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TAMIL NADU NATIONAL LAW

SCHOOL,TIRUCHIRAPPALLI
II YEAR IV SEMESTER B.COM LL.B(HONS) DEGREE
COURSE

CONSTITUTIONAL LAW II PROJECT

Critical analysis on
LOKPAL BILL

Name of the Supervisor: Prof.M.Mahindra Prabhu

Submitted by:
Kavin prakash L.R
B.Com LL.B(hons) second year
Tamil Nadu National law School

MARKS AWARDED:

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Declaration

I, Kavin prakash L.R do hereby declare that the project entitled “Critical
analysis on LOKPAL BILL” submitted to Tamil Nadu National law school in
partial fulfilment of requirement of award of degree in undergraduate in
law is a record of original work done by me under the supervision and
guidance of Professor M.Mahindra Prabhu, department of Law, Tamil
Nadu National law school and has not formed basis for award of any
degree or diploma or fellowship or any other title to any other candidate
of any university.

B.Com.,LLB.(Hons )

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Certificate

This is to certify that the project entitled “Critical analysis on


LOKPAL BILL” submitted to Tamil Nadu National law school in partial
fulfilment of requirement of award of degree of under graduate in Law
done by Kavin Prakash l.R, under the supervision and guidance of
Professor M.Mahindra Prabhu, department of Law , Tamil Nadu
National Law School.

Prof. M.Mahindra Prabhu

Place: Tiruchirappalli

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ACKNOWLEDGEMENTS

At the outset, I take this opportunity to thank my


Professor M.Mahindra Prabhu from the bottom of my heart
who have been of immense help during moments of anxiety
and torpidity while the project was taking its crucial shape.
Secondly, I convey my deepest regards to the Vice
Chancellor and the administrative staff of TNNLS who held
the project in high esteem by providing reliable information in
the form of library infrastructure and database connections in
times of need.
Thirdly, the contribution made by my parents and friends
by foregoing their precious time is unforgettable and highly
solicited. Their valuable advice and timely supervision paved
the way for the successful completion of this project.
Finally, I thank the Almighty who gave me the courage
and stamina to confront all hurdles during the making of this
project. Words aren’t sufficient to acknowledge the
tremendous contributions of various people involved in this
project, as I know ‘Words are Poor Comforters’. I once again
wholeheartedly and earnestly thank all the people who were
involved directly or indirectly during this project making
which helped me to come out with flying colours.

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TABLE OF CONTENTS
1) INTRODUCTION…………………………………………………………....3
2) INSTITUTION OF THE OMBUDSMAN…………………………………...4
3) HISTORY OF LOKPAL IN INDIA………………………………………….6
4) SIGNIFICANCE OF THE BILL……………………………………………. 10
5) SALIENT FEATURES OF THE BILL………………………………………11
6) AREAS OF CONCERN……………………………………………………...16
7) CONCLUSION………………………………………………………………22
8) BIBLIOGRAPHY……………………………………………………………23

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INTRODUCTION

Years ago, Mahatma Gandhi said that “Corruption and hypocrisy ought not to be inevitable
products of democracy, as they undoubtedly are today.” Now days Corruption has its deep
roots in Indian Society. People who work on right principles are unrecognized and considered
to be foolish in the modern society. Earlier, bribes were paid for getting wrong things done,
but now bribe is paid for getting right things done at right time. In today’s scenario, if a
person wants a government job he has to pay lakhs of rupees to the higher officials
irrespective of satisfying all the eligibility criteria. In every office one has either to give
money to the employee concerned or arrange for some sources to get work done. There is not
a single forum or organizations of the citizens of India unaffected from Corruption.

A 2005 study conducted by Transparency International in India found that more than 62% of
Indians had first-hand experience of paying bribes or influence peddling to get jobs done in
public offices successfully.12 In its 2008 study, Transparency International reports about 40%
of Indians had first-hand experience of paying bribes or using a contact to get a job done in
public office.3 In 2012 India was ranked 94th out of 176 countries in Transparency
International’s Corruption Perceptions Index.4

The basic idea of the Lok Pal is borrowed from the office of ombudsman, which has played
an effective role in checking corruption and wrong-doing in Scandinavian and other nations.5

A Lokpal is a proposed ombudsman (Legal Representative) in India. The word is derived


from theSanskrit word “lok” (people) and “pala” (protector/caretaker), or “caretaker of
people.”

1
“Transparency International – the global coalition against corruption”.Transparency.org.
2
Centre for Media Studies, India Corruption Study 2005: To Improve Governance: Volume I – Key
Highlights, New Delhi: Transparency International India, 30 June 2005.
3
“India Corruption Study – 2008″.Transparency International. 2008.
4
Source: Transparency International
5
Ombudsman in India by Aamna. Published on: August 4, 2011

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JUSTIFICATION FOR THE TOPIC-

Corruption has become rampant in India. Everywhere you go, corrupt malpractices exist.
From paying bribes to impersonating an individual and answering his/her exam. Like
previously mentioned, corruption has its roots deep in Indian society. The Lokpal Bill aims to
improve accountability and reduce corruption. It therefore becomes necessary, that we
perform a critical analysis on the Bill, learn about it’s pros and cons, and be sure about what
our legal rights are, next time we witness an individual who’s engaging in corruption.

Research Objectives :

1.To critically examine and analyse the Lokpal Bill.

2. To check the Bill’s practicability, feasibility and whether it can actually be implemented
and reduce corruption in India.

Research Questions

1. What is the Lokpal Bill?


2. Why is corruption such a big issue in India? Can the LokpalBill help in curbing
corruption?
3. Is the Bill practical in nature, and can it be successfully enforced?
4. What are the drawbacks and limitations that exist in the Bill?

Hypothesis-

The Lokpal Bill, for all its good, will still be unable to resolve the issue of corruption in India.

Literature Review
The following books were used in the research-

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 The Indian Administrative Law, M.C.JainKagzi (Universal Law Publishing
Co. Pvt Ltd, 6th ed., 2009)
 Administrative Law, N.K.Jayakumar(Prentice Hall of India)
 Administrative Law, Avtar Singh

These books did a decent job in labelling out the provisions of Lokpal Bill and
also interpreting the same. A substantial amount of information could be
gathered.

 ARTICLES:-

 Ombudsman in India by Aamna. Published on: August 4, 2011


 The Lokpal and Lokayuktas Bill, released by Press Information Bureau,
Government of India, available at
http://pib.nic.in/newsite/erelease.aspx?relid=102096
 ‘Concept of Lokpal’ available at http://lawmantra.co.in/concept-of-
lokpal/#_ftnref8

These articles further shed light on the Lokpal Bill, and also offer their own interpretation on the
same. While the research paper will focus on these interpretations to a large extent, they will still
not be identical to the ones held in the above mentioned articles.

RESEARCH METHODOLOGY

The methodology adopted for research is purely Doctrinal in nature. The present research is
done with the help of Primary Resources such as statutes, regulations and notices issued by
competent authorities. Secondary sources such as books, journals & periodicals, speeches,
legal encyclopaedias and more was also been referred. Various study reports submitted by
recognised universities and research groups are also used as secondary data.

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Before we analyse the latest Lokpal Bill, the author would like to analyse the institution of
the Ombudsman.

INSTITUTION OF THE OMBUDSMAN


H W R Wade in Administrative Law explained the role of the Ombudsman as follows:

“But there is a large residue of grievances which fit into none of the regular moulds, but
are nonetheless real. A human system of government must provide some way of assuaging
them, both for the sake of justice and because accumulating discontent is a serious clog on
administrative efficiency in a democratic country… What every form of government needs
is some regular and smooth-running mechanisms for feeding back the reactions of its
disgruntled customers after impartial assessment, and for correcting whatever may have
gone wrong.”6

The institution of ‘Ombudsman’ first came into being in Sweden in 1713 when a ‘Chancellor of
Justice’ was appointed by the King to act as invigilator to look into the functioning of war-time
government. Thereafter, a new beginning was made in 1809, when it was laid down that the
Ombudsman would be made thereafter by the legislature.7The office of the Ombudsman was created
in Sweden in 1809 under their Constitution to receive and investigate complaints against departments
and public authorities in Government. Since then 125 counties have adopted such institutions
varyingly named in each jurisdiction as Public Defender (Georgia), Commission for Human Rights
and Administrative Justice (Ghana), Public Complaints Commissioner (Israel), WafaqiMohtasib
(Pakistan), Public Protector (South Africa) and Parliamentary Commissioner for Administration
(Sri Lanka). These institutions have been established either as Constitutional authorities or created by
special statute. In the traditional model Ombudsmen are officers of Parliament with recommendatory
powers. However over the last two centuries the scope and ambit of powers of Ombudsmen-type
institutions have ranged from investigating complaints of maladministration and corruption received
from individuals or taken up by the Ombudsman suomotu, inquiring into allegations of human rights

6
Ibid.
7
Triloknath Mishra: Lokpal in India-An Analysis

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violations and examination of government policies and programmes from the point of view of
accountability. According to the Communiqué issued by the International Ombudsman Institute at the
turn of the Millennium: “… the role of Ombudsman (provides) a mechanism which can balance the
fundamental requirements that government must be able to govern but with appropriate
accountability.”

In 1984 the Canadian Supreme Court explained the purpose of Ombudsman-type institutions in B.C.
Development Corporation v Friedmann.8 The Court stated that while the Ombudsman is a statutory
creation, “[a]ny analysis of the proper investigatory role the Ombudsman is to fulfill must be
animated by the awareness of [the] broad remedial purpose for which the office has traditionally been
created.” Further, the Court said that the legislative framework “create[s] the possibility of dialogue
between government authorities and the Ombudsman; … facilitate[s] legislative oversight of the
workings of various government departments and other subordinate bodies; and… allow[s] the
Ombudsman to marshal public opinion behind appropriate causes.”

Expert watchers of the functioning of Ombudsman-type institutions the world over have identified
four pillars which enable such an institution to stand erect and function effectively. These pillars are
independence, impartiality and fairness of procedure, credible review process and
confidentiality.9

Independence:of theOmbudsman is essential for inspiring peopleto make complaints against public
authorities. This is ensured by the enactment itself. The Ombudsman is independent from the
influence of the departments and public authorities which fall within his or her jurisdiction. The best
selection processes avoid political appointments. The constituting law must provide for a fixed and
reasonably long term of office, allow for removal only by a special process that is insulated from
undue political influence, ensure a fixed, high salary, provide an adequate budget to support the
administrative expenses of the office of the Ombudsman, give the Ombudsman sole power to appoint
and remove staff, grant immunity from liability for criminal prosecution for actions under the law,
subject the Ombudsman’s actions to court review only over jurisdictional matters and authorise the
Ombudsman to approach courts to enforce the office’s directions and recommendations by decree.

Impartiality and fairness of procedureare ensured by prescribing qualifications in the law that will
ensure the selection of a person who is widely respected as impartial and fair. Selection or

8
B.C. Dev. Corp. v Friedmann, [1985] 1. W.W.R. 193 (S.C.C.) quoted in Claire Lewis, Q.C., “Coping
with Changes on All Fronts: Reaffirming the Ombudsman’s Powers and Adapting its Actions”
Occasional Paper#77, International Ombudsman Institute, Edmonton, Canada.
9
Dean M. Gottehrer, “Fundamental Elements of an Effective Ombudsman Institution” paper presented
at the World Conference of the International Ombudsman Institute, Stockholm, June 2009.

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confirmation is often subject to absolute majority in the legislature and the Ombudsman is restricted
from undertaking any political or other activities that may run into conflict with his or her duties. Any
complainant must have equal access to the Ombudsman without paying a fee or passing through an
intermediary official. The Ombudsman should have the authority to criticise any agency under his or
her jurisdiction and make recommendations for resolving specific situations or preventing them from
recurring. Where necessary, the Ombudsman should be able to intervene in administrative or judicial
proceedings relevant to the complaint under investigation.

Credible review process requires that the entire governmental apparatus be brought under the
jurisdiction of the Ombudsman and he or she have the powers to investigate anyone’s grievances or
complaints about any decision, action or recommendation made by public authorities. The
Ombudsman should have powers to launch an investigation suomotu. Public authorities must be
required to cooperate with the investigation or where there is difficulty the Ombudsman should have
powers akin to those of a civil court to requisition records and examine officials involved in relevant
matters. The constituting law must require the Ombudsman to publicise one’s findings and
recommendations. Traditionally speaking, Ombudsmen could only make recommendations but in
more recent times the trend is to make the decisions of such bodies binding but subject to appeal in a
court of superior judiciary.

Confidentialityis a hallmark of the Ombudsman process. People will make complaints only if they
feel confident that they will not become the target of reprisals. Even Government officials and
employees who cooperate with Ombudsman investigations may face retaliatory action. The
Ombudsman is required to keep such complaints and communications confidential in order to ensure
the security and safety of persons involved.

HISTORY OF LOKPAL IN INDIA

Concept of Lokpal as an institution to probe corruption charges against top echelons was
first mooted in year 1960 when K.M.Munshi, (a member of Constituent Assembly)
advocated for conferring the status of legal independence with powers of a court.
M.C.Setalvad, a veteran legal luminary joined the issue and vociferously demanded for

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setting up the institution on the pattern of Ombudsman as prevalent in most of the
Scandinavian countries. In year 1966 Administrative Reforms Commission headed by
Santhanam also recommended in its favour. It is indeed a matter of concern that inspite of
the growing number of corruption cases involving high-ups, the Bill on this august institution
could not be enacted so far though presented before Parliament more than 8 times so far.

In a welfare State like India, citizens have a variety of interactions with the Government in its
myriad forms – as a service provider, a regulator, as a provider of social and physical
infrastructure etc. Meeting the expectations of the citizens is a challenging task for any
Government.10 In India, the Ombudsman is known as the Lokpal or Lokayukta. The concept
of a constitutional ombudsman was first proposed by the Law Minister Ashoke Kumar Sen in
parliament in the early 1960s.11The term ‘Lokpal’ and ‘Lokayukta’ were coined by Dr. L. M.
Singhvi as the Indian model of Ombudsman for redressal of public grievances. 12 The office
of the LokPal is the Indian version of the office of an Ombudsman who is appointed to
inquire into complaints made by citizens against public officials. The Lok Pal is a forum
where the citizen can send a complaint against a public official, which would then be inquired
into and the citizen would be provided some redressal.13 Lokpal is an officer who investigates
complaints of citizens of unfair treatment meted out to them by Government Departments and
suggests remedy thereof, if he finds that a complaint is justified.

Historical Aspect

After independence when increasing practice of corruption, maladministration and misuse of


authority and resource couldn’t be curbed by existing measures under the Indian Penal Code,
1860 and the Prevention of Corruption Act, 1988, need for an agency independent of the
executive, legislative and judiciary, to look into citizens’ grievances and cases of corruption
have been widely felt.14

The LokPal Bill provides for constitution of the LokPal as an independent body to enquire
into cases of corruption against public functionaries, with a mechanism for filing complaints

10
Second administrative Reforms Commission: Twelfth Report, February, 2009, pg.no. 21
11
Source: http://en.wikipedia.org/wiki/Lokpal
12
Standing Committee on Home Affairs eighty fourth Report on Lokpal Bill, 2001
13
PRS Legislative Research: PRS blog- FAQ: What is Lok Pal Bill? Why the ruckus over it?,
rediff.com, april 5, 2011
14
Supra Note 7

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and conducting inquiries etc.15 Dr. L.M. Singhvi moved a resolution in the LokSabha on 3
April 1964, reiterating his demand for setting up an officer of Parliament known as People’s
Procurator. The resolution was discussed in detail by all sections of the House but was
withdrawn on the assurance of the Government that it would look into the matter. In
pursuance of this assurance, the Government constituted a Special Consultative Group of
Members of Parliament on administrative reforms, in early 1965, which favoured a high
powered inquiry commission on administrative reforms. Accordingly, an Administrative
Reforms Commission (ARC) was appointed in January 1966, for making recommendations
on the reorganization of the administrative system of the country. 16 First Administrative
Reforms Commission in its report submitted in 1966 suggested that:

“The special circumstances relating to our country can be fully met by providing for two
special institutions for the redress of citizens’ grievances. There should be one authority
dealing with complaints against the administrative acts of Ministers or Secretaries to the
government at the center and in the states. There should be another authority in each state
and at the centre for dealing with complaints against the administrative acts of other
officials…… The setting up of these authorities should not, however, be taken to be a
complete answer to the problem of redress of citizens’ grievances. They only provide the
ultimate set-up for such redress as has not been available through the normal departmental
or governmental machinery and do not absolve the department from fulfilling its obligations
to the citizen for administering its affairs without generating, as far as possible, any
legitimate sense of grievance. Thus, the administration itself must play the major role in
reducing the area of grievances and providing remedies wherever necessary and feasible……
When this machinery (in-built departmental machinery) functions effectively, the number of
cases which will have to go to an authority outside the Ministry or the Department should be
comparatively small in number”17

The ARC while preparing its report had three ends in view:

(i) Evolution of a suitable grievance procedure for the individuals to invoke in complaints of
maladministration;

15
Supra Note 10, p.3
16
Supra Note 7
17
Administrative Reforms Commission Report submitted in 1966: Quoted from Para 6

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(ii) Creation of a mechanism which would reduce corruption in the administrative services;
and

(iii) Setting up a mechanism which would take cognizance of complaints of favoritism and
nepotism against Central and State Ministers.18

Earlier, public servants (such as government employees, judges, armed forces, police) could
be prosecuted for corruption under the Indian Penal Code, 1860 and the Prevention of
Corruption Act, 1988. However, the Code of Criminal Procedure and the Act require the
investigating agency (such as CBI) to get prior sanction of the central or state government
before it can initiate the prosecution process in a court.19 The Supreme Court in the 1998 P.V.
NarasimhaRao bribery case ruled that Members of Parliament (MPs) fall within the ambit of
the definition of “public servant” in the Prevention of Corruption Act, 1988. However,
opinion among the judges was divided over the issue of previous sanction with one side
stating that MPs could not be prosecuted since there was no authority competent to give
sanction and the other suggesting that till the law is suitably amended, the Speaker of the
LokSabha and Chairman of the RajyaSabha should give the necessary sanction.20

The idea of constituting an Ombudsman type institution to look into the grievances of
individuals against the administration was first mooted in 1963 during a debate on Demands
for Grants for the Law Ministry.21

The Lokpal Bill was for the first time presented by Mr Shanti Bhushan 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.
Subsequently, lokpal bills were introduced in 1971, 1977, 1985 (again by Ashoke Kumar Sen
when serving as Law Minister in the Rajiv Gandhi cabinet), 1989, 1996, 1998, 2001, 2005
and in 2008, yet they were never passed.22 Each time, after the bill was introduced to the
house, it was referred to some committee for improvements — a joint committee of

18
Interim Report of the Administrative Reforms Commission on Problems of Citizens’Grievances,
1966, p.8-15.
19
Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act,
1988.
20
PV NarasimhaRao v. State (AIR 1998 SC 2120)
21
“Problems of Redress of Citizens’ Grievances,” Interim Report of the First Administrative Reforms
Commission, 1966
22
http://www.hindu.com/thehindu/holnus/002200804051550.htm

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parliament, or a departmental standing committee of the Home Ministry and before the
government could take a final stand on the issue, the house was dissolved again.23

In 2002, the report of the National Commission to Review the Working of the Constitution
urged that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas
in the states but suggested that the Prime Minister should be kept out of the purview of the
authority.24 In 2004, the UPA government’s National Common Minimum Programme
promised that the Lok Pal Bill would be enacted.25 The Second Administrative Commission,
formed in 2005, also recommended that the office of the Lok Pal be established without
delay.26

In January 2011, the government formed a Group of Ministers, chaired by ShriPranab


Mukherjee to suggest measures to tackle corruption, including examination of the proposal of
a Lok Pal Bill.27

The government introduced the Lok Pal and Lokayuktas Bill, 2011 and the Constitution
(116th Amendment) Bill, 2011 on December 22, 2011. The Lok Pal Bill, 2011, introduced in
the LokSabha on August 4, 2011, was withdrawn by the government upon consideration of
the recommendations of the Standing Committee, and a new
comprehensive Lokpal and Lokayuktas Bill, 2011 was introduced in the Lok Sabha on
December 12, 2011. The historic Lokpal and Lokayuktas Bill, 2011 was finally passed by
Parliament (December 17, 2013 in Rajya Sabha and December 18, 2013 in Lok Sabha)
paving the way for setting up of the institution of Lokpal at the Centre and Lokayuktasin
States by law enacted by the respective State Legislatures within one year of coming into
force of the Act.

SIGNIFICANCE OF THE BILL

23
Source: http://en.wikipedia.org/wiki/Lokpal
24
“Executive and Public Administration,” Chapter 6 of the National Commission to Review the
Working of the Constitution (Chairperson: Shri M.N. Venkatachiliah), March 31, 2002.
25
National Common Minimum Programme of the Government of India, May 2004.
http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf)
26
“Ethics in Governance,” Fourth Report of the Second Administrative Reforms Commission, Jan
2007
27
“GoM on Corruption to Firm UpLok Pal Bill at the Earliest, Outlook, January 21, 2011.

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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.

SALIENT FEATURES OF THE BILL


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.

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(e) ƒ A Lokpal can enquire into offences under the Prevention of Corruption Act,
1988 (PCA) committed by:
(a) the PM once he has demitted the office,
(b) current and former Union Ministers,
(c) current and former MPs,
(d) group A officers and above,
(e) persons of equivalent ranks in public sector undertakings and other
government bodies,
(f) officers of organizations having an annual income above a specified
amount receiving funds from the government or the public.
(f) Prime Minister was brought under the purview of the Lokpal. Jurisdiction of
Lokpal shall not include any allegation against the Prime Minister in relation
to his functions concerning national security, foreign affairs and public order.
Thus Prime Minister shall continue to enjoy immunity in all sorts of matters
falling within the ambit of national security and public order. Further, the Bill
excludes the constitutional offices like President, Vice President, Speaker, Dy.
Speaker, Dy. Chairman RajyaSabha, sitting judges of Supreme Court and
High Court, Comptroller and Auditor General, Election Commission, Union
Public Service Commission who shall not be answerable to Lokpal nor their
acts shall be called into question.
(g) 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.
(h) 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.
(i) Lokpal will have power of superintendence and direction over any
investigation agency including CBI for cases referred to them by Lokpal.
(j) A high powered Committee chaired by the Prime Minister will recommend
selection of the Director, CBI.

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(k) Attachment and confiscation of property of public servants acquired by
corrupt means, even while prosecution is pending.
(l) The Lokpal shall be constituted of two wings: the Investigation Wing and the
Prosecution Wing.
ƒ The central government is required to constitute Special Courts to hear cases
referred to it by the Lokpal under this Bill. The Lokpal shall recommend the
number of such courts. A complaint against the specified officials may be
made to the Lokpal for actions committed within seven years of the date of
complaint. The Lokpal can ask the Investigation Wing to conduct preliminary
investigation of any offence alleged to be committed under the PCA. The
Lokpal shall provide the accused with copies of the complaint and secure him
a hearing. In case a prima facie case is made out it may then conduct a public
inquiry. ƒ If the inquiry concludes that an offence was committed, the Lokpal
may recommend disciplinary action to the competent authority. It can also file
a case before the Special Court through its Prosecution Wing. The competent
authority shall within 30 days of receipt of the recommendation initiate
disciplinary proceedings and inform the Lokpal of the action proposed or
taken. The Bill removes the requirement of sanction for initiating investigation
and prosecution.
(m) Clear time lines for:-
Preliminary enquiry – three months extendable by three months.
Investigation – six months which may be extended by six months at a time.
Trial – one year extendable by one year and, to achieve this, special courts to
be set up.
(n) 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.
(o) The Lokpal shall look into the complaints relating to corruption only and its
jurisdiction is not to extend to redressal of grievances. The institution of
Lokpal is not envisaged as mechanism to seek redressal of grievances.
Moreover, it shall have no power to issue any order, writ or direction to any
authority except seeking assistance in gathering facts relating to complaint on

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corruption. Lokpal shall look into corruption related complaints only and it
shall have no suomoto powers to assume to itself the jurisdiction to inquire
into any case against which there is no formal complaint. It is debatable why
suomoto power should not be granted to Lokpal especially when it is
envisaged to act as watch-dog against corruption. Absence of any judicial
power including power to issue summon and punish for contempt for itself
are summumbonum for the institution of Lokpal to succeed.
(p) The Lokpal may be removed by an order of the President on the basis of the
report of the Supreme Court on a reference by the President. A reference to the
Supreme Court may be made by (a) the President, (b) the President on the
basis of a petition signed by 100 Members of the Parliament and (c) the
President if he is satisfied on the basis of a petition by a citizen.

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 theLokayuktas 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

19
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 ofLokpal, 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

20
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.

AREAS OF CONCERN& POINTS OF


DISCORD WITH JAN LOKPAL BILL
The following points are a few grey areas in the Lokpal Bill:

1) ELIGIBILITY OF A COMPLAINANT: The serious infirmity from which the


proposed Lokpal Bill suffers relates to its dependence on Government for mechanism
to investigate into complaints. Another aspect relates to the eligibility of a

21
complainant. It is proposed that any person other than a public servant can make
a complaint. Debarring a public servant from making a complaint is contrary to the
Whistle Blower Bill which too has been kept limbo by the Government. It cannot be
denied that a public servant might be well conversant with the fraud or malpractice
than a layman in the society. To ensure checks and balances, measures could be
introduced to ensure that lodging a complaint should not be intended merely to harass
or defame a public functionary. For that purpose provision can be introduced under
which malicious complaints can boomerang on the complainant just as we have
already provisions for registration of case for lodging false FIR. But denying a public
servant from lodging complaint even if there is substance in it would only defeat the
very purpose of wedging war against corruption. It makes no logical a proposal to
debar a public servant from making complaint in whose case he is bound to be
responsible for the statements and facts.
2) LACK OF POWER OF A CIVIL COURT: It is not made clear whether the Lokpal
shall have power to punish for its own contempt. In the absence of any such power
including the power to summon and enforce presence of the persons concerned, the
Lokpal Bill is unlikely to make any headway in fight against corruption. We have the
experience of Lokayuktas which were set up by governments of as many as 17 states.
The experience of working of Lokayuktas in states has not been satisfactory. The
institute of Lokayukta has not been able to make any dent in malpractices of state
government’s functionaries. The main reason behind failure of Lokayuktas is that no
judicial power whatsoever was conferred upon them. Neither Chief Minister nor his
ministers or other officers could be reined by them. For instance, in Karanataka,
between 1986 and 2000, the Lokayukta ordered investigation in 2840 cases of which
1677 were charge sheeted but only 6 per cent ended in conviction. The state
Lokayukta came across with with the complaint relating to 5 lakh tones of illegal iron
ore worth Rs 200 crores. This was the issue which Karnataka Lokayukta Justice
Hegde was fighting for and was stonewalled at every stage. In Uttar Pradesh,
Lokayukta dealt with vulgar display of wealth by Chief Minister Mayawati. Justice
N.K.Mehrotra took over as Lokayukta. But he too failed because he had to rely on the

22
state authorities for investigations and did not have his own mechanism to supervise
or monitor.28

A few more points of discord on the Lokpal Bill and the Jan Lokpal Bill as proposed
by the AamAdmi Party and NCPRI are as follows:

Lokpal's appointment
Government | Lokpal will be selected by 5 members (PM, leader of opposition in LS,
Speaker, CJI and one jurist nominated by these four)

AAP | Majority of those who will select Lokpal will be from the political class who will
have a vested interest in a weak Lokpal. Jan Lokpal had recommended a 7-member
committee including 2 SC judges, 2 HC judges, one nominee of CAG+CVC+CEC, PM
and LoP.
Lokpal's removal
Government | Only Government or 100 MPs can complain to SC.

AAP | Will keep removal under political control. Jan Lokpal said any citizen can
complain and seek any Lokpal member's removal.
Investigating machinery
Government | Lokpal would have to get complaints probed by any investigating agency,
including the CBI, all of which would continue to remain under the administrative control
of Government

AAP & NCPRI | CBI officers' transfers, postings will be under Government control
compromising independence of the investigative machinery. CBI should be under the
Lokpal's administrative control.
Ambit of the Lokpal
Government | Judiciary excluded and MPs' actions in respect of speeches and vote in
Parliament excluded.

AAP & NCPRI | Include all public servants including judges and MPs in discharging
public duties.
Whistleblower's protection
Government | Absent from government law.

28
http://www.legalindia.in/lokpal-bill-from-milestone-to-mirage/

23
AAP & NCPRI | Protection for whistle-blowers must be addressed in this law or a
separate one.
Citizen's charter
Government | Absent from Government law.

AAP & NCPRI | This was part of the resolution passed by Parliament in August 2011 and
must be adhered to.
Lokayuktas
Government | Have been left to the discretion of state governments.

AAP & NCPRI | Bill should have been a model legislation for states to adopt
mandatorily.
Frivolous complaints
Government | Any person making a false complaint can be jailed for up to 5 years. AAP |
Penalty for frivolous complaint is up to Rs 1 lakh; no imprisonment.29

OTHER ISSUES:
Dual jurisdiction of Lok Pal and CVC

The Lok Pal shall have jurisdiction over public servants categorised as Group ‘A’
officers. Presently, these officers fall under the purview of the Central Vigilance
Commission (CVC). Therefore, both the CVC and Lok Pal will have jurisdiction over
Group ‘A’ officers. The Second ARC recommended the constitution of a Lok Pal for
investigation of Ministers and MPs while the CVC continues with its present role. It had
further suggested that there be a link between the two bodies to address collusion between
Ministers and bureaucrats.

Multiplicity of agencies

Currently, the Central Bureau of Investigation (CBI) is supervised by the CVC for
corruption cases. This Bill creates a separate Investigation Wing under the Lok Pal. A
Parliamentary Standing Committee, in its report on the CBI, recommended against the
creation of more agencies to tackle corruption, transnational terrorism or organised

29
http://timesofindia.indiatimes.com/india/All-you-want-to-know-about-Lokpal-
Bill/articleshow/27570010.cms

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crimes.10 It felt that multiple agencies would involve more expenditure and lead to
overlapping jurisdictions.30

Inclusion of private citizens

Officers of private trusts and companies deemed as “public servants” .Under this Bill,
officers of every trust, society and association of persons (whether registered or not) will
be considered to be public servants if

(a) the organisation receives government fund or donations from the public and

(b) its annual income is above a specified amount. This differs from the definition of
public servants in other laws. Under the IPC 31, a “public servant” is a person who
performs a public duty and receives a fee or salary from the government. The PCA has a
similar definition but includes officers of cooperative societies receiving government aid.
The Right to Information Act, 200532 includes only those non-government organisations
which

receive government funding.

Unequal treatment of entities

The UN Convention against Corruption3

requires member states to penalise corruption between private entities.

The Lok Pal Bill does not cover acts of corruption by every private entity. Officials of
private organisations who

engage in corrupt activities are deemed to have committed an offence if their organisation
(association of persons,

trusts, etc) receives public donations and has an annual income above a specified amount.
Officers of organisations that have an annual income below the specified amount are not

30
24th Report on the “Working of Central Bureau of Investigation,” Standing Committee on
Personnel, Public Grievances, Law and Justice, March 11, 2008.
31
See Sections 21, 170 and 186 of the IPC and Section 2(c) of PCA, 1988.
32
Section 2(h)(d) of the Right to Information Act, 2005.

25
covered under the PCA, the IPC or other criminal laws. The Bill criminalises acts of
officers of certain entities based on the entities’ income.

Lack of clarity

The Bill states that any association of persons “wholly or partly financed and aided by the
government” whose annual income is above a prescribed amount shall be under the
purview of the Lok Pal. It remains unclear whether the term “wholly or partly financed”
will include a company which has taken a loan from a public sector bank.

Procedural gaps

The Lok Pal may inquire into complaints only if they are made before seven years of the
date on which the offence was committed. This implies that the first three years of a two-
term Prime Minister would be beyond the purview of the Lok Pal once he has demitted
office.

Receiving bribes and abetting bribery are offences under the PCA. The Lok Pal may
inquire or investigate a complaint against a person who receives bribes or abets bribery.
However, while the Lok Pal may prosecute public servants, it is not empowered to
prosecute others abetting bribery.

The Bill provides that the inquiry should be completed within 12 months of filing the
complaint. However, it does not provide a timeframe for conducting the investigation.

No safeguards for information related to national security

The Bill does not specifically provide safeguards for information related to national
security or public safety. Under this Bill, certain provisions explicitly require disclosure
of information. For instance:

(a) the Lok Pal requires any public servant to furnish information, which is relevant to the
inquiry; and

(b) a public servant under investigation has the right to inspect any record in connection
with the case and extract information as is considered necessary to defend his case. The
Bill allows an inquiry to be held in-camera in exceptional circumstances but does not

26
specify the circumstances. Under the Code of Criminal Procedure33 the judge may hold
in-camera trials in certain offences such as rape. In the absence of any guidelines on
sharing of sensitive information with public servants and private citizens, there may be a
risk to national security or public safety.

CONCLUSION
The main objective behind the institution of Lokpal is to give strength to citizens so that they
can raise their voice against corruption without any fear. The existing devices like CVC and
CBI for checks on elected and administrative officials have not been effective, as the growing
instances of corruption cases suggest. All these have necessitated the creation of Lokpal with
its own investigating team.

Therefore, there is a need for a mechanism that would adopt very simple, independent,
speedy and cheaper means of delivering justice by redressing the grievances of the people.
But our Country is famous for its beautiful numerous laws and its poor execution. Most of the
laws have been proved fail to achieve its goal. No law or institution would have been helped
to remove deep roots of corruption from our country without its proper execution.

It is rightly said by PubliusComeliusTecitus that

“the more corrupt the state, the more laws”.

33
Section 327 of the Code of Criminal Procedure, 1973.

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BIBLIOGRAPHY
 BOOKS:-

 The Indian Administrative Law, M.C.JainKagzi (Universal Law Publishing


Co. Pvt Ltd, 6th ed., 2009)
 Administrative Law, N.K.Jayakumar(Prentice Hall of India)

 ARTICLES:-

 Ombudsman in India by Aamna. Published on: August 4, 2011


 The Lokpal and Lokayuktas Bill, released by Press Information Bureau,
Government of India, available at
http://pib.nic.in/newsite/erelease.aspx?relid=102096
 ‘Concept of Lokpal’ available at http://lawmantra.co.in/concept-of-
lokpal/#_ftnref8

 WEBSITES

 http://timesofindia.indiatimes.com/india/All-you-want-to-know-about-Lokpal-
Bill/articleshow/27570010.cms
 http://www.hindu.com/thehindu/holnus/002200804051550.htm
 http://en.wikipedia.org/wiki/Lokpal

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