LOKPAL BILL

Submitted to: Mr Ashok Mehta
Submitted by: Ms Niharika Sacheti, B.A.-L.L.B. (Hons) 3rd semester Jaipur National University

CONTENTS * Introduction * Origin of Lokpal * Why the need of Lokpal * History * The Lokpal Bill, 2011 * Powers of Lokpal * Advantages * Loopholes of Lokpal * Jurisdiction * Birth of Jan-Lokpal * Differences between Lokpal and Jan Lokpal * My Views:
a. Should PM be under the purview of Lokpal
b. Should Judiciary be under the purview of Lokpal
c. Should CBI be under the purview of Lokpal
d. Should Bureaucrats be under the purview of Lokpal

Introduction:
A Lokpal is a proposed ombudsman (Legal Representative) in India. The word is derived from the Sanskrit word "lok" (people) and "pala" (protector/caretaker), or "caretaker of people."

Origin of Lokpal:

The basic idea of the Lok Pal is borrowed from the office of ombudsman in Scandinavian (Sweden, Denmark, Finland, Norway) countries. The office of the ombudsman originated in Sweden in 1809 A.D. Ombudsman is a Swedish word and refers to an official whose job is to investigate complaints from the public against government officers, who is appointed by the parliament to dispose of cases relating to the executive and the judiciary. Similar institutions were established after that in many democratic republican countries as safeguards against the attitude of officials and higher government's functionaries.
Why the need of a Lokpal?

In the beginning of the decade sixties, the necessity of establishment of the institution of the Ombudsman was felt here in India on lines of Scandinavian countries because of the all round pervasive corruption planting is roots in the administration of the government's departments. Under the chairmanship of Morarji Desai, Administrative Reforms Commission (ARC) was formed in 1966. It made recommendations for formation of a two tier – system:-
1. Establishment of an institution of Lok Pal at the central level, on lines of parliamentary commissioner of New-zealand.
2. And establishment of Lok Ayukta at the state levels.
The government passed the first Lokpal and Lok Ayukta bill in 1968.
History of Lokpal:
1966 – The Administrative Reforms Commission headed by Morarji Desai recommended setting up of a Lokpal at the Centre, and Lokayuktas in the states.
1968 – The Lokpal Bill was first introduced in the Lok Sabha by Shanti Bhushan.
1969 – The Lokpal bill was passed for the first time in the 4th Lok Sabha but could not get through in the RajyaSabha
Subsequently, Lokpal bills were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and most recently in 2008. However, the Bill lapsed each time except in 1985 when it was withdrawn
The bill was placed for the first time in the fourth Lok Sabha and was passed from here I 1969 also but remained blocked up in the Rajya Sabha. The bill was killed in due course due to the dissolution of the parliament the very first time of its being introduced into the house.
This bill was introduced in new form in parliament in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005and 2008, but each time it got trapped for reasons well known to all. Every times of is being placed in parliament for its passage, every time it was deflected by sending it to the JPC, Departmental committee of the home ministry. Before the government could take any decision on this issue, the parliament was again dissolved.

THE LOKPAL BILL, 2011
The Lokpal and Lokayuktas Bill 2011 have been brought under Article 253 of the Constitution to fulfill India’s international obligation arising from ratification of United Nations Convention Against Corruption (UNCAC). Article 253, which figures in Chapter XI of the Constitution dealing with the sensitive issue of Centre-State relations, provides that nothing in the chapter would prevent Parliament “to make law for the whole country or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”. India signed the UNCAC in 2005 and ratified it six years later on May 12, 2011. The convention is already signed by 140 countries.
Therefore, the model law as incorporated in the Lokpal and Lokayuktas Bill would be an enabling legislation for the state legislatures to adopt in its entirety or such of those provisions which they consider appropriate to adopt. Section 64 of the bill has given the option to States bringing into force the Lokayukta from a date which they consider appropriate. The States which already have Lokayukta Act may consider adopting better provisions of the central legislation.
A BILL to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected there with or incidental thereto.
WHEREAS the Constitution of India established a democratic Republic to ensure justice for all; AND WHEREAS the country's commitment to clean and responsive governance has to be reflected in an effective institution to independently inquire into and prosecute acts of corruption; NOW, THEREFORE, it is expedient to establish a strong and effective institution to contain corruption.
1. (1) This Act may be called the Lokpal Act, 2011.
(2) It extends to the whole of India and also applies to public servants outside India. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
3. (1) As from the commencement of this Act, there shall be established, for the purpose of making inquiries in respect of complaints made under this Act, an institution to be called the “Lokpal”.
(2) The Lokpal shall consist of—
(a) a Chairperson, who is or has been a Chief Justice of India or a Judge of the Supreme Court; and
(b) such number of Members, not exceeding eight out of whom fifty per cent shall be Judicial Members.
Notwithstanding anything contained in any law for the time being in force, the Lokpal shall constitute an Investigation Wing for the purpose of conducting investigation of any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988:
Provided that till such time the Investigation Wing is constituted by the Lokpal, the Central Government shall make available such number of investigation officers and other staff from such of its Ministries or Departments, as may be required by the Lokpal, for carrying out investigation under this Act.
The Lokpal may, by notification, constitute a prosecution wing and appoint a Director of prosecution and such other officers and employees to assist the Director of Prosecution for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under this Act. The expenses of the Lokpal, including all salaries, allowances and pensions payable to or in respect of the Chairperson, Members or secretary or other officers or staff of the Lokpal, shall be charged on the Consolidated Fund of India and any fees or other moneys taken by the Lokpal shall form part of that Fund.

Powers of Lokpal:
(1) If the Lokpal has reason to believe that any document which, in its opinion, shall be useful for, or relevant to, any investigation or inquiry under this Act, are secreted in any place, it may authorise any officer of the Investigation Wing, to search for and to seize such documents.
(2) If the Lokpal is satisfied that any document seized under sub-section (1) would be evidence for the purpose of any investigation or inquiry under this Act and that it would be necessary to retain the document in its custody or in the custody of such officer as may be authorised, it may so retain or direct such officer authorised to retain such document till the completion of such investigation or inquiry: Action on inquiry in relation to public servants not being Ministers or Members of Parliament . Action on Inquiry against public servant being Ministers or Members of Parliament. Search and seizure. Provided that where any document is required to be returned, the Lokpal or the authorised officer may return the same after retaining copies of such document duly authenticated.
(3) The provisions of the Code of Criminal Procedure, 1973 relating to searches shall, so far as may be, apply to searches under this section subject to the modification that subsection (5) of section 165 of the said Code shall have effect as if for the word “Magistrate”, wherever it occurs therein, the words “Lokpal or any officer authorized by it” were substituted The Lokpal may, for the purpose of conducting any inquiry, utilize the services of any officer or investigation agency of the Central Government or any State Government, as the case may be.
Where the Lokpal, while making an inquiry into allegations of corruption, is prima facie satisfied, on the basis of evidence available, that—
(a) the continuance of the public servant referred to in clause (c) or clause (d) of sub-section (1) of section 17 in his post while conducting the inquiry is likely to affect such inquiry adversely; or
(b) the public servant referred to in clause (a) is likely to destroy or in any way tamper with the evidence or influence witnesses, then, the Lokpal may recommend to the Central Government for transfer or suspension of such public servant from the post held by him till such period as may be specified in the order.
Advantages of Lokpal Bill: 1. Major advantage of this bill is all about solving the No.1 problem of India is CORRUPTION. 2. Who will be the decision makers this time, nonpoliticians, non-bureaucrats, not a police-officer. 3. This bill is proposed to the government again and again in last 50 years so this holds the belief of generations and we all think this can change the system. 4. The decision will be faster than what we have right now, the proposed decision will be 1 year and punishment will be executed in 2 years. 5. People will not have to go through the grueling system to complain the crime.
What are the loopholes of the Lokpal Bill by the Government?
According to the current version of Lokpal Bill, Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from public. This is making the Lokpal bill useless. But according to the Jan Lokpal Bill, full powers to initiate investigations suo motu in any case and also to directly entertain complaints from the public. This is something very important and needs to be addressed by the Government and we see most of the political parties finding this as a threat to them. The Government proposed Lokpal bill does wants the Lokpal to be advisory body and just forward the complaints to the respective department and does not have any right to register and FIR or police powers. This bill doesn’t not give power to the Lokpal to do any investigation against the Prime Minister, which deals with foreign affairs, security and defense and also no jurisdiction over bureaucrats and government officers. These are the major lacking of the current version with the Government, but we need a Jan Lokpal bill which is addressing the above mentioned issues.

Jurisdiction: Subject to the other provisions of this Act, the Lokpal shall inquire into any matter involved in, or arising from, or connected with, any allegation of corruption made in a complaint in respect of the following, namely:—
(a) a Prime Minister, after he has demitted the office of the Prime Minister;
(b) any other person who is or has been a Minister of the Union;
(c) any person who is or has been a Member of either House of Parliament;
(d) any Group “A” officer or equivalent or above, from amongst the public servants defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruptions Act, 1988 when serving or who has served, in connection with the affairs of the Union;
(e) any person who is or has been a chairperson or member or officer equivalent to Group “A” officer referred to in clause (d) or equivalent or above in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it: Provided that in respect of such officers referred to in clause (d) who have served in connection with the affairs of the Union or in any body or Board or corporation or authority or company or society or trust or autonomous body referred to in this clause but are working in connection with the affairs of the State or in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of the State Legislature or wholly or partly financed by the State Government or controlled by it, the Lokpal and the officers of its Investigation Wing or prosecution Wing shall have jurisdiction under this Act in respect of such officers only after obtaining the consent of the concerned State Government;
(f) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) wholly or partly financed or aided by the Government and the annual income of which exceeds such amount as the Central Government may by notification specify;
(g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public and the annual income of which exceeds such amount as the Central Government may by notification specify: Provided that nothing in this section shall apply in relation to the Prime Minister, in whatever capacity he may be holding an office as a public functionary: Provided further that any person referred to in this clause shall be deemed to be a public servant under clause (c) of section 2 of the Prevention of Corruption Act, 1988 and the provisions of that Act shall apply accordingly: Provided also that nothing in clauses (e) and (f) and this clause shall apply to any society or association of persons or trust constituted for religious purposes.
Whistle-blowers:
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities (misconduct) occurring in a government department or private company or organization. The alleged misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues. The Government of India has been considering adopting a whistleblower protection law for several years. In 2003, the Law Commission of India recommended the adoption of the Public Interest Disclosure (Protection of Informers) Act, 2002. In August 2010, the Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was introduced into the Lok Sabha, lower house of the Parliament of India. The Bill was approved by the cabinet in June, 2011. The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010 was renamed as The Whistleblowers' Protection Bill, 2011 by the Standing Committee on Personnel, Public Grievances, Law and Justice. The Whistleblowers' Protection Bill, 2011 was passed by the Lok Sabha on 28 December 2011. The Bill is however currently pending in the upper house of Parliament, Rajya Sabha for discussion and further passage. The Bill was introduced in Rajya Sabha on 29 March 2012 by V. Narayanasamy, Minister of State for Parliamentary Affairs.

The birth of Jan Lokpal from the Lokpal bill:
The Lokpal bill drafted by the government was riddled with loopholes which defeated the very purpose of the bill. As the Lokpal bill is to be introduced in the Parliament, civil society activists have come forward with an alternative bill called the “Jan Lokpal Bill”. Drafted by Justice Santosh Hegde, Prashant Bhushan and Arvind Khejriwal, this bill is an improved version of the original Lokpal Bill. In short Jan Lokpal bill is Lokpal bill with teeth.

DIFFERENCE BETWEEN THE LOKPAL AND THE JAN LOKPAL BILL: LOKPAL BILL (GOVERNMENT) | JAN LOKPAL BILL (CIVIL SOCIETY) | Under this bill, lokpal cannot initiate a case suo motu (on its own) nor can it receive complaints of corruption directly from the general public. People have to make their complaints to speaker of Lok Sabha or chairperson of Rajya Sabha. The complaints which are approved by them will reach Lokpal. (As speaker of Lok Sabha belongs to the ruling party, he may not work transparently on the issue. Hence, the intent of bill will not be fulfilled.) | Lokpal will have powers to initiate suo motu action and it can directly receive complaints from the public. | Lokpal will be an advisory body. It will forward its report to a “competent authority”. Hence, the lokpal will not have powers to take direct action. | Lokpal is not an advisory body. Lokpal will have the power to initiate prosecution of anyone found guilty. | The Government proposed a time limit of six months to one year for investigation against a corrupt official. However, no time limit for prosecution is proposed. | The Jan Lokpal draft suggests one year or less for investigation and one year for prosecution. So that the corrupt official lands in jail within 2 yrs. | Lokpal will have no police powers to register an FIR (First Information Report) or proceed with criminal investigations. | Lokpal will have police powers as well as the ability to register FIRs. | The Lokpal will be a three member body consisting of a chairperson who is a present or retired Chief Justice or Supreme Court judge, and two members who are high courts judges or chief justices. | Lokpal would have ten members and one Chairperson. Out of them four need to have a legal background (they need not be judges). | Punishment for corruption is minimum 6 months and maximum 7 years. | The punishment would be minimum 5 years and maximum of life imprisonment. | The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. (Selection committee will be heavily loaded in favor of the ruling party. Effectively, ruling party will make the final selections.) | Selection committee consists of members from judicial background, Chief Election Commissioner, Comptroller and Auditor General of India and international awardees (like Noble prize and Magsaysay winners of Indian origin). A detailed transparent and participatory selection process has been prescribed. | Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defense. | There is no such bar on Lokpal’s powers. | Nothing has been provided in law to recover ill gotten wealth. A corrupt person can come out of jail and enjoy that money. | Loss caused to the government due to corruption will be recovered from the accused after conviction. | There is no provision related to whistle-blowers. | Lokpal will have powers to provide protection against physical and professional victimization of whistle-blowers. | CBI and Lokpal will be unconnected. | That part of CBI, which deals with cases of corruption, will be merged into Lokpal so that there is just one effective and independent body to take action against corruption. | There is a strong punishment for frivolous complaints. If any complaint is found to be false, Lokpal will have the power to send the complainant to jail but if the complaint were found to be true. | Deterrence has been provided against frivolous complaints in the form of financial penalties against the complainant. |

MY VIEWS: a. Should Prime Minister be under the purview of Lokpal..?
We are in opposition to bringing the post of Prime Minister under the purview of Lokpal till he/she demits office and ruled out opening the conduct of MPs inside Parliament as also the higher judiciary to scrutiny of the proposed ombudsman. Prime minister has been brought under the purview of the Lokpal with specific exclusions. The Prime Minister can be scrutinised, unless the issues involve national security and defence.
Within the government, we feel prima facie, the Prime Minister should not be covered (under the Lokpal). But at the same time we want to make sure that if he demits office, he should not be exonerated from prosecution
PM should not be under Lokpal But Ex-PM, in case any Corruption Charges Against The Prime Minister, A law Should be Made That He should 'Resign Immediately' and Then Prosecuted Under Lokpal.
Every day the media accuses someone in the government - calls them tainted even before the court ruling, including PM in the lokpal will seriously paralyze his/her sound decision making, it will also hamper on-going dialogues and agreements with other governments.
Since the Prime Minister is to lead the nation and run the government, he should be brought under Lokpal purview the day he demits office.
If the Prime minister is covered under ordinary law (Prevention of Corruption Act) you don't need him covered under Lokpal. You can't have the prime minister under the Lokpal because you can't have president's rule at the center. The prime minister will be under the purview of the Lokpal with certain safeguards that will keep out aspects like international relations, public order, atomic energy, space, internal and external security from the inquiry.

b. Should Judiciary be under the purview of Lokpal..?
The Parliamentary standing committee, which is examining the Lokpal bill have decided to keep the judiciary out of the anti-corruption ombudsman's purview. It would be a mistake. It will foul with the basic structure of the constitution. Judicial review is a basic feature (of the constitution)... for which an independent judiciary is essential.
The judiciary under the constitution is the custodian of the rule of law. Ultimately the democratic structure will be affected. The judiciary must not come under Lokpal.
It's not practical to include the higher judiciary under Lokpal. If they are brought under the Bill, who will be there to lead it? There should be someone who can distinguish between prejudice and incompetence. As we know, the lower judiciary is always under supervision of the higher judiciary. We must give our judiciary a fair chance to do justice
Bringing the judiciary under the Lokpal is a source of grave concern owing to questions about how this will affect the judiciary’s fairness and independence and the separation of powers. This would leave little time for the Lokpal to look at institutional corruption and its correctives.
Judiciary will not be brought under Lokpal as its independence can’t be compromised. Bringing the higher judiciary under the jurisdiction of Lokpal would be contrary to the Constitutional scheme of things. How would the Supreme Court pronounce on complex issues if it is subject to the jurisdiction of the Lokpal?
The higher judiciary has not been included under the Lokpal; but will come under the Judicial Standards and Accountability Bill.

c. Should Central Bureau of Investigation (CBI) be under the purview of Lokpal..?
Bringing CBI under the ombudsman will make anti-corruption efforts more effective than any other measure.
As Kiran Bedi said the anti-corruption watchdog without CBI is a "sabotaged Lokpal" which will defeat the very purpose of setting up such a mechanism. CBI under Lokpal means all corruption exposed and "many embarrassed, losing false images.
“If a complaint is given by the Lokpal, then that investigation will be conducted by CBI. This means Lokpal has become an ordinary complainant which will go to CBI and lodge a complaint and CBI will then investigate in the manner it likes and Lokpal will have no control in investigation part of it. This is not acceptable.”

d. Should Bureaucrats be under the purview of Lokpal..?
The new Bill brings both Group ‘A’ and ‘B’ officers under the Lokpal’s ambit which is an improvement on earlier drafts, under which the Lokpal’s purview was limited to Group ‘A’ officers only. Further, while the ‘C’ and ‘D’ categories will be covered by the Central Vigilance Commission, cases relating to them will be reviewed by the Lokpal. The idea of granting constitutional status to the office of the Lokpal is another welcome step. Lower bureaucracy has been brought under the Central Vigilance Commission (CVC) with the superintendence of Lokpal.
It will cover: Union Ministers, MPs, Group ‘A’ officers or equivalent; chairperson or member or officer equivalent to Group 'A' in any body/ board/ corporation/ authority/ company/ society/ trust/ autonomous body established by an Act of Parliament or wholly or partly financed by the Centre.
Its jurisdiction to include all categories of public servants including Group 'A', 'B', 'C' and 'D' officers and employees of government. On complaints referred by Lokpal, the Central Vigilance Commission (CVC) will send its report in respect of Group 'A' and 'B' officers back to Lokpal for further decision. With respect to Group 'C' and 'D' employees, the CVC will proceed further in exercise of its own powers under the CVC act subject to reporting and review by Lokpal.
The corruption that common people encountered on a daily basis would remain untouched if the proposal for exclusion of lower bureaucracy from the ambit of the Lokpal was accepted. Inspectors accused of corruption were Group C employees, adding that in states, maximum corruption took place at the level of Group C employees. Almost Rs 30,000 crore worth of ration meant for poor people is annually siphoned off by Group C employees. Thousands of crores of leakage takes place in NREGA works at the level of Group C employees. Panchayat secretary and officials are Group C employees. Huge amount of corruption takes place in panchayat works. So, lower bureaucracy should also come under the ambit of Lokpal.