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subsequently withdrawn after its introduction.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.
(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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KSD/Samir/sk