The historic Lokpal and Lokayuktas Bill, 2011 passed by Parliament (December 17, 2013 in Rajya Sabha and December 18, 2013 in Lok Sabha) paves the way for setting up of the institution of Lokpal at the Centre and Lokayuktas in States by law enacted by the respective State Legislatures within one year of coming into force of the Act. The Bill as passed by both Houses will go to the President for his assent and will become law upon being assented by the President. The new law provides for a mechanism for dealing with complaints of corruption against public functionaries, including those in high places.
Significance of theThe Lokpal and Lokayuktas Bill :
The passing of this Bill by both Houses of Parliament is significant in itself, having regard to the fact that all attempts in the past to bring a Lokpal law have failed. Eight Bills on Lokpal had been introduced in the Lok Sabha in the past. However, these Bills had lapsed consequent upon the dissolution of the respective Lok Sabha except in the case of the 1985 Bill, which was subsequently withdrawn after its introduction. The passing of the present Bill by both Houses on this occasion is indicative of the resolve of the Parliament and the Government to give to the nation an effective anti-corruption framework.
Another significant feature of the Bill is that it has taken its present shape after repeated consultations with all stake holders including civil society. The Lokpal and Lokayuktas Bill is perhaps the only Bill in the history of independent India, which has been so widely discussed, both inside and outside Parliament and has, thus generated so much awareness in the public mind about the need to have an effective institution of Lokpal to tackle corruption.
Background
The Government constituted a Joint Drafting Committee (JDC) on April 08, 2011 to draft a Lokpal Bill. There were extensive deliberations on the ‘basic principles’ of the Bill. The divergence of views between the representatives of the Government and the representatives of the Civil Society on some issues resulted in two separate drafts of the Lokpal Bill, namely, the Jan Lokpal Bill prepared by the representatives of the Civil Society and the draft Bill prepared by the Government side. The divergence of views of the Government and of the representatives of the Civil Society in the JDC, was a pointer towards the complexities of the legislative exercise which required striking of a balance of the provisions of the proposed legislation with the Constitutional provisions without tinkering with the basic fabric of the Constitution. Consultations were, therefore, held with all Political Parties and the State Governments on the contours of the proposed Bill. An all Party Meeting was held on
July 03, 2011. Government, thereafter, introduced the Lokpal Bill, 2011 in the Lok Sabha on August 04, 2011. The Bill was referred to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination and report. Subsequently, when the matter was discussed in both the Houses of the Parliament simultaneously on August 27, 2011, the sense of the House was summed up by the then Finance Minister, in the following words:
“This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and establishment of Lokayuktas in the States. I will request you to transmit the proceedings to the Department-related Standing Committee for its perusal while formulating its recommendations for a Lokpal Bill.”
The Standing Committee, after extensive discussions with all the concerned stakeholders, in its Report on the Bill, made a number of recommendations suggesting major amendments in the Bill, both as regards the scope and content of the Bill. This Committee also recommended that necessary provisions be made, in the Union legislation, for establishment of Lokayuktas in the States, so as to provide leverage to the States where no such institution exists and to bring in uniformity in the laws relating to State Lokayuktas which are already in existence in a number of States. Upon consideration of the recommendations of the Standing Committee, the Government withdrew the Lokpal Bill, 2011 pending in the Lok Sabha and introduced a new comprehensive Lokpal and Lokayuktas Bill, 2011 in the Lok Sabha on December 12, 2011. The Bill was passed by Lok Sabha on December 27, 2011. The Rajya Sabha adopted a motion on May 21, 2012 to refer the Bill to a Select Committee of the Rajya Sabha for examination and report. The Select Committee, after extensive consultations with stakeholders, submitted its report to the Rajya Sabha, recommending a number of amendments in the Bill. Having regard to the repeated consultations which this Bill has undergone both before and after having been passed by Lok Sabha, and the extensive changes it has undergone during this process, it may not be incorrect to say that the present Bill represents the broad consensus of the people of India.
Salient Features of the Bill
The Bill as passed by Parliament provided broadly for the following:
(a) Establishment of the institution of Lokpal at the Centre and Lokayuktas at the level of the States, thus providing a uniform vigilance and anti-corruption road-map for the nation, both at the Centre and the States.
(b) The Lokpal to consist of a Chairperson and a maximum of eight Members, of which fifty percent shall be judicial Members. Fifty per cent of members of Lokpal shall be from amongst SC, ST, OBCs, Minorities and Women.
(c) The selection of Chairperson and Members of Lokpal shall be through a Selection Committee consisting of –
- Prime Minister;
- Speaker of Lok Sabha;
- Leader of Opposition in the Lok Sabha;
- Chief Justice of India or a sitting Supreme Court Judge nominated by CJI;
- An eminent jurist to be nominated by the President of India
(d) A Search Committee will assist the Selection Committee in the process of selection. Fifty per cent of members of the Search Committee shall also be from amongst SC, ST, OBCs, Minorities and Women.
(e) Prime Minister was brought under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister.
(f) Lokpal’s jurisdiction will cover all categories of public servants including Group ‘A’, ‘B’, ‘C’ & ‘D’ officers and employees of Government. On complaints referred to CVC by Lokpal, CVC will send its report of Preliminary enquiry in respect of Group ‘A’ and ‘B’ officers back to Lokpal for further decision. With respect to Group ‘C’ and ‘D’ employees, CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by Lokpal.
(g) All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs. 10 lakhs per year are brought under the jurisdiction of Lokpal.
(h) Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal.
(i) A high powered Committee chaired by the Prime Minister will recommend selection of the Director, CBI.
(j) Attachment and confiscation of property of public servants acquired by corrupt means, even while prosecution is pending.
(k) Clear time lines for:-
Ø Preliminary enquiry – three months extendable by three months.
Ø Investigation – six months which may be extended by six months at a time.
Ø Trial – one year extendable by one year and, to achieve this, special courts to be set up.
(l) Enhancement of maximum punishment under the Prevention of Corruption Act from seven years to 10 years. The minimum punishment under sections 7, 8, 9 and 12 of the Prevention of Corruption Act will now be three years and the minimum punishment under section 15 (punishment for attempt) will now be two years.
Improvements recommended by the Select Committee of Rajya Sabha and incorporated in the Bill:
The Select Committee of Rajya Sabha, in its Report, made recommendations suggesting amendments to several clauses of the Bill. Most of these recommendations have been accepted and have now become part of the Bill as passed by both Houses of Parliament. Some of the significant amendments in the Bill in this regard are as follows:-
(a) Freedom to States to decide upon the contours of their respective Lokayuktas:
The Select Committee recommended the omission of Part-III of the Bill which dealt with setting up of the Lokayuktas in the States. The Select Committee recommended that this part of the Bill may be replaced with a new Section 63 which contains a mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature within a period of 365 days from the date of commencement of the Act. This was accepted by the Government. Thus, the Bill as passed by Parliament finally has, while fully respecting the true spirit of federalism and the freedom of the States to decide upon the contours of the Lokayukta mechanism in their respective States, mandated the States to set up Lokayuktas under their own enactment within one year from the coming into force of the present Act.
(b) Broad basing of the Selection Committee for selection of Chairperson and Members of Lokpal:
The fifth member of the Selection Committee for selection of Lokpal, under the category of “eminent jurist”, will now be nominated by the President on the basis of recommendation of the first four members of the Selection Committee, namely, (1)the Prime Minister, (2)the Speaker, Lok Sabha, (3)the Leader of Opposition, Lok Sabha and (4)the Chief Justice of India. This has ensured that there is no dominance of Government representation on the Selection Board.
(c) Jurisdiction of Lokpal to cover institutions fully or partly ‘financed” by government:
Institutions which are “financed” fully or partly by government have been retained under the jurisdiction of Lokpal, but the institutions “aided” by government have been excluded. This has ensured that the Lokpal is not clogged with complaints relating to small institutions such as schools, societies, etc. which are aided by government in one form or the other, thus leaving the Lokpal free to handle big ticket corruption cases more effectively.
(d) Adequate protection for honest and upright public servants.
The Bill ensures that no honest public servant is subjected to unnecessary harassment by providing for affording of opportunity of hearing to the public servant before order of investigation/prosecution except in cases requiring search and seizure.
(e) Lokpal conferred with power to sanction prosecution of public servants in place of the government/competent authority:
The power to grant sanction for prosecution of public servants has been shifted to the Lokpal in place of the Government/competent authority. The Lokpal will, however, seek comments of the competent authority and the public servant before taking such decision. After taking a decision on filing of charge sheet in a case (upon consideration of the investigation report), the Lokpal may authorise its own Prosecution Wing or the concerned investigating agency to initiate prosecution in the Special Court. The original Bill as passed by Lok Sabha provided for prosecution of the case only by the Prosecution Wing of the Lokpal.
(f) Strengthening of CBI:
The Bill also contains a number of provisions aimed at strengthening the Central Bureau of Investigation, such as –
(i) the setting up of a Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director, CBI;
(ii) the appointment of the Director of Prosecution on the recommendation of the Central Vigilance Commission;
(iii) maintenance of a panel of advocates by CBI, other than the Government Advocates, with the consent of the Lokpal for handling Lokpal referred cases;
(iv) transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal;
(v) provision of adequate funds to CBI for investigating cases referred by Lokpal, etc.
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Probable Questions and Answers on the Lokpal and Lokayuktas Bill
1. What would be the composition and general structure of the institution of Lokpal?
Answer:
The Lokpal will consist of a Chairperson and a maximum of eight Members, of which fifty percent shall be judicial Members. Fifty per cent of members of Lokpal shall be from amongst SC, ST, OBCs, Minorities and Women.
In addition to the Benches of Lokpal, there shall be an Inquiry Wing of the Lokpal for conducting the preliminary inquiry and an independent Prosecution Wing for conducting prosecutions.
2. What is the procedure for appointment of chairperson and members of Lokpal?
Answer:
The selection of Chairperson and Members of Lokpal shall be through a Selection Committee consisting of –
(a) Prime Minister;
(b) Speaker of Lok Sabha;
(c) Leader of Opposition in the Lok Sabha;
(d) Chief Justice of India or a sitting Supreme Court Judge nominated by CJI; and
(e) An eminent jurist to be nominated by the President of India on the basis of recommendation of the first four members of the Selection Committee
A Search Committee will assist the Selection Committee in the process of selection. Fifty per cent of members of the Search Committee shall be from amongst SC, ST, OBCs, Minorities and Women.
3. Will the jurisdiction of Lokpal cover all categories of government servants?
Answer:
Yes. Lokpal’s jurisdiction under the present Bill will, inter alia, cover all categories of government servants including Group ‘A’, ‘B’, ‘C’ & ‘D’ officers and employees of Government.
The Bill further provides that on complaints referred to the Central Vigilance Commission (CVC) by Lokpal, CVC will send its report of preliminary enquiry in respect of Group ‘A’ and ‘B’ officers back to Lokpal for further decision. With respect to Group ‘C’ and ‘D’ employees, CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by Lokpal.
4. What are the categories of persons over whom the Lokpal will have jurisdiction?
Answer:
Lokpal’s jurisdiction, under clause 14 of the Bill, will cover the following categories of persons, namely:-
(a) any person who is or has been a Prime Minister;
(b) any person who is or has been a Minister of the Union;
(c) any person who is or has been a Member of either House of Parliament;
(d) any Group ‘A’ 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 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) 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:
(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 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, 2010 in excess of ten lakh rupees in a year or such higher amount as the Central Government may, by notification, specify.
Clause 14 of the Bill further provides that any person referred to in the said clause shall be deemed to be a public servant under clause (c) of section 2 of the Prevention of Corruption Act, 1988 and the provisions of that Act shall apply accordingly.
5. What are the safeguards in the Bill for protecting the sanctity of the office of the Prime Minister of India while conducting inquiries/investigations against the Prime Minister?
Answer:
Prime Minister has been brought under the purview of the Lokpal with subject matter exclusions and with a specific process for handling complaints against the Prime Minister. Lokpal cannot hold any inquiry against the Prime Minister if allegations relate to international relations; external and internal security of the country; public order; atomic energy and space. Any decision of Lokpal to initiate preliminary inquiry or investigation against the Prime Minister shall be taken only by the Full Bench with a “2/3rd majority”. It has also been provided that such proceedings shall be held in camera.
6. What are the safeguards in the Bill for protecting honest public servants?
Answer:
The Bill ensures that no honest public servant is subjected to unnecessary harassment by making adequate provisions for affording of opportunity of hearing to the public servant before ordering of investigation/prosecutions except in cases requiring search and seizure.
7. What provisions have been made in the Bill to ensure timely completion of investigations and also for timely disposal of cases by courts?
Answer:
The Bill provides for Clear time lines for :
Ø Preliminary enquiry – three months extendable by three months.
Ø Investigation – six months which may be extended by six months at a time.
Ø Trial – one year extendable by one year.
In order to ensure timely completion of trials, the Bill provides for creation of special courts for trying cases under the Act.
8. Does the Lokpal have powers to order attachment/confiscation of property?
Answer:
Yes. Under section 29 of the Bill, the Lokpal has powers of attachment. The section provides as under:
29. (1) Where the Lokpal or any officer authorised by it in this behalf, has reason to believe, the reason for such belief to be recorded 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 shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule.
The period of such attachment can be extended further by the Special Court under section 29(2).
Thus, the Bill incorporates effective provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
9. What are the provisions in the Bill for strengthening CBI?
Answer:
The Bill seeks to amend the relevant provisions of the Delhi Special Police Establishment Act, 1946 so as to provide that a high powered Committee chaired by the Prime Minister will recommend selection of the Director, CBI.
The Bill also contains a number of others provisions aimed at strengthening the Central Bureau of Investigation, such as –
(i) the setting up of a Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director, CBI;
(ii) the appointment of the Director of Prosecution on the recommendation of the Central Vigilance Commission;
(iii) maintenance of a panel of advocates by CBI, other than the Government Advocates, with the consent of the Lokpal for handling Lokpal referred cases;
(iv) transfer of officers of Central Bureau of Investigation investigating cases referred by Lokpal with the approval of Lokpal;
(v) provision of adequate funds to CBI for investigating cases referred by Lokpal, etc.
10. Does the Bill provide for more stringent punishment for offences of corruption? If so, the details thereof.
Answer:
Yes. The Bill proposes to enhance maximum punishment under the Prevention of Corruption Act from seven years to 10 years. The minimum punishment under sections 7, 8, 9 and 12 of the Prevention of Corruption Act will now be three years and the minimum punishment under section 15 (punishment for attempt) will now be two years.