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 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 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of the 1985 Bill, which was subsequently withdrawn after its introduction.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 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.
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 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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