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ARTICLE : The Lokpal and Lokayuktas Bill
Monday, 06 January 2014 05:59


The Lokpal and Lokayuktas Bill


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  Lokayuktasin 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 the  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consequent upon the dissolution of the respective Lok Sabha except in the case of the 1985 Bill, which was subsequently withdrawn after its introduction.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 LokpalBill, 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 Lokpalthrough 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 Sabhaand 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:-

Preliminary enquiry – three months extendable by three months.

Investigation – six months which may be extended by six months at a time.

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 theLokayuktas 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 ofLokpal, 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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