The Lokpal Act

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WHAT IS LOK PAL BILL
The Lokpal Bill provides for the creation of an anti-graft watchdog which will have under its purview even the Prime Minister with certain safeguards.
THINGS THAT HAPPENED TILL NOW
  • Lok Pal Bill was passed by Lok Sabha in 2011 itself & was awaiting Rajya Sabha’s nod. But it was not voted upon in Rajya Sabha.
  • Then it was referred to the select committee. The amended Bill was again tabled in the Rajya Sabha on December 16,2013 and passed by voice vote. The following day, it was passed by the Lok Sabha without debate. (Note:As per the laid down procedure, the House of Parliament which passes the Bill last sends an authenticated copy to the government which includes the official amendments.)
  • This bill received President’s assent on 1st January, 2014 & now it is an ACT.
PROVISIONS OF THE PASSED BILL
  • It seeks to establish a Lokpal at the central level & Lokayuktas as the state level as per the defined time limit.
  • Composition: The Lok Pal would consist of a chairperson and up to eight members, of which 50 per cent would be judicial members. Fifty per cent members of the Lok Pal would be from scheduled castes, scheduled tribes, other backward classes, minorities and women.
  • Selection Procedure: 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 (chief justice of India), eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
  • Anti-graft ombudsman (i.e. Lok pal) can now investigate corruption charges against public functionaries including Prime Minister, Ministers and Members of Parliament.
  • Religious bodies and trust: The new bill includes societies and trusts that collect public money, receive funding from foreign sources and have an income level above a certain threshold. It excludes bodies creating endowments for or performing religious or charitable functions.
  • Prosecution: In the new bill, before taking a decision on filing a chargesheet in a case upon consideration of the investigation report, the Lokpal may authorise its own prosecution wing or the investigating agency concerned to initiate prosecution in special courts.
  • Investigation: Inquiry has to be completed within 60 days and investigation to be completed within six months. Lokpal shall order an investigation only after hearing the public servant. Inquiry against the prime minister has to be held in-camera and approved by two-thirds of the full bench of the Lokpal.
  • Penalty: False and frivolous complaints - imprisonment up to one year and a fine of up to Rs.1 lakh. Public servants - imprisonment up to seven years. Criminal misconduct and habitually abetting corruption - jail term up to 10 years.
  • The Lokpal can inquire into offences under the Prevention of Corruption Act, 1988 committed by members of Parliament, group A and B government officials, employees of a company, society or a trust set up by an Act of Parliament, or financed or controlled by the central government. Lokpal’s jurisdiction will cover all categories of public servants (i.e. people from group A, B, C & D).
  • Bill provides for a time limit of one year to the states to make their own law for setting up Lokayuktas on the lines of Lok Pal Bill. The format of the Lokayukta will be left to the state assemblies to decide.
  • The bill also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
  • The bill lays down clear time lines for preliminary enquiry and investigation and trial and towards this end, the bill provides for setting up of special courts.
  • All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are brought under the jurisdiction of Lokpal.
PROVISIONS IN THE BILL RAGARDING CBI
  • According to the Lok Pal, the appointment of the CBI director would be on the recommendation of a high-powered committee chaired by the Prime Minister. The collegium will comprise the leader of opposition in the Lok Sabha and the Chief Justice of India or a Supreme Court judge nominated by him. As of now, the Centre appoints the CBI director.
  • Directorate of Prosecution headed by a Director of Prosecution will be under the overall control of Director, CBI.
  • For independence of the CBI, in the new bill a directorate of prosecution will be formed. Appointment of the director of prosecution will be on the recommendation of the Central Vigilance Commissioner.
  • Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal.
MAJOR ISSUE RELATING TO CBI, CVC & LOK PAL BILL
  • Central Bureau of Investigation (CBI) is arguing that the current Lok Pall is flawed.
  • CBI says that the current bill takes away its power under CrPC (Criminal Procedure Code) to file chargesheets against Group C and D officials without consulting the Central Vigilance Commission (CVC).
  • It is now mandatory for CBI to take permission of CVC if they want to file chargesheets against officials of Group C & Group D.
  • CBI says that according to CrPC provisions (section 173), which have been vetted by various courts, an investigating officer files a report only before a competent magistrate, but now the new provision make it necessary to show it to the CVC as well, which is a serious dilution of CBI's powers. In short Under the new provisions, an investigating officer cannot proceed to file the final report without showing it to the CVC in cases which have been routed to it through the anti-corruption watchdog.
  • Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal.
  • Also CBI has to seek the Lok Pal’s permission to prosecute gazetted officers under categories A and B. It may help the accused.

DIFFERENCE BETWEEN THE JAN LOK PAL BILL AND LOK PAL BILL

Sr. No. Lok Pal Bill Jan Lok Pal Bill
1. Prepared by Indian government Prepared by the team of Mr. Anna Hazare.
2. About PM: In the government version of the bill the PM can be investigated against only after he or she has left office. In case of the Jan Lokpal Bill (JLP) the PM is included even while in power.
3. Judiciary: left judges out of the purview of bill. JLP also takes into account judges who have been left out of the purview of the bill passed by the central government
4. Government’s Lokpal Bill that looks to leave out the junior officers from its reach. The JLP asks every government official to be made accountable
5. The government bill has however included the NGOs who are provided by government funds. Jan Lok Pal Bill doesn’t have such provision.
6. Composition: There is a chairperson and the maximum number of members permissible is 8. At least 50% of the members should have served in the Indian judiciary in order to be deemed eligible. In case of the JLP there is a chairperson as well but the number of members is 10 and 4 of them should have judicial experience. The two bills also differ in terms of selecting the members. In case of JLP, there are two stages. In the first stage the possible candidates are selected by a search committee. The committee is supposed to have 10 members.
7. The selection committee of the JLP will include dignitaries such as the following:
  • Prime Minister
  • Chief Election Commissioner
  • Leader of Opposition in Lok Sabha
  • Comptroller and Auditor General
  • A couple of Supreme Court judges
  • Erstwhile chairpersons of Lokpal
  • A couple of Chief Justices of High Courts
The selection committee of the JLP will include dignitaries such as the following:
  • Prime Minister
  • Chief Election Commissioner
  • Leader of Opposition in Lok Sabha 
  • Comptroller and Auditor General
  • A couple of Supreme Court judges
  • Erstwhile chairpersons of Lokpal
  • A couple of Chief Justices of High Courts
8. Process of Removal of members of Lok Pal: the President can refer the Supreme Court if an inquiry needs to be instituted against a Lokpal member. If the said member is discovered to be corrupt or biased he or she can be removed from duty. The President can make the reference on his or her own accord or if there is a petition that has been signed by 100 MPs. The President can also refer a petition made by a citizen against a Lokpal member if he or she is convinced that such an action needs to be taken. A member can also be removed for any of the following reasons:
  • Insolvency
  • Working in a paid job
  • Mental or physical infirmity
The JLP charts a separate course. First a complaint needs to be made against the member in question at the Supreme Court, which will then look into the same and in case any of the above-mentioned factors or misbehavior is found to have taken place, then it will make a recommendation to the President suggesting the removal of the said member.
9. Law coverage: The Lokpal Bill is only concerned with offences that are covered by the Prevention of Corruption Act. The JLP covers this and also offences committed by government officials as per the Indian Penal Code, continued violation of the citizen’s charter and if whistleblowers are victimized.
10. Regarding CBI: Please read the CBI issue mentioned above for the points of CBI in Lok Pal Bill. Merger of anti-corruption branch of CBI into Lokpalthe Central Government shall cease to have any control over the transferred part.
11. Citizen’s Charter: No mention of Citizen’s charter. Each public authority shall be responsible for ensuring the preparation and implementation of Citizen’s Charter, within a reasonable time, and not exceeding one year from this Act coming into force.Each Citizen’s Charter shall enumerate the commitments of the respective public authority to the citizens, officer responsible for meeting each such commitment and the time limit within which the commitment shall be met.
12. Ambit of the Lokpal: Judiciary excluded completely and MPs excluded in respect of their votes and speeches in Parliament. Included all public servants, including judges and MPs, with regard to all their public duties.
13. Lokayuktas in the State: Have been left to the discretion of the state governments. The Jan Lokpal bill sought to create a Lokayukta along the same lines as the one at the center.
14. Whistleblower protection: Not mentioned in the government’s bill. The Jan Lokpal Bill includes provisions for protection of whistleblowers.
POSITIVES
  • Provides adequate protection for honest and upright public servants.
  • Investigation can be done against anybody under the “civil servant” category including the Prime Minister.
  • It’s a one way forward to the fight against corruption.
NEGATIVES
  • No uniform Law: States are free to make their own laws on Lokayukta. So, it is possible that many states will make such kind of law that will bypass it & provide immunity to the political leaders in their state.
  • Not effective: The important difference between the Lokpal (at the Centre) and the state Lokayuktas as institutions would relate to the distinction between the powers of the President and the Governors under the Indian Constitution. Governors are accorded some discretionary powers under the Constitution and in specific laws, i.e. in some cases Governor doesn’t need to act on the “aid and advice” of the council of ministers at least in some matters. But regarding President, he has no such powers. He has to act only in accordance with the Cabinet of Ministers.
  • Question of discretion: The President now has no “discretion” left when a council of ministers is in existence. If the Lokpal were to make an important recommendation to the President on the conduct of an individual minister or even the prime minister, the president will still be duty bound to consult the council of ministers. He simply cannot act independently. This will not only lower the prestige of the institution but will also add to the large number of “paper tigers” already allegedly in existence.
  • The Lokpal Bill as "weak" and said it will not prevent corruption but instead work to "protect the corrupt".
  • It has further weakened the top investigation agency in India i.e. CBI.
WHY IS MR. ARVIND KEJRIWAL UNHAPPY WITH THE CURRENT PASSED BILL
  • Mr. Kejriwal is of the view that not a single mouse will go to jail because of this bill.
  • He says that there won’t be any prosecutions & the bill will only benefit the government in power.
  • He says that unless CBI is made independent (which has not been done in the bill), there won’t be any prosecutions in the corruption cases in India & the bill will fail eventually.
  • The major factor that will play an important role in the corruption cases is the investigation done by CBI which is paralyzed under this new law owing to the permission need for the CBI.
  • In the past 50 years of CBI, there are only four convictions of political leaders by the agency. This is due to the fact that they report to their same political bosses against whom they probe a case.
CONCLUSION
  • It’s our first way forward against the corruption in India.
  • But, it is also true that it has significantly weakened CBI.
  • Dr Madhav Godbole, a former union home secretary, has described these institutions as “paper tigers” and considers them ineffective in achieving the purpose for which they were created.
  • In short, Lok pal while reporting to President is of no use as President can’t do anything without the aid and advice of Council of Ministers.
  • Unless, therefore, the Constitution is at least itself amended to restore the status quo ante, leaving some elbow room for the President the present exercise may turn out to be yet another waste of national time and money. What is needed is a constitutional amendment and not just ‘constitutional status’ for the Lokpal.
Practice Questions
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