Lokpal Bill as being discussed by the Joint Lokpal Committee
On the basis of the meetings held on April 16, May 7, 23 and 30, below are the provisions on which members of the govt and civil society have agreed, disagreed or have reserved for further discussion. The civil society members did not attend June 6 meeting as a protest against the June 4 midnight police action at Ramlila Maidan, New Delhi.
Points of agreement
Lokpal Bill should provide for both- Lokpal at centre and Lokayuktas in states.
Institution of Lokpal should be financially, functionally and administratively independent of the government. Its expenses will be charged from the consolidated fund of India. No sanctions from any government agency shall be required for making expenses. Lokpal will be free to decide the number of employees, their recruitment, salary and other conditions.
Lokpal shall have power to make rules and regulations with respect to its functioning.
After serving as Chairperson and members of Lokpal, they shall not be eligible for appointment to any office directly/indirectly funded by government.
The total tenure as Chairperson or member or together as member and Chairperson shall not exceed five years. Chairperson and members shall not be reappointed.
A ten members search committee will recommend three times the vacancies for the Chairperson and members to the Selection committee.
Lokpal would not be required to seek permission from any other agency for initiating enquiry, investigation or prosecution.
Every public authority should prepare a citizen’s charter and violation of that citizen’s charter shall be deemed to be corruption at some stage of upscaling of a grievance.
During investigations, if Lokpal is satisfied that allegations with respect to any activity is likely to sustain, then through an interim order, it can recommend the government authority to restrict that activity. If government authority does not follow the recommendation within 30 days, Lokpal may get a stay order from the High court to restrict the activity.
Lokpal should be authorized to issue contempt of itself under Contempt of Courts Act, 1971 (Central Act 70 of 1971). It should also have the power to summon.
Lokpal will be authorized to issue appropriate directions to prevent destruction of records during investigations, or to prevent the public servant from secreting the assets allegedly acquired by him through corrupt means.
If any asset is subsequently found to be in possession of any public servant, it shall be deemed to be owned by him/her, unless he proves otherwise.
If any asset is subsequently found to be owned by a public servant, which was not declared, it would be deemed to have been obtained through corrupt means unless he proves otherwise.
After every election, Lokpal shall verify the assets declared by each winning candidate with his declared sources of income in his income tax returns. Those undeclared shall be investigated against.
Any complaint against a staff of Lokpal shall be enquired into, within a month of its receipt and if found correct, the staff shall be summarily dismissed from the job. If any criminal case is made out, the same shall be pursued.
If anyone makes a complaint that lacks evidence and is held by Lokpal, to be meant only to harass certain authorities, the complainant shall be fined. However, mere closure of a case due to lack of evidence shall not be held against a complainant.
Every complaint shall have to be compulsorily disposed by Lokpal. No complaint could be disposed without hearing the complainant. If any case is closed, all records related thereto shall be made public.
Lokpal shall publish, every month on its website, the status of cases, received, disposed, closed, reasons for closure and list of cases pending.
All records with the Lokpal will be accessible under RTI Act, 2005 except:
1. Such portions of any records, which if released during an ongoing investigation, could impede the process of investigation. However, after completion of investigation, they would be disclosed.
2. Such records which could affect national security, and
3. Disclosure of the identity of a whistleblower that could compromise his/her security.
Points Agreed but need further examination
Selection committee for Chairperson and members of Lokpal shall consist of Prime Minister, Leader of Opposition, two youngest judges of Supreme Court, two youngest Chief Justices of High Courts, Comptroller and Auditor General and Chief Election Commissioner. (Government agreed but suggested inclusion of some other members in the selection committee after further study)
Lokpal shall be responsible for providing protection against professional or physical threat to whistleblowers, victims of corruption and witnesses, within or outside the government. (Government agreed to this clause in principle, but would examine whether this provision should be kept under the pending Whistleblower Protection Bill or in the Lokpal Bill. Civil society members say that if this provision is included in Whistleblower Protection Bill, then that Bill should also be finalized by Joint Lokpal Panel)
If any petition filed in Supreme Court by a citizen against the Chairperson or member, after a time bound enquiry proves to be true, then President is required to remove that Chairperson or member within one month. (Government suggested that Supreme Court should be allowed to dismiss complaints in liminae)
Lokpal shall have the powers to recommend, on an annual basis, the number of special courts required under section 4 of Prevention of Corruption Act, to ensure that the trial in any case is completed in less than a year. The recommendations shall be binding on the government. (Government agreed that Lokpal may recommend but recommendation may not be binding. Civil Society questioned why it could not be binding? Government said that it was due to three reasons: because Parliament may or may not agree to sanction expenditure, High Courts may not appoint judges and there could be lack of infrastructure. Civil Society agreed to examine how to overcome these issues but did not agree to make it advisory)
Accused should notify his/her list of moveable and immoveable assets during or at the time of conclusion of investigations. These assets cannot be transferred after such notification. Loss to exchequer quantified at the time of conviction, could be recovered from sale of these assets. (Government agreed, but at what point should notification be issued would be decided after studying Bihar Special Courts Act. Also, some principles may be laid down on how the loss would be assessed by the court)
Points of Disagreement
Government’s vision of Lokpal is an 11-member quasi-judicial body that will pass all orders.
But civil society members view that such a body will be overburdened with work and may become unwieldy. Civil society members vision of Lokpal is an independent institution headed by a 11-member body. This body will have quasi-judicial powers and it will a supervisory authority. There will be many other officers under the institution of Lokpal who will also possess quasi-judicial powers.
Government is against ‘Prime Minister being brought under the ambit of Lokpal Bill’. Ministers argue that any enquiry against the PM would impede his/her authority to govern and take decisions. Mr. Chidambaram told that PM’s position would be weakened if there were allegations against him every other day. Civil society members pointed out that an unsubstantiated complaint would not be entertained. A 7-member bench of Lokpal would first hear the complaint and decide whether there is adequate prima facie evidence against the PM. If there were none, the complaint would be dismissed. However, government remained adamant and did not agree.
Government does not want to include judiciary within the purview of Lokpal. Civil society members propose that a 7-member bench of Lokpal should have the power to decide whether an FIR could be filed against a judge or not. Today, only Chief Justice of India has the power to give that permission. However, the government did not agree saying it would compromise the independence of judiciary. Government said that judiciary should be dealt under Judicial Standards and Accountability Bill, which was pending in Parliament. Civil society members told that the Judicial Accountability Bill in its present status was ineffective. Civil society members suggested that if corruption in judiciary is to be dealt under Judicial Accountability Bill then, that bill should also be drafted by the Joint Lokpal Panel. Government refused to accept this demand and told that members of civil society should give their suggestions that will be recommended to the standing committee drafting the Bill. Civil Society members suspect the government’s intention in strictly dealing with corruption in judiciary.
According to the government, MPs conduct inside the Parliament shall not be covered under the Lokpal Bill. Civil Society members pointed out that purchase and sale of MPs is endangering the very foundations of our democracy. MPs may just not be purchased by political parties but also by other countries or corporates. Therefore, it is essential that their conduct inside the House be brought under the ambit of Lokpal. Government argued that Parliament should be allowed to do ‘self regulation’. To this, civil society members replied that this self-regulation had not worked since past 60 years. But, government simply refused to accept this demand.
Government members say that only public servants at the level of Joint Secretary and above should be brought under the Lokpal. Government wants the existing system to continue to deal with corruption below the Joint Secretary level. Civil society members told that the country has come together to seek solution to corruption at all levels. The existing anti-corruption bodies have failed to deliver. Hence, an independent Lokpal is needed to check corruption at all levels. But, government members refused to take this demand into consideration.
On merging, CBI, CVC and departmental vigilance in Lokpal, government members told that, let all these agencies function and Lokpal have its own machinery. Civil society members question that why does government want to maintain its control over the CBI. Every successive government has misused CBI to suit their interests. Civil society members believe that perhaps the government wants to keep doing it.
Ten members Search Committee would consist of five former Comptroller and Auditor Generals and Ex Chief Election Commissioners of India who would then choose five other civil society members. Government members want complete freedom to be given to Selection committee to appoint anyone to Search committee. But, Civil Society members feel that this would compromise the independence of Search committee.
Lokpal will be authorized to directly transfer any official if his continuance is likely, to adversely affect investigations. Government members want to keep this power advisory.
The minimum punishment shall be raised to one year of rigorous imprisonment and maximum should be raised to life imprisonment. No agreement on life imprisonment.
Punishment shall be higher if the status or rank of accused is higher. Government members refused to accept this clause.
Points reserved for further discussion
Chairperson and members of Lokpal shall not be eligible to contest any election.
The Selection Committee has to restrict its choice of Chairperson and members of Lokpal from the list provided by Search Committee.
Points of agreement
Lokpal Bill should provide for both- Lokpal at centre and Lokayuktas in states.
Institution of Lokpal should be financially, functionally and administratively independent of the government. Its expenses will be charged from the consolidated fund of India. No sanctions from any government agency shall be required for making expenses. Lokpal will be free to decide the number of employees, their recruitment, salary and other conditions.
Lokpal shall have power to make rules and regulations with respect to its functioning.
After serving as Chairperson and members of Lokpal, they shall not be eligible for appointment to any office directly/indirectly funded by government.
The total tenure as Chairperson or member or together as member and Chairperson shall not exceed five years. Chairperson and members shall not be reappointed.
A ten members search committee will recommend three times the vacancies for the Chairperson and members to the Selection committee.
Lokpal would not be required to seek permission from any other agency for initiating enquiry, investigation or prosecution.
Every public authority should prepare a citizen’s charter and violation of that citizen’s charter shall be deemed to be corruption at some stage of upscaling of a grievance.
During investigations, if Lokpal is satisfied that allegations with respect to any activity is likely to sustain, then through an interim order, it can recommend the government authority to restrict that activity. If government authority does not follow the recommendation within 30 days, Lokpal may get a stay order from the High court to restrict the activity.
Lokpal should be authorized to issue contempt of itself under Contempt of Courts Act, 1971 (Central Act 70 of 1971). It should also have the power to summon.
Lokpal will be authorized to issue appropriate directions to prevent destruction of records during investigations, or to prevent the public servant from secreting the assets allegedly acquired by him through corrupt means.
If any asset is subsequently found to be in possession of any public servant, it shall be deemed to be owned by him/her, unless he proves otherwise.
If any asset is subsequently found to be owned by a public servant, which was not declared, it would be deemed to have been obtained through corrupt means unless he proves otherwise.
After every election, Lokpal shall verify the assets declared by each winning candidate with his declared sources of income in his income tax returns. Those undeclared shall be investigated against.
Any complaint against a staff of Lokpal shall be enquired into, within a month of its receipt and if found correct, the staff shall be summarily dismissed from the job. If any criminal case is made out, the same shall be pursued.
If anyone makes a complaint that lacks evidence and is held by Lokpal, to be meant only to harass certain authorities, the complainant shall be fined. However, mere closure of a case due to lack of evidence shall not be held against a complainant.
Every complaint shall have to be compulsorily disposed by Lokpal. No complaint could be disposed without hearing the complainant. If any case is closed, all records related thereto shall be made public.
Lokpal shall publish, every month on its website, the status of cases, received, disposed, closed, reasons for closure and list of cases pending.
All records with the Lokpal will be accessible under RTI Act, 2005 except:
1. Such portions of any records, which if released during an ongoing investigation, could impede the process of investigation. However, after completion of investigation, they would be disclosed.
2. Such records which could affect national security, and
3. Disclosure of the identity of a whistleblower that could compromise his/her security.
Points Agreed but need further examination
Selection committee for Chairperson and members of Lokpal shall consist of Prime Minister, Leader of Opposition, two youngest judges of Supreme Court, two youngest Chief Justices of High Courts, Comptroller and Auditor General and Chief Election Commissioner. (Government agreed but suggested inclusion of some other members in the selection committee after further study)
Lokpal shall be responsible for providing protection against professional or physical threat to whistleblowers, victims of corruption and witnesses, within or outside the government. (Government agreed to this clause in principle, but would examine whether this provision should be kept under the pending Whistleblower Protection Bill or in the Lokpal Bill. Civil society members say that if this provision is included in Whistleblower Protection Bill, then that Bill should also be finalized by Joint Lokpal Panel)
If any petition filed in Supreme Court by a citizen against the Chairperson or member, after a time bound enquiry proves to be true, then President is required to remove that Chairperson or member within one month. (Government suggested that Supreme Court should be allowed to dismiss complaints in liminae)
Lokpal shall have the powers to recommend, on an annual basis, the number of special courts required under section 4 of Prevention of Corruption Act, to ensure that the trial in any case is completed in less than a year. The recommendations shall be binding on the government. (Government agreed that Lokpal may recommend but recommendation may not be binding. Civil Society questioned why it could not be binding? Government said that it was due to three reasons: because Parliament may or may not agree to sanction expenditure, High Courts may not appoint judges and there could be lack of infrastructure. Civil Society agreed to examine how to overcome these issues but did not agree to make it advisory)
Accused should notify his/her list of moveable and immoveable assets during or at the time of conclusion of investigations. These assets cannot be transferred after such notification. Loss to exchequer quantified at the time of conviction, could be recovered from sale of these assets. (Government agreed, but at what point should notification be issued would be decided after studying Bihar Special Courts Act. Also, some principles may be laid down on how the loss would be assessed by the court)
Points of Disagreement
Government’s vision of Lokpal is an 11-member quasi-judicial body that will pass all orders.
But civil society members view that such a body will be overburdened with work and may become unwieldy. Civil society members vision of Lokpal is an independent institution headed by a 11-member body. This body will have quasi-judicial powers and it will a supervisory authority. There will be many other officers under the institution of Lokpal who will also possess quasi-judicial powers.
Government is against ‘Prime Minister being brought under the ambit of Lokpal Bill’. Ministers argue that any enquiry against the PM would impede his/her authority to govern and take decisions. Mr. Chidambaram told that PM’s position would be weakened if there were allegations against him every other day. Civil society members pointed out that an unsubstantiated complaint would not be entertained. A 7-member bench of Lokpal would first hear the complaint and decide whether there is adequate prima facie evidence against the PM. If there were none, the complaint would be dismissed. However, government remained adamant and did not agree.
Government does not want to include judiciary within the purview of Lokpal. Civil society members propose that a 7-member bench of Lokpal should have the power to decide whether an FIR could be filed against a judge or not. Today, only Chief Justice of India has the power to give that permission. However, the government did not agree saying it would compromise the independence of judiciary. Government said that judiciary should be dealt under Judicial Standards and Accountability Bill, which was pending in Parliament. Civil society members told that the Judicial Accountability Bill in its present status was ineffective. Civil society members suggested that if corruption in judiciary is to be dealt under Judicial Accountability Bill then, that bill should also be drafted by the Joint Lokpal Panel. Government refused to accept this demand and told that members of civil society should give their suggestions that will be recommended to the standing committee drafting the Bill. Civil Society members suspect the government’s intention in strictly dealing with corruption in judiciary.
According to the government, MPs conduct inside the Parliament shall not be covered under the Lokpal Bill. Civil Society members pointed out that purchase and sale of MPs is endangering the very foundations of our democracy. MPs may just not be purchased by political parties but also by other countries or corporates. Therefore, it is essential that their conduct inside the House be brought under the ambit of Lokpal. Government argued that Parliament should be allowed to do ‘self regulation’. To this, civil society members replied that this self-regulation had not worked since past 60 years. But, government simply refused to accept this demand.
Government members say that only public servants at the level of Joint Secretary and above should be brought under the Lokpal. Government wants the existing system to continue to deal with corruption below the Joint Secretary level. Civil society members told that the country has come together to seek solution to corruption at all levels. The existing anti-corruption bodies have failed to deliver. Hence, an independent Lokpal is needed to check corruption at all levels. But, government members refused to take this demand into consideration.
On merging, CBI, CVC and departmental vigilance in Lokpal, government members told that, let all these agencies function and Lokpal have its own machinery. Civil society members question that why does government want to maintain its control over the CBI. Every successive government has misused CBI to suit their interests. Civil society members believe that perhaps the government wants to keep doing it.
Ten members Search Committee would consist of five former Comptroller and Auditor Generals and Ex Chief Election Commissioners of India who would then choose five other civil society members. Government members want complete freedom to be given to Selection committee to appoint anyone to Search committee. But, Civil Society members feel that this would compromise the independence of Search committee.
Lokpal will be authorized to directly transfer any official if his continuance is likely, to adversely affect investigations. Government members want to keep this power advisory.
The minimum punishment shall be raised to one year of rigorous imprisonment and maximum should be raised to life imprisonment. No agreement on life imprisonment.
Punishment shall be higher if the status or rank of accused is higher. Government members refused to accept this clause.
Points reserved for further discussion
Chairperson and members of Lokpal shall not be eligible to contest any election.
The Selection Committee has to restrict its choice of Chairperson and members of Lokpal from the list provided by Search Committee.
Please write without being biased
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