-laundering Act, 15 of 2003. 2002 and such other laws relating to economic offences.”;

(b) after sub-section (4), the following sub-sections shall be inserted, namely:—

“(5) In case of difference of opinion between the Director and the Director of Prosecution, the matter shall be referred to the Attorney - General for India for his advice and such advice shall be binding.

(6) The annual performance appraisal report of the Director of Prosecution shall be recorded and maintained in the Ministry of Law and Justice, in such manner as may be prescribed.”.

10. After section 6A of the Special Police Act, the following Insertion of new section shall be inserted, namely:— section 7.

“7. (1) The Central Government may, by notification in the Power to make rules. Official Gazette, make rules for carrying 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 manner of recording and maintenance of the annual performance appraisal reports under sub-section (6) of section 4BA;

(b) any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act, shall 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 66 the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule 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.”. 67

STATEMENT OF OBJECTS AND REASONS

The Lokpal and Lokayuktas Act, 2013 (1 of 2014), providing for the establishment of a body of Lokpal for the Union and making enabling provision for establishment of Lokayukta for States to inquire into allegations of corruption against certain public functionaries, was enacted and brought into force with effect from 16th January, 2014.

2. Sub-section (1) of section 4 of the Lokpal and Lokayuktas Act, 2013 (the Lokpal Act) provides for a Selection Committee for making recommendations to the President for appointment of the Chairperson and Members of the Lokpal. As per the existing provision in clause (c) of sub- section (1) of section 4, the Leader of Opposition in the House of the People is one of the Members of the said Selection Committee. Sub-section (1) of section 4 does not contain any provision as to how the eminent jurist is to be recommended for nomination by the President under clause (e) of sub-section (1) or how the Search Committee shall be constituted by the Selection Committee under sub-section (3), when there is no Leader of Opposition recognised as such in the House of the People. Therefore, it is considered appropriate to amend clause (c) of sub-section (1) of section 4 of the Lokpal Act and make enabling provision for inclusion of the Leader of the single largest Opposition Party in the House of the People as a Member of the said Committee. Further, sub-section (1) of section 4 does not specify any tenure for the eminent jurist. It is, therefore, proposed to insert a proviso to sub-section (1) so as to lay down that the eminent jurist shall be nominated for a period of three years and shall not be eligible for re-nomination.

3. It is also proposed to amend sub-section (2) of section 4 so as to provide that no appointment of a Chairperson or a Member or the nomination of an eminent jurist shall be invalid merely by reason of any vacancy or absence of a Member in the Selection Committee, on the lines of the recent amendment made in the Delhi Special Police Establishment Act, 1946. Similarly, it is proposed to add a proviso to sub-section (3) of section 4 so as to provide that no appointment of a person in the Search Committee or the proceedings of the Search Committee shall be invalid merely by reason of any vacancy or absence of a Member in the Selection Committee or absence of a person in the Search Committee, as the case may be.

4. It is proposed to amend section 44, with consequential amendments in sections 59 and 60 on account of the following reasons, namely:—

(a) Section 14 of the Act defines “public servant”, which, inter alia, includes Prime Minister, Ministers and the Members of either House of Parliament. Section 44 of the Act makes provision for declaration of assets and liabilities by the public servants. In this regard, the Representation of the People Act, 1951 (43 of 1951) makes detailed provisions which provide for conduct of elections of the Members of Parliament, their qualifications and disqualifications for the membership of the Houses, corrupt practices and other offences, etc. The said Act and the rules framed thereunder make elaborate provisions for filing of affidavits giving full details of the movable and immovable property and the consequences of filing false affidavits, etc. In view of this, it is proposed to provide that the provisions of the Representation of the People Act should be applicable to them as 67 68

regards the manner of filing of information regarding their assets and liabilities, instead of making a different provision under the Lokpal Act. This will bring coherency between the Lokpal Act and the Representation of People Act.

(b) In case of Government servants, there is a requirement of filing of property returns both at the time of joining service and annually, giving details of property transactions, under the rules framed under article 148 and article 309 of the Constitution and the Acts of Parliament such as the All India Services Act, 1951 (61 of 1951). The existing rules which regulate the property transactions of the Government servants are much elaborate and comprehensive in comparison to what is intended to be provided under section 44 of the Lokpal Act. Hence there is need for harmonising the said Act and the Rules with the provisions of the Lokpal Act.

(c) In addition to the categories of public servants covered in (a) and (b) above, there are public servants in statutory and autonomous bodies whose conduct is regulated in terms of relevant Acts applicable to them and the rules and regulations made thereunder, and this also requires to be harmonised with the provisions of the Lokpal Act.

(d) For the remaining categories of public servants not specifically covered under clauses (a) to (c) above (e.g. NGOs, etc.), the power to frame appropriate regulations for matters relating to furnishing of information about assets and liabilities by them should appropriately vest in the Lokpal which may either extend any set of rules or regulations applicable to government servants for such categories of public servants, or provide for a separate set of regulations, under its powers to make regulations.

It is accordingly proposed to amend sub-section (2) of section 44 to provide for a scheme wherein the filing of information by public servants under the provisions of the section are brought in harmony with the provisions of the respective Acts, Rules or Regulations, as applicable to different categories of public servants. It is also proposed to amend sub-section (6) in order to enable the Central Government to prescribe the manner in which information furnished by public servants of different categories is to be published, keeping public interest in view, by the respective competent authorities. It is also proposed to amend sections 10, 16 and 23 of the Lokpal Act.

5. Section 4BA of the Delhi Special Police Establishment Act, 1946 (25 of 1946), as inserted by the Lokpal and Lokayuktas Act, 2013, provides for the establishment of a Directorate of Prosecution headed by a Director of Prosecution, who will function under the overall supervision and control of the Director of the Delhi Special Police Establishment. The provisions of section 4BA do not lay down any eligibility conditions for appointment to the post of Director of Prosecution. In view of this, it is proposed to substitute sub-sections (1) and (2) of section 4BA with new sub-sections, so as to provide for appropriate eligibility conditions for appointment to the post. It is also proposed to insert two new sub-sections after sub-section (4) of section 4BA so as to ensure functional independence to the Director of Prosecution in the Delhi Special Police Establishment.

6. The Bill seeks to achieve the aforesaid objectives.

NEW DELHI; DR. JITENDRA SINGH The 15th December, 2014. 69

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 7 of the Bill seeks to substitute clause (k) of sub-section (2) of section 59 of the Lokpal and Lokayuktas Act, 2013 (the Lokpal Act), so as to empower the Central Government to make rules for the purpose of prescribing the manner in which the competent authority shall, in public interest, ensure that the information referred to in sub-section (2) of section 44 is published.

2. Clause 8 of the Bill seeks to insert a new clause (da) in sub-section (2) of section 60 of the Lokpal Act, so as to empower the Lokpal to make regulations specifying the manner of furnishing information to the competent authority by public servants under clause (D) of sub- section (2) of section 44.

3. Clause 10 of the Bill empowers the Central Government to make rules for the purpose of carrying out the provisions of Delhi Special Police Establishment Act, 1946. Sub-clause (2) of the said clause specifies that such rules may provide for the manner of recording and maintenance of the annual performance appraisal reports of the Director of Prosecution in the Delhi Special Police Establishment, under sub-section (6) of section 4BA. Sub-clause (3) of clause 10 of the Bill provides that the rules made by the Central Government under the proposed new section 7 are required to be laid before each House of Parliament, as soon as they are made.

4. The matters in respect of which rules or regulations may be made under the proposed amendments are matters of procedure and 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.

69 70

ANNEXURE

EXTRACTS FROM THE LOKPAL AND LOKAYUKTAS ACT, 2013

(1 OF 2014)

*****

Appointment of 4. (1) The Chairperson and Members shall be appointed Chairperson and by the President after obtaining the recommendations of a Members on recommendations Selection Committee consisting of— of Selection Committee. ***** (c) the Leader of Opposition in the House of the People—Member;

*****

(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the President—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 shall 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 atleast seven 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 the selection of the Chairperson and Members of the Lokpal:

Provided that not less than fifty per cent. of the members of the Search Committee shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women:

Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee. 70 71

*****

10. (1) There shall be a Secretary to the Lokpal in the Secretary, other rank of Secretary to Government of India, who shall be officers and staff of Lokpal. appointed by the Chairperson from a panel of names sent by the Central Government.

*****

16. (1) Subject to the provisions of this Act,— Constitution of benches of *****Lokpal.

(f) the benches of the Lokpal shall ordinarily sit at New Delhi and at such other places as the Lokpal may, by regulations, specify.

*****

23. (1) Notwithstanding anything contained in section 197 Power of Lokpal of the Code of Criminal Procedure, 1973 or section 6A of the to grant sanction 2 of 1974. for initiating 25 of 1946. Delhi Special Police Establishment Act, 1946 or section 19 of prosecution. 49 of 1988. the Prevention of Corruption Act, 1988, the Lokpal shall have the power to grant sanction for prosecution under clause (a) of sub-section (7) of section 20.

*****

CHAPTER XIII

DECLARATION OF ASSETS

44. (1)*****Declaration of assets. (2) A 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. 72

*****

(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 Ministry or Department shall ensure that all such statements are published on the website of such Ministry 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.

***** Power to make 59. (1)***** rules. (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:—

*****

(j) the form and the time for preparing an annual return giving a summary of its activities during the previous year under sub-section (5) of section 44;

(k) the form of annual return to be filed by a public servant under sub-section (5) of section 44;

*****

————

EXTRACTS FROM THE DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946

(25 OF 1946)

*****

Director of 4BA. (1) There shall be a Directorate of Prosecution Prosecution. headed by a Director who shall be an officer not below the rank of Joint Secretary to the Government of India, for conducting prosecution of cases under this Act.

(2) The Director of Prosecution shall function under the overall supervision and control of the Director.

***** 73

LOK SABHA

————

BILL to amend the Lokpal and Lokayuktas Act, 2013 and further to amend the Delhi Special Police Establishment Act, 1946.

————

(Dr. Jitendra Singh, Minister for Personnel, Public Grievances and Pensions)

73 Sec I The Gazette of India extraordinary Part II 74

ANNEXURE-II

¸ü×•ÖÃ™Òüß ÃÖÓ. ›üß.‹»Ö.—(‹®Ö)04/0007/2003—14 REGISTERED NO. DL—(N)04/0007/2003—14

†ÃÖÖ¬ÖÖ¸üÞÖ EXTRAORDINARY ³ÖÖÝÖ II—ÜÖÞ›ü 1 PART II—Section 1 ¯ÖÏÖ×¬ÖÛúÖ¸ü ÃÖê ¯ÖÏÛúÖ×¿ÖŸÖ PUBLISHED BY AUTHORITY

ÃÖÓ. 1] ®Ö‡Ô ×¤ü»»Öß, ²Öã¬Ö¾ÖÖ¸ü, •Ö®Ö¾Ö¸üß 1, 2014 ¯ÖÖîÂÖ 11, 1935 (¿ÖÛú) No. 1] NEW DELHI, WEDNESDAY, JANUARY 1, 2014/PAUSA 11, 1935 (SAKA) ‡ÃÖ ³ÖÖÝÖ ´Öë ×³Ö®®Ö ¯ÖéÂšü ÃÖÓÜµÖÖ ¤üß •ÖÖŸÖß Æîü ×•ÖÃÖÃÖê ×Ûú µÖÆü †»ÖÝÖ ÃÖÓÛú»Ö®Ö Ûêú ºþ¯Ö ´Öë ¸üÜÖÖ •ÖÖ ÃÖÛêú Separate paging is given to this Part in order that it may be filed as a separate compilation.

MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 1st January, 2014/Pausa 11, 1935 (Saka) The following Act of Parliament received the assent of the President on the 1st January, 2014, and is hereby published for general information:— THE LOKPAL AND LOKAYUKTAS ACT, 2013

(No. 1 OF 2014) [1st January, 2014.] An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States 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; 74 Sec I The Gazette of India extraordinary Part II 75

AND WHEREAS India has ratified the United Nations Convention Against Corruption;

AND WHEREAS the Government’s commitment to clean and responsive governance has to be reflected in effective bodies to contain and punish acts of corruption;

NOW, THEREAS, it is expedient to enact a law, for more effective implementation of the said Convention and to provide for prompt and fair investigation and prosecution in cases of corruption.

BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:— PART I

PRELIMINARY 1. (1) This Act may be called the Lokpal and Lokayuktas Act, Short title, extent, 2013. application and commencement. (2) It extends to the whole of India. (3) It shall apply to public servants in and outside India. (4) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. PART II

LOKPAL FOR THE UNION CHAPTER I

DEFINITIONS

2. (1) In this Act, unless the context otherwise requires,— Definitions. (a) “bench” means a bench of the Lokpal; (b) “Chairperson” means the Chairperson of the Lokpal; (c) “competent authority”, in relation to— (i) the Prime Minister, means the House of the People; (ii) a member of the Council of Ministers, means the Prime Minister; (iii) a member of Parliament other than a Minister, means— (A) in the case of a member of the Council of States, the Chairman of the Council; and (B) in the case of a member of the House of the People, the Speaker of the House; Sec I The Gazette of India extraordinary Part II 76 (iv) an officer in the Ministry or Department of the Central Government, means the Minister in charge of the Ministry or Department under which the officer is serving; (v) 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 under any 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;

(vi) 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 under any 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;

(vii) in any other case not falling under sub-clauses (i) to (vi) above, means such Department or authority as the Central Government may, by notification, specify:

Provided that if any person referred to in sub-clause (v) or sub-clause (vi) is also a member of Parliament, then, the competent authority shall be—

(A) in case such member is a member of the Council of States, the Chairman of the Council; and

(B) in case such member is a member of the House of the People, the Speaker of the House;

(d) “Central Vigilance Commission” means the Central Vigilance Commission constituted under sub-section (1) of section 3 of the Central Vigilance Commission Act, 2003; 45 of 2003.

(e) “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 Corruption Act, 49 of 1988. 1988;

(f) “Delhi Special Police Establishment” means the Delhi Special Police Establishment constituted under sub-section (1) of section 2 of the Delhi Special Police Establishment Act, 1946; 25 of 1946.

(g) “investigation” means an investigation as defined under clause (h) of section 2 of the Code of Criminal Procedure, 1973; 2 of 1974. Sec I The Gazette of India extraordinary Part II 77 (h) “Judicial Member” means a Judicial Member of the Lokpal; (i) “Lokpal” means the body established under section 3; (j) “Member” means a Member of the Lokpal; (k) “Minister” means a Union Minister but does not include the Prime Minister; (l) “notification” means notification published in the Official Gazette and the expression “notify” shall be construed accordingly; (m) “preliminary inquiry” means an inquiry conducted under this Act; (n) “prescribed” means prescribed by rules made under this Act; (o) “public servant” means a person referred to in clauses (a) to (h) of sub-section (1) of section 14 but does not include a public servant in respect of whom the jurisdiction is exercisable 45 of 1950. by any court or other authority under the Army Act, 1950, the 46 of 1950. Air Force Act, 1950, the Navy Act, 1957 and the Coast Guard 62 of 1957. Act, 1978 or the procedure is applicable to such public servant 30 of 1978. under those Acts; (p) “regulations” means regulations made under this Act; (q) “rules” means rules made under this Act; (r) “Schedule” means a Schedule appended to this Act; (s) “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) The words and expressions used herein and not defined in 49 of 1988. this 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 shall be construed to have a reference to the corresponding Act or provision thereof in force in such area. CHAPTER II

ESTABLISHMENT OF LOKPAL

3. (1) On and from the commencement of this Act, there shall Establishment of be established, for the purpose of this Act, a body to be called the Lokpal. “Lokpal”. Sec I The Gazette of India extraordinary Part II 78 (2) The Lokpal shall consist of—

(a) a Chairperson, who is or has been a Chief Justice of India or is or has been a Judge of the Supreme Court or an eminent person who fulfils the eligibility specified in clause (b) of sub-section (3); and

(b) such number of Members, not exceeding eight out of whom fifty per cent. shall be Judicial Members:

Provided that not less than fifty per cent. of the Members of the Lokpal shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.

(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 is or has been a Chief Justice of a High Court;

(b) as a Member other than a Judicial Member, if he is a person of impeccable integrity and outstanding ability 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—

(i) a member of Parliament or a member of the Legislature of any State or Union territory; (ii) a person convicted of any offence involving moral turptitude; (iii) a person of less than forty-five years of age, on the date of assuming office as the Chairperson or Member, as the case may be; (iv) a member of any Panchayat or Municipality; (v) a person who has been removed or dismissed from the service of the Union or a State,

and shall not hold any office of trust or profit (other than his office as the Chairperson or a Member) or be affiliated 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 Sec I The Gazette of India extraordinary Part II 79 (b) he is carrying on any business, sever his connection with the conduct and management of such business; or

4. (1) The Chairperson and Members shall be appointed by the Appointment of President after obtaining the recommendations of a Selection Chairperson and Members on Committee consisting of— recommendations of Selection (a) the Prime Minister—Chairperson; Committee. (b) the Speaker of the House of the People—Member;

(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him—Member;

(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the President—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 shall 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 at least seven 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 the selection of the Chairperson and Members of the Lokpal:

Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee.

(4) The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal. Sec I The Gazette of India extraordinary Part II 80 (5) The term of the Search Committee referred to in sub-section (3), the fees and allowances payable to its members and the manner of selection of panel of names shall be such as may be prescribed.

Filling of vacancies 5. The President shall take or cause to be taken all necessary of Chairperson or steps for the appointment of a new Chairperson and Members at Members. least three months before the expiry of the term of the Chairperson or Member, as the case may be, in accordance with the procedure laid down in this Act.

Term of office of 6. The Chairperson and every Member shall, on the Chairperson and recommendations of the Selection Committee, be appointed by the Members. President by warrant under his hand and seal and hold office as such for a term of 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 37.

Salary, allowances 7. The salary, allowances and other conditions of service of— and other condi- (i) the Chairperson shall be the same as those of the Chief tions of service of Chairperson and Justice of India; Members. (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. Sec I The Gazette of India extraordinary Part II 81 8. (1) On ceasing to hold office, the Chairperson and every Restriction on employment by Member shall be ineligible for— Chairperson and (i) reappointment as the Chairperson or a Member of the Members after ceasing to hold 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 relinquishing the post.

(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.

Explanation.—For the purposes of this section, it is hereby clarified that where the Member is appointed as the Chairperson, his term of office shall not be more than five years in aggregate as the Member and the Chairperson.

9. (1) In the event of occurrence of any vacancy in the office Member to act as of the Chairperson by reason of his death, resignation or otherwise, Chairperson or to discharge his the President may, by notification, authorise the senior-most Member functions in certain to act as the Chairperson until the appointment of a new Chairperson circumstances. to fill such vacancy.

(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.

10. (1) There shall be a Secretary to the Lokpal in the rank of Secretary, other Secretary to Government of India, who shall be appointed by the officers and staff of Lokpal. Chairperson from a panel of names sent by the Central Government.

(2) There shall be a Director of Inquiry and a Director of Prosecution not below the rank of Additional Secretary to the Government of India or equivalent, who shall be appointed by the Chairperson from a panel of names sent by the Central Government. Sec I The Gazette of India extraordinary Part II 82 (3) The appointment of officers and other staff of the Lokpal shall be made by the Chairperson or 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.

(4) 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

INQUIRY WING

Inquiry Wing. 11. (1) Notwithstanding anything contained in any law for the time being in force, the Lokpal shall constitute an Inquiry Wing headed by the Director of Inquiry for the purpose of conducting preliminary inquiry into 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 Inquiry Wing is constituted by the Lokpal, the Central Government shall make available such number of officers and other staff from its Ministries or Departments, as may be required by the Lokpal, for conducting preliminary inquiries under this Act.

(2) For the purposes of assisting the Lokpal in conducting a preliminary inquiry under this Act, the officers of the Inquiry Wing not below the rank of the Under Secretary to the Government of India, shall have the same powers as are conferred upon the Inquiry Wing of the Lokpal under section 27.

CHAPTER IV

PROSECUTION WING

Prosecution Wing. 12. (1) The Lokpal shall, by notification, constitute a Prosecution Wing headed by the Director of Prosecution for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under this Act: Sec I The Gazette of India extraordinary Part II 83 Provided that till such time the Prosecution Wing is constituted by the Lokpal, the Central Government shall make available such number of officers and other staff from its Ministries or Departments, as may be required by the Lokpal, for conducting prosecution under this Act.

(2) The Director of Prosecution shall, after having been so directed by the Lokpal, file a case in accordance with the findings of investigation report, 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 of Corruption Act, 49 of 1988. 1988.

(3) The case under sub-section (2), shall be deemed to be a report, filed on completion of investigation, referred to in section 2 of 1974. 173 of the Code of Criminal Procedure, 1973.

CHAPTER V

EXPENSES OF LOKPAL TO BE CHARGED ON CONSOLIDATED FUND OF INDIA

13. The administrative expenses of the Lokpal, including all Expenses of salaries, 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 Fund Lokpal, shall be charged upon the Consolidated Fund of India and of India. any fees or other moneys taken by the Lokpal shall form part of that Fund.

CHAPTER VI

JURISDICTION IN RESPECT OF INQUIRY

14. (1) Subject to the other provisions of this Act, the Lokpal Jurisdiction of shall inquire or cause an inquiry to be conducted into any matter Lokpal to include Prime Minister, involved in, or arising from, or connected with, any allegation of Ministers, corruption made in a complaint in respect of the following, namely:— Members of Parliament, (a) any person who is or has been a Prime Minister: Groups A, B, C and D Officers and Provided that the Lokpal shall not inquire into any matter Officials of Central involved in, or arising from, or connected with, any such Government. allegation of corruption against the Prime Minister,— (i) in so far as it relates to international relations, external and internal security, public order, atomic energy and space; (ii) unless a full bench of the Lokpal consisting of its Chairperson and all Members considers the initiation of inquiry and at least two-thirds of its Members approves of such inquiry: Sec I The Gazette of India extraordinary Part II 84 Provided further that any such inquiry shall be held in camera and if the Lokpal comes to the conclusion that the complaint deserves to be dismissed, the records of the inquiry shall not be published or made available to anyone;

(b) any person who is or has been a Minister of the Union;

(d) any Group ‘A’ or Group ‘B’ 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 Corruption Act, 1988 when serving or who has served, in 49 of 1988. connection with the affairs of the Union;

(e) any Group ‘C’ or Group ‘D’ official or equivalent, from amongst the public servants defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption Act, 1988 when serving or who has served in connection with the affairs of the Union subject to the provision of sub-section (1) 49 of 1988. of section 20;

(f) any person who is or has been a chairperson or member or officer or employee 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 clause (e) 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 controlled by it, the Lokpal and the officers of its Inquiry 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;

(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), by whatever name called, wholly or partly financed by the Government and the annual income of Sec I The Gazette of India extraordinary Part II 85 which exceeds such amount as the Central Government may, by notification, specify;

(h) 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 any foreign source under the Foreign Contribution (Regulation) Act, 42 of 2010. 2010 in excess of ten lakh rupees in a year or such higher amount as the Central Government may, by notification, specify.

Explanation.—For the purpose of clauses (f) and (g), it is hereby clarified that any entity or institution, by whatever name called, corporate, society, trust, association of persons, partnership, sole proprietorship, limited liability partnership (whether registered under any law for the time being in force or not), shall be the entities covered in those clauses:

Provided that any person referred to in this clause shall be deemed to be a public servant under clause (c) of section 2 of 49 of 1988. the Prevention of Corruption Act, 1988 and the provisions of that Act shall apply accordingly.

(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 involved in the act of abetting, bribe giving or bribe taking or conspiracy relating to any allegation of corruption under the 49 of 1988. Prevention of Corruption Act, 1988 against a person referred to in sub-section (1):

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 60 of 1952. the Lokpal under this Act, shall be referred for inquiry under the 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. Sec I The Gazette of India extraordinary Part II 86 Matters pending 15. In case any matter or proceeding related to allegation of before any court or committee or corruption under the Prevention of Corruption Act, 1988 has been 49 of 1988. authority for pending before any court or committee of either House of Parliament inquiry not to be or before any other authority prior to commencement of this Act or affected. prior to commencement of any inquiry after the commencement of this Act, such matter or proceeding shall be continued before such court, committee or authority.

Constitution 16. (1) Subject to the provisions of this Act,— of 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 17. Where benches are constituted, the Chairperson may, from business amongst time to time, by notification, make provisions as to the distribution benches. 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 18. On an application for transfer made by the complainant or Chairperson to the public servant, the Chairperson, after giving an opportunity of transfer cases. Sec I The Gazette of India extraordinary Part II 87 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.

19. If the Members of a bench consisting of an even number of Decision to be by Members differ in opinion on any point, they shall state the point or majority. 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.

CHAPTER VII

PROCEDURE IN RESPECT OF PRELIMINARY INQUIRY AND INVESTIGATION

20. (1) The Lokpal on receipt of a complaint, if it decides to Provisions relating proceed further, may order— to complaints and preliminary (a) preliminary inquiry against any public servant by its inquiry and Inquiry Wing or any agency (including the Delhi Special Police investigation. Establishment) to ascertain whether there exists a prima facie case for proceeding in the matter; or (b) investigation by any agency (including the Delhi Special Police Establishment) when there exists a prima facie case: Provided that the Lokpal shall if it has decided to proceed with the preliminary inquiry, by a general or special order, refer the complaints or a category of complaints or a complaint received by it in respect of public servants belonging to Group A or Group B or Group C or Group D to the Central Vigilance Commission constituted under sub-section (1) of section 3 of the Central Vigilance 45 of 2003. Commission Act, 2003: Provided further that the Central Vigilance Commission in respect of complaints referred to it under the first proviso, after making preliminary inquiry in respect of public servants belonging to Group A and Group B, shall submit its report to the Lokpal in accordance with the provisions contained in sub-sections (2) and (4) and in case of public servants belonging to Group C and Group D, the Commission shall proceed in accordance with the provisions of the 45 of 2003. Central Vigilance Commission Act, 2003: Provided also that before ordering an investigation under clause (b), the Lokpal shall call for the explanation of the public servant so as to determine whether there exists a prima facie case for investigation: Sec I The Gazette of India extraordinary Part II 88 Provided also that the seeking of explanation from the public servant before an investigation shall not interfere with the search and seizure, if any, required to be undertaken by any agency (including the Delhi Special Police Establishment) under this Act.

(2) During the preliminary inquiry referred to in sub-section (1), the Inquiry Wing or any agency (including the Delhi Special Police Establishment) shall conduct a preliminary inquiry and on the basis of material, information and documents collected seek the comments on the allegations made in the complaint from the public servant and the competent authority and after obtaining the comments of the concerned public servant and the competent authority, submit, within sixty days from the date of receipt of the reference, a report to the Lokpal.

(3) A bench consisting of not less than three Members of the Lokpal shall consider every report received under sub-section (2) from the Inquiry Wing or any agency (including the Delhi Special Police Establishment), and after giving an opportunity of being heard to the public servant, decide whether there exists a prima facie case, and proceed with one or more of the following actions, namely:—

(a) investigation by any agency or the Delhi Special Police Establishment, as the case may be;

(b) initiation of the departmental proceedings or any other appropriate action against the concerned public servants by the competent authority;

(4) Every preliminary inquiry referred to in sub-section (1) shall ordinarily be completed within a period of ninety days and for reasons to be recorded in writing, within a further period of ninety days from the date of receipt of the complaint.

(5) In case the Lokpal decides to proceed to investigate into the complaint, it shall direct any agency (including the Delhi Special Police Establishment) to carry out the investigation as expeditiously as possible and complete the investigation within a period of six months from the date of its order:

Provided that the Lokpal may extend the said period by a further period not exceeding of six months at a time for the reasons to be recorded in writing. Sec I The Gazette of India extraordinary Part II 89 (6) Notwithstanding anything contained in section 173 of the 2 of 1974. Code of Criminal Procedure, 1973, any agency (including the Delhi Special Police Establishment) shall, in respect of cases referred to it by the Lokpal, submit the investigation report under that section to the court having jurisdiction and forward a copy thereof to the Lokpal.

(7) A bench consisting of not less than three Members of the Lokpal shall consider every report received by it under sub-section (6) from any agency (including the Delhi Special Police Establishment) and after obtaining the comments of the competent authority and the public servant may—

(a) grant sanction to its Prosecution Wing or investigating agency to file chargesheet or direct the closure of report before the Special Court against the public servant;

(b) direct the competent authority to initiate the departmental proceedings or any other appropriate action against the concerned public servant.

(8) The Lokpal may, after taking a decision under sub-section (7) on the filing of the charge-sheet, direct its Prosecution Wing or any investigating agency (including the Delhi Special Police Establishment) to initiate prosecution in the Special Court in respect of the cases investigated by the agency.

(9) The Lokpal may, during the preliminary inquiry or the investigation, as the case may be, pass appropriate orders for the safe custody of the documents relevant to the preliminary inquiry or, as the case may be, investigation as it deems fit.

(10) 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.

(11) The Lokpal may retain the original records and evidences which are likely to be required in the process of preliminary inquiry or investigation or conduct of a case by it or by the Special Court.

(12) Save as otherwise provided, the manner and procedure of conducting a preliminary inquiry or investigation (including such material and documents to be made available to the public servant) under this Act, shall be such as may be specified by regulations.

21. If, at any stage of the proceeding, the Lokpal— Persons likely to be prejudicially (a) considers it necessary to inquire into the conduct of any affected to be person other than the accused; or heard. Sec I The Gazette of India extraordinary Part II 90 (b) is of opinion that the reputation of any person other than an accused is likely to be prejudicially affected by the preliminary inquiry,

the Lokpal shall give to that person a reasonable opportunity of being heard in the preliminary inquiry and to produce evidence in his defence, consistent with the principles of natural justice.

Lokpal may 22. Subject to the provisions of this Act, for the purpose of any require any public preliminary inquiry or investigation, the Lokpal or the investigating servant or any other person to agency, as the case may be, may require any public servant or any furnish other person who, in its opinion, is able to furnish information or information, etc. produce documents relevant to such preliminary inquiry or investigation, to furnish any such information or produce any such document.

Power of Lokpal 23. (1) Notwithstanding anything contained in section 197 of to grant sanction the Code of Criminal Procedure, 1973 or section 6A of the Delhi for initiating prosecution. Special Police Establishment Act, 1946 or section 19 of the Prevention 2 of 1974. of Corruption Act, 1988, the Lokpal shall have the power to grant 25 of 1946. sanction for prosecution under clause (a) of sub-section (7) of 49 of 1988. section 20.

(2) No prosecution under sub-section (1) shall be initiated against any public servant accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such offence except with the previous sanction of the Lokpal.

(3) Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding 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.

Action on 24. Where, after the conclusion of the investigation, the findings investigation of the Lokpal disclose the commission of an offence under the against public servant being Prevention of Corruption Act, 1988 by a public servant referred to 49 of 1988. Prime Minister, in clause (a) or clause (b) or clause (c) of sub-section (1) of section Ministers or 14, the Lokpal may file a case in the Special Court and shall send a Members of Parliament. copy of the report together with its findings to the competent authority. Sec I The Gazette of India extraordinary Part II 91 CHAPTER VIII

POWERS OF LOKPAL

25. (1) The Lokpal shall, notwithstanding anything contained in Supervisory powers of Lokpal. 25 of 1946. section 4 of the Delhi Special Police Establishment Act, 1946 and 45 of 2003. section 8 of the Central Vigilance Commission Act, 2003, have the powers of superintendence over, and to give direction to the Delhi Special Police Establishment in respect of the matters referred by the Lokpal for preliminary inquiry or investigation to the Delhi Special Police Establishment under this Act:

Provided that while exercising powers of superintendence or giving direction under this sub-section, the Lokpal shall not exercise powers in such a manner so as to require any agency (including the Delhi Special Police Establishment) to whom the investigation has been given, to investigate and dispose of any case in a particular manner. (2) The Central Vigilance Commission shall send a statement, at such interval as the Lokpal may direct, to the Lokpal in respect of action taken on complaints referred to it under the second proviso to sub-section (1) of section 20 and on receipt of such statement, the Lokpal may issue guidelines for effective and expeditious disposal of such cases.

(3) Any officer of the Delhi Special Police Establishment investigating a case referred to it by the Lokpal, shall not be transferred without the approval of the Lokpal.

(4) The Delhi Special Police Establishment may, with the consent of the Lokpal, appoint a panel of Advocates, other than the Government Advocates, for conducting the cases referred to it by the Lokpal.

(5) The Central Government may from time to time make available such funds as may be required by the Director of the Delhi Special Police Establishment for conducting effective investigation into the matters referred to it by the Lokpal and the Director shall be responsible for the expenditure incurred in conducting such investigation.

26. (1) If the Lokpal has reason to believe that any document Search and which, in its opinion, shall be useful for, or relevant to, any seizure. investigation under this Act, are secreted in any place, it may authorise any agency (including the Delhi Special Police Establishment) to whom the investigation has been given to search for and to seize such documents. 91 Sec I The Gazette of India extraordinary Part II 92 (2) If the Lokpal is satisfied that any document seized under sub-section (1) may be used as evidence for the purpose of any investigation under this Act and that it shall 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 authorised officer to retain such document till the completion of such investigation:

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.

Lokpal to have 27. (1) Subject to the provisions of this section, for the purpose powers of civil of any preliminary inquiry, the Inquiry Wing of the Lokpal shall court in certain cases. have all the powers of a civil court, under the Code of Civil Procedure, 1908, while trying a suit in respect of the following 5 of 1908. 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.

Power of Lokpal to 28. (1) The Lokpal may, for the purpose of conducting any utilise services of preliminary inquiry or investigation, utilise the services of any officer officers of Central or State or organisation or investigating agency of the Central Government Government. or any State Government, as the case may be. (2) For the purpose of preliminary inquiry or investigating into any matter pertaining to such inquiry or investigation, any officer or organisation or agency whose services are utilised under sub- section (1) may, subject to the superintendence and direction of the Lokpal,— Sec I The Gazette of India extraordinary Part II 93 (a) summon and enforce the attendance of any person and examine him;

(b) require the discovery and production of any document; and

(3) The officer or organisation or agency whose services are utilised under sub-section (2) shall inquire or, as the case may be, investigate into any matter pertaining to the preliminary inquiry or investigation and submit a report thereon to the Lokpal within such period as may be specified by it in this behalf.

29. (1) Where the Lokpal or any officer authorised by it in this Provisional attachment of behalf, has reason to believe, the reason for such belief to be recorded assets. in writing, on the basis of material in 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 the authorised 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 and the officer 43 of 1961. shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule.

(2) The Lokpal or the officer authorised in this behalf 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 Sec I The Gazette of India extraordinary Part II 94 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 30. (1) The Lokpal, when it provisionally attaches any property attachment of under sub-section (1) of section 29 shall, within a period of thirty assets. 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. (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 the Prevention of Corruption Act, 1988 shall be confiscated and vest in 49 of 1988. 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 Institutions Act, 1993. 51 of 1993.

Confiscation of 31. (1) Without prejudice to the provisions of sections 29 and assets, proceeds, receipts and 30, where the Special Court, on the basis of prima facie evidence, benefits arisen or has reason to believe or is satisfied that the assets, proceeds, receipts procured by means of corruption in and benefits, by whatever name called, have arisen or procured by special means of corruption by the public servant, it may authorise the circumstances. Sec I The Gazette of India extraordinary Part II 95 confiscation of such assets, proceeds, receipts and benefits till his acquittal.

(2) Where an order of confiscation made under sub-section (1) is modified or annulled by the High Court or where the public servant is acquitted by the Special Court, the assets, proceeds, receipts and benefits, confiscated under sub-section (1) shall be returned to such public servant, and in case it is not possible for any reason to return the assets, proceeds, receipts and benefits, such public servant shall be paid the price thereof including the money so confiscated with interest at the rate of five per cent. per annum thereon calculated from the date of confiscation.

32. (1) Where the Lokpal, while making a preliminary inquiry Power of Lokpal into allegations of corruption, is prima facie satisfied, on the basis to recommend transfer or of evidence available,— suspension of public servant (i) that the continuance of the public servant referred to in connected with clause (d) or clause (e) or clause (f) of sub-section (1) of section allegation of 14 in his post while conducting the preliminary inquiry is likely corruption. to affect such preliminary inquiry adversely; or (ii) such public servant 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 to do so for administrative reasons.

33. The Lokpal may, in the discharge of its functions under this Power of Lokpal Act, issue appropriate directions to a public servant entrusted with to give directions to prevent the preparation or custody of any document or record— destruction of records during (a) to protect such document or record from destruction preliminary 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.

34. The Lokpal may, by general or special order in writing, and Power to subject to such conditions and limitations as may be specified delegate. Sec I The Gazette of India extraordinary Part II 96 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 35. (1) The Central Government shall constitute such number be constituted by of Special Courts, as recommended by the Lokpal, to hear and decide Central Government. the cases arising out of the Prevention of Corruption Act, 1988 or 49 of 1988. under this Act.

(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 36. (1) Notwithstanding anything contained in this Act or the to a contracting State in certain Code of Criminal Procedure, 1973 if, in the course of an preliminary 2 of 1974. cases. inquiry or investigation into an offence or other proceeding under this Act, an application is made to a Special Court by an officer of the Lokpal authorised in this behalf that any evidence is required in connection with the preliminary 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 preliminary 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 request shall be transmitted in such manner as the Central Government may prescribe in this behalf. Sec I The Gazette of India extraordinary Part II 97 (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 preliminary inquiry or investigation.

CHAPTER X

COMPLAINTS AGAINST CHAIRPERSON, MEMBERS AND OFFICIALS OF LOKPAL

37. (1) The Lokpal shall not inquire into any complaint made Removal and against the Chairperson or any Member. suspension of Chairperson and (2) Subject to the provisions of sub-section (4), the Chairperson Members of Lokpal. or any Member shall be removed from his office by order of the President on grounds of misbehaviour after the Supreme Court, on a reference being made to it by the President on a petition signed by at least one hundred Members of Parliament has, on an inquiry held in 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.

(3) 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 (2), on receipt of the recommendation or interim order made by the Supreme Court in this regard until the President has passed orders on receipt of the final report of the Supreme Court on such reference.

(4) Notwithstanding anything contained in sub-section (2), 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

(5) 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 (2), be deemed to be guilty of misbehaviour. Sec I The Gazette of India extraordinary Part II 98 Complaints against 38. (1) Every complaint of allegation or wrongdoing made against officials of Lokpal. any officer or employee or agency (including the Delhi Special Police Establishment), under or associated with the Lokpal for an offence punishable under the Prevention of Corruption Act, 1988 shall be 49 of 1988. 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 it is prima facie satisfied on the basis of evidence available, that— (a) continuance of such officer or employee of the Lokpal or agency engaged or associated in his post 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 under the Prevention of Corruption Act, 1988 or of any wrongdoing, 49 of 1988. 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, employee, 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, such officer, employee, agency engaged or associated, a reasonable opportunity of being heard.

CHAPTER XI

ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT

Assessment 39. If any public servant is convicted of an offence under the of loss and recovery Prevention of Corruption Act, 1988 by the Special Court, thereof by notwithstanding and without prejudice to any law for the time being 49 of 1988. Special Court. in force, it may make an assessment of loss, if any, caused to the Sec I The Gazette of India extraordinary Part II 99 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

40. The Lokpal shall prepare, in such form and at such time in Budget. 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.

41. The Central Government may, after due appropriation made Grants by Central by Parliament by law in this behalf, make to the Lokpal grants of Government. 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.

42. (1) The Lokpal shall maintain proper accounts and other Annual statement relevant records and prepare an annual statement of accounts in of accounts. such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India. (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. Sec I The Gazette of India extraordinary Part II 100 (4) The accounts of the Lokpal, as certified by the 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.

Furnishing of 43. The Lokpal shall furnish to the Central Government, at such returns, etc., to Central time and in such form and manner as may be prescribed or as the Government. Central Government may request, such returns and 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.

CHAPTER XIII

DECLARATION OF ASSETS

Declaration of 44. (1) Every public servant shall make a declaration of his assets. assets and liabilities in the manner as provided by or under this Act.

(2) A 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.

(3) A 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.

(6) The competent authority in respect of each Ministry or Department shall ensure that all such statements are published on Sec I The Gazette of India extraordinary Part II 101 the website of such Ministry or Department by 31st August of that year.

45. If any public servant wilfully or for reasons which are not Presumption as to justifiable, fails to— acquisition of assets by corrupt (a) to declare his assets; or means in certain cases. (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

46. (1) Notwithstanding anything contained in this Act, whoever Prosecution for makes any false and frivolous or vexatious complaint under this Act false complaint and payment of shall, on conviction, be punished with imprisonment for a term which compensation, may extend to one year and with fine which may extend to one lakh etc., to public rupees. servant. (2) No Court, except a Special Court, shall take cognizance of an offence under subsection (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 or by an officer authorised by the Lokpal. (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 Sec I The Gazette of India extraordinary Part II 102 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.

(6) Nothing contained in this section shall apply in case of complaints made in good faith.

Explanation.—For the purpose of this sub-section, the expression “good faith” means any act believed or done by a person in good faith with due care, caution and sense of responsibility or by mistake of fact believing himself justified by law under section 79 of the Indian Penal Code. 45 of 1860.

False complaint 47. (1) Where any offence under sub-section (1) of section 46 made by society has been committed by any society or association of persons or or association of trust (whether registered or not), every person who, at the time the persons or trust. offence was 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

Reports of 48. It shall be the duty of the Lokpal to present annually to the Lokpal. President a report on the work done by the Lokpal and on receipt of such report the President shall cause a copy thereof together with a memorandum explaining, in respect of the cases, if any, where the Sec I The Gazette of India extraordinary Part II 103 advice of the Lokpal was not accepted, the reason for such non- acceptance to be laid before each House of Parliament.

49. The Lokpal shall function as the final appellate authority in Lokpal to function respect of appeals arising out of any other law for the time being in as appellate authority for force providing for delivery of public services and redressal of public appeals arising out grievances by any public authority in cases where the decision of any other law contains findings of corruption under the Prevention of Corruption for the time being in force. 49 of 1988. Act, 1988.

50. No suit, prosecution or other legal proceedings under this Protection of action taken in Act shall lie against any public servant, in respect of anything which good faith by any is done in good faith or intended to be done in the discharge of his public servant. official functions or in exercise of his powers.

51. No suit, prosecution or other legal proceedings shall lie against Protection of the Lokpal or against any officer, employee, agency or any person, action taken in good faith by in respect of anything which is done in good faith or intended to others. be done under this Act or the rules or the regulations made thereunder.

52. The Chairperson, Members, officers and other employees Members, officers of the Lokpal shall be deemed, when acting or purporting to act in and employees of Lokpal to be pursuance of any of the provisions of this Act, to be public servants public servants. 45 of 1860. within the meaning of section 21 of the Indian Penal Code.

53. The Lokpal shall not inquire or investigate into any complaint, Limitation to if the complaint is made after the expiry of a period of seven years apply in certain cases. from the date on which the offence mentioned in such complaint is alleged to have been committed. 54. No civil court shall have jurisdiction in respect of any matter Bar of which the Lokpal is empowered by or under this Act to determine. Jurisdiction.

55. The Lokpal shall provide to every person against whom a Legal complaint has been made, before it, under this Act, legal assistance assistance. to defend his case before the Lokpal, if such assistance is requested for.

56. The provisions of this Act shall have effect notwithstanding Act to have anything inconsistent therewith contained in any enactment other overriding effect. than this Act or in any instrument having effect by virtue of any enactment other than this Act. 57. The provisions of this Act shall be in addition to, and not in Provisions of this Act to be in derogation of, any other law for the time being in force. addition of other laws. 58. The enactments specified in the Schedule shall be amended Amendment of in the manner specified therein. certain enactments. Sec I The Gazette of India extraordinary Part II 104 Power to make 59. (1) The Central Government may, by notification in the rules. Official Gazette, make 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 (e) 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 post or posts in respect of which the appointment shall be made after consultation with the Union Public Service Commission under the proviso to subsection (3) of section 10; (d) other matters for which the Lokpal shall have the powers of a civil court under clause (vi) of sub-section (1) of section 27; (e) the manner of sending the order of attachment along with the material to the Special Court under sub-section (2) of section 29; (f) the manner of transmitting the letter of request under sub-section (2) of section 36; (g) 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 40; (h) the form for maintaining the accounts and other relevant records and the form of annual statement of accounts under sub-section (1) of section 42; (i) the form and manner and the time for preparing the returns and statements along with particulars under section 43; (j) the form and the time for preparing an annual return giving a summary of its activities during the previous year under sub-section (5) of section 44; (k) the form of annual return to be filed by a public servant under sub-section (5) of section 44; (l) 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 45; Sec I The Gazette of India extraordinary Part II 105 (m) any other matter which is to be or may be prescribed.

60. (1) Subject to the provisions of this Act and the rules made Power of Lokpal thereunder, the Lokpal may, by notification in the Official Gazette, to make regulations. make regulations to carry out the provisions of this Act.

(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, require the approval of the President under sub-section (4) of section 10;

(b) the place of sittings of benches of the Lokpal under clause (f) of sub-section (1) of section 16;

(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 (10) of section 20;

(d) the manner and procedure of conducting preliminary inquiry or investigation under sub-section (11) of section 20;

(e) any other matter which is required to be, or may be, specified under this Act.

61. Every rule and regulation made under this Act shall be laid, Laying of rules and as soon as may be after it is made, before each House of Parliament, regulations. 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.

62. (1) If any difficulty arises in giving effect to the provisions Power to remove of this Act, the Central Government may, by order, published in the difficulties. Official Gazette, make such provisions not inconsistent with the provisions of this Act, as appear to be necessary for removing the difficulty: Sec I The Gazette of India extraordinary Part II 106 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.

PART III

ESTABLISHMENT OF THE LOKAYUKTA

Establishment of 63. Every State shall establish a body to be known as the Lokayukta. Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act. Sec I The Gazette of India extraordinary Part II 107 THE SCHEDULE

[See section 58]

AMENDMENT TO CERTAIN ENACTMENTS

PART I

AMENDMENT TO THE COMMISSIONS OF INQUIRY ACT, 1952

(60 OF 1952)

In section 3, in sub-section (1), for the words “The appropriate Amendment of Government may”, the words and figures “Save as otherwise section 3. provided in the Lokpal and Lokayuktas Act, 2013, the appropriate Government may” shall be substituted.

PART II

AMENDMENTS TO THE DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946

(25 OF 1946)

1. In section 4A,— Amendment of section 4A. (i) for sub-section (1), the following sub-section shall be substituted, namely:—

“(1) The Central Government shall appoint the Director on the recommendation of the Committee consisting of— (a) the Prime Minister — Chairperson;

(b) the Leader of Opposition in the House of the People — Member;

(ii) sub-section (2) shall be omitted.

2. After section 4B, the following section shall be inserted, Insertion of new namely:— section 4BA.

“4BA. (1) There shall be a Directorate of Prosecution headed Director of by a Director who shall be an officer not below the rank of Prosecution. Joint Secretary to the Government of India, for conducting prosecution of cases under this Act.

(2) The Director of Prosecution shall function under the overall supervision and control of the Director.

(3) The Central Government shall appoint the Director of Prosecution on the recommendation of the Central Vigilance Commission. Sec I The Gazette of India extraordinary Part II 108 (4) The Director of Prosecution shall notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office.”.

Amendment of 3. In section 4C, for sub-section (1), the following sub-section section 4C. shall be substituted, namely:—

“(1) The Central Government shall appoint officers to the posts of the level of Superintendent of Police and above except Director, and also recommend the extension or curtailment of the tenure of such officers in the Delhi Special Police Establishment, on the recommendation of a committee consisting of:—

(a) the Central Vigilance Commissioner — Chairperson;

(b) Vigilance Commissioners — Members;

(d) Secretary to the Government of India in charge of the Department of Personnel — Member:

Provided that the Committee shall consult the Director before submitting its recommendation to the Central Government.”.

PART III

AMENDMENTS TO THE PREVENTION OF CORRUPTION ACT, 1988

(49 OF 1988)

Amendment 1. In sections 7, 8, 9 and section 12,— of sections 7, (a) for the words “six months”, the words “three years” 8, 9 and 12. shall respectively be substituted;

(b) for the words “five years”, the words “seven years” shall respectively be substituted.

Amendment of 2. In section 13, in sub-section (2),— section 13. (a) for the words “one year”, the words “four years” shall be substituted;

(b) for the words “seven years”, the words “ten years” shall be substituted. Sec I The Gazette of India extraordinary Part II 109 3. In section 14,— Amendment of section 14. (a) for the words “two years”, the words “five years” shall be substituted;

(b) for the words “seven years”, the words “ten years” shall be substituted.

4. In section 15, for the words “which may extend to three Amendment of years”, the words “which shall not be less than two years but which section 15. may extend to five years” shall be substituted.

5. In section 19, after the words “except with the previous Amendment sanction”, the words “save as otherwise provided in the Lokpal and of section 19. Lokayuktas Act, 2013” shall be inserted.

PART IV

AMENDMENT TO THE CODE OF CRIMINAL PROCEDURE, 1973

(2 OF 1974)

In section 197, after the words “except with the previous Amendment sanction”, the words “save as otherwise provided in the Lokpal and of section Lokayuktas Act, 2013” shall be inserted. 197.

PART V

AMENDMENTS TO THE CENTRAL VIGILANCE COMMISSION ACT, 2003

(45 OF 2003)

1. In section 2, after clause (d), the following clause shall be Amendment inserted, namely:— of section 2. ‘(da) “Lokpal” means the Lokpal established under sub- section (1) of section 3 of the Lokpal and Lokayuktas Act, 2013;’.

2. In section 8, in sub-section (2), after clause (b), the following Amendment clause shall be inserted, namely:— of section 8. “(c) on a reference made by the Lokpal under proviso to sub-section (1) of section 20 of the Lokpal and Lokayuktas Act, 2013, the persons referred to in clause (d) of sub-section (1) shall also include— (i) members of Group B, Group C and Group D services of the Central Government; (ii) such level of officials or staff of the corporations established by or under any Central Act, Government companies, societies and other local authorities, owned or Sec I The Gazette of India extraordinary Part II 110 controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf:

Provided that till such time a notification is issued under this clause, all officials or staff of the said corporations, companies, societies and local authorities shall be deemed to be the persons referred in clause (d) of sub-section (1).”.

Insertion of new 3. After section 8, the following sections shall be inserted, sections 8A and namely:— 8B. Action on “8A. (1) Where, after the conclusion of the preliminary preliminary inquiry relating to corruption of public servants belonging to inquiry in relation to public servants. Group C and Group D officials of the Central Government, the findings of the Commission disclose, after giving an opportunity of being heard to the public servant, a prima facie violation of conduct rules relating to corruption under the Prevention of Corruption Act, 1988 by such public servant, the Commission 49 of 1988. shall proceed with one or more of the following actions, namely:— (a) cause an investigation by any agency or the Delhi Special Police Establishment, as the case may be; (b) initiation of the disciplinary proceedings or any other appropriate action against the concerned public servant by the competent authority; (c) closure of the proceedings against the public servant and to proceed against the complainant under section 46 of the Lokpal and Lokayuktas Act, 2013.

(2) Every preliminary inquiry referred to in sub-section (1) shall ordinarily be completed within a period of ninety days and for reasons to be recorded in writing, within a further period of ninety days from the date of receipt of the complaint.

Action on 8B. (1) In case the Commission decides to proceed to investigate investigation in into the complaint under clause (a) of sub-section (1) of section relation to public servants. 8A, it shall direct any agency (including the Delhi Special Police Establishment) to carry out the investigation as expeditiously as possible and complete the investigation within a period of six months from the date of its order and submit the investigation report containing its findings to the Commission: Provided that the Commission may extend the said period by a further period of six months for the reasons to be recorded in writing. Sec I The Gazette of India extraordinary Part II 111 (2) Notwithstanding anything contained in section 173 of the 2 of 1974. Code of Criminal Procedure, 1973, any agency (including the Delhi Special Police Establishment) shall, in respect of cases referred to it by the Commission, submit the investigation report to the Commission.

(3) The Commission shall consider every report received by it under sub-section (2) from any agency (including the Delhi Special Police Establishment) and may decide as to—

(a) file charge-sheet or closure report before the Special Court against the public servant;

(b) initiate the departmental proceedings or any other appropriate action against the concerned public servant by the competent authority.”.

4. After section 11, the following section shall be inserted, Insertion of new namely:— section 11A.

“11A. (1) There shall be a Director of Inquiry, not below Director of Inquiry the rank of Joint Secretary to the Government of India, who for making preliminary shall be appointed by the Central Government for conducting inquiry. preliminary inquiries referred to the Commission by the Lokpal.

(2) The Central Government shall provide the Director of Inquiry such officers and employees as may be required for the discharge of his functions under this Act.”.

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P.K. MALHOTRA, Secy. to the Govt. of India.

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CORRIGENDA

In the Securities Laws (Amendment) Second Ordinance, 2013 (9 of 2013), as published in a Gazette of India, Extraordinary, Part II, Section 1, Issue No. 32, dated the 16th September, 2013,—

1. At page 3, line 19, for “the disgorge”, read “to disgorge”.

2. At page 4,—

(i) in line 4, for “cluase” read “clause”;

(ii) in line 12, for “sub-clause”, read “sub-clauses”.

3. At page 6, line 15, for “purpose”, read “purposes”. Sec I The Gazette of India extraordinary Part II 112 4. At page 8, line 43, for “sub-section”, read “sub-sections”.

5. At page 10, line 24, for “secton”, read “section”.

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CORRIGENDA

In the Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies (Third) Ordinance, 2013 (10 of 2013), as published in the Gazette of India, Extraordinary, Part II, Section 1, Issue No. 41, dated the 27th September, 2013,—

(i) at page 1, in the Preamble, in paragraph 3, in the line 2, for “Parliament”, read “Parliamentary”; and

(ii) at page 4, in line 15, for “to any”, read “of any”.

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CORRIGENDA

In the Indian Medical Council (Amendment) Second Ordinance, 2013 (11 of 2013), as published in the Gazette of India, Extraordinary, Part II, Section 1, Issue No. 42, dated the 28th September, 2013,—

(i) at page 2, in line 32, for “reprsentatives”, read “representatives”.

(ii) at page 3, in line 3, for “provide”, read “may provide”.

(iii) at page 3, in line 40, for “sub-section”, read “sub- sections”.