1 Why do we need Jan Lokpal?There are several deficiencies in our anti-corruption systems because of which despite overwhelming evidence against the corrupt, no honest investigation and prosecution takes place and the corrupt are hardly punished. The whole anti-corruption set up ends up protecting the corrupt. Our anti-corruption agencies have basic structural deficiencies because of which they are incapable of doing any honest investigations: The following four deficiencies stand out in our anti-corruption system. For details on deficiencies in our anti-corruption systems: a. Lack of Independence Most of our agencies like CBI, state vigilance departments, internal vigilance wings of various departments, Anti-corruption Branch of state police etc are not independent. In many cases, they have to report to the same people who are either themselves accused or are likely to be influenced by the accused. For instance, The Chief Minister of Punjab is the Minister in charge of Vigilance Department of Punjab. Interestingly, the same vigilance department is also investigating charges of corruption against himself and his family and is prosecuting them. Can we expect the vigilance department to do any honest investigations or prosecution? Please read detailed report in Annexure 2 to see how despite huge unaccounted cash being recovered from the house of a top NHAI officer, Kamal Nath denied permission to register a case of corruption against him. Coal Ministry just sat on CBI‘s repeated requests to prosecute the officer who was to become the CMD. Railways just sat on CBI‘s request to prosecute one of its top employees involved in railway recruitment scam. b. Powerless Some bodies like CVC or Lokayuktas are independent, but they do not have any powers. They have been made advisory bodies. They give two kinds of advise to the governments–to either impose departmental penalties on any officer or to prosecute him in court. Experience shows that whenever any minister or a senior officer is involved, their advice is rarely followed. c. Multiplicity of agencies Governments have deliberately created plethora of anti-corruption agencies and given them fractured mandates. This has been done to render them ineffective. For instance, At central government level, in the same case of corruption, CVC is supposed to look into the vigilance angle of senior bureaucrats and departmental vigilance is supposed to look
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
into the role of junior bureaucrats. As if junior and senior bureaucrats indulge in
corruption separately.
Again in the same case, whereas these two agencies enquire into the matter from vigilance
angle, CBI investigates into the same matter from criminal angle i.e corruption angle. Now,
the vigilance and corruption angles are almost the same. The two agencies broadly do the
same enquiries and investigations.
According to the Lokpal model proposed by Government of India, CVC will enquire into
the role of bureaucrats and Lokpal will look into the role of politicians, as if politicians and
bureaucrats indulge in corruption separately.
Firstly, this kind of fractured mandate creates confusion. Secondly, enquiries andinvestigations into any case go on and on for years. For instance, in street lighting case of
Common Wealth Games, first an enquiry was done by CVC, then CBI investigated into the
same case and then it was again enquired into by Shunglu committee. Thirdly, if two agencies
arrive at conflicting conclusions on the same case, it only weakens the case against corrupt
people. The final beneficiaries of this confusing system are the corrupt people who never get
punished.
d. Lack of Transparency and internal accountability
In addition, there is the problem of internal transparency and accountability of these anti-
corruption agencies. Presently, there isn‘t any separate and effective mechanism to check if the
staff of these anti-corruption agencies turns corrupt.
That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has become
a high profit zero risk business. There is absolutely no deterrence against corruption.
Our anti-corruption laws also have several critical deficiencies, which end up protecting the
corrupt.
For instance,
Even if a corrupt person is sent to jail, there is no provision in law to confiscate his ill
gotten wealth or to recover the loss caused by him to the government due to his corrupt
practices.
Before initiating investigations or prosecution into any case, permission has to be taken
from some officer or minister in charge of the same department. In many cases, they
themselves are directly or indirectly involved in that case.
Therefore, there seems to be too much protection for the corrupt people. There are many other
deficiencies in our anti-corruption laws. The above have been mentioned only by way of
illustration.
Jan Lokpal Bill seeks to address these deficiencies in anti-corruption agencies and the law.
A myth is being created that the proposed Jan Lokpal will become a supercop and will
become a threat to all democratic institutions. This is completely wrong. Let us see what
does Jan Lokpal Bill propose to do?
1. Against politicians (for their conduct outside parliament), judges and bureaucrats, Lokpal
will only investigate complaints of corruption and file a case in court. The courts will have
the power to try and award punishment. Lokpal will not have powers to award
punishment.
2. However, in case of bureaucrats, the institution of Lokpal will have powers to impose
departmental penalties including dismissing them, if after investigations by the
investigation wing of Lokpal, the guilt of that officer is established. For Joint Secretary and
above, a bench of members of Lokpal will impose such penalty after giving an opportunity
of being heard to all affected parties. However, if accused are below the rank of Joint
Secretary, the same will be heard by a bench of senior officers of Lokpal. These orders of
Lokpal can be appealed against in respective High Courts. This system is much better than
the existing system, in which the accused and its friends are responsible for enquiringagainst themselves and awarding punishment to themselves. Presently, the enquiries are
conducted by officers from the same department (often enquiries are conducted by junior
officers against their bosses), penalties are decided by some officer in the same ministry and
appeals also lie with some officer in the same ministry. Since the accused officer belongs to
the same department/ministry, he is able to influence their decisions as they have been his
colleagues, friends and subordinates. Many times, the disciplinary authorities are
themselves accomplices in corruption.
Under existing system, the public or the complainant have no say in entire proceedings.
Corrupt officers are let off after dishonest enquiries. Complainant cannot do anything.Under Jan Lokpal Bill, the complainant will be treated as a prime witness and case cannot
be closed without giving an opportunity of being heard.
The first Jan Lokpal Bill was introduced by Shanti Bhushan in 1968 and passed in the
4th LokSabha in 1969 but could not get through in the RajyaSabha. Subsequently, Lokpal bills
were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were
never passed. 42 years after its first introduction, the Lokpal bill is still pending in India.
The Lokpal Bill provides for filing complaints of corruption against the prime minister,
other ministers, and MPs with the ombudsman. The Administrative Reforms
Commission (ARC) while recommending the constitution of Lokpal was convinced that suchan institution was justified not only for removing the sense of injustice from the minds of
adversely affected citizens but also necessary to instill public confidence in the efficiency of the
administrative machinery. Following this, the Lokpal Bill was for the first time presented
during the fourth LokSabha in 1968, and was passed there in 1969.
However, while it was pending in the RajyaSabha, the LokSabha was dissolved, and so
the bill was not passed at that time. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998,
2001, 2005, and most recently in 2008. Each time, after the bill was introduced to the house, it
was referred to some committee for improvements --- a joint committee of parliament, or adepartmental standing committee of the Home Ministry and before the government could take
a final stand on the issue, the house was dissolved. Several flaws have been cited in the recent
draft of the Lokpal Bill. The fatal flaws in the government's Lokpal Bill. The basic idea of the
Lok Pal is borrowed from the office of ombudsman, which has Administrative Reforms
Committee of a Lokpal at the Centre, and Lokayukta(s) in the states.
Issues regarding corruption in India have become more prominent in recent years. Thecountry was subject to socialist-inspired economic policies between the 1950s and the late1980s. Extensive regulation, protectionism, and public ownership led to slow growth
The Vohra Report of 1993, submitted by the former Indian Union Home Secretary N.N. Vohra, studied the problem of thecriminalization of politics and of the nexus amongcriminals, politicians and bureaucrats in India. The report contained several observationsmade by official agencies on the criminal network which was virtually running a parallelgovernment. It also discussed criminal gangs who enjoyed the patronage of politicians – of all
political parties – and the protection of government functionaries. It revealed that politicalleaders had become the leaders of gangs. They were also connected to the military. Over theyears criminals had been elected to local bodies, State Assemblies, and even the ParliamentThe Right to Information Act of 2005 has helped civilians work effectively towards tacklingcorruption. It allows Indian citizens (except those living in Jammu and Kashmir) to requestinformation, for a fixed fee of 10 (US$ 0.22), from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or withinthirty days. Activists have used this to uncover graft cases against various politicians andbureaucrats, one consequence being that some of those activists have been attacked and evenkilled
Various scandals were discovered in the period 2010-2011, including the 2G spectrumscam, Adarsh Housing Society Scam, and theCommon Wealth Games scam. These involvedvarious Ministers and also members of the Armed Forces, and they demonstrated howentrenched corruption had become in India. They led also to popular, non-political movementscampaigning to fight graft via new legislation.
The Jan Lokpal Bill is a proposal to establish an independent body to investigate casesof corruption within a year and to ensure a speedy prosecution within two years of aninvestigation being started.
13 March 2011A group of Delhi residents drove around the city dressed in similar clothing in an attempt toraise awareness of corruption issues and to gain support for the Jan Lokpal Bill.
28 March 2011There were protest marches in various cities across the world, including some in the US. Theseincluded a 240-mile march in California that had begun on 12 March in San Diego and endedon 26 March at the statue erected in honour of Gandhi in San Francisco.
30 March 2011KapilDev, a former captain of the Indian national cricket team, wrote a letter to the PrimeMinister, Manmohan Singh, complaining that the many investigations into scams arising fromthe recent Commonwealth Games had achieved nothing so far. He said that, "Why can't wehave an independent Lokpal to look into these scams. I consider you as the cleanest politicianin the recent history and I urge you for a Jan Lokpal Bill.
4 April 2011Hazare announced that he would commence his "fast unto death" and that this would last untila comprehensive measure to tackle corruption was introduced. He claimed that thegovernment had excluded "civil society" from the panel set up to draft the Jan Lokpal Bill andimplied that at least one of the people who was to be on the drafting committee -SharadPawar - might be unsuitable for that role because of his large
landholdings. KiranBedi and Swami Agnivesh voiced their support for Hazare.
5 April 2011Hazare initiated his fast at JantarMantar in Delhi. Elsewhere, people attended a protestat Freedom Park, Bangalore. Campaigners for India Against Corruption (IAC) estimated that a petition circulated in thecity of Pune which demanded that the government enact a bill had attracted between 5000 and
6000 signatures between 3 April and 5 April. Hazare has been involved with IAC, a groupestablished by various prominent activists with the primary purpose of achieving the legalenactment and subsequent enforcement of a strong version of the Jan Lokpal bill.
7 April 2011Two rounds of talks failed. There was agreement regarding constituting a panel to examine theBill but the government would not accede to demands that it should be a formally constitutedpanel or that Hazare should lead it. As a consequence of this, Hazare continued his fast.Hazare and the protesters tried to keep the protests non-political. No politicians were welcomeat the site of the fast. Former HaryanaChief Minister Om PrakashChautala, former MadhyaPradesh Chief Minister Uma Bharti and pro Sonia Gandhi journalist BarkhaDuttwere forced
by civilians to leave, after the protesters objected against their presence which they believedwas harming the integrity of their movement.
8 April 2011Protests spread to numerous other places, including Mumbai, Kolkata, Thiruvananthapuram,Hyderabad, Jaipur, Chennai, Patna, Bhopal, Ahmedabad, Ranchi, Pune, and the University of Jammu.The government continued to squabble with the activists stating that the bill draftingcommittee will be headed by a government appointed minister and not a civil society memberas the protesters demanded to avoid allowing the government to make the bill less powerful.
9 April 2011After accepting all the demands of Hazare, the Government of India issued a OfficialGazette saying that the draft of lokpal would be made and presented in the coming monsoonsession of LokSabha.
― I want to tell the government that we are not two but one.You should wipe it out of your mind that you are themasters. You are not the masters,the people are. Gram Sabha is more powerful thanLokSabha or State Assemblies ‖
— Anna Hazare
16 April 2011
The first meeting regarding a draft of the Lokpal Bill was held on 16 April. The governmentagreed to audio-record all meetings of the Lokpal Bill panel and to hold public consultationsbefore a final draft is prepared Hazare demanded that the proceedings be televised live but thegovernment refused.
June 2011Swami Ramdev begins his indefinite hunger strike at RamlilaMaidan in Delhi to bring backthe black money stashed in tax havens abroad. At midnight, police raid the ground when mostprotesters are sleeping and Ramdev is busy at a meeting with his core group. Police hadarranged buses to drop supporters at railway stations and bus stands in advance; hadammunition ready and were in battle-gear wearing vests and helmets and kept some
ambulances on standby.
― We are really curious why the government isagainst the idea of telecasting live theproceedings of the committee. The peopleought to know the reasons why there is adifference between your and our viewpoint, ‖
9 June 2011Hazare describes his fight against corruption as the "Second Freedom Struggle" and set anultimatum of 15 August 2011, as the last date to pass a strong Jan Lokpal Bill threatening tootherwise intensify his anti-corruption agitation and start another fast from 16 August.
16 June 2011The Government and the civil societysplit wide open due to differences in jointly drafting bill.Government representatives informed that if a consensus on the common bill is not reached,two drafts will be sent to the Cabinet, one drafted by the Government and the other drafted bythe civil society
Govt ResponseHazare announced that he would commence his "fast unto death" and that this would last untila comprehensive measure to tackle corruption was introduced. He claimed that thegovernment had excluded "civil society" from the panel set up to draft the Jan Lokpal Bill andimplied that at least one of the people who was to be on the drafting committee - SharadPawar - might be unsuitable for that role because of his largelandholdings. KiranBedi and Swami Agnivesh voiced their support for Hazare.
Referendum on Jan Lokpal
― We carried out the referendum in Sibal'sconstituency to prove a point, to show if Sibal really represents his people ‖
— ArvindKejriwal
Referendum organised by India Against Corruption (IAC) in Chikkaballapur and Bangalore. About 94.3% of Chikkaballapur constituency and 79.7% of Bangalore voted to bring theprime minister of India under the ambit of the Jan Lokpal Bill. On July 19, 2011 All IndiaNovoday Organisation conducted referendum in Amravati city of Maharashtra. 1,20,000persons cast votes and 1,18,082 persons supported the Jan Lokpal Bill while 880 opposed and
1,481 votes were found invalid. Referendum organised by Team Anna in KapilSibal'sconstituency in New Delhi over 85 % of the persons cast votes want Jan Lokpal Bill (theactivists' version and not the government's)
The drafting committee was officially formed on 8 April 2011. It consists of ten members,including five from the government and five drawn from society.ChairmenThe Government of India accepted that the committee be co-chaired by a politician and anactivist, non-politician. It is reported that Pranab Mukherjee, from the political arena,and Shanti Bhushan, from civil society, will fill those roles.
Government representation:
Five Cabinet ministers will be a part of the Drafting Committee. They are: Pranab Mukherjee , Finance Minister, Co-Chairman;
P. Chidambaram, Minister of Home Affairs;
VeerappaMoily, Minister of Corporate Affairs;
KapilSibal, Minister for Communications and Information Technology; and Salman Khursid, Minister of minority affairs.
Civil society representation:
Five leading social activists will be a part of the Drafting Committee. They are: Shanti Bhushan, Former Minister of Law and Justice, Co-Chairman; Anna Hazare, Social Activist;
PrashantBhushan, Lawyer; N. SantoshHegde, Lokayukta (Karnataka); and ArvindKejriwal.
He once contemplated suicide and even wrote a two-page essay on why he wanted to end his
life. Anna Hazare was not driven to such a pass by circumstances. He wanted to live no morebecause he was frustrated with life and wanted an answer to the purpose of human existence.
The story goes that one day at the New Delhi Railway Station, he chanced upon a book onSwami Vivekananda. Drawn by Vivekananda's photograph, he is quoted as saying that he readthe book and found his answer - that the motive of his life lay in service to his fellow humans.
Today, Anna Hazare is the face of India's fight against corruption. He has taken that fight tothe corridors of power and challenged the government at the highest level. People, the commonman and well-known personalities alike, are supporting him in the hundreds swelling to thethousands.
For Anna Hazare, it is another battle. And he has fought quite a few. Including some as asoldier for 15 years in Indian Army. He enlisted after the 1962 Indo-China war when thegovernment exhorted young men to join the Army.
In 1978, he took voluntary retirement from the 9th Maratha Battalion and returned home toRalegaon Siddhi, a village in Maharashtra's drought-prone Ahmadnagar. He was 39 years old.
He found farmers back home struggling for survival and their suffering would prompt him topioneer rainwater conservation that put his little hamlet on the international map as a modelvillage.
The villagers revere him. ThakaramRaut, a school teacher in Ralegaon Siddhi says, "Thanksto Anna's agitations, we got a school, we got electricity, we got development schemes forfarmers.''
Anna Hazare's fight against corruption began here. He fought first against corruption that wasblocking growth in rural India. His organization - the BhrashtacharVirodhi Jan Andolan (People's movement against Corruption). His tool of protest - hunger strikes. And his primetarget - politicians.
His weapon is potent. In 1995-96, he forced the Sena-BJP government in Maharashtra to droptwo corrupt Cabinet Ministers. In 2003, he forced the Congress-Nationalist Congress Party(NCP) state government to set up an investigation against four ministers.
Maharashtra stalwarts like SharadPawar and Bal Thackeray have often called his style of agitation nothing short of "blackmail".
But Anna Hazare has soldiered on relentless. From one battle to another in his war againstcorruption. He fought from the front to have Right to Information (RTI) implemented. He isnow fighting for the implementation of the Jan Lokpal Bill, an anti-corruption bill drafted by
leading members of civil society that envisages speedy action in corruption cases againsteveryone, including ministers and senior bureaucrats.
More than 30 years after Anna Hazare started his crusade, as the 72-year-old observes ahunger strike in Delhi against large-scale corruption at the national level, nothing really haschanged except the scale of his battle.
The Act will be called Lokpal Act, 2011.It shall come into force on such date as the Central Government may, by notification in theOfficial Gazette.
Structure of Lokpal Jan Lokpal Bill proposes that at the level of Central Government, an institution called Jan
Lokpal should be set up. Likewise, in each state, Jan Lokayukta should be set up. Jan Lokpal
will accept corruption complaints against Central government departments and Jan
Lokayukta will accept complaints against departments of respective state government.
Each of these bodies will have 10 members and one Chairperson.
a. Independence of Jan Lokpal and Jan Lokayukta
Jan Lokpal and Jan Lokayukta would be completely independent of the governments. Their
independence would be ensured through following measures:
(i) Administrative independence
They will be independent agencies like Central Election Commission, Comptroller and Auditorgeneral of India and Supreme Court. Therefore, no politician or a bureaucrat will be able to
interfere with its functioning.
(ii) Financial independence
Their expenses will be charged to the Consolidated Fund of India/State. They will be provided
whatever expenses they require.
(iii) Manpower
They will have powers to assess their manpower requirements and employ them either from
existing government servants (who can come on deputation basis) or directly from the market.
b. Single anti-corruption agency
Anti-corruption branch of CBI, CVC and departmental vigilance wings will be merged into
Lokpal. Anti-Corruption Branch of Police, state vigilance departments would be merged into
Jan Lokayuktas. In 1986, when Karnataka Lokayukta was created, all existing anti-corruption
and vigilance agencies in the state were merged into Lokayukta.
Presently, we have institutions of Lokayuktas in 18 states. They are merely advisory bodies.
They neither have resources nor powers. They will be replaced with Jan Lokayuktas through
c. Confiscation of assets Each bureaucrat, politician and judge would be required to submit a statement of moveable
and immoveable assets owned by him and his family on an annual basis, which will be put on
the official website. If an asset is subsequently found to be owned by a public servant, it would
be deemed to have been obtained through corrupt means and would be confiscated.
Prosecution proceedings would be initiated against the accused.
Similarly, after each election, the Jan Lokpal will verify the assets declared by each candidate.If undeclared assets are found, a case will be registered and investigations started.
d. Increased punishment for corruption
Presently, the maximum punishment for corruption is seven years, which is believed to be very
less. This is proposed to be increased to life sentence.
e. Illegally obtained benefits are deemed to be obtained through corruption
In the current system, if anyone obtains any benefit from the government illegally, it is difficult
to prove that he did so by paying bribes. Therefore, it has been provided in Jan Lokpal Bill
that if a person obtains any benefit from the government in violation of a law or rules and
regulations, that person along with concerned public servants shall be deemed to have indulged
in corrupt practice.
f. Power to punish if its orders are not followed
If orders of the Jan Lokpal or Jan Lokayukta are not obeyed, it will have the powers to impose
financial penalties and also initiate contempt proceedings against the guilty officials.
The Lokpal shall constitute an Investigation Wing for the purpose of conductinginvestigation of any offence alleged to have been committed by a public servant punishableunder the Prevention of Corruption Act, 1988
Provided that till such time the Investigation Wing is constituted by the Lokpal, theCentral 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 outinvestigation under this Act
Investigation officer to have powers of police.No investigation shall be made by an investigation officer of the Investigation Wing below therank of a Deputy Superintendent of Police or by any other officer of equivalent rank.
Investigation officer to inquire on direction of Lokpal
The Lokpal may, before holding any inquiry under this Act, by an order, require theinvestigation officer of its Investigation Wing to make, or cause to be made, a preliminaryinvestigation in such manner as it may direct and submit a report to the Lokpal, within suchtime as may be specified by the Lokpal, to enable it to satisfy itself as to whether or not thematter requires to be inquired into by the Lokpal.
The investigation officer on receipt of an order shall complete the investigation and submit hisreport within the time specified under that sub‐section.
PROSECUTION WING
Appointment of Prosecution Director.
The Lokpal may, by notification, constitute a prosecution wing and appoint a prosecution
Director and such other officers and employees to assist the prosecution Director for thepurpose of prosecution of public servants in relation to any complaint by the Lokpal under thisAct.
The prosecution Director shall, after having been so directed by the Lokpal, file a complaint
before the Special Court, and take all necessary steps in respect of the prosecution of public
servants in relation to any offence punishable under the Prevention of Corruption Act, 1988.
The Lokpal, on receipt of a complaint, may either make preliminary inquiry or direct itsInvestigation Wing, to make a preliminary investigation to ascertain whether there exists a
prima facie case for proceeding in the matter. Every preliminary inquiry shall ordinarily becompleted within a period of thirty days and for reasons to be recorded in writing, within afurther period of three months from the date of receipt of the complaint. Upon completion of the preliminary investigation, the investigating authority shall submit its report to the Lokpal.
Before the Lokpal comes to the conclusion in the course of a preliminary inquiry and after
submission of a report that a prima facie is made out against the public servant pursuant tosuch a preliminary inquiry, the Lokpal shall afford the public servant an opportunity to beheard consistent with principles of natural justice.
Where the Lokpal, after receiving the report of the investigating authority pursuant to apreliminary investigation or is satisfied that no prima facie case is made out for proceedingfurther in the matter, the complaint shall be closed and the decision thereon be communicatedto the complainant and the public servant
Every inquiry conducted by the Lokpal, upon being satisfied that a prima facie case is madeout, shall be open to the public provided that in exceptional circumstances and for reasons tobe recorded in writing by the Lokpal, such inquiry may be conducted in camera.
In case the Lokpal proceeds to inquire into the complaint, it shall hold such inquiry asexpeditiously as possible and complete the inquiry within a period of six months from the dateof receipt of the complaint which, for reasons to be recorded in writing, may be extended by afurther period of six months.
If the Lokpal proposes to inquire into a complaint, it may, at any stage, —
(a) pass appropriate orders for safe custody of the documents relevant to the inquiry as itdeems fit; and
(b) forward a copy of the complaint to the public servant concerned along with all relevantmaterial relied upon and afford him an opportunity to represent his case.
The website of the Lokpal shall, from time to time and in such manner as may be specified byregulations, display to the public, the status of number of complaints pending before it ordisposed of by it. The Lokpal may withhold the records and evidence which are likely toimpede the process of inquiry or conduct of a case by it or the Special Court. Save as otherwiseprovided, the manner and procedure of conducting an inquiry or investigation under this Act,shall be such as may be specified by regulations.
Action on inquiry in relation to public servants not being minsters or Members of Parliament.
Where after the conclusion of the inquiry or investigation, the findings of the Lokpaldisclose the commission of an offence under the Prevention of Corruption Act, 1988 by a publicservant the Lokpal may —
(a) ) file a case in the Special Court and send a copy of the report together with its findings tothe competent authority;
(b) recommend to the competent authority the initiation of discliplinary proceedings under
the rules of disciplinary proceedings applicable to such public servant;(c) provide a copy of the report to the public servant or his representative;
The competent authority shall, within a period of thirty days of the receipt of recommendation
initiate disciplinary proceedings against the delinquent public servant accused of committing
offence under the Prevention of Corruption Act, 1988 and forward its comments on the report,
including the action taken or proposed to be taken thereon, to the Lokpal ordinarily within six
months of initation of such disciplinary proceedings.
Assessment of loss and recovery thereof by Special Court.If any public servant is convicted of an offence under the Prevention of Corruption Act, 1988
by the Special Court, notwithstanding and without prejudice to any law for the time being inforce, it may make an assessment of loss, if any, caused to the public exchequer on account of the actions or decisions of such public servant not taken in good faith and for which he standsconvicted, and may order recovery of such loss, if possible or quantifiable, from such publicservant so convicted:
Provided that if the Special Court, for reasons to be recorded in writing, comes to theconclusion that the loss caused was pursuant to a conspiracy with the beneficiary orbeneficiaries of actions or decisions of the public servant so convicted, then such loss may, if assessed and quantifiable under this section, may also be recovered from such beneficiary orbeneficiaries proportionately.
DECLARATION OF ASSETS
Every public servant shall make a declaration of his assets and liabilities in the manner asprovided by or under this Act. A public servant shall, within a period of thirty days from thedate on which he makes and subscribes an oath or affirmation to enter upon his office,furnish to the competent authority the information relating to —
(a) the assets of which he, his spouse and his dependent children are, jointly or severally,owners or beneficiaries;
(b) his liabilities and that of his spouse and his dependent children.
Presumption as to acquisition of assets by corrupt means in certain cases.If any public servant wilfully or for reasons which are not justifiable, fails to —
(a) to declare his assets; or
(b) gives misleading information in respect of such assets and is found to be in possessionof assets not disclosed or in respect of which misleading information was furnished,
then such assets shall, unless otherwise proved, be presumed to belong to the public servantand shall be presumed to be assets acquired by corrupt means:
Provided that the competent authority may condone or exempt the public servant fromfurnishing information in respect of assets not exceeding such minimum value as may beprescribed.
Prosecution for false complaint and payment of compensation, etc., to publicservant.
Notwithstanding anything contained in this Act, whoever makes any false and frivolous orvexatious complaint under this Act shall, on conviction, be punished with imprisonment for aterm which shall not be less than two years but which may extend to five years and with finewhich shall not be less than twenty‐five thousand rupees but which may extend to two lakhrupees.
No Court, except a Special Court, shall take cognizance of an offence. No Special Courtshall take cognizance of an offence except on a complaint made by a person against whom thefalse, frivolous or vexatious complaint was made.
The prosecution in relation to an offence shall be conducted by the public prosecutor and allexpenses connected with such prosecution shall be borne by the Central Government.
False complaint made by society or association of persons or trust.Where any offence has been committed by any society or association of persons or trust
(whether registered or not), every person who, at the time the offence was committed, wasdirectly in charge of, and was responsible to, the society or association of persons or trust, for
the conduct of the business or affairs or activities of the society or association of persons ortrust as well as such society or association of persons or trust shall be deemed to be guilty of theoffence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained render any such person liable to any punishment providedin this Act, if he proves that the offence was committed without his knowledge or that he hadexercised all due diligence to prevent the commission of such offence.
Where an offence under this Act has been committed by a society or association of persons ortrust (whether registered or not) and it is proved that the offence has been committed with theconsent or connivance of, or is attributable to any neglect on the part of, any director,manager, secretary or other officer of such society or association of persons or trust, such
director, manager, secretary or other officer shall also be deemed to be guilty of that offenceand shall be liable to be proceeded against and punished accordingly.
Protection of action taken in good faith by any public servant .No suit, prosecution or other legal proceedings under this Act shall lie against any publicservant, in respect of anything which is done in good faith or intended to be done in thedischarge of his official functions or in exercise of his powers.
Protection of action taken in good faith by others .
No suit, prosecution or other legal proceedings shall lie against the Lokpal or against anyofficer, employee, agency or any person, in respect of anything which is done in good faith or
intended to be done under this Act.
Members, officers and employees of Lokpal to be public servants.The Chairperson, Members, officers and other employees of the Lokpal shall be deemed,
when acting or purporting to act in pursuance of any of the provisions of this Act, to be publicservants within the meaning of section 21 of the Indian Penal Code.
Bar of Jurisdiction.No civil court shall have jurisdiction in respect of any matter which the Lokpal is
empowered by or under this Act to determine.
Act to have overriding effect.
The provisions of this Act shall have effect notwithstanding anything inconsistent therewithcontained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
Power to make rules.The Central Government may, by notification in the Official Gazette, make rules to carry
out the provisions of this Act.
Power of Lokpal to make regulations.(1) Subject to the provisions of this Act and the rules made thereunder, the Lokpal may, by
notification in the Official Gazette, make regulations to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, suchregulations may provide for all or any of the following matters, namely: — (a) the conditions of service of the secretary and other officers and staff of the Lokpal and the matters which in sofar as they relate to salaries, allowances, leave or pensions, require the approval of thePresident;
(b) the place of sittings of benches of the Lokpal;
(c) the manner for displaying on the website of the Lokpal, the status of all complaintspending or disposed of along with records and evidence;
(d) the manner and procedure of conducting an inquiry or investigation;
(e) any other matter which is required to be, or may be, specified under this Act.
Every rule and regulation made under this Act shall be laid, as soon as may be after it is made,before each House of Parliament, while it is in session, for a total period of thirty days whichmay be comprised in one session or in two or more successive sessions, and if, before the expiryof the session immediately following the session or the successive sessions aforesaid, bothHouses agree in making any modification in the rule or regulation, or both Houses agree thatthe rule or regulation should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may be; so, however, that any suchmodification or annulment shall be without prejudice to the validity of anything previouslydone under that rule or regulation.
Power to remove difficulties.
If any difficulty arises in giving effect to the provisions of this Act, the Central Governmentmay, by order, published in the Official Gazette, make such provisions not inconsistent withthe provisions of this Act, as may appear to be necessary for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.Every order made under this section shall belaid, as soon as may be after it is made, before each House of Parliament.
report. For instance, if there weresuch a Lokpal today and if Lokpalmade a recommendation to the PMto prosecute A. Raja, obviously thePM will not have the politicalcourage to initiate prosecution against A.Raja. Likewise, if Lokpalmade a report against the PM or anyMP of the ruling party, will the houseever pass a resolution to prosecutethe PM or the ruling party MP?Obviously, they will never do that.
3. The bill is legally unsound. Lokpalhas not been given police powers.Therefore Lokpal cannot register anFIR. Therefore all the enquiriesconducted by Lokpal will tantamountto ―preliminary enquiries‖. Even if the report of Lokpal is accepted, who
will file the chargesheet in the court?Who will initiate prosecution? Whowill appoint the prosecution lawyer?The entire bill is silent on that.
Lokpal would have police powers. Itwill be able to register FIR, proceedwith criminal investigations andlaunch prosecution.
4. The bill does not say what will be therole of CBI after this bill. Can CBI andLokpal investigate the same case orCBI will lose its powers to investigatepoliticians? If the latter is true, thenthis bill is meant to completelyinsulate politicians from any
investigations whatsoever which arepossible today through CBI.
That part of CBI, which deals withcases of corruption, will be mergedinto Lokpal so that there is just oneeffective and independent body totake action against corruption
5. There is a strong punishment for―frivolous‖ complaints. If any complaint is found to be false andfrivolous, Lokpal will have the powerto send the complainant to jailthrough summary trial but if thecomplaint were found to be true, theLokpal will not have the power tosend the corrupt politicians to jail!
So the bill appears to be meant tobrowbeat, threaten and discouragethose fighting against corruption.
Deterrence has been provided againstfrivolous complaints in the form of financial penalties against thecomplainant, however, Lokayukta isempowered to prosecute the corruptand take disciplinary action againstthem.
6. Lokpal will have jurisdiction only onMPs, ministers and PM. It will nothave jurisdiction over officers. Theofficers and politicians do notindulge in corruption separately. Inany case of corruption, there isalways an involvement of both of them. So according to government‘s proposal, every case would need tobe investigated by both CVC and
Lokpal will have jurisdiction overpoliticians, officials and judges. CVCand the entire vigilance machinery of government will be merged intoLokpal.
Lokpal. So now, in each case, CVC whileLokpal will look into the role of politicians. Obviously the caserecords will be with one agency andthe way government functions it willnot share its records with the otheragency. It is also possible that in thesame case the two agencies arriveat completely opposite conclusions.Therefore it appears to be a sureway of killing any case.
7. Lokpal will consist of threemembers, all of them being retired
judges. There is no reason why thechoice should be restricted to
judiciary. By creating so many postretirement posts for judges, thegovernment will make the retiring
judges vulnerable to government
influences just before retirement asis already happening in the case of retiring bureaucrats. The retiring
judges, in the hope of getting postretirement employment would dothe bidding of the government intheir last few years.
Lokpal would have ten members andone Chairperson. Out of them fourneed to have legal background (theyneed not be judges). Others could befrom any background.
8. The selection committee consists of Vice President, PM, Leaders of bothhouses, Leaders of opposition inboth houses, Law Minister and Home
minister. Barring Vice President, allof them are politicians whosecorruption Lokpal is supposed toinvestigate. So there is a directconflict of interest. Also selectioncommittee is heavily loaded in favorof the ruling party. Effectively rulingparty will make the final selections.And obviously ruling party will never
Selection committee consists of members from judicial background,Chief Election Commissioner,Comptroller and Auditor General of
India and international awardees(likeNobel prize winners and Magsaysayawardees of Indian origin). A detailedtransparent and participatoryselection process has been prescribed.
9. Lokpal will not have powers toinvestigate any case against PM,
which deals with foreign affairs,security and defence. This meansthat corruption in defence deals willbe out of any scrutiny whatsoever. Itwill become impossible toinvestigate into any Bofors in future
There is no such bar on Lokpal‘s powers.
10. Whereas a time limit of six monthsto one year has been prescribed for Lokpalto enquire, however,subsequently, there is no time limitprescribed for completion of trial.
Investigations should be completedwithin one year. Trial should get overwithin the next one year.
11. It does not deal with corruption of Bureaucrats. Corrupt bureaucrats
Lokpal will have power to directdisciplinary action, including
continue in their job without anyactions against them.
dismissalof a corrupt officer from job.
12. It does not talk of investigation of complaints against judges
Lokpal will have powers to initiateinvestigations on complaints of corruption against judges.
13. Speaker would decide whichcomplaints shall be enquired into byLokpal.
Lokpal will not be able to dismiss anycomplaint from public withouthearingthe complainant.
14. Our entire governance systemsuffers from inadequate publicgrievance redressal systems, whichforce people to pay bribes. Lokpalbill does not address this issue.
Lokpal will have the powers to ordersredressal in a time bound manner. Itwill have powers to impose financialpenalties on guilty officers, whichwould be paid to complainant ascompensation
15. Large number of people raising theirvoice against political corruption arebeing murdered. Lokpal does not
have any powers to provideprotection to them.
Lokpal will have powers to provideprotection against physical andprofessional victimization of
whistleblowers
16. Nothing has been provided in law torecoverill gotten wealth. A corruptperson can come out of jail andenjoy that money.
Loss caused to the government due tocorruption will be recovered from allaccused.
17. Under the present law, there isSmall punishment for corruption-Punishment for corruption isminimum 6 months and maximum 7years.
Enhanced punishment - Thepunishment would be minimum 5years and maximum of lifeimprisonment
18. Under the Government‘s draft Lokpal Bill, Government officers arebarred from making any complaints.Honest officers working in theGovernment have maximuminformation about corruption goingon within the Government. Ratherthan encouraging them to speak upagainst corruption, the Governmentstops them from making anycomplaint under this law.
Under the Jan Lokpal Bill, anyonecanmake a complaint. No Governmentofficer is barred from making acomplaint
ConclusionAnna Hazare is leading a social battle sitting on a fast unto death wef 05 Apr 2011 demandinggreater public role in the Anti Corruption Bill (Lokpal Bill). He is demanding that Lokpalmust have jurisdiction over politicians, bureaucrats and judges (thankfully they have left thedefence services!).
Is deterrence and policing the right way? So many laws and law enforcers have not broughtthe crime rate down. Have the crimes again women really reduced after setting up of CAWCell all over the country. Have the female population increased despite criminalising the act of female foeticide?
A Lokpal Bill if passed may slow the rate of social decay in the short run, but in the long run ittoo must become a victim of natural process of progressive decay. There will be advocates and
jurists who would specialize in reading the fine print of the new law and will quickly beappointed advisors by those seeking circumvention from prosecution. Lokpal Bill will need to‗define‘ the acts of corruption; once defined there will be so much ‗field‘ outside the ‗defined
field‘. The fine-print- reader advocates will have a new playfield! That is all that will happen!!What is the real need of our country at this hour? Must Lokpal Bill become the sole point of
focus or should corruption be targeted? Lokpal Bill must be looked at as a therapeutic cure.What the nation needs in the long run is a prophylactic measure.
What we are witnessing is lack of character. So, we need to build character. The problemstatement can‘t be simpler.
In addition to work in this field - building character - we need concurrent work to get ourselvesa new constitution. This has become unavoidable due to a singular reason whereby constitutionpermits fragmentation of society on various accounts.
It all started with the definition of ‗Minorities‘ in the constitution. OBC‘s were later added to
the list of SC/ST by the Mandal Commission. Seeing the benefits accruing to the so-called‗minorities‘, the sub-groups from the ‗majority‘ category have been constantly seeking grant of ‗minority status‘ to obtain benefits for their community. Various agitations seeking ‗minority
status‘ – Gurjar (Dec 2010) and Jat Agitation (Mar 2011) are telling the story. Stigma of ‗low
caste minority‘ of yesterday has become a brand symbol to be flaunted! What a development!
In 63 years we have not been able to make the stigmatic mark go faint, so we turned it round!Minority is now on the threshold of becoming majority! How long will the Supreme Court
directive, which states that reservations cannot go beyond 50 percent, survive, is anybody‘s
guess; all it requires is another Bill in the parliament ruled by people without character (not allof them fall within the legal definition of ‗criminals‘, but they all are either lacking integr ity orlow on will).
Division of society, permitted by the constitution, has been exploited by the politicians to create
their respective vote banks. The nation continues to get fragmented into smaller states and the
society continues its own fragmentation to obtain benefits of getting into the ‗minority‘.
Caste and region based politics cannot ever find convergence with national agendas that must
be there. When the forces are divisive where can there be any unification of a country? Must
war, natural disasters, or cricket hype be the only three events that create an illusion of unity
(temporarily)? Can there be no other permanent or prevailing unifying force?
The next important aspect to be looked at is the national policy for retirement orretrenchment. It is an irony that today no one is willing to retire – not the politician, nor the
judge or the bureaucrat. Each one is trying his level best to create a post-retirement
retrenchment by creating new institutions like Lokayukt, Lokpal, Disaster Management Cell,
AFT etc. The national must have a clear cut age of retirement except social service for the likes
of Mahatma Gandhi and Anna Hazare. There must be no provision of retrenchment beyond
the retirement age.
The country simply requires a new constitution whose basic structure must be:
Equality for all, in all spheres, irrespective of region, religion or caste.
A two-party political structure across the entire nation. A party placed in the position of national responsibility (not ‗power‘) must have uninterrupted five year tenure to showresults. The daily uncertainty of no-confidence and the tenuous environment created bycoalition politics must be removed.
For character development established spiritual centres, like Rama Krishna Mission,AryaSamaj, J.Krisnamurthy Foundation, Brahmakumaris and many such likeinstitutions must be given a greater role to incorporate there modules for characterbuilding into the school curriculum. Institutions like Gurukul must be revived.
The new constitution must have a broad-based, all encompassing provision like the
Army Act 63 – Violation of Good Order and Military Discipline.