Draft Bill is to come before the Parliament after the report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice was adopted on December 7, 2011 and presented to the Parliament on December 9, 2011. The Draft Bill suggested by the Committee is not the official Bill.
Sharad Yadav has suggested that the session be extended for the passage of the Bill.
If the Bill is not passed the ruling party will face the music in the five assembly elections ahead.
The 662 page report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice The Lokpal Bill, 2011 and Evidence on the Bill
The report refers to Committee Proceedings and Timelines, the Concept of Lokpal: Evolution and Parliamentary History, Citizens' Charter and Grievance Redressal
Mechanism, Prime Minister: Full Exclusion Versus Degrees of Inclusion, Members of Parliament: Vote, Speech and Conduct within the House, Lokpal and State Lokayuktas: Single Enactment and Uniform Standards, Lower Bureaucracy: Degrees of Inclusion, False Complaints and Complainants: Punitive Measures, Judiciary: To Include or Exclude, Lokpal: Search and Selection, the Trinity of the Lokpal, CBI and CVC: In Search of an Equilibrium, Constitutional Status: If, How and How Much Jurisdictional Limits of Lokpal: Private NGOs, Corporates and Media, Supports Structure for the Lokpal: Whistle Blowers, Phone Tappers and Legal Aid/ Assistance Issues, Lokpal Miscellany: Residual Issues and afterword: Recommendations At a Glance.
It includes Minutes of Dissent by members of Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice
(i) Shri Balavant alias Bal Apte, Shri Kirti Azad, Shri D.B. Chandre Gowda,
Shri Arjun Ram Meghwal, Shri Harin Pathak and Shri Madhusudan Yadav
(ii) Shri Ram Jethmalani
(iii) Shri Ram Vilas Paswan
(iv) Shri Shailendra Kumar
(v) Shri Prasanta Kumar Majumdar
(vi) Shri Pinaki Misra
(vii) Adv. A. Sampath
(viii) Shri S. Semmalai
(ix) Smt. Deepa Dasmunshi, Ms. Meenakshi Natrajan and Adv. P. T. Thomas
(x) Shri Vijay Bahadur Singh
The Statement of Objects and Reasons, appended to the Lok Bill reads as under:-
"The need to have a strong and effective institution of Lokpal has been felt for quite sometime. The Administrative Reforms Commission , in its interim report on the
'problems of Redressal of Citizens' Grievances submitted in 1966, inter alia
recommended the setting up of an institution of Lokpal at the Centre in this regard.
To give effect to this recommendation of the Administrative Reforms Commission,
eight Bills on Lokpal were introduced in the Lok Sabha in the past, namely in the
years 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. However, these Bills had
lapsed consequent upon the dissolution of the respective Lok Sabha except in the case of 1985 Bill which was withdrawn after its introduction.
A need has been felt to constitute a mechanism for dealing with complaints on
corruption against public functionaries in high places. In this regard, the Central
Government constituted a Joint Drafting Committee (JDC) on 8th April, 2011 to draft
a Lokpal Bill.
Based on the deliberation and having regard to the need for establishing a strong and effective institution of Lokpal to inqjuire into allegation of corruption against certain public functionaries, it has been decided to enact a stand alone legislation, inter alia to provide for the following matters, namely :-
(i) to establish an Institution of Lokpal with a Chairperson and eight Members of
which fifty per cent shall be Judicial Members;
(ii) to set up Lokpal's own Investigation Wing and Prosecution Wing with such officers and employees a felt by it to be necessary;
(iii) the category of public functionaries against whom allegation of corruption are
to be inquired into, namely :-
a. a Prime Minister, after he has demitted office;
b. a Minister of the Union;
c. a Member of Parliament;
d. any Group "A" officer or equivalent;
e. a Chairperson or member or officer equivalent to Group "A" in any body, Board, corporation, authority, company, society, trust, autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government;
f. any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may be notification specify but the organizations created for religious purposes and receiving public donations would be outside the purview of the Lokpal.
(iv) To provide for a mechanism to ensure that no sanction or approval under section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988, will be required in cases here prosecution is proposed by the Lokpal.
(v) to confer on the Lokpal the power of search and seizures and certain powers of a
Civil Court;
(vi) To empower the Lokpal or any investigation officer authorized by it in this behalf to attach property which, prima facie, has been acquired by corrupt means;
(vii) To lay down a period of limitation of seven years from the date of commission of alleged offence for filing the complaints before the Lokpal;
(viii) To confer powers of police upon Lokpal which the police officers have in connection with investigation;
(ix) To charge the expenses of Lokpal on the Consolidated Fund of India;
(x) to utilize services of officers of Central or State Government with the consent of the State Government for the purpose of conducting inquiry;
(xi) To recommend transfer or suspension of public servants connected with allegation of corruption;
(xii) To constitute sufficient number of Special Courts as may be recommended by the
Lokpal to hear and decide the cases arising out of the Prevention of Corruption Act,
1988 under the proposed enactment;
(xiii) To make every public servant to declare his assets and liabilities, and in case of default or furnishing misleading information, to presume that the public servant has acquired such assets by corrupt means;
(xiv) To provide for prosecution of persons who make false or frivolous or vexatious
complaints.
The notes on clauses explain in detail the various provisions contained in the Bill.
The Bill seeks to achieve the above objects.”
There were six major areas of divergent views in the Joint Drafting Committee on Lokpal Bill:-
i. Should one single Act be provided for both the Lokpal in the Centre and Lokayukt
in the State? Would the State Governments be willing to accept a draft provision
for the Lokayukt on the same lines as that of the Lokpal?
ii. Should the Prime Minister be brought within the purview of the Lokpal? If the
answer is in affirmative, should there be a qualified inclusion?
iii. Should Judges of the Supreme Court and High Courts be brought within the
purview of the Lokpal?
iv. Should the conduct of Members of Parliament inside Parliament, their right to
speak and right to vote in the House, be brought within the purview of the
Lokpal? Presently such actions of the Members of Parliament are covered by
article 105(2) of the Constitution?
v. Whether Articles 311 and 320 (3) (c) of the Constitution notwithstanding
members of a civil service of the Union or an All India Service or a Civil Service
of a State or a person holding a civil post under the Union or State, be subject to
enquiry and disciplinary action including dismissal and removal by the Lokpal
and Lokayukta, as the case may be?
vi. What should be the definition of the Lokpal, and should it itself exercise quasi-judicial powers also or delegate these powers to its subordinate officers?"
Following three issues were discussed in both the Houses:-
i. Whether the jurisdiction of the Lokpal should cover all employees of the Central
Government?
ii. Whether it will be applicable through the institution of the Lokayukt in all States?
iii. Whether the Lokpal should have the power to punish all those who violate the
'grievance redressal mechanism' to be put in place?
Earlier, in the last session of Parliament the Union Minister of Finance concluded in both the Houses in these words:-
“ This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be
brought under Lokpal through appropriate mechanism and Establishment of Lok
Ayuktas in the States. I will request you to transmit the proceedings to the
Department-related Standing Committee for its perusal while formulating its
recommendations for a Lokpal Bill.”
Lok Sabha Debates dated 23rd April, 1965, referred to Lokpal as "overdue" in 1965 is being enacted in 2011. Will it be enacted before the year ends?
Excerpts from the report:
"India’s Parliament is not supreme at all. It is a Parliament which is subject to judicial review. Its legislative actions can be set aside by the Judiciary on the ground that they are contrary to the Constitution, that they are contrary to the fundamental rights of the poor citizens of this country. Please make no mistake; in a republic, it is not the majority of MPs who are sovereign, but it is the
individual who is sovereign because the individual has a sanctum sanctorum protected by the fundamental rights chapter where all MPs unanimously from both Houses cannot enter into and trespass into. The citizen is supreme."
AFTERWORD: REASONS AND RECOMMENDATIONS AT A GLANCE
Committee Proceedings and Timelines
1. In a nut shell, therefore, this Committee could become legally operational only
w.e.f. September 23, 2011 and has completed hearing witnesses on 4th November,
2011. It had its total deliberations including Report adoption spread over 14
meetings, together aggregating 40 hours within the space of ten weeks
commencing from September 23, 2011 and ending December 7, 2011. [Para 2.6.]
2. Though not specific to this Committee, it is an established practice that all 24
Parliamentary Standing Committees automatically lapse on completion of their
one year tenure and are freshly constituted thereafter. This results in a legal
vacuum, each year, of approximately two to three weeks and occasionally, as in
the present case, directly affects the urgent and ongoing business of the
Committee. The Committee would respectfully request Parliament to reconsider
the system of automatic lapsing. Instead, continuity in Committees but
replacement of Members on party-wise basis would save time. [Para 2.7.]
The Concept of Lokpal: Evolution and Parliamentary History
3. A proposal in this regard was first initiated in the Lok Sabha on April 3, 1963 by the Late Dr. LM Singhvi, MP2. While replying to it, the then Law Minister observed that though the institution seemed full of possibilities, since it involved a matter of policy, it was for the Prime Minister to decide in that regard3. Dr. LM Singhvi then personally communicated this idea to the then Prime Minister, Pandit Jawahar Lal Nehru who in turn, with some initial hesitation, acknowledged that it was a valuable idea which could be incorporated in our institutional framework. On 3rd November, 1963, Hon’ble Prime Minister made a statement
2 Lok Sabha Debates dated 3rd April, 1963, vol. XVI, P.7556-7558
3 ibid., P.7590-92
in respect of the possibilities of this institution and said that the system of
Ombudsman fascinated him as the Ombudsman had an overall authority to deal
with the charges of corruption, even against the Prime Minister, and
commanded the respect and confidence of all4. [Para 3.3]
4. Thereafter, to give effect to the recommendations of the First Administrative
Reforms Commission, eight Bills were introduced in the Lok Sabha from time to
time. However, all these Bills lapsed consequent upon the dissolution of the
respective Lok Sabhas, except in the case of the 1985 Bill which was
subsequently withdrawn after its introduction. A close analysis of the Bills
reflects that there have been varying approaches and shifting foci in scope and
jurisdiction in all these proposed legislations. The first two Bills viz. of 1968 and of 1971 sought to cover the entire universe of bureaucrats, Ministers, public
sector undertakings, Government controlled societies for acts and omissions
relating to corruption, abuse of position, improper motives and maladministration.
The 1971 Bill, however, sought to exclude the Prime Minister from its coverage. The 1977 Bill broadly retained the same coverage except that corruption was subsequently sought to be defined in terms of IPC and Prevention of Corruption Act. Additionally, the 1977 Bill did not cover maladministration as a separate category, as also the definition of “public man” against whom complaints could be filed did not include bureaucrats in general.
Thus, while the first two Bills sought to cover grievance redressal in respect of
maladministration in addition to corruption, the 1977 version did not seek to
cover the former and restricted itself to abuse of office and corruption by
Ministers and Members of Parliament. The 1977 Bill covered the Council of
Ministers without specific exclusion of the Prime Minister.
The 1985 Bill was purely focused on corruption as defined in IPC and POCA and
neither sought to subsume mal-administration or mis-conduct generally nor
4 His initial hesitation to this idea was probably due to the Scandinavian origin of the nomenclature of the institution. In a lighter vein, he happened to ask Dr. L.M. Singhvi “To what zoo does this animal belong” and asked Shri Singhvi to indigenize the nomenclature of the institution. Dr. L.M. Singhvi then coined the term Lokpal / Lokayukta to modify the institution of Ombudsman to the Indian context (as related by Dr. L.M. Singhvi to the Chairman of this Committee). Also referred to by Mr. Arun Jaitley M.P. during the Parliament Debate on 27th August 2011. He started the debate in the Upper House thus:-“Now, ‘Ombudsman’ was a Scandinavian concept and, coincidentally, on 3rd April, 1963, then an Independent young Member of the Lok Sabha, Dr. L.M. Singhvi, in the course of his participation in a debate for having an Ombudsman in India, attempted to find out what the Indian equivalent could be, and this word ‘Lokpal’ was added to our vocabulary, the Hindi vocabulary, by Dr. L.M. Singhvi who translated this word.” bureaucrats within its ambit. Moreover, the 1985 Bill impliedly included the Prime Minister since it referred to the office of a Minister in its definition of “public functionary”.
The 1989 Bill restricted itself only to corruption, but corruption only as specified in the POCA and did not mention IPC. It specifically sought to include the Prime Minister, both former and incumbent.
Lastly, the last three versions of the Bill in 1996, 1998 and 2001, all
largely;
(a) focused only on corruption;
(b) defined corruption only in terms of POCA;
(c) defined “public functionaries” to include Prime Minister,
Ministers and MPs;
(d) did not include bureaucrats within their ambit. [Para 3.5]
5. Though the institution of Lokpal is yet to become a reality at the Central level,
similar institutions of Lokayuktas have in fact been setup and are functioning for
many years in several States. In some of the States, the institution of Lokayuktas
was set up as early as in 1970s, the first being Maharashtra in 1972. Thereafter,
State enactments were enacted in the years 1981 (M.P.), 1983 (Andhra Pradesh
and Himachal Pradesh), 1984 (Karnataka), 1985 (Assam), 1986 (Gujarat), 1995
(Delhi), 1999 (Kerala), 2001 (Jharkhand), 2002 (Chhatisgarh) and 2003
(Haryana). At present, Lokayuktas are in place in 17 States and one Union
Territory. However, due to the difference in structure, scope and jurisdiction,
the effectiveness of the State Lokayuktas vary from State to State. It is
noteworthy that some States like Gujarat, Karnataka, Bihar, Rajasthan and
Andhra Pradesh have made provisions in their respective State Lokayuktas Act
for suo motu investigation by the Lokpal. In the State Lokayukta Acts of some
States, the Lokayukta has been given the power for prosecution and also power
to ensure compliance of its recommendations. However, there is a significant
difference in the nature of provisions of State Acts and in powers from State to
State. Approximately nine States in India have no Lokayukta at present. Of the
States which have an enactment, four States have no actual appointee in place
for periods varying from two months to eight years. [Para 3.8]
Citizens' Charter and Grievance Redressal Mechanism
6. The Committee believes that while providing for a comprehensive Grievance
Redressal Mechanism is absolutely critical, it is equally imperative that this
mechanism be placed in a separate framework which ensures speed, efficiency
and focus in dealing with citizens' grievances as per a specified Citizens' Charter.
The humongous number of administrative complaints and grievance redressal
requests would critically and possibly fatally jeopardize the very existence of a
Lokpal supposed to battle corruption. At the least, it would severally impair its
functioning and efficiency. Qualitatively, corruption and mal-administration fall
into reasonably distinct watertight and largely non-overlapping, mutually
exclusive compartments. The approach to tackling such two essentially distinct
issues must necessarily vary in content, manpower, logistics and structure. The
fact that this Committee recommends that there must be a separate efficacious
mechanism to deal with Grievance Redressal and Citizens' Charter in a
comprehensive legislation other than the Lokpal Bill does not devalue or
undermine the vital importance of that subject. [Para 4.15]
7. Consequently the Committee strongly recommends the creation of a separate
comprehensive enactment on this subject and such a Bill, if moved through the
Personnel/Law Ministry and if referred to this Standing Committee, would
receive the urgent attention of this Committee. Indeed, this Committee, in its
29th Report on “Public Grievance Redressal Mechanism”, presented to
Parliament in October, 2008 had specifically recommended the enactment of
such a mechanism. [Para 4.16]
8. To emphasize the importance of the subject of Citizens' Charter and to impart it
the necessary weight and momentum, the Committee is of the considered opinion
that any proposed legislation on the subject:
(i) should be urgently undertaken and be comprehensive and all inclusive;
(ii) such enactment should, subject to Constitutional validity, also be
applicable for all States as well in one uniform legislation;
(iii) must provide for adequate facilities for proper guidance of the citizens on
the procedural and other requirements while making requests.
(iv) must provide for acknowledgement of citizen’s communications within a
fixed time frame;
(v) must provide for response within stipulated time frame;
(vi) must provide for prevention of spurious or lame queries from the
department concerned to illegally/unjustifiably prolong/extend the time
limit for response;
(vii) must provide for clearly identifiable name tags for each employee of
different Government departments;
(viii) must provide for all pending grievances to be categorized subject-wise
and notified on a continually updated website for each department;
(ix) must provide for a facilitative set of procedures and formats, both for
complaints and for appeals on this subject - along the lines of the
Information Commissioners system set up under the RTI;
(x) must, in the event that the proposed Central law does not cover states,
make strong recommendations to have similar enactments for grievance
redressal/citizen charter at each State level;
(xi) may provide for exclusionary or limited clauses in the legislation to the
effect that Citizen Charter should not include services involving
constraints of supply e.g. power, water, etc. but should include subjects
where there is no constraint involved e.g. birth certificates, decisions,
assessment orders. These two are qualitatively different categories and
reflect an important and reasonable distinction deserving recognition
without which Government departments will be burdened with the legal
obligation to perform and provide services or products in areas beyond
their control and suffering from scarcity of supply. [Para 4.17]
9. The Committee strongly feels that the harmonious synchronization of the RTI
Act and of the Citizens' Charter and Public Grievances Redressal Mechanism
will ensure greater transparency and accountability in governance and enhance
the responsiveness of the system to the citizens' needs/expectations/grievances.
[Para 4.18]
10. Lastly, the Committee wishes to clarify that the conclusion of the Hon’ble Union
Minister for Finance on the Floor of the House quoted in Para 1.8 above of the
Report does not intend to direct or mandate or bind or oblige this Committee to
provide for a Citizen’s Charter within the present Lokpal Bill alone. The
Committee reads the quoted portion in para 1.8 above to mean and agree in
principle to provide for a Citizen’s Charter/Grievance Redressal system but not
necessarily and inexorably in the same Lokpal Bill. Secondly, the reference to
‘appropriate mechanism’ in para 1.8 above further makes it clear that there
must be a mechanism dealing with the subject but does not require it to be in the
same Lokpal Bill alone. Thirdly, the reference in para 1.8 above to the phrase
‘under Lokpal’ is not read by the Committee to mean that such a mechanism
must exist only within the present Lokpal Bill. The Committee reads this to
mean that there should be an appropriate institution to deal with the subject of
Citizen’s Charter/Grievance redressal which would be akin to the Lokpal and
have its features of independence and efficacy, but not that it need not be the
very same institution i.e. present Lokpal. Lastly, the Committee also takes note
of the detailed debate and divergent views of those who spoke on the Floor of
both Lok Sabha and Rajya Sabha on this issue and concludes that no binding
consensus or resolution to the effect that the Grievances Redressal/Citizen’s
Charter mechanism must be provided in the same institution in the present
Lokpal Bill, has emerged [Para 4.19]
11. Contextually, the issues and some of the suggestions in this Chapter may overlap
with and should, therefore, be read in conjunction with Chapter 13 of this
report. Though the Committee has already opined that the issue of grievance
redressal should be dealt with in a separate legislation, the Committee hereby
also strongly recommends that there should be a similar declaration either in the
same Chapter of the Lokpal or in a separate Chapter proposed to be added in
the Indian Constitution, giving the same constitutional status to the citizens
grievances and redressal machinery.[Para 4.20]
12. This recommendation to provide the proposed Citizen Charter and Grievances
Redressal Machinery the same Constitutional status as the Lokpal also reflects
the genuine and deep concern of this Committee about the need, urgency, status
and importance of a citizen's charter/grievance machinery. The Committee
believes that the giving of the aforesaid constitutional status to this machinery
would go a long way in enhancing its efficacy and in providing a healing touch to
the common man. Conclusions and recommendations in this regard made in
para 13.12 (j) and (k) should be read in conjunction herein.[Para 4.21]
13. Furthermore, the Committee believes that this recommendation herein is also
fully consistent with the letter and spirit of para 1.8 above viz. the conclusions of the Minister of Finance in the Lower House recorded in para 1.8 above.
[Para 4.22]
The Prime Minister : Full Exlusion Versus Degrees of Inclusion
14. The issue of the Prime Minister's inclusion or exclusion or partial inclusion or
partial exclusion has been the subject of much debate in the Committee. Indeed,
this has occupied the Committee’s deliberations for at least three different
meetings. Broadly, the models / options which emerged are as follows:
(a) The Prime Minister should be altogether excluded, without exception and
without qualification.
(b) The Prime Minister should altogether be included, without exception and
without qualification ( though this view appears to be that of only one or
two Members).
(c) The Prime Minister should be fully included, with no exclusionary
caveats but he should be liable to action / prosecution only after demitting
office.
(d) The Prime Minister should be included, with subject matter exclusions
like national security, foreign affairs, atomic energy and space. Some
variants and additions suggested included the addition of “national
interest” and “public order” to this list of subject matter exclusions.
(e) One learned Member also suggested that the Prime Minister be included
but subject to the safeguard that the green signal for his prosecution must
be first obtained from either both Houses of Parliament in a joint sitting
or some variation thereof. [Para 5.22]
15. It may be added that so far as the deferred prosecution model is concerned, the
view was that if that model is adopted, there should be additional provisions
limiting such deferment to one term of the Prime Minister only and not giving
the Prime Minister the same benefit of deferred prosecution in case the Prime
Minister is re-elected. [Para 5.23]
16. In a nut shell, as far as the overwhelming number of Members of the Committee
are concerned, it was only three models above viz. as specified in paras (a), (c)
and (d) in para 5.17 above which were seriously proposed. [Para 5.24]
17. Since the Committee finds that each of the views as specified in paras (a), (c) and (d) in para 5.17 above had reasonably broad and diverse support without going
into the figures for or against or into the names of individual Members, the
Committee believes that, in fairness, all these three options be transmitted by the
Committee as options suggested by the Committee, leaving it to the good sense of
Parliament to decide as to which option is to be adopted. [Para 5.25]
18. It would be, therefore, pointless in debating the diverse arguments in respect of each option or against each option. In fairness, each of the above options has a
reasonable zone of merit as also some areas of demerit. The Committee believes
that the wisdom of Parliament in this respect should be deferred to and the
Committee, therefore, so opines. [Para 5.26]
Members of Parliament: Vote, Speech and Conduct within the House
19. The Committee strongly feels that constitutional safeguards given to MPs under
Article 105 are sacrosanct and time-tested and in view of the near unanimity in
the Committee and among political parties on their retention, there is no scope
for interfering with these provisions of the Constitution. Vote, conduct or speech
within the House is intended to promote independent thought and action,
without fetters, within Parliament. Its origin, lineage and continuance is ancient
and time-tested. Even an investigation as to whether vote, speech or conduct in a
particular case involves or does not involve corrupt practices, would whittle such
unfettered autonomy and independence within the Houses of Parliament down to
vanishing point. Such immunity for vote, speech or conduct within the Houses of
Parliament does not in any manner leave culpable MPs blameless or free from
sanction. They are liable to and, have, in the recent past, suffered severe
parliamentary punishment including expulsion from the Houses of Parliament,
for alleged taking of bribes amounting to as little as Rs. 10,000/- for asking
questions on the floor of the House. It is only external policing of speech, vote or
conduct within the House that Article 105 frowns upon. It leaves such speech,
vote and conduct not only subject to severe intra-parliamentary scrutiny and
action, but also does not seek to affect corrupt practices or any other vote, speech
or conduct outside Parliament. There is absolute clarity and continued
unanimity on the necessity for this limited immunity to be retained. Hence,
speculation on constitutional amendment in this regard is futile and engenders
interminable delay.[Para 6.19]
20. Consequently, the existing structure, mechanism, text and context of clauses
17 (1) (c) and 17 (2) in the Lokpal Bill 2011 should be retained.[Para 6.20]
Lokpal and State Lokayuktas: Single Enactment and Uniform Standards
21. The Committee finds merit in the suggestion for a single comprehensive federal
enactment dealing with Lokpal and State Lokayuktas. The availability of
uniform standards across the country is desirable; the prosecution of public
servants based upon widely divergent standards in neighboring states is an
obvious anomaly. The Committee has given its earnest attention to the
constitutional validity of a single enactment subsuming both the Lokpal and
Lokayukta and concludes that such an enactment would be not only desirable
but constitutionally valid, inter alia because,
(a) The legislation seeks to implement the UN Convention on Corruption
ratified by India.
(b) Such implementing legislation is recognized by Article 253 and is treated
as one in List III of the 7th Schedule.
(c) It gets additional legislative competence, inter-alia, individually or jointly
under Entries 1, 2 and 11A of List-III.
(d) A direct example of provision for National Human Rights Commission
and also for State Human Rights Commissions in the same Act is
provided in the Protection of the Human Rights Act 1986 seeking to
implement the UN Convention for the Protection of Human Rights.
(e) Such Parliamentary legislation under Article 253, if enacted, can provide
for repealing of State Lokayukta Acts; subject, however, to the power of
any State to make State specific amendments to the federal enactments
after securing Presidential assent for such State specific amendments.[Para 7.26]
22. Additionally, it is recommended that the content of the provisions dealing with
State Lokayuktas in the proposed central/ federal enactment must be covered
under a separate chapter in the Lokpal Bill. That may be included in one or
more chapters possibly after Chapter II and before Chapter III as found in the
Lokpal Bill 2011. The entire Lokpal Bill 2011 would have to incorporate
necessary changes and additions, mutatis mutandis, in respect of the State
Lokayukta institutions. To give one out of many examples, the Selection
Committee would be comprised of the State Chief Minister, the Speaker of the
Lower House of the State, the Leader of Opposition in the Lower House, the
Chief Justice of the High Court and a joint nominee of the State Election
Commissioner, the State Auditor General and State PSC Chairman or, where
one or more of such institutions is absent in the State, a joint nominee of
comparable institutions having statutory status within the State.[Para 7.27]
23. All these State enactments shall include the Chief Minister within their purview. The Committee believes that the position of the State Chief Minister is not
identical to that of the Prime Minister. The arguments for preventing instability
and those relating to national security or the image of the country do not apply
in case of a Chief Minister. Finally, while Article 356 is available to prevent a
vacuum for the post of Chief Minister, there is no counterpart constitutional
provision in respect of the federal Government.[Para 7.28]
24. Article 51 (c) of the Directive Principles of State Policy enjoining the federation to “foster respect for international law and treaty obligations……………..” must also be kept in mind while dealing with implementing legislations pursuant to
international treaties, thus providing an additional validating basis for a single
enactment.[Para 7.29]
25. The Committee recommends that the Lokpal Bill 2011 may be expanded to
include several substantive provisions which would be applicable for Lokayuktas
in each State to deal with issues of corruption of functionaries under the State
Government and employees of those organizations controlled by the State
Government, but that, unlike the Lokpal, the state Lokayuktas would cover all
classes of employees.[Para 7.30]
26. The Committee recommends that if the above recommendation is implemented
the Lokpal Bill 2011 may be renamed as “Lokpal and Lokayuktas Bill 2011”[Para 7.31]
27. The Committee believes that the recommendations, made herein, are fully
consistent with and implement, in letter and spirit, the conclusions of the
Minister of Finance on the floor of the Houses in respect of establishment of
Lokayuktas in the States, as quoted in para 1.8 above. The Committee is
conscious of the fact that the few States which have responded to the
Secretariat’s letter sent to each and every State seeking to elicit their views, have opposed a uniform Central federal Lokpal and Lokayukta Bill and,
understandably and expectedly, have sought to retain their powers to enact State
level Lokayukta Acts. The Committee repeats and reiterates the reasons given
hereinabove, in support of the desirability of one uniform enactment for both
Lokpal and Lokayuktas. The Committee also reminds itself that if such a
uniform Central enactment is passed, it would not preclude States from making
any number of State specific amendments, subject to prior Presidential assent, as
provided in the Indian Constitution. The Committee, therefore, believes that it
has rightly addressed the two issues which arise in this respect viz. the need and
desirability for a uniform single enactment and, secondly, if the latter is
answered in the affirmative, that such a uniform enactment is Constitutionally
valid and permissible.[Para 7.32]
28. Since this report, and especially this chapter, recommends the creation of a
uniform enactment for both Central and State Lokayuktas, it is reiterated that a
whole separate chapter (or, indeed, more than one chapter) would have to be
inserted in the Lokpal Bill of 2011 providing for State specific issues. Secondly,
this would have to be coupled with mutatis mutandis changes in other parts of
the Act to accommodate the fact that the same Act is addressing the requirement
of both the federal institution and also the State level institution.[Para 7.33]
29. Furthermore, each and every chapter and set of recommendations in this report
should also be made applicable, mutatis mutandis, by appropriate provisions in
the Chapter dealing with State Lokayuktas. [Para 7.34]
30. Although it is not possible for this Committee to specifically list the
particularised version of each and every amendment or adaptation required to
the Lokpal Bill, 2011 to subsume State Lokayuktas within the same enactment, it
gives below a representative non-exhaustive list of such
amendments/adaptations, which the Government should suitably implement in
the context of one uniform enactment for both Lokpal and Lokayuktas. These
include :
(a) Clause 1 (2) should be retained even for the State Lokayukta provisions
since State level officers could well be serving in parts of India other than
the State concerned as also beyond the shores of India.
(b) The Chief Minister must be included within the State Lokayukta on the
same basis as any other Minister of the Council of Ministers at the State
level. Clause 2 of the 2011 Bill must be amended to include Government
servants at the State level. The competent authority in each case would
also accordingly change e.g. for a Minister of the Council of Minister, it
would be the Chief Minister; for MLAs, it would be the presiding officer
of the respective House and so on and so forth. The competent authority
for the Chief Minister would be the Governor.
(c) As regards Clause 3, the only change would be in respect of the
Chairperson, which should be as per the recommendation made for the
Lokpal.
(d) As regards the Selection Committee, the issue at the Lokayukta level has
already been addressed above.
(e) References in the Lokpal context to the President of India shall naturally
have to be substituted at the Lokayukta level by references to the
Governor of the State.
(f) The demarcation of the criminal justice process into five broad areas
from the initiation of complaint till its adjudication, as provided in
Chapter 12, should also apply at the State Lokayukta level. The
investigative agency, like the CBI, shall be the anti-corruption unit of the
State but crucially, it shall be statutorily made independent by similar
declarations of independence as already elaborated in the discussion in
Chapter 12. All other recommendations in Chapter 12 can and should be
applied mutatis mutandis for the Lokayukta.
(g) Similarly, all the recommendations in Chapter 12 in respect of
departmental inquiry shall apply to the Lokayukta with changes made,
mutatis mutandis, in respect of State bodies. The State Vigilance
Commission/machinery would, in such cases, discharge the functions of
the CVC. However, wherever wanting, similar provisions as found in the
CVC Act buttressing the independence of the CVC shall be provided.
(h) The recommendations made in respect of elimination of sanction as also
the other recommendations, especially in Chapter 12, relating to Lokpal,
can and should be applied mutatis mutandis in respect of Lokayukta.
(i) Although no concrete fact situation exists in respect of a genuine multi-
State or inter-State corruption issue, the Committee opines that in the
rare and unusual case where the same person is sought to be prosecuted
by two or more State machineries of two or more Lokayuktas, there
should be a provision entitling the matter to be referred by either of the
States or by the accused to the Lokpal at the federal level, to ensure
uniformity and to eliminate turf wars between States or jurisdictional
skirmishes by the accused.
(j) As already stated above, the coverage of the State Lokayukta, unlike the
Lokpal, would extend to all classes of employees, including employees of
state owned or controlled entities. [Para 7.35]
Lower Bureaucracy: Degrees of Inclusion
31. The Committee, therefore, recommends
(a) That for the Lokpal at the federal level, the coverage should be expanded
to include Group A and Group B officers but not to include Group C and
Group D.
(b) The provisions for the State Lokayuktas should contain similar
counterpart reference, for purposes of coverage, of all similar categories
at the State level which are the same or equivalent to Group A and Group
B for the federal Lokpal. Though the Committee was tempted to provide
only for enabling power for the States to include the State Lokayuktas to
include the lower levels of bureaucracy like groups ‘C’ and ‘D’ at the
State level, the Committee, on careful consideration, recommends that all
the groups, including the lower bureaucracy at the State level and the
groups equivalent with ‘C’ and ‘D’ at the State level should also be
included within the jurisdiction of State Lokayuktas with no exclusion.
Employees of state owned or controlled entities should also be covered.
(c) The Committee is informed by the DoPT that after the Sixth Pay
Commission Report, Group-D has been/will be transposed and submerged
fully in Group-C. In other words, after the implementation of the
Sixth Pay Commission Report, which is already under implementation,
Group-D will disappear and there will be only Group-C as far as the
Central Government employees are concerned.
(i) Consequently, Group-C, which will shortly include the whole of
Group-D will comprise a total number of approximately 30 lakhs (3
million) employees. Though the figures are not fully updated, A+B
classes recommended for inclusion by this Committee would
comprise just under 3 lakhs employees. With some degree of
approximation, the number of Railway employees from group A to
D inclusive can be pegged at about 13½ lakhs (as on March 2010). If
Central Government PSUs are added, personnel across all
categories (Group A, B, C and D as existing) would be
approximately an additional 15 lakhs employees. Post and
Telegraph across all categories would further number
approximately 4½ lakhs employees. Hence the total, on the aforesaid
basis (which is undoubtedly an approximation and a 2010 figure) for
Group A to D (soon, as explained above, to be only Group-C) +
Railways + Central PSUs + Post and Telegraph would be
approximately 63 lakhs, or at 2011 estimates, let us assume 65 lakhs
i.e. 6.5 million.
(ii) On a conservative estimate of one policing officer per 200 employees
(a ratio propounded by several witnesses including Team Anna),
approximately 35000 employees would be required in the Lokpal to
police the aforesaid group of Central Government employees
(including, as explained above, Railways, Central PSUs, P&T etc.).
This policing is certainly not possible by the proposed nine member
Lokpal. The Lokpal would have to spawn a bureaucracy of at least
35000 personnel who would, in turn, be recruited for a parallel
Lokpal bureaucracy. Such a mammoth bureaucracy, till it is
created, would render the Lokpal unworkable. Even after it is
created, it may lead to a huge parallel bureaucracy which would set
in train its own set of consequences, including arbitrariness,
harassment and unfair and illegal action by the same bureaucracy
which, in the ultimate analysis would be nothing but a set of similar
employees cutting across the same A, B and C categories. As some of
the Members of the Committee, in a lighter vein put it, one would
then have to initiate a debate on creating a super Lokpal or a
Dharampal for the policing of the new bureaucracy of the Lokpal
institution itself.
(iia) The Committee also notes that as far as the Lokpal institution is
concerned, it is proposed as a new body and there is no such
preexisting Lokpal bureaucracy available. In this respect, there is a
fundamental difference between the Lokpal and Lokayuktas, the
latter having functioned, in one form or the other in India for the
last several decades, with a readily available structure and
manpower in most parts of India.
(iii) If, from the above approximate figure of 65 lakhs, we exclude C and
D categories (as explained earlier, D will soon become part of C)
from Central Government, Railways, PSUs, Post and Telegraph etc.,
the number of A and B categories employees in these departments
would aggregate approximately 7.75 lakhs. In other words, the
aggregate of C and D employees in these classes aggregate
approximately 57 or 58 lakhs. The Committee believes that this
figure of 7.75 or 8 lakhs would be a more manageable, workable and
desirable figure for the Lokpal institution, at least to start with.
(iv) The impression that inclusion of Group ‘A’ and B alone involves
exclusion of large sections of the bureaucracy, must be dispelled.
Though in terms of number, the aggregation of Groups ‘C’ and ‘D’
is an overwhelming percentage of total Central Government
employees, Groups ‘A’ and B include the entire class above the
supervisory level. Effectively, this means that virtually all Central
Government employees at the Section Officer level and above would
be included. It is vital to emphasize that this demarcation has to be
viewed in functional terms, since it gives such categories significant
decision making power in contra-distinction to mere numbers and
necessarily subsumes a major chunk of medium and big ticket
corruption.
(v) Another misconception needs to be clarified. There is
understandable and justifiable anger that inclusion of Group C and
D would mean exclusion of a particular class which has tormented
the common man in different ways over the years viz. Tehsildar,
Patwari and similarly named or equivalent officers. Upon checking,
the Secretariat has clarified that these posts are State Government
posts under gazette notification notified by the State Government
and hence the earlier recommendation of this Committee will enable
their full inclusion.
(vi) We further recommend that for the hybrid category of Union
Territories, the same power be given as is recommended above in
respect of State Lokayuktas. The Committee also believes that this is
the appropriate approach since a top heavy approach should be
avoided and the inclusionary ambit should be larger and higher at
the state level rather than burdening the Lokpal with all classes of
employees.
(vii) As of now, prior to the coming into force of the Lokpal Act or any of
the recommendations of this report, Group C and D officers are not
dealt with by the CVC. Group C & D employees have to be
proceeded against departmentally by the appropriate Department
Head, who may either conduct a departmental enquiry or file a
criminal corruption complaint against the relevant employee
through the CBI and/or the normal Police forces. The Committee
now recommends that the entire Group C & D, (later only Group C
as explained above) shall be brought specifically under the
jurisdiction of the CVC. In other words, the CVC, which is a high
statutory body of repute and whose selection process includes the
Leader of the Opposition, should be made to exercise powers
identical to or at least largely analogous, in respect of these class C
and class D employees as the Lokpal does for Group A and B
employees. The ultimate Lokpal Bill/Act should thus become a
model for the CVC, in so far as Group C & D employees are
concerned. If that requires large scale changes in the CVC Act, the
same should be carried out. This would considerably strengthen the
existing regime of policing, both departmentally and in terms of
anti-corruption criminal prosecutions, all Group C & D employees
and would not in any manner leave them either unpoliced or subject
to a lax or ineffective regime of policing.
(viii) Furthermore, this Committee recommends that there would be
broad supervisory fusion at the apex level by some appropriate
changes in the CVC Act. The CVC should be made to file periodical
reports, say every three months, to the Lokpal in respect of action
taken for these class C and D categories. On these reports, the
Lokpal shall be entitled to make comments and suggestions for
improvement and strengthening the functioning of CVC, which in
turn, shall file, appropriate action taken reports with the Lokpal.
(ix) Appropriate increase in the strength of the CVC manpower, in the
light of the foregoing recommendations, would also have to be
considered by the Government.
(x) The Committee also feels that this is the start of the Lokpal
institution and it should not be dogmatic and inflexible on any of the
issues. For a swift and efficient start, the Lokpal should be kept slim,
trim, effective and swift. However, after sometime, once the Lokpal
institution has stabilized and taken root, the issue of possible
inclusion of Group C classes also within the Lokpal may be
considered. This phase-wise flexible and calibrated approach would,
in the opinion of this Committee, be more desirable instead of any
blanket inclusion of all classes at this stage.
(xi) Another consideration which the Committee has kept in mind is the
fact that if all the classes of higher, middle and lower bureaucracy
are included within the Lokpal at the first instance itself, in addition
to all the aforesaid reasons, the CVC’s role and functioning would
virtually cease altogether, since the CVC would have no role in
respect of any class of employee and would be reduced, at best, to a
vigilance clearance authority. This would be undesirable in the very
first phase of reforms, especially since the CVC is a high statutory
authority in this country which has, over the last half century,
acquired a certain institutional identity and stability along with
conventions and practices which ought not to be uprooted in this
manner.
(d) All provisions for prior sanction / prior permission, whether under the
CrPC or Prevention of Corruption Act or DSPE Act or related legislation
must be repealed in respect of all categories of bureaucrats / government
servants, whether covered by the Lokpal or not, and there should
consequently be no requirement of sanction of any kind in respect of any
class or category of officers at any level in any Lokpal and Lokayukta or ,
indeed, CVC proceedings ( for non Lokpal covered categories). In other
words, the requirement of sanction must go not only for Lokpal covered
personnel but also for non-Lokpal covered personnel i.e. class ‘C’ and ‘D’
(Class D, as explained elsewhere, will eventually be submerged into Class
‘C’). The sanction requirement, originating as a salutary safeguard
against witch hunting has, over the years, as applied by the bureaucracy
itself, degenerated into a refuge for the guilty, engendering either endless
delay or obstructing all meaningful action. Moreover, the strong filtering
mechanism at the stage of preliminary inquiry proposed in respect of the
Lokpal, is a more than adequate safeguard, substituting effectively for the
sanction requirement.
(e) No doubt corruption at all levels is reprehensible and no doubt
corruption at the lowest levels does affect the common man and inflicts
pain and injury upon him but the Committee, on deep consideration and
reconsideration of this issue, concluded that this new initiative is intended
to send a clear and unequivocal message, first and foremost, in respect of
medium and big ticket corruption. Secondly, this Committee is not
oblivious to the fact that jurisdiction to cover the smallest Government
functionary at the peon and driver level ( class C largely covers peons,
assistants, drivers, and so on, though it does also cover some other more
"powerful" posts) may well provide an excuse and a pretext to divert the
focus from combating medium and big ticket corruption to merely
catching the smaller fry and building up an impressive array of statistical
prosecutions and convictions without really being able to root out the true
malaise of medium and big ticket corruption which has largely escaped
scrutiny and punishment over the last 60 years.
(f) The Committee also believes that the recommendations in respect of
scope of coverage of the lower bureaucracy, made herein, are fully
consistent with the conclusions of the Minister of Finance on the floor of
the Houses, as quoted in para 1.8 above of this Report. Firstly, the lower
bureaucracy has been, partly, brought within the coverage as per the
recommendations above and is, thus, consistent with the essence of the
conclusion contained in para 1.8 above. Secondly, the Committee does not
read para 1.8 above to meet an inevitable and inexorable mandate to
necessarily subsume each and every group of civil servant (like Group ‘C’
or Group ‘D’, etc.). Thirdly, the in principle consensus reflected in para
1.8 would be properly, and in true letter and spirit, be implemented in
regard to the recommendations in the present Chapter for scope and
coverage of Lokpal presently. Lastly, it must be kept in mind that several
other recommendations in this Report have suggested substantial
improvements and strengthening of the provisions relating to policing of
other categories of personnel like C and D, inter alia, by the CVC and/or
to the extent relevant, to be dealt with as Citizens’ Charter and Grievance
Redressal issues.[Para 8.18]
False Complaints and Complainants: Punitive Measures
32.. It cannot be gainsaid that after the enormous productive effort put in by the
entire nation over the last few months for the creation of a new initiative like the
Lokpal Bill, it would not and cannot be assumed to be anyone's intention to
create a remedy virtually impossible to activate, or worse in consequence than
the disease. The Committee, therefore, starts with the basic principle that it must
harmoniously balance the legitimate but competing demands of prevention of
false, frivolous complaints on the one hand as also the clear necessity of ensuring
that no preclusive bar arises which would act as a deterrent for genuine and
bona fide complaints.[Para 9.6]
33. The Committee sees the existing provisions in this regard as disproportionate, to the point of being a deterrent.[Para 9.7]
34. The Committee finds a convenient analogous solution and therefore adopts the
model which the same Committee has adopted in its recently submitted report
on Judicial Standards and Accountability Bill, 2010 presented to the Rajya
Sabha on August 30, 2011.[Para 9.8]
35. In para 18.8 of the aforesaid Report, the Committee, in the context of Judicial
Standards and Accountability Bill, 2010 said : "The Committee endorses the
rationale of making a provision for punishment for making frivolous or
vexatious complaints. The Committee, however, expresses its reservation over
the prescribed quantum of punishment both in terms of imprisonment which is
up to 5 years and fine which is up to 5 lakh rupees. The severe punishment
prescribed in the Bill may deter the prospective complainants from coming
forward and defeat the very rationale of the Bill. In view of this, the Committee
recommends that Government should substantially dilute the quantum of the
punishment so as not to discourage people from taking initiatives against the
misbehaviour of a judge. In any case, it should not exceed the punishment
provided under the Contempt of Court Act. The Government may also consider
specifically providing in the Bill a proviso to protect those complainants from
punishment / penalty who for some genuine reasons fail to prove their
complaints. The Committee, accordingly, recommends that the Bill should
specifically provide for protection in case of complaints made 'in good faith' in
line with the defence of good faith available under the Indian Penal Code."
[Para 9.9]
36. Consequently, in respect of the Lokpal Bill, the Committee recommends that, in
respect of false and frivolous complaints, :
(a) The punishment should include simple imprisonment not exceeding six
months;
(b) The fine should not exceed Rs.25000; and
(c) The Bill should specifically provide for protection in case of complaints
made in good faith in line with the defence of good faith available under
the Indian Penal Code under Section 52 IPC.[Para 9.10]
The Judiciary: To Include or Exclude
37. The Committee recommends:
(i) The Judiciary, comprising 31 odd judges of the Apex Court, 800 odd
judges of the High Courts, and 20,000 odd judges of the subordinate
judiciary are a part of a separate and distinct organ of the State. Such
separation of judicial power is vitally necessary for an independent
judiciary in any system and has been recognized specifically in Article 50
of the Indian Constitution. It is interesting that while the British
Parliamentary democratic system, which India adopted, has never
followed the absolute separation of powers doctrine between the
Legislature and the Executive, as, for example, found in the US system,
India has specifically mandated under its Constitution itself that such
separation must necessarily be maintained between the Executive and the
Legislature on the one hand and the Judiciary on the other.
(ii) Such separation, autonomy and necessary isolation is vital for ensuring
an independent judicial system. India is justifiably proud of a vigorous
(indeed sometimes over vigorous) adjudicatory judicial organ. Subjecting
that organ to the normal process of criminal prosecution or punishment
through the normal courts of the land would not be conducive to the
preservation of judicial independence in the long run.
(iii) If the Judiciary were included simpliciter as suggested in certain
quarters, the end result would be the possible and potential direct
prosecution of even an apex Court Judge before the relevant magistrate
exercising the relevant jurisdiction. The same would apply to High Court
Judges. This would lead to an extraordinarily piquant and an untenable
situation and would undermine judicial independence at its very root.
(iv) Not including the Judiciary under the present Lokpal dispensation does
not in any manner mean that this organ should be left unpoliced in
respect of corruption issues. This Committee has already proposed and
recommended a comprehensive Judicial Standards and Accountability
Bill which provides a complete in-house departmental mechanism, to deal
with errant judicial behavior by way of censure, warning, suspension,
recommendation or removal and so on within the judicial fold itself. The
Committee deprecates the criticism of the Judicial Standards and
Accountability Bill as excluding issues of corruption for the simple reason
that they were never intended to be addressed by that Bill and were
consciously excluded.
(v) As stated in para 21 of the report of this Committee on the Judicial
Standards and Accountability Bill, to this report, the Committee again
recommends, in the present context of the Lokpal Bill, that the entire
appointment process of the higher judiciary needs to be revamped and
reformed. The appointment process cannot be allowed and should not be
allowed to continue in the hands of a self-appointed common law
mechanism created by judicial order operating since the early 1990s. A
National Judicial Commission must be set up to create a broad-based and
comprehensive model for judicial appointments, including, if necessary,
by way of amendment of Articles 124 and 217 of the Indian Constitution.
Without such a fundamental revamp of the appointment process at
source and at the inception, all other measures remain purely ex-post
facto and curative. Preventive measures to ensure high quality judicial
recruitment at the entrance point is vital.
(vi) It is the same National Judicial Commission which has to be entrusted
with powers of both transfer and criminal prosecution of judges for
corruption. If desired, by amending the provisions of the Constitution as
they stand today, such proposed National Judicial Commission may also
be given the power of dismissal / removal. In any event, this mechanism of
the National Judicial Commission is essential since it would obviate
allegations and challenges to the validity of any enactment dealing with
judges on the ground of erosion or impairment of judicial independence.
Such judicial independence has been held to be part of the basic structure
of the Indian Constitution and is therefore unamendable even by way of
an amendment of the Indian Constitution. It is for this reason that while
this Committee is very categorically and strongly of the view that there
should be a comprehensive mechanism for dealing with the trinity of
judicial appointments, judicial transfers and criminal prosecution of
judges, it is resisting the temptation of including them in the present
Lokpal Bill. The Committee, however, exhorts the appropriate
departments, with all the power at its command, to expeditiously bring a
Constitutional Amendment Bill to address the aforesaid trinity of core
issues directly impinging on the judicial system today viz. appointment of
high quality and high caliber judges at the inception, non-discriminatory
and effective transfers and fair and vigorous criminal prosecution of
corrupt judges without impairing or affecting judicial independence.
(vii) The Committee finds no reason to exclude from the conclusions on this
subject, the burgeoning number of quasi-judicial authorities including
tribunals as also other statutory and non-statutory bodies which, where
not covered under category ‘A’ and ‘B’ bureaucrats, exercise quasijudicial
powers of any kind. Arbitrations and other modes of alternative dispute resolution should also be specifically covered in this proposed mechanism. They should be covered in any eventual legislation dealing with corruption in the higher judiciary. The Committee notes that a large mass of full judicial functions, especially from the High Courts has, for the last 30 to 40 years, been progressively hived off to diverse tribunals exercising diverse powers under diverse statutory enactments. The Committee also notes that apart from and in addition to such tribunals, a plethora of Government officials or other persona designata exercise quasi judicial powers in diverse situations and diverse contexts. Whatever has been said in respect of the judiciary in this chapter should, in the considered opinion of this Committee, be made applicable, with
appropriate modifications in respect of quasi-judicial bodies, tribunals
and persons as well. [Para 10.21]
The Lokpal: Search and Selection
38. To ensure flexibility, speed and efficiency on the one hand and representation to all organs of State on the other, the Committee recommends a Selection
Committee comprising:-
(a) The Prime Minister of India- as Head of the Executive.
(b) The Speaker Lok Sabha, as Head of the Legislature.
(c) The Chief Justice of India-as Head of the Judiciary.
(d) The leader of the Opposition of the Lower House.
(e) An eminent Indian, selected as elaborated in the next paragraph.
N.B.: functionaries like the Chairman and Leader of the Opposition of the
Upper House have not been included in the interests of compactness and
flexibility. The Prime Minister would preside over the Selection Committee. [Para 11.18]
39. The 5th Member of the Selection Committee in (e) above should be a joint
nominee selected jointly by the three designated Constitutional bodies viz., the
Comptroller and Auditor General of India, the Chief Election Commissioner and
the UPSC Chairman. This ensures a reasonably wide and representative degree
of inputs from eminent Constitutional bodies, without making the exercise too
cumbersome. Since the other Members of the Selection Committee are all exofficio,
this 5th nominee of the aforesaid Constitutional bodies shall be nominated
for a fixed term of five years. Additionally, it should be clarified that he should
be an eminent Indian and all the diverse criteria, individually, jointly or
severally, applicable as specified in Clause 4 (1) (i) of the Lokpal Bill 2011 should be kept in mind by the aforesaid three designated Constitutional
nominators.[Para 11.19]
40. There should, however, be a proviso in Clause 4(3) to the effect that a Search
Committee shall comprise at least seven Members and shall ensure
representation 50 per cent to Members of SC’s and/or STs and/or Other
Backward Classes and/or Minorities and/or Women or any category or
combination thereof. Though there is some merit in the suggestion that the
Search Committee should not be mandatory since, firstly, the Selection
Committee may not need to conduct any search and secondly, since this gives a
higher degree of flexibility and speed to the Selection Committee, the Committee,
on deep consideration, finally opines that the Search Committee should be made
mandatory. The Committee does so, in particular, in view of the high desirability
of providing representation in the Search Committee as stated above which, this
Committee believes, cannot be effectively ensured without the mandatory
requirement to have a Search Committee. It should, however, be clarified that
the person/s selected by the Search Committee shall not be binding on the
Selection Committee and secondly, that, where the Selection Committee rejects
the recommendations of the Search Committee in respect of any particular post,
the Selection Committee shall not be obliged to go back to the Search Committee
for the same post but would be entitled to proceed directly by itself. [ Para 11.20]
41. Over the years, there has been growing concern in India that the entire mass of
statutory quasi judicial and other similar tribunals, bodies or entities have been
operated by judicial personnel i.e. retired judges, mainly of the higher judiciary
viz. the High Courts and the Supreme Court.[Para 11.20(A)]
42. There is no doubt that judicial training and experience imparts not only a
certain objectivity but a certain technique of adjudication which, intrinsically
and by training, is likely to lead to greater care and caution in preserving
principles like fair play, natural justice, burden of proof and so on and so forth.
Familiarity with case law and knowledge of intricate legal principles, is naturally
available in retired judicial personnel of the higher judiciary.[Para11.20(B)]
43. However, when a new and nascent structure like Lokpal is being contemplated,
it is necessary not to fetter or circumscribe the discretion of the appointing
authority. The latter is certainly entitled to appoint judges to the Lokpal, and
specific exclusion of judges is neither contemplated nor being provided.
However, to consider, as the Lokpal Bill 2011 does, only former Chief Justices of
India or former judges of the Supreme Court as the Chairperson of the Lokpal
would be a totally uncalled for and unnecessary fetter. The Committee,
therefore, recommends that clause 3(2) be suitably modified not to restrict the
Selection Committee to selecting only a sitting or former Chief Justice of India or
judge of the Supreme Court as Chairperson of the Lokpal.[Para 11.20(C)]
44. A similar change is not suggested in respect of Members of the Lokpal and the
existing provision in clause 3 (2) (b) read with clause 19 may continue. Although
the Committee does believe that it is time to consider tribunals staffed by
outstanding and eminent Indians, not necessarily only from a pool of retired
members of the higher judiciary, the Committee feels hamstrung by the Apex
Court decision in L. Chandra Kumar v. Union of India 1997 (3) SCC 261 which
has held and has been interpreted to hold that statutory tribunals involving
adjudicatory functions must not sit singly but must sit in benches of two and that
at least one of the two members must be a judicial member. Hence, unless the
aforesaid judgment of the Apex Court in L. Chandra Kumar v. Union of India is
reconsidered, the Committee refrains from suggesting corresponding changes in
clause 3 (2) (b) read with clause 19, though it has been tempted to do so.[Para
11.20(D)]
45. There is merit in the suggestion that clause 3 (4) of the Lokpal Bill 2011 be
further amended to clarify that a person shall not be eligible to become
Chairperson or Member of Lokpal if:
(a) He/ she is a person convicted of any offence involving moral turpitude;
(b) He/ she is a person less than 45 years of age, on date of assuming office as
Chairperson or Member of Lokpal;
(c) He/ she has been in the service of any Central or State Government or
any entity owned or controlled by the Central or State Government and
has vacated office either by way of resignation, removal or retirement
within the period of 12 months prior to the date of appointment as
Chairperson or Member of Lokpal.[Para 11.20(E)]
46. In clause 9 (2), the existing provision should be retained but it should be added at the end of that clause, for the purpose of clarification, that no one shall be eligible for re-appointment as Chairperson or Member of the Lokpal if he has already enjoyed a term of five years.[Para 11.20(F)]
47. The Committee has already recommended appropriate representation on the
Search Committee, to certain sections of society who have been historically
marginalized. The Committee also believes that although the institution of
Lokpal is a relatively small body of nine members and specific reservation
cannot and ought not to be provided in the Lokpal institution itself, there should
be a provision added after clause 4 (5) to the effect that the Selection Committee
and the Search Committee shall make every endeavour to reflect, on the Lokpal
institution, the diversity of India by including the representation, as far as
practicable, of historically marginalized sections of the society like SCs/ STs,
OBCs, minorities and women. [Para 11.20(G)]
48. As regards clause 51 of the Lokpal Bill, 2011, the Committee recommends that
the intent behind the clause be made clear by way of an Explanation to be added
to the effect that the clause is not intended to provide any general exemption and
that "good faith" referred to in clause 52 shall have the same meaning as
provided in section 52 of the IPC.[Para 11.20(H)]
The Trinity of the Lokpal, CBI and CVC:
In Search of an Equilibrium
49. (A) Whatever is stated hereinafter in these recommendations is obviously
applicable only to Lokpal and Lokayukta covered personnel and offences/
misconduct, as already delineated in this Report earlier, inter alia, in Chapter 8
and elsewhere.
(B) For those outside (A) above, the existing law, except to the extent changed,
would continue to apply. (Para 12.32]
50. This Chapter, in the opinion of the Committee, raises an important issue of the
quality of both investigation and prosecution; the correct balance and an
apposite equilibrium of 3 entities (viz. Lokpal, CBI and CVC) after creation of
the new entity called Lokpal; harmonious functioning and real life operational
efficacy of procedural and substantive safeguards; the correct balance between
initiation of complaint, its preliminary screening/ inquiry, its further
investigation, prosecution, adjudication and punishment; and the correct
harmonization of diverse provisions of law arising from the Delhi Special Police
Establishment Act, the CVC Act, the proposed Lokpal Act, the IPC, CrPC and
the Prevention of Corruption Act. It is, therefore, a somewhat delicate and
technical task. [Para 12.33]
51. The stages of criminal prosecution of the Lokpal and Lokayukta covered persons
and officers can be divided broadly into 5 stages, viz. (a) The stage of complaint,
whether by a complainant or suo motu, (b) the preliminary screening of such a
complaint, (c) the full investigation of the complaint and the report in that
respect, (d) prosecution, if any, on the basis of the investigation and (e)
adjudication, including punishment, if any.[Para 12.34]
52. The Committee recommends that the complaint should be allowed to be made
either by any complainant or initiated suo motu by the Lokpal. Since, presently,
the CBI also has full powers of suo motu initiation of investigation, a power
which is frequently exercised, it is felt that that the same power of suo motu
proceedings should also be preserved for both the CBI and the Lokpal, subject,
however, to overall supervisory jurisdiction of the Lokpal over the CBI,
including simultaneous intimation and continued disclosure of progress of any
inquiry or investigation by the CBI to the Lokpal, subject to what has been
elaborated in the next paragraph.[Para 12.35]
53. Once the complaint, through any party or suo motu has arisen, it must be
subject to a careful and comprehensive preliminary screening to rule out false,
frivolous and vexatious complaints. This power of preliminary inquiry must
necessarily vest in the Lokpal. However, in this respect, the recommendations of
the Committee in para 12.36(I) should be read with this para. This is largely
covered in clause 23 (1) of the Lokpal Bill, 2011. However, in this respect, the
Lokpal would have to be provided, at the inception, with a sufficiently large
internal inquiry machinery. The Lokpal Bill, 2011 has an existing set of
provisions (Clauses 13 and 14 in Chapter III) which refers to a full-fledged
investigation wing. In view of the structure proposed in this Chapter, there need
not be such an investigation wing but an efficacious inquiry division for holding
the preliminary inquiry in respect of the complaint at the threshold. Preliminary
inquiry by the Lokpal also semantically distinguishes itself from the actual
investigation by the CBI after it is referred by the Lokpal to the CBI. The
pattern for provision of such an inquiry wing may be similar to the existing
structure as provided in Chapter III of the Lokpal Bill 2011 but with suitable
changes made, mutatis mutandis, and possible merger of the provisions of
Chapter VII with Chapter III.[Para 12.36]
54. The Committee is concerned at the overlap of terminology used and procedures
proposed, between preliminary inquiry by the Lokpal as opposed to investigation by the investigating agency, presently provided in Clause 23 of the Lokpal Bill. The Committee, therefore, recommends:
(a) that only two terms be used to demarcate and differentiate between
the preliminary inquiry to be conducted by the Lokpal, inter-alia,
under Chapters VI and VII read with Clause 2(1)(e) as opposed to an
investigation by the investigating agency which has been proposed to
be the CBI in the present report. Appropriate changes should make it
clear that the investigation (by the CBI as recommended in this
report), shall have the same meaning as provided in Clause 2 (h) of the
Cr.P.C whereas the terms “inquiry” or “preliminary investigation”
should be eschewed and the only two terms used should be
“preliminary inquiry” ( by the Lokpal) on the one hand &
“investigation” (by the CBI), on the other.
(b) the term preliminary inquiry should be used instead of the term
inquiry in clause 2(1)(e) and it should be clarified therein that it refers
to preliminary inquiry done by the Lokpal in terms of Chapters VI
and VII of the Lokpal Bill, 2011 and does not mean or refer to the
inquiry mentioned in Section 2(g) of the Cr.P.C.
(c) the term “investigation” alone should be used while eschewing terms
like “preliminary investigation” and a similar definitional provision
may be inserted after Clause 2(1)(e) to state that the term
investigation shall have the same meaning as defined in Clause 2(h) of
the Cr.P.C.
(d) Similar changes would have to be made in all other clauses in the Lokpal
Bill, 2011, one example of which includes Clause-14.[Para 12.36(A)]
55. There are several parts of Clause 23 of the 2011 Bill, including Clauses 23(4),
23(5), 23(6), 23(9) and 23(11) which require an opportunity of being heard to be
given to the public servant during the course of the preliminary inquiry i.e. the
threshold proceedings before the Lokpal in the sense discussed above. After deep
consideration, the Committee concludes that it is unknown to criminal law to
provide for hearing to the accused at the stage of preliminary inquiry by the
appropriate authority i.e. Lokpal or Lokayukta in this case. Secondly, the
preliminary inquiry is the stage of verification of basic facts regarding the
complaint, the process of filtering out false, frivolous, fictitious and vexatious
complaints and the general process of seeing that there is sufficient material to
indicate the commission of cognizable offences to justify investigation by the
appropriate investigating agency. If the material available in the complaint at
the stage of its verification through the preliminary inquiry is fully disclosed to
the accused, a large part of the entire preliminary inquiry, later investigation,
prosecution and so on, may stand frustrated or irreversibly prejudiced at the
threshold. Thirdly, and most importantly, the preliminary inquiry is being
provided as a threshold filter in favour of the accused and is being entrusted to
an extremely high authority like the Lokpal, created after a rigorous selection
procedure. Other agencies like the CBI also presently conduct preliminary
inquiries but do not hear or afford natural justice to the accused during that
process. Consequently the Committee recommends that all references in Clause
23 or elsewhere in the Lokpal Bill, 2011 to hearing of the accused at the
preliminary inquiry stage should be deleted.[Para 12.36(B)]
56. Since the Committee has recommended abolition of the personal hearing process
before the Lokpal during the preliminary inquiry, the Committee deems it fit
and proper to provide for the additional safeguard that the decision of the
Lokpal at the conclusion of the preliminary inquiry to refer the matter further
for investigation to the CBI, shall be taken by a Bench of the Lokpal consisting of
not less than 3 Members which shall decide the issue regarding reference to
investigation, by a majority out of these three.[Para 12.36.(BB)]
57. Naturally it should also be made clear that the accused is entitled to a full
hearing before charges are framed. Some stylistic additions like referring to the
charge sheet “if any” (since there may or may not be a chargesheet) may also be
added to Clause 23(6). Consequently, Clauses like 23(7) and other similar clauses
contemplating proceedings open to public hearing must also be deleted. [Para
12.36(C)]
58. Clause 23(8) would have to be suitably modified to provide that the appropriate
investigation period for the appropriate investigating agency i.e. CBI in the
present case, should normally be within six months with only one extension of a
further six months, for special reasons. Reference in Clause 23(8) to “inquiry”
creates highly avoidable confusion and it should be specified that the meanings
assigned to inquire and investigate should be as explained above.[Para 12.36(D)]
59. The Committee also believes that there may be several exigencies during the
course of both preliminary inquiry and investigation which may lead to a
violation of the 30 days or six months periods respectively specified in Clause
27(2) and 23(8). The Committee believes that it cannot be the intention of the law
that where acts and omissions by the accused create an inordinate delay in the
preliminary inquiry and / or other factors arise which are entirely beyond the
control of the Lokpal, the accused should get the benefit or that the criminal trial
should terminate. For that purpose it is necessary to insert a separate and
distinct provision which states that Clauses 23(2), 23(8) or other similar time
limit clauses elsewhere in the Lokpal Bill, 2011, shall not automatically give any
benefit or undue advantage to the accused and shall not automatically thwart or
terminate the trial. [Para 12.36(E)]
60. Clause 23(10) also needs to be modified. Presently, it states in general terms the discretion to hold or not to hold preliminary inquiry by the Lokpal for reasons to be recorded in writing. However, this may lead to allegations of pick and choose
and of arbitrariness and selectivity. The Committee believes that Clause 23(10)
should be amended to provide for only one definition viz., that preliminary
inquiry may be dispensed with only in trap cases and must be held in all other
cases. Even under the present established practice, the CBI dispenses with
preliminary inquiry only in a trap case for the simple reason that the context of
the trap case itself constitutes preliminary verification of the offence and no
further preliminary inquiry is necessary. Indeed, for the trap cases, Section 6 A
(ii) of the Delhi Special Police Establishment Act, 1946 also dispenses with the
provision of preliminary inquiries. For all cases other than the trap cases, the
preliminary inquiry by the Lokpal must be a non dispensable necessity.[Para
12.36(F)]
61. Clause 23(11) also needs to be modified / deleted since, in this Report, it is
proposed that it is the CBI which conducts the investigation which covers and
includes the process of filing the charge sheet and closure report. [Para 12.36(G)]
62. Similarly Clause 23 (12) (b) would have to be deleted, in view of the conclusion
hereinabove regarding the absence of any need to provide natural justice to the
accused at the stage of preliminary inquiry. Clause 23(14) is also unusually
widely worded. It does not indicate as to whom the Lokpal withhold records
from. Consequently that cannot be a general blanket power given to the Lokpal
to withhold records from the accused or from the investigating agency. Indeed,
that would be unfair, illegal and unconstitutional since it would permit selectivity
as also suppress relevant information. The clause, therefore, needs to be
amended.[Para 12.36(H)]
63. The case of the Lokpal initiating action suo motu, requires separate comment. In
a sense, the preliminary inquiry in the case of a Lokpal suo motu action becomes
superfluous since the same body ( i.e. Lokpal) which initiates the complaint, is
supposed to do a preliminary inquiry. This may, however, not be as anomalous
as it sounds since even under the present structure, the CBI, or indeed the local
police, does both activities ie suo motu action as also preliminary screening/
inquiry. The Committee was tempted to provide for another body to do
preliminary inquiry in cases where the Lokpal initiates suo motu action, but in
fact no such body exists and it would create great multiplicity and logistical
difficulty in creating and managing so many bodies. Hence the Committee
concludes that in cases of suo motu action by Lokpal, a specific provision must
provide that that part of the Lokpal which initiates the suo motu proposal,
should be scrupulously kept insulated from any part of the preliminary inquiry
process following upon such suo motu initiation. It must be further provided that
the preliminary inquiry in cases of suo motu initiation must be done by a Lokpal
Bench of not less than five Members and these should be unconnected with those
who do the suo motu initiation.[Para 12.36(I)]
64. These recommendations also prevent the Lokpal from becoming a single
institution fusing unto itself the functions of complainant, preliminary inquirer,
full investigator and prosecutor. It increases objectivity and impartiality in the
criminal investigative process and precludes the charge of creating an
unmanageable behemoth like Lokpal, while diminishing the possibility of abuse
of power by the Lokpal itself.[Para 12.37]
65. These recommendations also have the following advantages:
(i) The CBI’s apprehension, not entirely baseless, that it would become a
Hamlet without a Prince of Denmark if its Anti-Corruption Wing was
hived off to the Lokpal, would be taken care of.
(ii) It would be unnecessary to make CBI or CVC a Member of the Lokpal
body itself.
(iii) The CBI would not be subordinate to the Lokpal nor its espirit de corps
be adversely affected; it would only be subject to general superintendence
of Lokpal. It must be kept in mind that the CBI is an over 60 year old
body, which has developed a certain morale and espirit de corps, a
particular culture and set of practices, which should be strengthened and
improved, rather than merely subsumed or submerged within a new or
nascent institution, which is yet to take root. Equally, the CBI, while
enhancing its autonomy and independence, cannot be left on auto pilot.
(iv) The CVC would retain a large part of its disciplinary and functional role
for non Lokpal personnel and regarding misconduct while not being
subordinate to the Lokpal. However, for Lokpal covered personnel and
issues, including the role of the CBI, the CVC would have no role.
(v) Mutatis mutandis statutory changes in the Lokpal Bill, the CVC and the
CBI Acts and in related legislation, is accordingly recommended.
[Para 12.38]
66. After the Lokpal has cleared the stage for further investigation, the matter
should proceed to the CBI. This stage of the investigation must operate with the
following specific enumerated statutory principles and provisions:
(A) On the merits of the investigation in any case, the CBI shall not be
answerable or liable to be monitored either by the Administrative
Ministry or by the Lokpal. This is also fully consistent with the
established jurisprudence on the subject which makes it clear that the
merits of the criminal investigation cannot be gone into or dealt with even
by the superior courts. However, since in practise it has been observed in
the breach, it needs to be unequivocally reiterated as a statutory
provision, in the proposed Lokpal Act, a first in India.
(B) The CBI shall, however, continue to be subject to the general supervisory
superintendence of the Lokpal. This shall be done by adding a provision
as exists today in the CVC Act which shall now apply to the Lokpal in
respect of the CBI. Consequently, the whole of the Section 8 (1) (not
Section 8 (2) ) of the CVC Act should be included in the Lokpal Bill to
provide for the superintendence power of the Lokpal over the CBI.[Para 12.39]
67. Correspondingly, reference in Section 4 of the Delhi Special Police Establishment Act to the CVC would have to be altered to refer to the Lokpal. [Para 12.40]
68. At this stage, the powers of the CBI would further be strengthened and enhanced
by clarifying explicitly in the Lokpal Bill that all types of prior sanctions/terms
or authorizations, by whatever name called, shall not be applicable to Lokpal
covered persons or prosecutions. Consequently, the provisions of Section 6 (A) of
the Delhi Special Police Establishment Act, Section 19 of the Prevention of
Corruption Act and Section 197 of the IPC or any other provision of the law,
wherever applicable, fully or partially, will stand repealed and rendered
inoperative in respect of Lokpal and Lokayukta prosecutions, another first in
India. Clause 27 of the Lokpal Bill, 2011 is largely consistent with this but the
Committee recommends that it should further clarify that Section 6 A of the
DSPE Act shall also not apply in any manner to proceedings under the proposed
Act. The sanction requirement, originating as a salutary safeguard against witch
hunting has, over the years, as applied by the bureaucracy itself, degenerated
into a refuge for the guilty, engendering either endless delay or obstructing all
meaningful action. Moreover, the strong filtering mechanism at the stage of
preliminary inquiry proposed in respect of the Lokpal, is a more than adequate
safeguard, substituting effectively for the sanction requirement. Elsewhere, this
Report recommends that all sanction requirements should be eliminated even in
respect of non Lokpal covered personnel. [Para 12.41]
69. The previous two paragraphs if implemented, would achieve genuine and
declared statutory independence of investigation for the first time for the
CBI.[Para 12.42]
70. The main investigation, discussed in the previous few paragraphs, to be
conducted by the CBI, necessarily means the stage from which it is handed over
to the CBI by the Lokpal, till the stage that the CBI files either a chargesheet or
a closure report under Section 173 of the CrPC. However, one caveat needs to be
added at this stage. The CBI's chargesheet or closure report must be filed after
the approval by the Lokpal and, if necessary, suitable changes may have to be
made in this regard to Section 173 Cr PC and other related provisions.[Para 12.43]
71. The aforesaid independence of the CBI is reasonable and harmonizes well with
the supervisory superintendence of the Lokpal in the proposed Lokpal Bill,
which is now exercised by CVC under Section 8 (1) of the CVC Act. The
Committee recommends the above provision, suitably adapted to be applicable
in the relationship between the Lokpal and the CBI. [Para 12.44]
72. The next stage of the criminal process would go back to the Lokpal with full
powers of prosecution on the basis of the investigation by the CBI. The following
points in this respect are noteworthy:
• Clause 15 in Chapter IV of the Lokpal Bill, 2011 already contains
adequate provisions in this regard and they can, with some modifications,
be retained and applied.
• The Committee's recommendations create, again for the first time, a fair
demarcation between independent investigation and independent
prosecution by two distinct bodies, which would considerably enhance
impartiality, objectivity and the quality of the entire criminal process.
• It creates, for the first time in India, an independent prosecution wing,
under the general control and superintendence of the Lokpal, which,
hopefully will eventually develop into a premium, independent
autonomous Directorate of Public Prosecution with an independent
prosecution service (under the Lokpal institution). The Committee also
believes that this structure would not in any manner diminish or dilute
the cooperative and harmonious interface between the investigation and
prosecution processes since the former, though conducted by the CBI,
comes under the supervisory jurisdiction of the Lokpal.[Para 12.45]
73. The next stage is that of adjudication and punishment, if any, which shall, as
before, be done by a special Judge. The Committee considers that it would be
desirable to use the nomenclature of 'Lokpal Judge' ( or Lokayukta Judge in
respect of States) under the new dispensation. However, this is largely a matter
of nomenclature and existing provisions in the Lokpal Bill, 2011 in Chapter IX
are adequate, though they need to be applied, with modifications. [Para 12.46]
74. The aforesaid integrates all the stages of a criminal prosecution for an offence of corruption but still leaves open the issue of departmental proceedings in respect of the same accused.[Para 12.47]
75. The Committee agrees that for the Lokpal covered personnel and issues, it would
be counter-productive, superfluous and unnecessary to have the CVC to play
any role in departmental proceedings. Such a role would be needlessly
duplicative and superfluous. For such matters, the Lokpal should be largely
empowered to do all those things which the CVC presently does, but with some
significant changes, elaborated below.[Para 12.48]
76. Clauses 28 and 29 of the Lokpal Bill are adequate in this regard but the
following changes are recommended:
(i) The Lokpal or Lokayukta would be the authority to recommend
disciplinary proceedings for all Lokpal or Lokayukta covered persons.
(ii) The CVC would exercise jurisdiction for all non Lokpal covered persons
in respect of disciplinary proceedings.
(iii) The CBI would similarly continue to exercise its existing powers under
the CVC's superintendence for all non Lokpal personnel and proceedings.
(iv) Departmental action must, as the law today stands, comply with the over
arching mandate of Article 311 of the Indian Constitution. Dissatisfaction
or objection to the practical operation of Article 311, fully understandable
and indeed justifiable, does not permit or impel us to ignore the existence
of Article 311, until altered. If there is consensus outside the Committee
on amending Article 311, it must be amended as elaborated and
recommended by the Committee in paragraph 12.49. However, absent
such a consensus, the passage of the Lokpal Bill need not be held up on
that account and hence the present report makes recommendations on the
basis of the continuance of Article 311. If, however, it is amended as per
paragraph 12.49, the proposed Lokpal Act can easily be modified to
reflect such changes.
(v) It may also be remembered that the Lokpal itself does not conduct the
departmental proceedings. For the law to provide for Lokpal to conduct
the entire departmental proceedings itself, would be to put a humungous
and unworkable burden on the institution.
(vi) Therefore, the power to take departmental action whether in the case of
bureaucrats or in the case of Ministers as provided in Clauses 28 and 29
of the Lokpal Bill 2011, are largely appropriate.
(vii) The Committee is informed that suspension of a delinquent officer during
his criminal prosecution is virtually automatic in practice. However, the
Committee feels the need to emphasize that a specific provision be added
in Chapter VII making it clear that once any bureaucrat (viz. group A or
group B officer) as covered in the proposed Lokpal Bill is under
investigation and the Lokpal makes a recommendation that such a person
be suspended, such suspension should mandatorily be carried out unless,
for reasons to be recorded in writing by a majority out of a group of 3
persons not below the rank of Ministers of State belonging to the
Ministries of Home, Personnel and the relevant administrative Ministry
of the delinquent officer, opine to the contrary. Such suspension on
Lokpal recommendation does not violate Article 311 in any manner.
Refusal by the aforesaid Committee of three provides a check and balance
qua possibly unreasonable Lokpal recommendations. The reference is to
three high functionaries of three Ministries and not to the Administrative
Ministry alone since it is frequently found in practise that the
Administrative Ministry's responses alone may seek to preserve the status
quo on account of vested interests arising from the presence of the
delinquent officer in that Administrative Ministry.
(viii) There cannot be a counterpart suspension provision in respect of MPs or
Ministers or the like, but an explicit clause may be added to the existing
Clause 29 that the Presiding Officer of the relevant House in the case of
MPs and Prime Minister in the case of a member of the Council of
Ministers shall record a note in writing indicating the action being taken
in regard to the Lokpal's recommendations or the reasons for not taking
such action.
(ix) Wherever otherwise applicable, in respect of the details of the
departmental inquiry, the provisions of Article 311 would, unless altered
and subject to Paras D above and 12.49 below, continue to apply.[Para 12.49]
77. The Committee strongly pleads and recommends that the provisions of Article
311 require a close and careful relook to ensure that reasonable protection is
given to bureaucrats for the independent and fair discharge of their functions
but that the enormous paraphernalia of procedural rules and regulations which
have become a major obstacle in the taking of genuine and legitimate
departmental action against delinquent officers, be eliminated. The Committee
notes with concern and with growing apprehension that serious and high level /
big ticket corruption has increased exponentially since Independence at all levels
in the Lokpal proposed categories of personnel. In particular, bureaucratic
corruption has been relatively ignored or underplayed in the context of the
excessive media and civil society focus on political corruption, coupled with the
doctrine of civil service anonymity, which this country imported from our
former colonial masters. Hence, the substantial modification of Article 311 or,
indeed, its replacement by a much lesser statutory (not constitutional
counterpart) should be taken up and implemented at the earliest. It may be
added that what requires to be looked into is not the mere text of Article 311 but
the context which has grown around it, through an undesirably large number of
statutory and non-statutory rules, procedures and regulations coupled with huge
common law jurisprudence over the last 6 decades. It is universally believed that
the aforesaid has, in practice, converted Article 311, from a reasonable and
salutary safeguard to a haven for those indulging in mal-administration and/
corruption with no fear of consequences and the certainty of endless delay. The
fact that Article 311 had been given constitutional and not mere statutory status
is also responsible for its largely unchanged character over the last six plus
decades.[Para 12.50]
78. Though not strictly within the purview of the Lokpal Bill 2011 itself, the
Committee also recommends that CVC's advice in respect of departmental
action to be taken by the relevant department in case of non-Lokpal covered
personnel must, by a suitable amendment to the CVC Act, be made binding to
the extent that, unless for reasons to be recorded by a majority out of the same
joint group as aforesaid, comprising 3 persons not below the rank of Ministers of
State belonging respectively to the Ministries of Home Affairs, Personnel and the
Administrative Ministry to which the delinquent officer belongs, states that CVC
advice be not followed, such CVC advice shall be binding. [Para 12.51]
79. The Committee has deliberated long and hard on whether it can or should go to
the extent of suggesting changes in the selection procedure of the CBI chief.
Presently, the CBI chief is appointed by the Government on the recommendation
of a Committee consisting of the CVC as Chairperson, Vigilance Commissioner,
Secretary, Government of India in the Ministry of Home Affairs and Secretary
of the Administrative Ministry (in this case the Ministry of Personnel) [see
Section 4A of the Delhi Special Police Establishment Act, 1946]. Section 8 (2) of
the 1946 Act further provides for a mandatory input in the selection of a new
Director to be made by the outgoing Director and also enjoins upon the
Committee, in Section 8 (3), to make recommendations for a panel of officers on
the basis of seniority, integrity and experience in the investigation of anticorruption cases, necessarily belonging to the Indian Police Services. [Para
12.52]
80. Interestingly, Section 4 C of the same 1946 Act provides for the same Committee
to make recommendations for all appointments as also extension or curtailment
of tenure of all officers above the level of Superintendent of Police in the CBI.
[Para 12.53]
81. It is thus clear that it is not correct to suggest that the Central Government has absolute discretion in appointing the CBI Director. After the Vineet Narain vs.
Union of India judgment* by the Apex Court, significant changes were brought
into the Delhi Special Police Establishment Act, 1946. In 2003 (by Act 45 of 2003)
providing for the aforesaid independent and autonomous regime for selection
and appointment of CBI Director. The Central Vigilance Commissioner who
heads the selection and recommendation process is itself a high statutory
authority under a separate enactment called the Central Vigilance Commission
Act of 2003 which, in turn in Section 4, obliges the Government to appoint the
CVC on the basis of a recommendation of a high powered Committee
comprising the Prime Minster, the Home Minister and the leader of opposition
in the Lok Sabha. It is, therefore, erroneous to brush aside the existing system as
merely involving absolute power/discretion to select Government favourites as
CBI Director. [Para 12.54]
82. Furthermore, the Committee believes that it would neither be proper nor
desirable for the Committee to go into and suggest fundamental statutory
alterations to the procedure for selection and appointment of CBI Director,
which appears, nowhere, directly or indirectly, to be a subject referred for the
consideration of this Committee. Collateral recommendations of this nature by a
side wind should, in the opinion of this Committee, be avoided, especially since
* 1996(2) SCC 199. significant statutory changes have been brought in with respect to the appointment of the CBI Director less than 8 years ago. [Para 12.55]
Constitutional Status: If, How and How Much
83. The Committee, therefore, recommends:-
(a) The institution of Lokpal must be given constitutional status by inserting
into the Constitution by way of constitutional amendment certain basic
principles about the Lokpal and leaving the details in the new proposed
statute on which this Committee is opining.
(b) One practical, reasonable and legally valid model would be for the
Government to consider the model and set of provisions asked for by the
Committee and presented in the evidence to the Committee as a draft
constitutional amendment by two former Chief Justices of India. That
draft is enclosed herewith as Annexure ‘F’ and is self-explanatory.
(c) This constitutional amendment does not require ratification by not less
than half of the State Legislatures since it does not seek to make any
change in any of the provisions listed in the second proviso to Article 368
(2) of the Indian Constitution.
(d) The constitutional amendment should, as reflected in the enclosed
Annexure ‘F’ be a set of basic principles for the Lokpal as also provide
for the basic set up of the Lokayuktas. Both these provisions, proposed in
the enclosed draft, propose Part XVA and Articles 329(C) and 329(D), as
enabling, empowering and permissive provisions and authorize and
empower the appropriate legislature to make proper laws, mutatis
mutandis, for Lokpal at the Centre and for Lokayuktas at the State.
(e) Such a constitutional status would not only considerably enhance the
stature, legal and moral authority of the Lokpal institution but would
make interference and tinkering in these basic principles not subject to
the vicissitudes of ordinary or transient majorities. Over a period of time,
it is likely that these principles would develop into a set of immutable
principles and, possibly, even become part of basic structure of the
Constitution rendering the existence of the Lokpal and its basic features
un-amendable even by a constitutional amendment.
(f) Apprehensions regarding delay are misplaced. The constitutional
amendment bill would be much shorter than the statutory bill for the new
proposed Lokpal and can be passed on the same day and at the same time
as the latter, though by a different majority. It is inconceivable that while
parties are in favour of the institution of Lokpal in principle, as a
statutory body, parties would not agree with equal alacrity for the
passage of a constitutional amendment bill.
(g) The suggestion that the entire statutory bill should be transposed as a
constitutional amendment into the Constitution is untenable and
impracticable. That would eliminate flexibility and would require a
constitutional amendment for the smallest future change. Moreover, the
Constitution does not and is not intended to provide for nitty gritty
operational details. It should be and is intended to be a declaration of
general and basic principles which, in turn, enable and empower formal
legislation, which in turn would take care of the details.
(h) An easy or casual repeal of the entire Lokpal scheme would not be
possible once it is constitutionally entrenched.
(i) Similarly, there would be no option for the federal or State Legislatures
not to have a Lokpal or a Lokayukta at all since the constitutional
mandate would be to the contrary.
(j) Contextually, the issues and some of the suggestions in this Chapter may
overlap with and should, therefore, be read in conjunction with Chapter 7
of this report. Though the Committee has already opined in Chapter 4 of
this Report here that the issues of grievance redressal should be dealt
with in a separate legislation, the Committee hereby also strongly
recommends that there should be a similar declaration either in the same
Chapter of the Lokpal or in a separate Chapter proposed to be added in
the Indian Constitution, giving the same constitutional status to the
citizens grievances and redressal machinery.
(k) This recommendation also reflects the genuine and deep concern of this
Committee about the need, urgency, status and importance of a citizen's
charter/grievance machinery and the Committee believes that the giving
of the aforesaid constitutional status to this machinery would go a long
way in enhancing its efficacy and in providing a healing touch to the
common man.
(l) Furthermore, the Committee believes that this recommendation herein is
also fully consistent with the letter and spirit of para 1.8 above viz. the
conclusions of the Minister of Finance in the Lower House recorded in
para 1.8 above. [Para 13.12]
The Jurisdictional Limits of Lokpal: Private NGOs, Corporates and Media
84. There is no doubt that corruption is neither the exclusive preserve nor the
special privilege nor the unique entitlement of only the political or bureaucratic
classes. Nor can anyone justify exclusionary holy cows, supposedly immunized,
exempted or put outside the purview of a new and vigorous anti-corruption
monitoring, investigation and prosecution regime as the proposed new Lokpal
Bill seeks to create. If corruption is rampant in a country like India, it permeates
and pervades every nook and cranny of society and is certainly not restricted to
the political or bureaucratic classes. Indeed, while no specific statistical data are available, it may not be at all inconceivable that, in quantum terms, the degree of corruption in the non-political/non-bureaucratic private sector, in the aggregate, is far higher than in the realm of political and bureaucratic classes alone. Therefore, in principle, non-application of the proposed Lokpal Bill to all such classes does not appear to be justifiable.[Para 14.22]
85. In this connection, the very recent UK Bribery Act, 2010, is both interesting and instructive. Drafted in a completely non-legalistic manner, format and language,
this Act seeks to criminalize corruption everywhere and anywhere, i.e. in the
public and private sectors in UK, in Governmental and non-Governmental sectors, by UK citizens abroad, by non-UK citizens acting in UK and in the entire gamut of private and individual transactions in addition to covering dealings in the private sector, intra-private sector, intra-public sector, in Government and private interface and in every other nook and cranny of society.[Para 14.23]
86. Despite the above and despite the simplicity and attractiveness of an all inclusive approach, the latter must yield to exigencies of logistics, operational efficacy and pragmatism. Since this is the nation’s first experiment with a central Lokpal institution, it would amount to starry-eyed idealism to recommend the blanket
inclusion of every segment of society under the jurisdiction of an omnipotent and
omniscient Lokpal. Such comprehensive inclusion is entirely understandable and
may be logically more justifiable in principle, but, in the final opinion of the
Committee, must await several years of evolution of the Lokpal institution and a
corpus of experiential and practical lessons as also the wisdom of a future
generation of Parliamentarians.[Para 14.24]
87. As far as the proposed dispensation is concerned, the only available dividing and demarcating line between the complete inclusion and partial exclusion of entities from the jurisdiction of the Lokpal would have to be some test of Government ownership and/or control and/or size of the entity concerned. In this regard, clauses 17 (1) (f) and (g) of the Lokpal Bill, 2011 are relevant. Clause 17 (1) (f) applies the Lokpal jurisdiction mainly to office-bearers of every society, A.o.P. or trust, registered or not, but wholly or partially financed or aided by the
Government, subject to being above some specified annual income minima. Clause 17 (1) (g), similarly, applies the Lokpal to office-bearers of every society,
A.o.P. or trust, receiving donations from the public, again subject to an annual
income minima to be specified by the Central Government.[Para 14.25]
88. After deep consideration, the Committee believes and recommends that these
clauses should be merged and expanded to provide for the following coverage/jurisdiction of the Lokpal:
(a) The Lokpal jurisdiction should apply to each and every institution/entity, by whatever name called, owned or controlled by the Central Government, subject, however, to an exclusionary minima, where the ownership or control of the Central Government de minims. Such minima would have to be specified and the power of such specification should be given to the Central Government by notification;
(b) Additionally, all entities/institutions, by whatever name called, receiving
donations from the public above a certain minima, liable to be specified
by the Central Government should be included. In addition, as also all
entities/institutions receiving donations from foreign sources in the terms
and context of the Foreign Contribution Regulation Act (FCRA) in excess
of Rs.10 lakh per year, should be covered, whether or not, controlled by
the Government. This is largely as per existing clause 17 (1) (g), except for
the addition of the foreign donation recipient facet;
(c) It should be clarified that this coverage shall apply, as also stated above,
to every entity and institution, by whatever name called, be it corporate,
society, trust, A.o.P., partnership, sole proprietorship, LLP or any other,
registered or not. It should also be made clear that the approach is functional or ownership based or size based and not based on nomenclature;
(d) It is thus clear that corporates, media or NGOs should and would be
covered only to the above extent and not otherwise.[Para 14.25.A]
89. Despite the foregoing elaborations and ‘lament’ regarding exclusion of large
slices of society from the Lokpal regime, it must not be forgotten that all persons,
whether private, individual, and totally non-Governmental, are already
necessarily covered as abettors, co-conspirators, inciters and givers or recipients
or bribes in terms of clause 17 (3) of the Lokpal Bill, 2011. It may, however, be
further clarified suitably in inclusive and not exhaustive terms in clause 17 (3)
that the phrase "if such person is associated with the allegation of corruption",
should include abettors, bribe-givers, bribe-takers, conspirators and all other
persons, directly or indirectly, involved in the act or omission relating to
corruption within which all other persons and entities in clause 17 are subsumed.
The word "associated" presently used is too general and vague.[Para 14.26]
90. The Committee further recommends that clause 17 (3) should be explicitly
clarified to the effect that the abettor, conspirator or person associated, in any
manner, directly or indirectly, with the corruption allegation, shall not only be
included but be fully liable to investigation, prosecution and punishment and
that the proviso to clause 17 (3) shall be limited only to proposed action to be
taken ‘in case of a person serving in the affairs of a State’ and not qua anyone
else.[Para 14.26.A]
Support Structure for the Lokpal: Whistle Blowers, Phone Tappers and Legal Aid/ Assistance Issues
91. As regards the whistleblower issue, this Committee has made a detailed
recommendation on the subject on August 10, 2011 in respect of the Bill referred
to it. That Bill and the Committee’s recommendation are under the active
decision making process of the Government of India for eventual translation into
law.[Para 15.10]
92. The Committee recommends that the Whistleblowers Bill (Bill No. 97 of 2010)
referred to the Committee, with the changes already recommended by the
Committee in respect of that Bill (in the Committee's report dated August 10,
2011), be implemented into law simultaneously and concurrently with the
Lokpal Bill. In that case, only one provision needs to be inserted in the Lokpal
Bill to the effect that safeguards and machinery provided elaborately in the
proposed Whistleblowers Bill, as opined upon by the Committee, would be
applicable, mutatis mutandis to the Lokpal Bill. In particular, the Committee
notes that clauses 10, 11, 12 and 13 of the aforesaid Whistleblowers Bill, provide
a fairly comprehensive fasciculus of provisions providing safeguards against
victimization, protection of witnesses and other persons, protection of identity of
complainant and power to pass interim orders. The Whistleblowers Bill also sets
up a competent authority and provides for several other related provisions to
make the functioning of that authority efficacious and to enhance the efficiency,
potency and vigour of the safeguards intended to be provided to a whistleblower.
The proposed provision in the Lokpal Bill should act as a cross referencing,
breach of which should activate the related/ applicable provisions of the
Whistleblower Bill and render them applicable to all Lokpal proceedings, as if
set out in the Lokpal Bill, 2011.[Para 15.11]
93. Naturally, one of the main adaptations of the Whistleblowers Bill for Lokpal
proceedings would be that the competent authority in respect of Lokpal covered
persons and offences would be the Lokpal and references in the Whistleblowers
Bill to CVC or other entities would be rendered inoperative for purposes of
Lokpal personnel and officers.[Para 15.12]
94. If, however, the aforesaid Whistleblower Bill, along with the recommendations of
`this Committee in that regard, are not enacted into law by the Government of
India, co-terminously and simultaneously with the Lokpal Bill, then this Committee recommends the creation of some safeguards, in substance and essence, by the addition of a whole new chapter and certain provisions in the proposed Lokpal Bill. However, those provisions in the Lokpal Bill would be largely an adaptation of the same provisions of the Whistleblowers Bill, especially clauses 10 to 13 of the Whistleblowers Bill, while, as explained above, making the Lokpal the competent authority for such whistleblower issues.[Para 15.13]
95. As regards phone tapping, the Committee emphasizes and underlines the basic
reality that phone tapping by regulatory and policing agencies has been
prevalent in India for several years and the rules and regulations in that regard
have undergone periodic refinement and amendment. Currently the regime of
phone tapping is governed by Indian Telegraph Act and Rules read with the
judgments of the Supreme Court inter alia in People Union for Civil Liberties
Vs. Union of India (1997) 1 SCC 301. The Committee believes that there is no
reason, sufficiently strong, to suggest that this substantive law should be altered
in respect of Lokpal proceedings.[Para 15.14]
96. Phone tapping has been resorted to, inter alia, by agencies as diverse as CBI,
Enforcement Directorate, Directorate of Revenue Intelligence and others, under
the aforesaid regime of the Act., Rules and the Supreme Court mandated
principles. In all such cases, the Committee is not aware of any situation where
any of these agencies are entitled to suo motu, on their own, without separate
authorization, and in secrecy, initiate or continue phone tapping. There is,
therefore, no reason as to why the proposed Lokpal institution should also not be
subjected to the same regime and mechanism. To provide for inherent and
separate power in the Lokpal institution in this regard, would also create an
excessive and undesirable concentration of powers, would frequently involve a
conflict of interest between preliminary inquiry, investigation and prosecution
and would disturb the equilibrium of all investigative agencies for the past
several years with established practices in respect of phone tapping issues.
Indeed, the Committee notes that in other parts of this Report (Chapter 12), the
CBI is the principal investigating agency and, therefore, its powers of phone
tapping must continue as they exist today. [Para 15.15]
97. As regards legal aid/ assistance, the Committee concludes that clause 56 as
framed does not intend to and should not be read to be a mandate for provision
of automatic legal aid for every accused in a Lokpal proceeding. Clause 56, by
any fair reading, and in the opinion of this Committee, is only intended to
provide legal assistance by way of legal representation to the accused in any case
before the Lokpal eg:- a preliminary inquiry. Firstly, the Committee does not
read this to mean automatic monetary or fiscal assistance or by way of lawyers’
fees for the accused. Secondly, the Committee believes that this was intended to
and recommended so that it should be explicitly clarified that it permits the use
of, or appearance by a legal practitioner, where the accused asks for one in
Lokpal proceedings eg:- a preliminary inquiry. In any event, elsewhere in this
Report we have recommended deletion of the concept of hearing an accused
during preliminary inquiry. If that is done away with, no issue would arise of
legal practitioners appearing. In any case, they are entitled to appear in all later
stages including trial. Finally, it should be clarified that clause 56 does not intend to abrogate or dilute or attenuate any other provision of law under where, by
virtue of those provisions of law, the accused may be entitled to a monetary/
fiscal legal aid or assistance.[Para 15.16]
The Lokpal Miscellany: Residual Issues
98. Although it is implicit in the Lokpal Bill, 2011, the Committee believes that to
obviate all doubts and to prevent any jeopardy to ongoing trials, the proposed
Lokpal should have a specific provision categorically applying Section 4 (3) of
the POCA to Lokpal proceedings, to enable the special judge or Lokpal judge to
try any other offence, where connected, other than those covered by the Lokpal
Act. [Para 16.3]
99. Clause 17 (1) in most of its sub-clauses, including (b), (c), (d) and so on,
specifically refers to a current/serving as also a former public servant (e.g.
Minister, MP, bureaucrat, etc. both past and present). [Para 16.4]
100. The Committee has seen the substantive provisions of POCA and it appears to
be clear that the POCA, which shall continue to be the substantive law applicable to Lokpal trials and proceedings, seeks to render culpable and punish only official acts done by public servants. Be that as it may, the Committee is of the opinion that a specific provision should be inserted in Clause 17 clarifying and specifying that reference to present and former public servants only means that they can be prosecuted whether in or not in office, but only for acts/omissions done while they were in office and not for allegedly fresh acts/omissions after ceasing to hold office.[Para 16.5]
101. The Committee finds that clause 8 and especially clause 8 (1) of the Lokpal Bill, 2011 has struck the right balance and does not need any fundamental changes. It is intended to strengthen the independence and autonomy of the Lokpal by not
making it easy to initiate complaints against Lokpal for the Lokpal’s removal.
The Committee, however, recommends an addition to clause 8 (1)(iii), to allay
and obviate the apprehension expressed in some quarters, that the process to
remove the Lokpal cannot be initiated, under the sub-clause, if the President
(which essentially means the Central Government) refuses to refer the complaint
against the Lokpal. The Committee feels that this apprehension would be
adequately taken care of by providing in clause 8 (1)(iii) that where the President
does not refer a citizen’s complaint against the Lokpal to the Apex Court, the
President (i.e. the Central Government) shall be obliged to record reasons for the
same and to furnish those reasons to the complainant within a maximum period
of 3 months from the date of receipt of the complaint. The Committee feels that
this process, including the transparency involved in recording these reasons and
the attendant judicial review available to the complainant to challenge such
reason/refusal, contains an adequate check and balance on this subject.[Para
16.6]
102. Additionally, the Committee recommends that Clause 8 (1) (iv) be added in the
existing Lokpal Bill, 2011 to provide, specifically, that anyone can directly
approach the apex court in respect of a complaint against the Lokpal (institution
or individual member) and that such complaint would go through the normal
initial hearing and filter as a preliminary matter before the normal bench
strength as prescribed by the Supreme Court Rules but that, if the matter is
admitted and put for final hearing, the same shall be heard by an apex court
bench of not less than 5 members. It is but obvious that other consequential
changes will have to be made in the whole of Section 8 to reflect the addition of
the aforesaid Clause 8 (1) (iv). [Para 16.6A]
103. Clause 21 of the Lokpal Bill, 2011 needs a relook. In its present form, it appears to empower the Lokpal Chairperson to intervene and transfer any pending case
from one Bench to another, which appears to include the power of transfer even
while a case is under consideration of the Lokpal bench on the merits. This
uncircumscribed power would seriously impair the objectivity and autonomy of
Lokpal Benches, especially at the stage of preliminary inquiry which is a crucial
filtering mechanism. It also appears to be inconsistent with normal principles of
jurisprudence which seriously frown upon interference even by the Chief Justice
in a pending judicial matter before another Bench. The way out would be to
delete this provision and to provide for transfer only in exceptional cases where,
firstly, strong credible allegations are brought to the forefront in respect of the
functioning of any particular Lokpal Bench and secondly, the decision to
transfer is taken by not only the entire Lokpal institution sitting together, but
also including the Members of the Bench from which the matter is sought to be
transferred.[Para 16.7]
104. As regards punishment under the Prevention of Corruption Act for a person
convicted of different offences relating to corruption, it is noteworthy that the
Prevention of Corruption Act prescribes, as it now stands, punishment not less
than six months which may extend to five years for various offences involving
public servant taking gratification in Sections 7, 8, 9, 10 and also Section 11
which deals with public servant obtaining valuable thing without consideration.
Section 12 of POCA dealing with the abetment prescribes the same as six months
to five years range of punishment. On the other hand, for offences of criminal
misconduct by public servant, the prescribed punishment is not less than one
year, extendable upto seven years in Section 13 while Section 14 prescribes
punishment of not less than two years extendable to seven years. Section 15
prescribes the punishment for offences referred to in clause C or clause D of
5.13(i) which has no lower limit but a maximum of three years. Additionally, all
these provisions empower the imposition of fine. [Para 16.8]
105. Diverse representations from diverse quarters have suggested an enhancement of
punishment, with diverse prescriptions of quantum of sentence, including life
imprisonment. After deep consideration, the Committee finds it prudent to strike
a balanced, reasonable middle ground. A sudden, dramatic and draconian
enhancement is, in the opinion of the Committee, undesirable. The Committee
cannot ignore the inherent fallibility of mankind and if fallibility is inherent in
every system, draconian and extreme punishment, even in a few cases of
wrongful conviction, would be undesirable. [Para 16.9]
106. Taking a holistic view, the Committee is of the opinion that:
(a) In the cases of Sections 7, 8, 9 and the like, the range from six months to
five years should the substituted by imprisonment not less than three
years which may extend to not more than seven years.
(b) In the Sections 13 and 14 category of cases providing for a range to one
year to seven years, the Committee suggests enhancement, in the case of
Section 13 offences, to a minimum of four years and a maximum of ten
years while for Section 14, the Committee suggests a minimum of five
years and a maximum of ten years.
(c) For Section 12 which presently prescribes six months to five years, the
aforesaid of minimum three and maximum of seven years shall apply
whereas for Section 15 which presently prescribes zero to three years, the range should be very minimum from two to maximum five years.
(d) Additionally, wherever applicable, there should be a general provision,
cutting across Sections, creating a power of full confiscation of assets,
proceeds, receipts and benefits, by whatever name called, arising from
corruption by the accused. This provision should be properly drafted in a
comprehensive manner to cover diverse situations of benefit in cash or
kind, which, to the maximum extent possible, should fully be liable to
confiscation. [Para 16.9A]
107. Although this issue has been discussed in other parts of this Report, for the sake of clarity, the Committee clarifies that there should be 3 specific and important time limits in the final enactment viz. firstly, the period of 30 days extendable once by a further period of 60 days for preliminary inquiry by the Lokpal; secondly, for completion of investigation by the investigating agency, within 6 months with one further extension of 3 months and thirdly, for completion of trials, within one year with one further extension of 6 months.[Para 16.10]
108. The Committee finds no basis for and no reason to retain the last proviso to
clause 17 (1)(g) which appears to be overbroad and altogether exempts from the
Lokpal Bill 2011 any entity, simply because it is constituted as a new religious
entity or meant to be constituted as an entity for religious purposes. This proviso
should be deleted, otherwise this exception would virtually swallow up the entire
rule found in the earlier parts of clause 17.[Para 16.11]
109. As regards clause 51 of the Lokpal Bill 2011, the Committee recommends that
the intent behind the clause be made clear by way of an Explanation to be added
to the effect that the clause is not intended to provide any general exemption and
that "good faith" referred to in clause 52 shall have the same meaning as
provided in section 52 of the IPC. [Para 16.12]
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