The Department Related Standing Committee on Personnel, Public Grievances, Law and Justice tabled its 48 th Report on the Lok Pal Bill, 2011 on December 9, 2011. The Bill was introduced in the Lok Sabha on August 4, 2011. The Chairperson of the Committee is Shri Abhishek Manu Singhvi. The Report includes 10 Dissent Notes from 17 Members of Parliament (MPs). (a) Kirti Azad, Bal Apte, D.B. Chandre Gowda, Harin Pathak, Arjun Ram Meghwal, and Madhusudan Yadav. (b) Ram Jethmalani (c) Ram Vilas Paswan (d) Shailendra Kumar (e) Prasanta Kumar Majumdar (f) Pinaki Misra (g) A. Sampath (h) S. Semmalai (i) Meenakshi Natrajan, P.T. Thomas, and Deepa Dasmunshi (j) Vijay Bahadur Singh Comparison of the Lok Pal Bill, 2011 and the Standing Committee Report on the Lok Pal Bill Issues Lok Pal Bill Standing Committee recommendations Dissent from MPs (if any) Grievance Redressal Mechanism Inclusion of the Prime Minister Not included Clause 17(1)(a): Lok Pal can inquire into complaints against the Prime Minister once he demits There should be a separate mechanism to deal with Grievance Redressal and Citizen s Charter. A separate law must be enacted for the purpose, which should be applicable to all states subject to Constitutional validity. It should provide guidance to citizens on procedural matters; acknowledge a citizen s communication within a fixed time-frame; and may exclude certain services, which have supply constraints such as power, water etc. The proposed mechanism should have the same Constitutional status as the Lok Pal. There are different views on the subject: PM should be altogether excluded; PM should be altogether included; The Grievance Redressal Mechanism should be included in the present proposed law. Lok Pal could be a forum for a second appeal on limited number of issues (Kirti Azad etc). Citizen s Charter and Public Grievance Mechanism should be included in the text of the Bill (Ram Jethmalani). Citizen s Charter should be included in the Lok Pal Bill The central government should give full financial support to poorer states such as Odisha to set up grievance redressal mechanisms (Pinaki Misra). PM should not be given immunity except for subjects related to national security and public order (Kirti Azad etc).
office. PM should be included after he demits office; (d) PM should be included with exceptions for national security, foreign affairs, atomic energy and space; PM should be included subject to clearance for his prosecution by both Houses of Parliament in a joint sitting. Since each option has its own merits and demerits, the Committee leaves this decision to the wisdom of Parliament. PM should be brought under Lok Pal except for subjects related to national security, nuclear, defence, and foreign policy PM should be within the jurisdiction of the Lok Pal (Prasanta Kumar Majumdar). PM should be within the ambit of Lok Pal with some exceptions related to space, atomic energy, and national security. Also, the Lok Pal must decide whether to investigate or prosecute a PM with at least a 3/4 th majority (Pinaki Misra). PM should be brought within purview of the Lok Pal (A. Sampath). Vote and Speech of MPs in the House Clause 17(2): The Lok Pal does not have jurisdiction over the vote or speech of any MP in Parliament or Committees. The Constitutional safeguards given to MPs under Art 105 are sacrosanct and time-tested. Therefore, the existing structure should remain. Corrupt practices of MPs are not given immunity. No immunity should be provided to an MP s conduct outside the House (Kirti Azad etc). Exemption for MPs should not extend to acts of corruption. Article 105 of the Constitution should be amended as per the recommendation of the National Commission to Review the Working of the Constitution (A. Sampath). Inclusion of State Lokayukta Not included There should be a single, comprehensive central law dealing with Lok Pal and state Lokayuktas. This would ensure uniformity in standards for prosecution of public servants across the country. The states should retain the power to constitute Lokayuktas. The formation of Lokayuktas through a central legislation strikes at the roots of the federal concept enshrined in the Constitution (S. Semmalai). A separate chapter would have to be inserted providing for state specific issues. It is constitutionally valid to do so because the Act seeks to implement the UN Convention on Corruption ratified by India. Inclusion of lower bureaucracy Clause 17(1)(d): The Lok Pal has jurisdiction over Group A officers and persons of equivalent ranks in public sector undertakings and other government bodies. The Lok Pal shall cover Group A and Group B officers. Group C and Group D officers should be covered under the Central Vigilance Commission (CVC). The CVC should file periodic reports to the Lok Pal in respect of action taken for Group C and D officers. There should be no requirement for sanctions for any All public servants holding civil posts should be included (Kirti Azad etc). Inclusion of Group A and B officers (as well as corporate, private NGOs and media) would spawn a massive Lok Pal bureaucracy and also destroy existing institutions such as the CVC, CBI and internal vigilance apparatus. It would also paralyse government
False and frivolous complaints Inclusion of judiciary Search and Selection Process Clause 49(1): The penalty for filing false and frivolous or vexatious complaints is imprisonment for two to five years and a fine between Rs 25,000 and Rs 2 lakh. groups of employees. The Lokayuktas shall cover all groups of government employees. The penalty should include imprisonment for a maximum term of six months. The fine should not exceed Rs 25,000. Should specifically provide for complaints made in good faith in line with the Indian Penal Code. Not included Exclude judiciary and quasi-judicial authorities. Revamp of the procedure for appointment of judges and amendment of the Constitution. Establishment of a National Judicial Commission empowered to appoint and dismiss judges. Clause 4: Selection Committee: Selection Committee: PM, Speaker, Chief Justice of India PM, Speaker, Leader of the (CJI), LoP in the Lok Sabha, an eminent Indian as described in Opposition (LoP) in both Houses, the Bill unanimously nominated by CAG, CEC, UPSC Union cabinet minister, eminent Chairman. jurist, eminent person (all 3 Search Committee: Mandatory to constitute. Minimum seven nominated by the central members with 50 per cent members from SC/ST, OBC, government), sitting judge of minorities and women. Supreme Court and Chief Justice of a High Court (both nominated Suggestions by the Search Committee are not binding on the functioning (Ram Vilas Paswan). Group C employees should be included in the Bill Group C employees should included within the ambit of the Lok Pal (Prasanta Kumar Majumdar). If the Lok Pal in the future feels that significant decisionmaking level staff is escaping scrutiny, the particular C category staff may also be included (Pinaki Misra). Lok Pal should cover Group A, B, C and D employees (A. Sampath). Group C officers should be under the Lok Pal (Meenakshi Natrajan etc). The Lok Pal should have the power to investigate Group C officers since majority of poor people are harassed by them (Vijay Bahadur Singh). The term of imprisonment should not exceed 30 days (Kirti Azad etc). Selection Committee to comprise of PM, Union Minister, LoPs of both Houses, two judges and CVC. Search Committee to consist of CJI, CAG, CEC, Cabinet Secretary, judges of the Supreme Court, judges of the High Court (Kirti Azad etc). Process of selection of Lok Pal should be transparent. Nominations and comments from the public should be invited (Kirti Azad etc).
by the Chief Justice of India). Search Committee: May be constituted by the Selection Committee. It should consist of persons having special knowledge and expertise in anticorruption, public administration, vigilance, policy making, finance, insurance and banking. Selection Committee. The Selection Committee would not be required to revert to the Search Committee in case it makes a decision contrary to the Search Committee s recommendation. Selection Committee should consist of PM, LoP in the Lok Sabha, one judge of the Supreme Court and one Chief Justice of a High Court, CVC, CEC and CAG. Search Committee to consist of 10 members. Five of these should have retired as Chief Justice, CVC, CAG and CEC. These five would choose the remaining five from civil society. Fifty percent of the Committee should be from SC/STs, OBCs, minorities or women Composition of the Lok Pal Clause 3: Lok Pal shall consist of a Chairperson and up to eight members, of which 50% would be judicial members. Chairperson has to be a sitting or former judge of the Supreme Court. Nonjudicial members are required to have at least 25 years of experience in anti-corruption policy, vigilance, finance etc. Chairperson: Could be a non-judicial member. Should not include a person (a) convicted for offence involving moral turpitude, (b) less than 45 years old, and (c) who has left government service (at the Center, State or with a government controlled entity) within 12 months of his appointment. The Lok Pal should have 50% representation from SC/STs, OBCs, minorities and women (Ram Villas Paswan). Removal of the Lok Pal Clause 8: The President may order the removal of any member of the Lok Pal after an inquiry by the Supreme Court. This process may be initiated by the President, or upon a petition signed by at least 100 MPs, or on a petition by a citizen if the President is satisfied by the complaint. A citizen may also approach the Supreme Court directly with a complaint against a member of the Lok Pal. If the matter is admitted, it would be heard by a bench of at least five judges. Where the President does not refer a citizen s petition for removal of the Lok Pal for inquiry to the Supreme Court, the President should record reasons for not doing so. The Supreme Court should be empowered to impose heavy fine in case a false or frivolous complaint is made against the Chairman or member of the Lok Pal. The power to suspend Lok Pal members during pendency of complaints should be with the Supreme Court and not the government Investigations against officers of the Lok Pal to be conducted by an independent complaint authority Procedure to deal with complaints Clause 23: The Lok Pal shall comprise of an Investigation and a Prosecution Wing. Investigations can be initiated only through complaints by citizens. Lok Pal may initiate a preliminary inquiry or a The Lok Pal would comprise of an inquiry division and the prosecution wing. Allow for suo moto investigations by the Lok Pal. The Lok Pal shall first conduct a preliminary inquiry through its inquiry wing. The accused will not be given an opportunity to be heard at this stage. Inquiry is held in camera. If the complaint is not false, frivolous or vexatious, the Lok Pal shall refer the complaint for investigation to the CBI. The penalty under disciplinary proceedings should be made after providing the accused a hearing before the Lok Pal
Relationship between Lok Pal, CBI and the CVC Constitutional status for Lok Pal preliminary investigation on a complaint. If there is a prima facie case, the Lok Pal will conduct an inquiry or an investigation. All inquiries are in open court. The accused has the right to be heard at both the preliminary stage and the investigation stage. The Lok Pal may recommend the suspension of the public servant pending inquiry. Recommendation may not be followed for reasons recorded in writing. Clause 12(1): Government may direct officers under other departments to assist the Lok Pal. The Bill does not mention the role of CBI s Anti-corruption wing and the CVC. No provision. The CBI will file the charge sheet and closure report with the approval of Lok Pal. The Lok Pal or CVC s recommendation to suspend public servants (excluding MPs) pending inquiry may be overturned by a majority decision between three persons of Minister of State rank from the Ministry of Home, Personnel and the administrative Ministry. Such power for suspension will not be applicable in relation to MPs. CBI: Should not be subordinate to the Lok Pal in relation to the CBI s investigative powers. However, the supervisory role of the CVC over the CBI would be transferred to the Lok Pal in relation to Group B and above officers. For other officers, it will vest with CVC. CVC: Would continue its disciplinary and functional role for Group C and D personnel. Should be given constitutional status through another Bill. The details of the machinery would not be part of the Constitutional Amendment Bill. Constitutional status should also be given to the grievance redress machinery. The CBI should be under the control of the Lok Pal (Ram Jethmalani). Director CBI should be under the control of the Lok Pal. All policy decisions made by the central government in relation to the CBI should be made by the Lok Pal The Lok Pal should be provided with its own investigative mechanism which shall only look into cases under the Prevention of Corruption Act (PCA). The CBI should be appointed by the Lok Pal s selection committee (A. Sampath). The CVC should be under the Lok Pal and the SVCs under the State Lokayuktas. (Meenakshi Natrajan etc). Inclusion of private NGOs, corporate and media Clause 17(1)(g): Included if (a) annual income is above a specified amount, (b) funded by the State or through public donations. Clause 17(3): Abettors and Should include all entities (including corporate, media and NGOs) where the central government exercises control above a specified minimal degree or where they receive public donations, or donations under the Foreign Contribution Regulation Act above Rs 10 lakh per year. There should be a specific clause making all abettors and Any private organization which does not receive government funding should not be included within the ambit of the Lok Pal. It should include only those entities which receive sizeable funding from the government (funding capped at Rs 10 lakh per year) and discharge functions of a public character (Kirti Azad
Penalties Other powers of the Lok Pal Other related issues conspirators may also be investigated. Power to prosecute these in case they are not public servants is not provided. Clause 59: The Bill increases the punishment for criminal misconduct and for habitually abetting bribery from five to seven years. No provision. Clause 38: The Special Court would be instituted by the central government on the reference of the Lok Pal. conspirators liable to investigation, prosecution and punishment. The maximum punishment for criminal misconduct and for habitually abetting bribery should be increased to 10 years. The punishment for solicitation and acceptance of bribe by public servant and for taking of bribe by conduit to influence public servant should be increased. The present punishment is six months to five years. It should be increased to three to seven years. Provisions of the Public Interest Disclosure Bill or Whistleblowers Bill should also be applicable to the Lok Pal. The Lok Pal should not have separate inherent powers to tap phones. The present law should prevail as it stands today. Article 311 of the Constitution should be amended or replaced through a statute. The Special Court should be empowered to try any other offence other than those under the PCA. Sources: The Lok Pal Bill, 2011; the Department Related Standing Committee Report on the Lok Pal Bill, 2011 and PRS. etc). In case employees of private companies are convicted of corruption, the company should be barred from transacting with the government in the future The Lok Pal should have the power to black list companies and cancel contracts secured through corrupt means (A. Sampath). To encourage whistleblowers, 10% of the loss to the exchequer in a case should be awarded to the whistleblower for providing evidence. Whistleblowers should be provided with protection by the Lok Pal The procedure adopted by the disciplinary authority should conform to Article 311. The budget of the Lok Pal should be cleared by the Parliament and should not be charged on the consolidated fund as under the Bill. (Kirti Azad etc) The budget of the Lok Pal should be directly presented by the Lok Pal before the Parliament and not through a ministry. The government should have no power to make rules for the functioning of the Lok Pal. These should be vested with the Lok Pal. (Shailendra Kumar) Article 311 should not be amended or repealed (Meenakshi Natrajan etc) Prepared by Kaushiki Sanyal and Harsimran Kalra, PRS Legislative Research on December 10, 2011