Why do we need Jan Lokpal?

There are several deficiencies in our anti-corruption systems because of which despite overwhelming evidence against the corrupt, no honest investigation and prosecution takes place and the corrupt are hardly punished. The whole anti-corruption set up ends up protecting the corrupt. Our anti-corruption agencies have basic structural deficiencies because of which they are incapable of doing any honest investigations: The following four deficiencies stand out in our anti-corruption system. For details on deficiencies in our anti-corruption systems: a. Lack of Independence Most of our agencies like CBI, state vigilance departments, internal vigilance wings of various departments, Anti-corruption Branch of state police etc are not independent. In many cases, they have to report to the same people who are either themselves accused or are likely to be influenced by the accused. For instance, The Chief Minister of Punjab is the Minister in charge of Vigilance Department of Punjab. Interestingly, the same vigilance department is also investigating charges of corruption against himself and his family and is prosecuting them. Can we expect the vigilance department to do any honest investigations or prosecution? Please read detailed report in Annexure 2 to see how despite huge unaccounted cash being recovered from the house of a top NHAI officer, Kamal Nath denied permission to register a case of corruption against him. Coal Ministry just sat on CBIs repeated requests to prosecute the officer who was to become the CMD. Railways just sat on CBIs request to prosecute one of its top employees involved in railway recruitment scam.

b. Powerless Some bodies like CVC or Lokayuktas are independent, but they do not have any powers. They have been made advisory bodies. They give two kinds of advise to the governments to either impose departmental penalties on any officer or to prosecute him in court. Experience shows that whenever any minister or a senior officer is involved, their advice is rarely followed. c. Multiplicity of agencies Governments have deliberately created plethora of anti-corruption agencies and given them fractured mandates. This has been done to render them ineffective. For instance, At central government level, in the same case of corruption, CVC is supposed to look into the vigilance angle of senior bureaucrats and departmental vigilance is supposed to look

into the role of junior bureaucrats. As if junior and senior bureaucrats indulge in corruption separately. Again in the same case, whereas these two agencies enquire into the matter from vigilance angle, CBI investigates into the same matter from criminal angle i.e corruption angle. Now, the vigilance and corruption angles are almost the same. The two agencies broadly do the same enquiries and investigations. According to the Lokpal model proposed by Government of India, CVC will enquire into the role of bureaucrats and Lokpal will look into the role of politicians, as if politicians and bureaucrats indulge in corruption separately.

Firstly, this kind of fractured mandate creates confusion. Secondly, enquiries and investigations into any case go on and on for years. For instance, in street lighting case of Common Wealth Games, first an enquiry was done by CVC, then CBI investigated into the same case and then it was again enquired into by Shunglu committee. Thirdly, if two agencies arrive at conflicting conclusions on the same case, it only weakens the case against corrupt people. The final beneficiaries of this confusing system are the corrupt people who never get punished. d. Lack of Transparency and internal accountability In addition, there is the problem of internal transparency and accountability of these anticorruption agencies. Presently, there isnt any separate and effective mechanism to check if the staff of these anti-corruption agencies turns corrupt. That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has become a high profit zero risk business. There is absolutely no deterrence against corruption. Our anti-corruption laws also have several critical deficiencies, which end up protecting the corrupt. For instance, Even if a corrupt person is sent to jail, there is no provision in law to confiscate his ill gotten wealth or to recover the loss caused by him to the government due to his corrupt practices. Before initiating investigations or prosecution into any case, permission has to be taken from some officer or minister in charge of the same department. In many cases, they themselves are directly or indirectly involved in that case.

Therefore, there seems to be too much protection for the corrupt people. There are many other deficiencies in our anti-corruption laws. The above have been mentioned only by way of illustration. Jan Lokpal Bill seeks to address these deficiencies in anti-corruption agencies and the law.

How will Lokpal provide relief to a common man against bribery?

Today, a common man has to pay bribe to get any work done in any government department like making ration card or passport or getting income tax refund or old age pension etc. Jan Lokpal and Jan Lokayukta will provide relief to a common man against such day to day corruption. Each government department will have to make a Citizens Charter telling who does what job and in how much time. For instance, the charter will have to mention which officer will make ration card and in what time, which officer will make a passport and in how much time etc. If Charter is not followed, then people can complain to the Head of that department who will be designated as the Public Grievance Officer (PGO) PGO will redress the complaint within 30 days maximum If PGO doesnt satisfy the complainant, then a complaint can be made to the vigilance officer of Jan Lokpal and Jan Lokayukta. Lokpve will have a vigilance officer in each district and Lokayukta will have it in each block. When a complaint of violation of citizens charter reaches a Vigilance Officer, it will be deemed to have corruption angle. The Vigilance Officer will have to Solve the grievance in 30 days Impose penalty on the guilty officers which will be given to the Complainant as compensation Start investigations of corruption against guilty officers. If a citizen is not satisfied with the action taken by Vigilance officer, he could appeal to the Chief Vigilance officer in Lokpal or Lokayukta. The officers of any department against whom financial and departmental penalties have been imposed may appeal against it in High Court. We believe that as soon as a few penalties get imposed upon the Head of any Department, he will put adequate systems in place and ensure that no grievances take place in future.

Is Lokpal a super cop?

A myth is being created that the proposed Jan Lokpal will become a supercop and will become a threat to all democratic institutions. This is completely wrong. Let us see what does Jan Lokpal Bill propose to do? 1. Against politicians (for their conduct outside parliament), judges and bureaucrats, Lokpal will only investigate complaints of corruption and file a case in court. The courts will have the power to try and award punishment. Lokpal will not have powers to award punishment. 2. However, in case of bureaucrats, the institution of Lokpal will have powers to impose departmental penalties including dismissing them, if after investigations by the investigation wing of Lokpal, the guilt of that officer is established. For Joint Secretary and above, a bench of members of Lokpal will impose such penalty after giving an opportunity of being heard to all affected parties. However, if accused are below the rank of Joint Secretary, the same will be heard by a bench of senior officers of Lokpal. These orders of Lokpal can be appealed against in respective High Courts. This system is much better than the existing system, in which the accused and its friends are responsible for enquiring against themselves and awarding punishment to themselves. Presently, the enquiries are conducted by officers from the same department (often enquiries are conducted by junior officers against their bosses), penalties are decided by some officer in the same ministry and appeals also lie with some officer in the same ministry. Since the accused officer belongs to the same department/ministry, he is able to influence their decisions as they have been his colleagues, friends and subordinates. Many times, the disciplinary authorities are themselves accomplices in corruption. Under existing system, the public or the complainant have no say in entire proceedings. Corrupt officers are let off after dishonest enquiries. Complainant cannot do anything. Under Jan Lokpal Bill, the complainant will be treated as a prime witness and case cannot be closed without giving an opportunity of being heard.

History of JanLokpal
The first Jan Lokpal Bill was introduced by Shanti Bhushan in 1968 and passed in the 4th LokSabha in 1969 but could not get through in the RajyaSabha. Subsequently, Lokpal bills were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were never passed. 42 years after its first introduction, the Lokpal bill is still pending in India. The Lokpal Bill provides for filing complaints of corruption against the prime minister, other ministers, and MPs with the ombudsman. The Administrative Reforms Commission (ARC) while recommending the constitution of Lokpal was convinced that such an institution was justified not only for removing the sense of injustice from the minds of adversely affected citizens but also necessary to instill public confidence in the efficiency of the administrative machinery. Following this, the Lokpal Bill was for the first time presented during the fourth LokSabha in 1968, and was passed there in 1969. However, while it was pending in the RajyaSabha, the LokSabha was dissolved, and so the bill was not passed at that time. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005, and most recently in 2008. Each time, after the bill was introduced to the house, it was referred to some committee for improvements --- a joint committee of parliament, or a departmental standing committee of the Home Ministry and before the government could take a final stand on the issue, the house was dissolved. Several flaws have been cited in the recent draft of the Lokpal Bill. The fatal flaws in the government's Lokpal Bill. The basic idea of the Lok Pal is borrowed from the office of ombudsman, which has Administrative Reforms Committee of a Lokpal at the Centre, and Lokayukta(s) in the states.

Recently in Lime Light

Issues regarding corruption in India have become more prominent in recent years. The country was subject to socialist-inspired economic policies between the 1950s and the late 1980s. Extensive regulation, protectionism, and public ownership led to slow growth The Vohra Report of 1993, submitted by the former Indian Union Home Secretary N. N. Vohra, studied the problem of thecriminalization of politics and of the nexus among criminals, politicians and bureaucrats in India. The report contained several observations made by official agencies on the criminal network which was virtually running a parallel government. It also discussed criminal gangs who enjoyed the patronage of politicians of all political parties and the protection of government functionaries. It revealed that political leaders had become the leaders of gangs. They were also connected to the military. Over the years criminals had been elected to local bodies, State Assemblies, and even the Parliament The Right to Information Act of 2005 has helped civilians work effectively towards tackling corruption. It allows Indian citizens (except those living in Jammu and Kashmir) to request information, for a fixed fee of 10 (US$ 0.22), from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or within thirty days. Activists have used this to uncover graft cases against various politicians and bureaucrats, one consequence being that some of those activists have been attacked and even killed Various scandals were discovered in the period 2010-2011, including the 2G spectrum scam, Adarsh Housing Society Scam, and theCommon Wealth Games scam. These involved various Ministers and also members of the Armed Forces, and they demonstrated how entrenched corruption had become in India. They led also to popular, non-political movements campaigning to fight graft via new legislation. The Jan Lokpal Bill is a proposal to establish an independent body to investigate cases of corruption within a year and to ensure a speedy prosecution within two years of an investigation being started.

Timeline
13 March 2011 A group of Delhi residents drove around the city dressed in similar clothing in an attempt to raise awareness of corruption issues and to gain support for the Jan Lokpal Bill. 28 March 2011 There were protest marches in various cities across the world, including some in the US. These included a 240-mile march in California that had begun on 12 March in San Diego and ended on 26 March at the statue erected in honour of Gandhi in San Francisco. 30 March 2011 KapilDev, a former captain of the Indian national cricket team, wrote a letter to the Prime Minister, Manmohan Singh, complaining that the many investigations into scams arising from the recent Commonwealth Games had achieved nothing so far. He said that, "Why can't we have an independent Lokpal to look into these scams. I consider you as the cleanest politician in the recent history and I urge you for a Jan Lokpal Bill. 4 April 2011 Hazare announced that he would commence his "fast unto death" and that this would last until a comprehensive measure to tackle corruption was introduced. He claimed that the government had excluded "civil society" from the panel set up to draft the Jan Lokpal Bill and implied that at least one of the people who was to be on the drafting committee SharadPawar - might be unsuitable for that role because of his large landholdings. KiranBedi and Swami Agnivesh voiced their support for Hazare. 5 April 2011 Hazare initiated his fast at JantarMantar in Delhi. Elsewhere, people attended a protest at Freedom Park, Bangalore. Campaigners for India Against Corruption (IAC) estimated that a petition circulated in the city of Pune which demanded that the government enact a bill had attracted between 5000 and 6000 signatures between 3 April and 5 April. Hazare has been involved with IAC, a group established by various prominent activists with the primary purpose of achieving the legal enactment and subsequent enforcement of a strong version of the Jan Lokpal bill. 7 April 2011 Two rounds of talks failed. There was agreement regarding constituting a panel to examine the Bill but the government would not accede to demands that it should be a formally constituted panel or that Hazare should lead it. As a consequence of this, Hazare continued his fast. Hazare and the protesters tried to keep the protests non-political. No politicians were welcome at the site of the fast. Former HaryanaChief Minister Om PrakashChautala, former Madhya Pradesh Chief Minister Uma Bharti and pro Sonia Gandhi journalist BarkhaDuttwere forced by civilians to leave, after the protesters objected against their presence which they believed was harming the integrity of their movement.

8 April 2011 Protests spread to numerous other places, including Mumbai, Kolkata, Thiruvananthapuram, Hyderabad, Jaipur, Chennai, Patna, Bhopal, Ahmedabad, Ranchi, Pune, and the University of Jammu.The government continued to squabble with the activists stating that the bill drafting committee will be headed by a government appointed minister and not a civil society member as the protesters demanded to avoid allowing the government to make the bill less powerful. 9 April 2011 After accepting all the demands of Hazare, the Government of India issued a Official Gazette saying that the draft of lokpal would be made and presented in the coming monsoon session of LokSabha. I want to tell the government that we are not two but one. You should wipe it out of your mind that you are the masters. You are not the masters, the people are. Gram Sabha is more powerful than LokSabha or State Assemblies Anna Hazare 16 April 2011 The first meeting regarding a draft of the Lokpal Bill was held on 16 April. The government agreed to audio-record all meetings of the Lokpal Bill panel and to hold public consultations before a final draft is prepared Hazare demanded that the proceedings be televised live but the government refused. June 2011 Swami Ramdev begins his indefinite hunger strike at RamlilaMaidan in Delhi to bring back the black money stashed in tax havens abroad. At midnight, police raid the ground when most protesters are sleeping and Ramdev is busy at a meeting with his core group. Police had arranged buses to drop supporters at railway stations and bus stands in advance; had ammunition ready and were in battle-gear wearing vests and helmets and kept some ambulances on standby. We are really curious why the government is against the idea of telecasting live the proceedings of the committee. The people ought to know the reasons why there is a difference between your and our viewpoint, Shanti Bhushan

9 June 2011 Hazare describes his fight against corruption as the "Second Freedom Struggle" and set an ultimatum of 15 August 2011, as the last date to pass a strong Jan Lokpal Bill threatening to otherwise intensify his anti-corruption agitation and start another fast from 16 August. 16 June 2011 The Government and the civil societysplit wide open due to differences in jointly drafting bill. Government representatives informed that if a consensus on the common bill is not reached, two drafts will be sent to the Cabinet, one drafted by the Government and the other drafted by the civil society Govt Response Hazare announced that he would commence his "fast unto death" and that this would last until a comprehensive measure to tackle corruption was introduced. He claimed that the government had excluded "civil society" from the panel set up to draft the Jan Lokpal Bill and implied that at least one of the people who was to be on the drafting committee SharadPawar - might be unsuitable for that role because of his large landholdings. KiranBedi and Swami Agnivesh voiced their support for Hazare.

Referendum on Jan Lokpal We carried out the referendum in Sibal's constituency to prove a point, to show if Sibal really represents his people ArvindKejriwal Referendum organised by India Against Corruption (IAC) in Chikkaballapur and Bangalore. About 94.3% of Chikkaballapur constituency and 79.7% of Bangalore voted to bring the prime minister of India under the ambit of the Jan Lokpal Bill. On July 19, 2011 All India Novoday Organisation conducted referendum in Amravati city of Maharashtra. 1,20,000 persons cast votes and 1,18,082 persons supported the Jan Lokpal Bill while 880 opposed and 1,481 votes were found invalid. Referendum organised by Team Anna in KapilSibal's constituency in New Delhi over 85 % of the persons cast votes want Jan Lokpal Bill (the activists' version and not the government's)

Drafting Committee
The drafting committee was officially formed on 8 April 2011. It consists of ten members, including five from the government and five drawn from society. Chairmen The Government of India accepted that the committee be co-chaired by a politician and an activist, non-politician. It is reported that Pranab Mukherjee, from the political arena, and Shanti Bhushan, from civil society, will fill those roles.

Government representation:
Five Cabinet ministers will be a part of the Drafting Committee. They are: Pranab Mukherjee, Finance Minister, Co-Chairman; P. Chidambaram, Minister of Home Affairs; VeerappaMoily, Minister of Corporate Affairs; KapilSibal, Minister for Communications and Information Technology; and Salman Khursid, Minister of minority affairs.

Civil society representation:

Five leading social activists will be a part of the Drafting Committee. They are: Shanti Bhushan, Former Minister of Law and Justice, Co-Chairman; Anna Hazare, Social Activist; PrashantBhushan, Lawyer; N. SantoshHegde, Lokayukta (Karnataka); and ArvindKejriwal.

10

Who is ANNA HAZARE???

He once contemplated suicide and even wrote a two-page essay on why he wanted to end his life. Anna Hazare was not driven to such a pass by circumstances. He wanted to live no more because he was frustrated with life and wanted an answer to the purpose of human existence. The story goes that one day at the New Delhi Railway Station, he chanced upon a book on Swami Vivekananda. Drawn by Vivekananda's photograph, he is quoted as saying that he read the book and found his answer - that the motive of his life lay in service to his fellow humans. Today, Anna Hazare is the face of India's fight against corruption. He has taken that fight to the corridors of power and challenged the government at the highest level. People, the common man and well-known personalities alike, are supporting him in the hundreds swelling to the thousands. For Anna Hazare, it is another battle. And he has fought quite a few. Including some as a soldier for 15 years in Indian Army. He enlisted after the 1962 Indo-China war when the government exhorted young men to join the Army. In 1978, he took voluntary retirement from the 9th Maratha Battalion and returned home to Ralegaon Siddhi, a village in Maharashtra's drought-prone Ahmadnagar. He was 39 years old. He found farmers back home struggling for survival and their suffering would prompt him to pioneer rainwater conservation that put his little hamlet on the international map as a model village.

11

The villagers revere him. ThakaramRaut, a school teacher in Ralegaon Siddhi says, "Thanks to Anna's agitations, we got a school, we got electricity, we got development schemes for farmers.'' Anna Hazare's fight against corruption began here. He fought first against corruption that was blocking growth in rural India. His organization - the BhrashtacharVirodhi Jan Andolan (People's movement against Corruption). His tool of protest - hunger strikes. And his prime target - politicians. His weapon is potent. In 1995-96, he forced the Sena-BJP government in Maharashtra to drop two corrupt Cabinet Ministers. In 2003, he forced the Congress-Nationalist Congress Party (NCP) state government to set up an investigation against four ministers. Maharashtra stalwarts like SharadPawar and Bal Thackeray have often called his style of agitation nothing short of "blackmail". But Anna Hazare has soldiered on relentless. From one battle to another in his war against corruption. He fought from the front to have Right to Information (RTI) implemented. He is now fighting for the implementation of the Jan Lokpal Bill, an anti-corruption bill drafted by leading members of civil society that envisages speedy action in corruption cases against everyone, including ministers and senior bureaucrats. More than 30 years after Anna Hazare started his crusade, as the 72-year-old observes a hunger strike in Delhi against large-scale corruption at the national level, nothing really has changed except the scale of his battle.

12

JANTAR MANTAR, DELHI

(PLACE OF SATYAGRAHA)

13

Governments Lokpal Bill Draft

The Act will be called Lokpal Act, 2011. It shall come into force on such date as the Central Government may, by notification in the Official Gazette.

Structure of Lokpal
Jan Lokpal Bill proposes that at the level of Central Government, an institution called Jan Lokpal should be set up. Likewise, in each state, Jan Lokayukta should be set up. Jan Lokpal will accept corruption complaints against Central government departments and Jan Lokayukta will accept complaints against departments of respective state government. Each of these bodies will have 10 members and one Chairperson.

a. Independence of Jan Lokpal and Jan Lokayukta

Jan Lokpal and Jan Lokayukta would be completely independent of the governments. Their independence would be ensured through following measures:

(i) Administrative independence

They will be independent agencies like Central Election Commission, Comptroller and Auditor general of India and Supreme Court. Therefore, no politician or a bureaucrat will be able to interfere with its functioning.

(ii) Financial independence

Their expenses will be charged to the Consolidated Fund of India/State. They will be provided whatever expenses they require.

(iii) Manpower
They will have powers to assess their manpower requirements and employ them either from existing government servants (who can come on deputation basis) or directly from the market.

b. Single anti-corruption agency

Anti-corruption branch of CBI, CVC and departmental vigilance wings will be merged into Lokpal. Anti-Corruption Branch of Police, state vigilance departments would be merged into Jan Lokayuktas. In 1986, when Karnataka Lokayukta was created, all existing anti-corruption and vigilance agencies in the state were merged into Lokayukta. Presently, we have institutions of Lokayuktas in 18 states. They are merely advisory bodies. They neither have resources nor powers. They will be replaced with Jan Lokayuktas through Jan Lokpal Bills.

14

c. No more advisory bodies

Jan Lokpal and Jan Lokayukta will not be advisory bodies. They will have powers to start investigation or prosecution in any case. For that, they will not need permission from any government agency. Jan Lokpal and Jan Lokayukta will also have powers to impose departmental penalties on bureaucrats.

What action will be taken by Lokpal against corrupt people?

There is corruption at all levels in panchayat works, in construction of roads, in NREGA, mid day meals, rations, 2G spectrum, leasing of mines, Common Wealth Games etc. Jan Lokpal will ensure that corrupt people are punished through the following provisions.

a. Time bound investigations

Investigation in any case of corruption will have to be completed within one year. Jan Lokpal or Jan Lokayukta will have powers to employ more officers, if required, to complete investigations in time. After investigations, Lokpal or Lokayukta shall take two actions: Dismiss corrupt officers: After investigations, if adequate evidence is found, then after giving an opportunity of being heard, Jan Lokpal or Jan Lokayukta will have powers to remove a government officer from job or to impose any other departmental penalties like reduction in rank, stopping promotion etc. These orders could be challenged in High Court. Time bound trial: In addition to imposing departmental penalties, if a case is made out, Jan Lokpal or Jan Lokayukta will file a case in trial court. The court will have to complete the trial and announce punishment within next one year. If required, Jan Lokpal or Jan Lokayukta will have powers to direct the government to set up additional courts to complete the trial in time.

b. Recovery of loss caused to government

During investigations,if there is strong evidence against corruption, Jan Lokpal or Jan Lokayukta shall ban the transfer of assets of the accused or the assets of those who would have benefitted from the accused. At the time of conviction, the court will assess the loss caused by the accused to the government. This loss will be recovered from these assets and as land revenue. (Currently, there is no provision in our law to recover the bribes earned by corrupt people or the loss caused by them to the government).

15

c. Confiscation of assets
Each bureaucrat, politician and judge would be required to submit a statement of moveable and immoveable assets owned by him and his family on an annual basis, which will be put on the official website. If an asset is subsequently found to be owned by a public servant, it would be deemed to have been obtained through corrupt means and would be confiscated. Prosecution proceedings would be initiated against the accused. Similarly, after each election, the Jan Lokpal will verify the assets declared by each candidate. If undeclared assets are found, a case will be registered and investigations started.

d. Increased punishment for corruption

Presently, the maximum punishment for corruption is seven years, which is believed to be very less. This is proposed to be increased to life sentence.

e. Illegally obtained benefits are deemed to be obtained through corruption

In the current system, if anyone obtains any benefit from the government illegally, it is difficult to prove that he did so by paying bribes. Therefore, it has been provided in Jan Lokpal Bill that if a person obtains any benefit from the government in violation of a law or rules and regulations, that person along with concerned public servants shall be deemed to have indulged in corrupt practice.

f. Power to punish if its orders are not followed

If orders of the Jan Lokpal or Jan Lokayukta are not obeyed, it will have the powers to impose financial penalties and also initiate contempt proceedings against the guilty officials.

16

INVESTIGATION WING
The Lokpal shall constitute an Investigation Wing for the purpose of conducting investigation of any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988 Provided that till such time the Investigation Wing is constituted by the Lokpal, the Central Government shall make available such number of investigation officers and other staff from such of its Ministries or Departments, as may be required by the Lokpal, for carrying out investigation under this Act

Investigation officer to have powers of police.

No investigation shall be made by an investigation officer of the Investigation Wing below the rank of a Deputy Superintendent of Police or by any other officer of equivalent rank.

Investigation officer to inquire on direction of Lokpal

The Lokpal may, before holding any inquiry under this Act, by an order, require the investigation officer of its Investigation Wing to make, or cause to be made, a preliminary investigation in such manner as it may direct and submit a report to the Lokpal, within such time as may be specified by the Lokpal, to enable it to satisfy itself as to whether or not the matter requires to be inquired into by the Lokpal. The investigation officer on receipt of an order shall complete the investigation and submit his report within the time specified under that subsection.

PROSECUTION WING
Appointment of Prosecution Director.
The Lokpal may, by notification, constitute a prosecution wing and appoint a prosecution Director and such other officers and employees to assist the prosecution Director for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under this Act. The prosecution Director shall, after having been so directed by the Lokpal, file a complaint before the Special Court, and take all necessary steps in respect of the prosecution of public servants in relation to any offence punishable under the Prevention of Corruption Act, 1988.

17

PROCEDURE IN RESPECT OF INQUIRY AND INVESTIGATION

The Lokpal, on receipt of a complaint, may either make preliminary inquiry or direct its Investigation Wing, to make a preliminary investigation to ascertain whether there exists a prima facie case for proceeding in the matter. Every preliminary inquiry shall ordinarily be completed within a period of thirty days and for reasons to be recorded in writing, within a further period of three months from the date of receipt of the complaint. Upon completion of the preliminary investigation, the investigating authority shall submit its report to the Lokpal. Before the Lokpal comes to the conclusion in the course of a preliminary inquiry and after submission of a report that a prima facie is made out against the public servant pursuant to such a preliminary inquiry, the Lokpal shall afford the public servant an opportunity to be heard consistent with principles of natural justice. Where the Lokpal, after receiving the report of the investigating authority pursuant to a preliminary investigation or is satisfied that no prima facie case is made out for proceeding further in the matter, the complaint shall be closed and the decision thereon be communicated to the complainant and the public servant Every inquiry conducted by the Lokpal, upon being satisfied that a prima facie case is made out, shall be open to the public provided that in exceptional circumstances and for reasons to be recorded in writing by the Lokpal, such inquiry may be conducted in camera. In case the Lokpal proceeds to inquire into the complaint, it shall hold such inquiry as expeditiously as possible and complete the inquiry within a period of six months from the date of receipt of the complaint which, for reasons to be recorded in writing, may be extended by a further period of six months. If the Lokpal proposes to inquire into a complaint, it may, at any stage, (a) pass appropriate orders for safe custody of the documents relevant to the inquiry as it deems fit; and (b) forward a copy of the complaint to the public servant concerned along with all relevant material relied upon and afford him an opportunity to represent his case. The website of the Lokpal shall, from time to time and in such manner as may be specified by regulations, display to the public, the status of number of complaints pending before it or disposed of by it. The Lokpal may withhold the records and evidence which are likely to impede the process of inquiry or conduct of a case by it or the Special Court. Save as otherwise provided, the manner and procedure of conducting an inquiry or investigation under this Act, shall be such as may be specified by regulations.

18

Action on inquiry in relation to public servants not being minsters or Members of Parliament.
Where after the conclusion of the inquiry or investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act, 1988 by a public servant the Lokpal may (a) ) file a case in the Special Court and send a copy of the report together with its findings to the competent authority; (b) recommend to the competent authority the initiation of discliplinary proceedings under the rules of disciplinary proceedings applicable to such public servant; (c) provide a copy of the report to the public servant or his representative; The competent authority shall, within a period of thirty days of the receipt of recommendation initiate disciplinary proceedings against the delinquent public servant accused of committing offence under the Prevention of Corruption Act, 1988 and forward its comments on the report, including the action taken or proposed to be taken thereon, to the Lokpal ordinarily within six months of initation of such disciplinary proceedings.

19

ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT

Assessment of loss and recovery thereof by Special Court.
If any public servant is convicted of an offence under the Prevention of Corruption Act, 1988 by the Special Court, notwithstanding and without prejudice to any law for the time being in force, it may make an assessment of loss, if any, caused to the public exchequer on account of the actions or decisions of such public servant not taken in good faith and for which he stands convicted, and may order recovery of such loss, if possible or quantifiable, from such public servant so convicted: Provided that if the Special Court, for reasons to be recorded in writing, comes to the conclusion that the loss caused was pursuant to a conspiracy with the beneficiary or beneficiaries of actions or decisions of the public servant so convicted, then such loss may, if assessed and quantifiable under this section, may also be recovered from such beneficiary or beneficiaries proportionately.

DECLARATION OF ASSETS
Every public servant shall make a declaration of his assets and liabilities in the manner as provided by or under this Act. A public servant shall, within a period of thirty days from the date on which he makes and subscribes an oath or affirmation to enter upon his office, furnish to the competent authority the information relating to (a) the assets of which he, his spouse and his dependent children are, jointly or severally, owners or beneficiaries; (b) his liabilities and that of his spouse and his dependent children.

Presumption as to acquisition of assets by corrupt means in certain cases.

If any public servant wilfully or for reasons which are not justifiable, fails to (a) to declare his assets; or (b) gives misleading information in respect of such assets and is found to be in possession of assets not disclosed or in respect of which misleading information was furnished, then such assets shall, unless otherwise proved, be presumed to belong to the public servant and shall be presumed to be assets acquired by corrupt means: Provided that the competent authority may condone or exempt the public servant from furnishing information in respect of assets not exceeding such minimum value as may be prescribed.

20

OFFENCES AND PENALTIES

Prosecution for false complaint and payment of compensation, etc., to public servant.
Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall, on conviction, be punished with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than twentyfive thousand rupees but which may extend to two lakh rupees. No Court, except a Special Court, shall take cognizance of an offence. No Special Court shall take cognizance of an offence except on a complaint made by a person against whom the false, frivolous or vexatious complaint was made. The prosecution in relation to an offence shall be conducted by the public prosecutor and all expenses connected with such prosecution shall be borne by the Central Government. False complaint made by society or association of persons or trust. Where any offence has been committed by any society or association of persons or trust (whether registered or not), every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the society or association of persons or trust, for the conduct of the business or affairs or activities of the society or association of persons or trust as well as such society or association of persons or trust shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Where an offence under this Act has been committed by a society or association of persons or trust (whether registered or not) and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of such society or association of persons or trust, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

21

MISCELLANEOUS PROVISIONS
Protection of action taken in good faith by any public servant .
No suit, prosecution or other legal proceedings under this Act shall lie against any public servant, in respect of anything which is done in good faith or intended to be done in the discharge of his official functions or in exercise of his powers.

Protection of action taken in good faith by others .

No suit, prosecution or other legal proceedings shall lie against the Lokpal or against any officer, employee, agency or any person, in respect of anything which is done in good faith or intended to be done under this Act.

Members, officers and employees of Lokpal to be public servants.

The Chairperson, Members, officers and other employees of the Lokpal shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code.

Bar of Jurisdiction.
No civil court shall have jurisdiction in respect of any matter which the Lokpal is empowered by or under this Act to determine.

Act to have overriding effect.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.

Power to make rules.

The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. Power of Lokpal to make regulations. (1) Subject to the provisions of this Act and the rules made thereunder, the Lokpal may, by notification in the Official Gazette, make regulations to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely: (a) the conditions of service of the secretary and other officers and staff of the Lokpal and the matters which in so far as they relate to salaries, allowances, leave or pensions, require the approval of the President; (b) the place of sittings of benches of the Lokpal; (c) the manner for displaying on the website of the Lokpal, the status of all complaints pending or disposed of along with records and evidence; (d) the manner and procedure of conducting an inquiry or investigation; (e) any other matter which is required to be, or may be, specified under this Act.

22

Laying of rules and regulations.

Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

Power to remove difficulties.

If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty: Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

23

Difference between Governments Proposal and Civil Societys Proposal

SRNO 1. Govts Proposal Lokpal will not have any power to either initiate action suomotu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of LokSabha or chairperson of RajyaSabha. Only those complaints forwarded by Speaker of LokSabha/ Chairperson of RajyaSabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians. Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpals report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or RajyaSabha, as the case may be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpals Civil society Proposal Lokpal will have powers to initiate investigations suomoto in any case and also to directly entertain complaints from the public. It will not need reference or permission from anyone to initiate investigation into any case.

2.

Lokpal is not an advisory body. It will have the powers to initiate prosecution against any one after completion of investigations in any case. It will also have powers to order disciplinary proceedings against any government servant

24

3.

4.

5.

6.

report. For instance, if there were such a Lokpal today and if Lokpal made a recommendation to the PM to prosecute A. Raja, obviously the PM will not have the political courage to initiate prosecution against A. Raja. Likewise, if Lokpal made a report against the PM or any MP of the ruling party, will the house ever pass a resolution to prosecute the PM or the ruling party MP? Obviously, they will never do that. The bill is legally unsound. Lokpal Lokpal would have police powers. It has not been given police powers. will be able to register FIR, proceed Therefore Lokpal cannot register an with criminal investigations and FIR. Therefore all the enquiries launch prosecution. conducted by Lokpal will tantamount to preliminary enquiries. Even if the report of Lokpal is accepted, who will file the chargesheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that. The bill does not say what will be the That part of CBI, which deals with role of CBI after this bill. Can CBI and cases of corruption, will be merged Lokpal investigate the same case or into Lokpal so that there is just one CBI will lose its powers to investigate effective and independent body to politicians? If the latter is true, then take action against corruption this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI. There is a strong punishment for Deterrence has been provided against frivolous complaints. If any frivolous complaints in the form of complaint is found to be false and financial penalties against the frivolous, Lokpal will have the power complainant, however, Lokayukta is to send the complainant to jail empowered to prosecute the corrupt through summary trial but if the and take disciplinary action against complaint were found to be true, the them. Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption. Lokpal will have jurisdiction only on Lokpal will have jurisdiction over MPs, ministers and PM. It will not politicians, officials and judges. CVC have jurisdiction over officers. The and the entire vigilance machinery of officers and politicians do not government will be merged into indulge in corruption separately. In Lokpal. any case of corruption, there is always an involvement of both of them. So according to governments proposal, every case would need to be investigated by both CVC and

25

7.

8.

9.

10.

11.

Lokpal. So now, in each case, CVC while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it appears to be a sure way of killing any case. Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years. The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favor of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. It will become impossible to investigate into any Bofors in future Whereas a time limit of six months to one year has been prescribed for Lokpal to enquire, however, subsequently, there is no time limit prescribed for completion of trial. It does not deal with corruption of Bureaucrats. Corrupt bureaucrats

Lokpal would have ten members and one Chairperson. Out of them four need to have legal background (they need not be judges). Others could be from any background.

Selection committee consists of members from judicial background, Chief Election Commissioner, Comptroller and Auditor General of India and international awardees (like Nobel prize winners and Magsaysay awardees of Indian origin). A detailed transparent and participatory selection process has been prescribed.

There is no such bar on Lokpals powers.

Investigations should be completed within one year. Trial should get over within the next one year.

Lokpal will have power to direct disciplinary action, including

26

continue in their job without any actions against them. 12. It does not talk of investigation of complaints against judges Speaker would decide which complaints shall be enquired into by Lokpal. Our entire governance system suffers from inadequate public grievance redressal systems, which force people to pay bribes. Lokpal bill does not address this issue. Large number of people raising their voice against political corruption are being murdered. Lokpal does not have any powers to provide protection to them. Nothing has been provided in law to recoverill gotten wealth. A corrupt person can come out of jail and enjoy that money. Under the present law, there is Small punishment for corruptionPunishment for corruption is minimum 6 months and maximum 7 years. Under the Governments draft Lokpal Bill, Government officers are barred from making any complaints. Honest officers working in the Government have maximum information about corruption going on within the Government. Rather than encouraging them to speak up against corruption, the Government stops them from making any complaint under this law.

dismissal of a corrupt officer from job. Lokpal will have powers to initiate investigations on complaints of corruption against judges. Lokpal will not be able to dismiss any complaint from public without hearing the complainant. Lokpal will have the powers to orders redressal in a time bound manner. It will have powers to impose financial penalties on guilty officers, which would be paid to complainant as compensation Lokpal will have powers to provide protection against physical and professional victimization of whistleblowers Loss caused to the government due to corruption will be recovered from all accused. Enhanced punishment - The punishment would be minimum 5 years and maximum of life imprisonment Under the Jan Lokpal Bill, anyone can make a complaint. No Government officer is barred from making a complaint

13.

14.

15.

16.

17.

18.

27

Conclusion
Anna Hazare is leading a social battle sitting on a fast unto death wef 05 Apr 2011 demanding greater public role in the Anti Corruption Bill (Lokpal Bill). He is demanding that Lokpal must have jurisdiction over politicians, bureaucrats and judges (thankfully they have left the defence services!). Is deterrence and policing the right way? So many laws and law enforcers have not brought the crime rate down. Have the crimes again women really reduced after setting up of CAW Cell all over the country. Have the female population increased despite criminalising the act of female foeticide? A Lokpal Bill if passed may slow the rate of social decay in the short run, but in the long run it too must become a victim of natural process of progressive decay. There will be advocates and jurists who would specialize in reading the fine print of the new law and will quickly be appointed advisors by those seeking circumvention from prosecution. Lokpal Bill will need to define the acts of corruption; once defined there will be so much field outside the defined field. The fine-print- reader advocates will have a new playfield! That is all that will happen!! What is the real need of our country at this hour? Must Lokpal Bill become the sole point of focus or should corruption be targeted? Lokpal Bill must be looked at as a therapeutic cure. What the nation needs in the long run is a prophylactic measure. What we are witnessing is lack of character. So, we need to build character. The problem statement cant be simpler. In addition to work in this field - building character - we need concurrent work to get ourselves a new constitution. This has become unavoidable due to a singular reason whereby constitution permits fragmentation of society on various accounts. It all started with the definition of Minorities in the constitution. OBCs were later added to the list of SC/ST by the Mandal Commission. Seeing the benefits accruing to the so-called minorities, the sub-groups from the majority category have been constantly seeking grant of minority status to obtain benefits for their community. Various agitations seeking minority status Gurjar (Dec 2010) and Jat Agitation (Mar 2011) are telling the story. Stigma of low caste minority of yesterday has become a brand symbol to be flaunted! What a development! In 63 years we have not been able to make the stigmatic mark go faint, so we turned it round! Minority is now on the threshold of becoming majority! How long will the Supreme Court directive, which states that reservations cannot go beyond 50 percent, survive, is anybodys guess; all it requires is another Bill in the parliament ruled by people without character (not all of them fall within the legal definition of criminals, but they all are either lacking integrity or low on will).

28

Division of society, permitted by the constitution, has been exploited by the politicians to create their respective vote banks. The nation continues to get fragmented into smaller states and the society continues its own fragmentation to obtain benefits of getting into the minority. Caste and region based politics cannot ever find convergence with national agendas that must be there. When the forces are divisive where can there be any unification of a country? Must war, natural disasters, or cricket hype be the only three events that create an illusion of unity (temporarily)? Can there be no other permanent or prevailing unifying force? The next important aspect to be looked at is the national policy for retirement or retrenchment. It is an irony that today no one is willing to retire not the politician, nor the judge or the bureaucrat. Each one is trying his level best to create a post-retirement retrenchment by creating new institutions like Lokayukt, Lokpal, Disaster Management Cell, AFT etc. The national must have a clear cut age of retirement except social service for the likes of Mahatma Gandhi and Anna Hazare. There must be no provision of retrenchment beyond the retirement age. The country simply requires a new constitution whose basic structure must be: Equality for all, in all spheres, irrespective of region, religion or caste. A two-party political structure across the entire nation. A party placed in the position of national responsibility (not power) must have uninterrupted five year tenure to show results. The daily uncertainty of no-confidence and the tenuous environment created by coalition politics must be removed. For character development established spiritual centres, like Rama Krishna Mission, AryaSamaj, J.Krisnamurthy Foundation, Brahmakumaris and many such like institutions must be given a greater role to incorporate there modules for character building into the school curriculum. Institutions like Gurukul must be revived. The new constitution must have a broad-based, all encompassing provision like the Army Act 63 Violation of Good Order and Military Discipline.

29

30