Political Career for Indian Youth-Jan Lokpal bill -theme 3

Issues for Consideration and Recommendations for Improvement

Theme 3- Functions

Issue 1: Encroachment of the domain of the judiciary

The Draft Bill encroaches upon the domain of the judiciary in four contexts.

a) The first context is the Clause relating to the procedure for removal of the Chairperson or a Member of the proposed Lokpal. Clause 7(3)(b) makes it compulsory for the Supreme Court of India to admit and hear a petition seeking removal. It also bars the Apex Court from dismissing such a petition in limine. Further its requires that a panel of five seniormost judges decide the composition of a bench that will hear such petitions. These are clear instances of encroachment on the powers of the Apex Court. The power to dismiss a petition in limine is an inseparable facet of the independence of the judiciary guaranteed by the Constitution and cannot be taken away by an ordinary statute. Further under Order VII of the Supreme Court Rules, 1966 the Chief Justice is the designated authority for nominating judges to a bench that will hear any cause, appeal or matter. These Rules have been made by virtue of the powers delegated to the Supreme Court under Article 145 of the Constitution. These Rules cannot be overridden by an ordinary statute. However these anomalies will disappear if our earlier recommendation about amending the removal procedure along the lines of the procedure for removal of the members of the Central Vigilance Commission is acted upon.

b) The second instance of encroachment occurs in Clause 13B where the Lokpal is sought to be empowered to issue letters rogatory. Letters rogatory are generally understood as requests for some form of judicial assistance made by one court to another court operating in a foreign jurisdiction. These powers are exercised for the purpose of obtaining evidence from a witness or disclosure of documents that are available in another country. Matters relating to issue of letters rogatory in criminal cases are governed by Section 166A of the Criminal Procedure Code, 1973. Such request for judicial assistance can be issued only by a criminal court. Further, according to the Hague Evidence Convention of 1970 only a judicial authority may issue a letter rogatory. India ratified this Convention in 2007. Clause 13B is clearly an encroachment of the domain of the judiciary.

c) The third instance of encroachment occurs in Clause 9(1)(b) where the Lokpal is sought to be vested with the power to issue search warrants. Under Section 93 of the CrPC the power to issue search warrants has been given to a Court, namely a judicial body. Even District Magistrates being part of the executive cannot issue search warrants. The purpose of vesting powers to issue search warrants in a court is to ensure that it is not abused by the investigating authorities. This is an important civil liberties safeguard and cannot be allowed to be diluted. The special courts designated under the Prevention of Corruption Act should continue to issue search warrants upon the request of the Lokpal.

d) The fourth instance of encroachment occurs in Clause 17(1)(ii) where the Lokpal is empowered to inquire or investigate into any action taken by a judicial body if a complainant alleges malafides. The effect of this provision is that any interim or final order or decision or judgement of a court may be challenged before the Lokpal on the basis of a mere allegation of mala fide. As we have recommended above that the judiciary may be kept out of the purview of the Lokpal this provision may also be removed from the Draft Bill.

Recommendations:

1) The Draft Bill may be amended to provide for a procedure of removal of the Chairperson and the Members of the Lokpal that is similar to the procedure for removal of the Members of the Central Vigilance Commission.
2) Clause 13B may be dropped. There is no need to replace this provision as Clause 12 seeks to make the Lokpal a deemed police officer who can then approach the appropriate court for issue of letters rogatory under Section 166A, CrPC.
3) Clause 9(1)(b) may be amended to the effect that the Lokpal be required to approach the designated court for issue of warrants for the purpose of conducting search and seizure operations..
4) Clause 17(1)(ii) may be dropped.

Issue 2: Encroachment of the domain of the executive

The Draft Bill encroaches upon the domain of the executive in three contexts.

a) Paras (d) and (e) under Clause 8(2) empower the proposed Lokpal to order cancellation or modification of a license or lease or permission or contract or agreement or blacklist a firm or company or contractor or any other entity involved in a case under investigation. When read in combination with Clause 8(5) which make such orders binding on the Government the orders become mandatory. These actions are strictly speaking in the domain of the executive and require special knowledge, experience and skills that are unique to the concerned public authority which may not be available with the Lokpal. So the Lokpal may only recommend such measures to the Government.

b) Clause 8(1)(b) read with Clause 2(9) empowers the Lokpal to receive and investigate complaints against government servants where there are allegations of misconduct with a vigilance angle. Para (c) under Clause 8(2) empowers the Lokpal to recommend imposition of appropriate penalties under the relevant Civil Service Conduct Rules (CCS Rules). When read in combination with Clause 8(5) which make such orders binding on the Government the orders become mandatory. This function is strictly speaking in the domain of the executive. Several actions described under the definition of the phrase ‘vigilance angle’ [esp. 2(12)(b),(d), (f) and (g) are matters that are best left to the disciplining authority to tackle. There is no need to burden the Draft Bill with such provisions as they are not directly linked to the functions of the Lokpal.

c) Clause 13A requires that the Lokpal make an assessment of the number of judges required for trying cases under the Prevention of Corruption Act and recommend the requirements to the Government. Such recommendations are made binding on the Government and subject to compliance within three months. This provision is clearly in conflict with Section 3 of the Prevention of Corruption Act which vests this responsibility with the Government. This is also a case of encroachment of the domain of the executive.

Recommendations:

1) Clauses 8(2)(c), (d) and 8(5) may be amended to ensure that the Lokpal issues only recommendations. However if the public authority neither challenges the order nor gives it effect the Lokpal must have the option of approaching the appropriate High Court to get an enforcement order in the manner provided in Clauses 18(iv) and (vi).
2) The Draft Bill may be amended to omit matters relating to misconduct of officials.
3) Clause 13A may be amended to ensure that the Lokpal is consulted on matters such as designation of the number of courts and appointment of special judges for trying offences under the Prevention of Corruption Act. The provision should not impose the views of the Lokpal on the Government.

Issue 3: Encroachment of the domain of Parliament

The Draft Bill encroaches upon the domain of Parliament in two contexts.

a) Clauses 15(2A) requires the Comptroller and Auditor General (C&AG) to forward to the proposed Lokpal all such cases that constitute an allegation under this law. This provision is problematic for two reasons. The report of the C&AG is presented to the President who will cause it to be tabled in Parliament. In effect Parliament’s claim over the C&AG’s reports is protected by parliamentary privilege. The Public Accounts Committee has the privilege, authority and duty to examine the report and hold the errant departments and/or public authorities accountable for their actions. No other authority may interfere with this process. The Lokpal will have to come in only at a later stage. What this process should be needs to be debated more widely. Further the powers and functions of the C&AG are governed by the Constitution and delineated in The Comptroller And Auditor-General's (Duties, Powers And Conditions Of Service) Act, 1971. It will be necessary to amend this law in order to enable the C&AG to link up with the Lokpal without encroaching upon the domain of Parliament.

Clause 28B of the Draft Bill provides for an incomplete procedure for dealing with MPs who take bribes. However this does not take into account the constitutionally guaranteed immunity for MPs for anything they do or speak on the floor of Parliament. The Supreme Court recognized and stated this position in the matter of P V Narasimha Rao v State (CBI/SPE) [AIR 1998 SC2120] albeit with a deep sense of dissatisfaction. While there is no denying that corruption indulged in by MPs should also be punished, the Draft Bill is not the appropriate law for dealing with such matters. Existing parliamentary procedures need to be strengthened for this purpose and this also requires a larger debate

Recommendations:

1) Clause 15(2A) may be suitably amended to ensure respect for the parliamentary process of scrutinizing the C&AG’s reports.
2) Clause 28(2) may be dropped.

Political Career for Indian Youth-Jan Lokpal bill -theme 2

Theme 2: Establishment, Selection, Appointment and Removal Procedures

Issue 1: Problems with some definitions

a) The Draft Bill defines the proposed Lokpal as including the Chairperson and Members acting collectively as a body, performing specific functions in benches and also all officers exercising Lokpal’s powers and carrying out its Lokpal’s functions and responsibilities as specified in the legislation. Placing the Chairperson and Members on the same footing as other staff and functionaries is hugely problematic. Ordinary functionaries are not selected by the same process as the Members of the Lokpal. Nor do they enjoy the same rank, privilege and immunities as the Members. The Draft Bill must make a difference between the Chairperson and Members on the one hand and the officers, employees and other persons employed by the institution. The usual practice is to vest all powers in the main Members of the statutory body who then delegate some of it to the functionaries for efficient execution of the duties and obligations under the law. The functionaries can only be delegates rather than original authorities vested with statutory powers.
b) The Draft Bill states that ‘misconduct’ carries the same meaning as the similar term found in the Civil Service Conduct Rules (CCS Rules) notified by the Government of India. It may be pointed out that the CCS Rules do not define ‘misconduct’ but describe the parameters of the ‘conduct’ that is expected of government servants. The vesting of powers to investigate complaints about ‘misconduct which has a vigilance angle’ is also problematic. Similarly the term ‘vigilance angle’ is also loosely defined and covers a very broad swathe of executive action. This issue is discussed at Theme #3 under Issue #2 below.
c) The Draft Bill defines a whistleblower as a person who faces the threat of professional harm, physical harm or is actually subjected to such harm. This is a very limited definition of the term and is not in tune with the letter and spirit of the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill (Whistleblower Bill) pending in Parliament. A whistleblower is a person who actually makes a confidential disclosure of wrongdoing and impropriety that has occurred, is occurring or is likely to occur in a public authority. There need not be any threat perception at all. The mere act of blowing the whistle in the manner specified in the Whistleblower Bill is adequate for a person to acquire that status.
Recommendations:
1. Clause 2(8) may be amended to indicate that the Lokpal means only the Chairperson, Members acting collectively or in benches as may be constituted under various provisions of the Draft Bill. Clause 29 relating to delegation of powers is adequate to empower officers and employees to carry out the functions of the Lokpal.
2. The definition of whistleblower may be amended to mean a person who makes a disclosure about wrongdoing or impropriety that may have occurred or is likely to occur in a public authority under the Whistleblower law.
Issue 2: Problems in the selection process

a) The Draft Bill disqualifies any person who has ever been chargesheeted for any offence under the Indian Penal Code or the Prevention of Corruption Act from being considered for appointment to the Lokpal as the Chairperson or Member. While this is a welcome measure to ensure that persons with tainted background are not picked up, the Draft Bill does not include offences recognised under special laws such as Prevention of Moneylaundering Act, Narcotic Drugs and Psychotropic Substances Act, Unlawful Activities (Prevention) Act etc. Persons committing offences under these laws must also be disqualified from consideration for appointment to the proposed Lokpal.
b) The Draft Bill stipulates “demonstrated resolve to fight corruption in the past” as a qualifying criterion for a candidate to be appointed as the Chairperson or Member of the Lokpal. This loosely worded criterion can be abused in several ways, For example, does mere participation in protests and rallies against corruption demonstrate such resolve? Or does filing a bunch of complaints of corruption against public servants demonstrate such resolve? This vague criterion has the potential for misinterpretation and abuse.
c) The Draft Bill requires the nomination of two youngest judges of the Supreme Court and two youngest of Chief Justices of High Courts to the selection committee. The underlying principle behind such a requirement is unclear. What criteria will be applied in this regard- actual age of the judge or the length of service is also not clear. It is common for the principle of seniority to guide the membership of such committees as it ensures that experience and wisdom is brought to the service of such committees. It makes better sense to have seniormost judges of the Supreme Court and the seniormost Chief Justices on the selection committee.
d) The Draft Bill contemplates a detailed procedure for identifying candidates who may be recommended for appointment to the Lokpal. While periodic vacancies are to be filled up by commencing the selection process three months prior to the arising of such vacancies, emergent vacancies are to be filled up within a month. This time limit is unrealistic given the elaborateness of the selection process specified in the proposed law. The same time limit fixed for filling up routinely arising vacancies may be stipulated for filling up emergent vacancies as well.
e) The Draft Bill includes outgoing Chairperson and Members of the Lokpal in the selection committee. This makes the selection committee too big where consensus may be difficult to achieve. Further if more than six members retire at one go they would outnumber other members of the selection committee which is undesirable. The Draft Bill may only stipulate that the outgoing Chairperson may be consulted by the selection committee over the successor.
f) The Draft Bill does not stipulate adequate objective criteria such as professional competence, and experience for the selection of candidates for appointment to the Lokpal. More objective criteria may be identified for candidates through a process of public consultation and changes may be incorporated in the Draft Bill.
g) The Draft Bill empowers the selection committee to call for recommendation of candidates from ‘such class of people’ or ‘such individuals’ as it deems fit. This requirement may run foul of Article 14 of the Constitution that guarantees equality for all before the law. All citizens must have equal opportunities for making recommendation of candidates to the selection committee.
Recommendations:
1) Clause 6(2) may be amended to include offences recognised under special criminal laws as well.
2) Clause 6(4) may be dropped.
3) In Clause 6(5)(c) and (d) the words: “seniormost” may be substituted for the words: “youngest”.
4) Clause 3(5)(b) may be dropped.
5) Clause 6(5)(g) may be replaced with a requirement to consult the outgoing Chairperson on his or her successor during the selection process.
6) More objective criteria may be identified for selection of candidates to the Lokpal after widespread public consultation.
7) Clause 6(8)(b) may be amended to ensure that the principle of equal opportunity as understood in Article 14 of the Constitution is observed to while inviting recommendations of candidates for appointment to the Lokpal.
Issue 3: Problem with the appointment process

The Draft Bill gives the status of finality to the list of names recommended by the selection committee for filling up vacancies in the proposed Lokpal. The President is required to only sign on the dotted line. This turns the appointing authority into a rubber stamp. The President must be allowed the space to satisfy himself/herself that the procedure for selection as laid down by the law has indeed been observed and the best candidates have been selected through due process. If these criteria are not fulfilled the President must have the power to request the committee to reconsider its recommendations.

Recommendation:

The Draft Bill may be amended to empower the President to request the selection committee to reconsider the names forwarded for appointment on grounds of inadequate or non-adherence to the norms of selection or poor quality of the candidates recommended.
Issue 4: Problem with the removal process

The Draft Bill envisages an unprecedented procedure for the removal of the Chaiperson and the Members of the proposed Lokpal. The Supreme Court is hidebound to take certain kinds of action in the context of removal. This issue of encroachment of the domain of the judiciary is dealt with separately at Theme #3 under Issue #1. However at no stage of the removal procedure is the offender required to be given a hearing to defend himself or herself. This violates the basic principle of natural justice- audi alteram partem. The offender has a right to be heard and defend himself/herself against the charges laid and this must be explicitly mentioned in the law itself. The procedure for removal of a Chairperson or Member of the Lokpal may follow the method of removal of the Members of the Central Vigilance Commission stipulated in the Central Vigilance Commission Act.
Recommendation:
The Draft Bill may be amended to provide for a procedure of removal of the Chairperson and the Members of the Lokpal that is similar to the procedure for removal of the Members of the Central Vigilance Commission.
Issue 5: Problem of disenfranchisement of retired Members

The Draft Bill disqualifies retired Chairpersons and Members of the proposed Lokpal from accepting any posts in Government. While this is desirable such persons are also to be barred from contesting elections to Parliament, State legislatures or other local bodies for life. This amounts to disenfranchisement of citizens which is undesirable. The right to contest elections is a right protected by the Constitution. It is also a basic human right recognised the world over and this right cannot be taken away from adults except on grounds of insolvency or mental instability.
Recommendation:
In Clause 5(6) the words: “or for contesting elections to Parliament, State legislatures or local bodies” may be dropped.
Issue 6: Reducing the size of the Lokpal

The Draft Bill proposes an 11-member Lokpal. This number appears to be too large especially considering the requirement of several decisions to be taken on the basis of consensus as stipulated in several provisions. Consideration may be given to reducing the membership of the Lokpal to between 5-7 including the Chairperson.

Recommendation:
Clause 3(1) may be amended to reduce the number of Members of the Lokpal from 10 to five or six.

Political Career for Indian Youth-Jan Lokpal bill -Coverage

The Jan Lokpal Bill - Issues for Consideration and Recommendations for improvement -Coverage

Coverage

Issue 1: Shedding the excessive burden – grievance redress, citizen charters and assets statement verification:

Until 2010 the debate about the establishment of a Lokpal at the level of the Centre focused entirely on the creation of an institutional mechanism that would investigate the political establishment for corruption-related offences. This included the Prime Minister, all Ministers in the Union Government and Members of Parliament. This indeed was the focus of recommendations made by the National Commission to Review the Working of the Constitution (NCRWC) and the Second Administrative Reforms Commission. Consequently the Draft Lokpal Bill 2010 that was under the examination of the Group of Ministers was applicable to acts of corruption committed by members of the political executive and Parliament. However the Jan Lokpal Bill seeks to expand the scope and ambit of the proposed statute to include matters such as citizen charters, grievance redress, and verification of statements of assets and liabilities furnished by electoral candidates to the Election Commission within the job description of the proposed Lokpal. While there is no gainsaying the importance of these concerns, placing such a heavy burden on the Lokpal will only make it collapse under its own weight.

The sheer burden of Vigilance administration contemplated under Clause 22 will divert the energies and attention of the Lokpal from corruption related matters. Giving effect to this clause will require appointment of Chief Vigilance Officers (CVOs) in all public authorities who will be compelled to work full time only on grievance redress if the experience of the implementation of the Right to Information Act is taken into account. The volume of grievances will only increase day by day given the popularity of the term ‘Lokpal’. This amounts to creation of thousands of new posts, imposing a burden on the exchequer in addition to the financial implications of establishing the institution of the Lokpal. Even though the Lokpal may not handle any vigilance matter the sheer burden of monitoring the performance of CVOs will require a bureaucracy of considerable size. Further without adequate checks and balances the grievance redress officers can become satraps in their public authorities causing more hardship for the common citizen. This is also a major cause for concern as the Draft Bill does not address this issue.

Citizen charters are an important facet of executive functions and are unique to every public authority providing specific services to their clientele. The Lokpal may not have adequate domain expertise to direct public authorities to alter their citizen charters. Acquiring detailed knowledge of the services provided by a public authority under scrutiny and comparing it against norms observed by other similarly placed public authorities is time consuming and will divert attention and resources from the main objective of the Lokpal- namely tackling corruption. Similarly ascertaining the veracity of the statements of assets and liabilities filed by electoral candidates will also require a large number of staff and resources which can be better spent on handling corruption-related matters. Such verification is better left to the Income Tax Department as is the current practice.

If Lokayuktas in the States are also brought under the purview of this law then a serious question about the competence of Parliament to make laws for grievance redress in the States will arise. In our opinion while it is within the competence of Parliament to pass anti-corruption laws that are applicable to the States as well, the Constitution does not vest Parliament with a similar competence to make laws for handling grievances in respect of services provided by the State Governments. Such a law is likely to violate the scheme of division of powers between the States and the Union which is a basic feature of the Constitution.

Recommendation:
The primary purpose of the Lokpal must be to handle complaints of corruption against public servants. Issues such as citizen charters, grievance redress and asset statement verification may be dropped from the Draft Bill. There is a need for more widespread debate about the manner in which such issues must be dealt with.

Issue 2: Exclude the judiciary from the scope of the Lokpal:

The Draft Bill seeks to bring all judges of the Supreme Court of India and the High Courts under the jurisdiction of the proposed Lokpal. The office of the Chairperson of the Lokpal will deal with complaints against judges exclusively and refer it to a member for screening. A full bench of the Lokpal (consisting of seven Members of whom three must have a background in law) will examine the findings of the screening exercise and by majority grant permission for registering a case. The decision to initiate prosecution will be taken by a full bench (seven Members) where a majority of the Members must have a background in law.

It must be pointed out that these provisions stand in violation of the law laid down by the Hon’ble Supreme Court of India in the matter of K. Veeraswami v Union of India and Ors. [JT 1991(3) SC198]. The constitutional bench with a majority of 4:1 laid down the principle as to how a matter of corruption involving a judge of the High Court or the Apex Court is to be dealt with. Justice B C Ray ruled as follows:
“In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter.” [emphasis supplied]
By ignoring this landmark decision the Draft Bill encroaches on the independence of the judiciary which has been recognised as a basic feature of the Constitution in two cases ( S P Gupta v Union of India, AIR 1982 SC149 and Shri Kumar Padma Prasad v Union of India JT 1992(2) SC247).
Further the Draft Bill ignores current efforts to tackle corruption in the superior judiciary. The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha with the express purpose of establishing mechanisms such as the National Judicial Oversight Committee, Complaints Scrutiny Panels and investigation committees in the Supreme Court and all High Courts to deal with complaints from individuals and references from Parliament against judges about incapacity or misbehaviour including corruption. The National Judicial Oversight Committee is to have two non-judicial Members one of whom may be an eminent person unassociated with the judiciary and nominated by the President. This Bill could be improved upon if any shortcomings are perceived. There is no need to subject judges to a second statute for similar purposes.

Recommendation:
Clauses 2(11) and 19B may be deleted in order to exclude the judiciary from the purview of the Lokpal. The provisions of The Judicial Standards and Accountability Bill, 2010 may be strengthened where necessary.

Issue 3: Special Procedure for Prime Ministers:

The Draft Bill seeks to bring the Prime Minister under the purview of the proposed Lokpal. The Government draft also seeks to cover the Prime Minister except for matters connected with national security, public order, foreign relations and national defence. However the NCRWC and the Second Administrative Reforms Commission have opposed this idea on the ground that the Prime Minister being the head of Government is accountable to Parliament. If the Prime Minister were made subject to the jurisdiction of the Lokpal it would erode the viability of the Government and jeopardize Parliament’s supremacy.

However as the Prime Minister is also a public servant covered by the Prevention of Corruption Act, there is no reason why a credible mechanism for inquiring into complaints of corruption cannot be evolved without upsetting the constitutional scheme. The proposed Lokpal may be empowered to conduct an inquiry to garner all facts and materials relating to the complaint made against the Prime Minister. An inquiry does not amount to investigation, so there will be no need to interrogate the Prime Minister at this stage. If the inquiry turns up sufficient material supporting the complaint, the Lokpal may forward its findings with all material facts and documents to presiding officers of Parliament with a request to set up a committee to examine the complaint and the materials gathered for taking further action. This mechanism would ensure that the complaint against the Prime Minister is initially inquired into by an independent agency and examined further to the point of logical action by Parliament. This would preserve the sanctity of constitutional arrangements as well.

Recommendation:
The Draft Bill may be amended to provide for a special procedure for dealing with complaints of corruption received against the Prime Minister without compromising the constitutional arrangements.

Issue 4: Jurisdiction – petty or big-ticket corruption

The Draft Bill empowers the proposed Lokpal to receive and inquire or investigate allegations of corruption against all public servants and allegations of misconduct against all government servants. Theoretically, the Lokpal will be duty bound to investigate such complaints against officials and officers of all ranks from the lowest level of an office assistant to the Prime Minister. There is a danger of the Lokpal being flooded by complaints of petty corruption against the lower rungs of the bureaucracy leaving little time to focus on allegations of big ticket corruption. The purpose of the Lokpal as envisaged by bodies such as the Second Administrative Reforms Commission and the NCRWC is to investigate corruption committed by senior functionaries especially, ministers. By recommending the winding up of the Central Vigilance Commission and absorption of the anti-corruption branch of the Delhi Special Police Establishment, the Draft Bill seeks to create a single institution to tackle corruption at all levels of the Central Government and in public sector enterprises. This is undesirable because the sheer workload will not allow the proposed Lokpal to focus its energies on tackling corruption at the higher levels of government. The Draft Bill also seeks to bring cooperative societies within the ambit of the Lokpal. This will also cause a flood of complaints to the Lokpal rendering it ineffective.


Recommendation:
The Draft Bill may be amended to include a threshold for the kinds of cases that the proposed Lokpal will inquire or investigate. The threshold could be based on monetary value or the specific levels in the bureaucratic hierarchy or some other criteria. Cooperative societies may be dropped from the ambit of the Lokpal.

Issue 5: Whistleblower protection:

The Draft Bill seeks to provide a mechanism for protecting whistleblowers including citizens who are threatened or attacked because of making information requests under the RTI Act. The Draft Bill does not take into account the existence of the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill (Whistleblower Bill) introduced in Parliament in 2010. The purpose of this Bill is to enable people, especially public servants, to make protected disclosures of wrong doing including corruption in public authorities. This legislation makes the Central Vigilance Commission the sole authority to receive and inquire into complaints of improprieties and wrong doing as defined in it. It also provides for a mechanism for protecting the whistleblower from physical and/or professional harm. Even though the Whistleblower Bill does not meet international standards it contains more elaborate provisions than those relating to whistleblowers found in the Draft Bill. It is advisable to align the Draft Bill with the provisions of the Whistleblower Bill after strengthening the latter instead of duplicating the protection mechanisms.

Recommendation:
The provisions relating to whistleblower protection may be dropped from the Draft Bill. Instead the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill pending in Parliament may be strengthened further and made to serve the purposes of the Lokpal legislation

Political Career for Indian Youth- Jan Lpkpal-issues for Cosideration

The Jan Lokpal- Issues for Consideration an Introduction

It is heartening to note that public pressure has influenced the Government of India to constitute a committee comprising of senior Cabinet Ministers and prominent civil society actors to draft a law for creating an anti-corruption agency for India. The Government is also reported to have accepted the Jan Lokpal Bill (the Draft Bill) drafted by civil society actors as the basis for discussions. The Draft Bill has been widely talked about and debated through the media and in public consultations held across the country with varying degrees of understanding about its complexity. The willingness of the civil society members of the drafting committee to pay heed to diverse opinion and voices expressed about the contents of the Draft Bill is welcome and augurs well for the consultation process. This note identifies major and minor issues of concern that need to be addressed in the Draft Bill if it is to live up to its intended purpose- namely the creation of strong mechanisms to combat corruption in the country. This note also takes into account current legislative proposals dealing with some of the themes covered by the Draft Bill which are pending in Parliament. This analysis of key themes and underlying issues is supported by recommendations for improvement in the contents of the Draft Bill.

Political Career for Indian Youth- Draft Jan Lokpal Bill - part 9

Jan Lokpal Draft bill - part 9

31. Penalty for certain types of complaints- (1) Notwithstanding anything contained in this Act, if someone makes any complaint under this Act, which lacks any basis or evidence and is held by Lokpal to be meant only to harass certain authorities, Lokpal may impose such fines on that complainant as it deems fit, but the total fine in any one case shall not exceed Rs one lakh. Provided that no fine can be imposed without giving a reasonable opportunity of being heard. Provided further that merely because a case could not be proved under this Act after investigation shall not be held against a complainant for the purposes of this section. (2) Such fines shall be recoverable as dues under Land Revenue Act. (3) A complaint or allegation once made under this Act shall not be allowed to be withdrawn.

31A. Preventive measures: (1) Lokpal shall, at regular intervals, either study itself or cause to be studied the functioning of all public authorities falling within its jurisdiction and in consultation with respective public authority, issue such directions as it deems fit to prevent incidence of corruption in future.

(2) Lokpal shall also be responsible for creating awareness about this Act and involving general public in curbing corruption.

31B. Reward Scheme: (1) Lokpal shall encourage complainants from within and outside the government to report and fight against corruption by publicly recognizing such persons.

(2) Lokpal shall also prepare an appropriate scheme to give financial award to such complainants.
Provided that the total value of such reward shall not exceed 10% of the value of property confiscated or loss prevented.

32. Power to make Rules – (1) The Government may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Act.

Provided that such rules shall be made only in consultation and with the approval of Lokpal.
(2) In particular, and without prejudice to the generality of the foregoing provisions, such rules may provide for .-
(i) the allowance and pensions payable to and other conditions of service of the Chairperson and members of Lokpal;
(ii) the powers of a Civil Court which may be exercised by the Lokpal under clause (h) of sub-section (2) of section 11;
(2A) Lokpal shall also be competent to make its own rules for the proper functioning of Lokpal.
(a) the salary, allowances, recruitment and other conditions of service of the staff and employees of the Lokpal;
(iii) procedure for registration of cases at Lokpal and initiation of prosecution
(iv) any other matter for which rules have to be made are necessary under this Act.
(3) Any rule made under this Act may be made with retrospective effect and when such a rule is made the reasons for making the rule shall be specified in a Statement laid before both Houses of the Parliament.
(4) Lokpal shall strictly adhere to the time limits mentioned at various places in this Act. In order to achieve that, Lokpal shall lay down work norms for each level of functionaries and make an assessment of the additional number of functionaries and budget required in accordance with workload.

32A. It shall be the duty of the Lokpal to train its staff at regular intervals and take all other steps to improve their skills and bring about an attitudinal change in dealing with the public.

33. Removal of difficulties- Notwithstanding anything contained in this Act, the President, in consultation with Lokpal or on request of Lokpal may, by order, make such provision -

(i) for bringing the provisions of this Act into effective operation;
(ii) for continuing the enquiries and investigations pending before the Central Vigilance Commission by the Lokpal.

34. Power to make regulations: Lokpal shall have power to make its own regulations for the smooth functioning of the institution and to effectively implement various provisions of this Act.

35. This Act shall override the provisions of all other laws.

Political Career for Indian Youth-Draft Jan Lokpal Bill -part 8

Draft Jan Lokpal Bill -part 8

27. Protection- (1) No suit, prosecution, or other legal proceedings shall lie against the Chairperson or members or against any officer, employee, agency or person referred to in Section 14(4) in respect of anything which is in good faith done while acting or purporting to act in the discharge of his official duties under this Act.
(2) No proceedings of the Lokpal shall be held to be bad for want of form and except on the ground of jurisdiction, no proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction.
Miscellaneous
28. Public Servants to submit property statements-
(1) Every public servant, other than those mentioned in Section 2(12)(a) to (c), shall within three months after the commencement of this Act and thereafter before the 30th June of every year submit to the head of that public authority, in the form prescribed by Lokpal, a statement of his assets and liabilities and those of the members of his family. Public servants mentioned in sections 2(12)(a) to (c) shall submit their returns in a format prescribed by the Lokpal, which shall include their sources of incomes, to the Lokpal with the aforesaid time lines.
(2) The Head of each public authority shall ensure that all such statements are put on the website by 31st August of that year.
(3) If no such statement is received by the Head of that public authority from any such public servant within the time specified in sub-section (1), the Head of that public authority shall direct the concerned public servant to do so immediately. If within next one month, the public servant concerned does not submit such statement, the Head shall stop the salary and allowances of that public servant till he submits such statement.
Explanation- In this section “family of a public servant” means the spouse and such children and parents of the public servant as are dependent on him.
(4) The Lokpal may initiate prosecution against such public servant under Section 176 IPC.
28A. Properties deemed to have been obtained through corrupt means: (1) If any property, moveable or immoveable, is subsequently found to be owned by the public servant or any of his family members, which had not been declared under this section by that public servant and which was acquired before filing of last return under this section, the same shall be deemed to have been obtained through corrupt means.
(2) If any property, moveable or immoveable, is subsequently found to be in possession of the public servant or any of his family members, which had not been declared under this section by that public servant, the same shall be deemed to be owned by that public servant and the same shall be deemed to have been acquired through corrupt means by that public servant, the onus of proving otherwise shall be on the public servant.
(3) The public servant shall be given an opportunity to explain, within 15 days,
(a) in the case of properties under sub-section (1) of this section, whether he had disclosed that property in any of the earlier years.
(b) in the case of properties under sub-section (2) of this section, to explain why these properties should not be deemed to be owned by the public servant.
(4) If public servant fails to provide satisfactory reply under sub-section (3) of this section with respect to some properties, Lokpal shall immediately confiscate all such properties.
(5) Transfer of those properties for which notices are issued under sub-section (3) of this section, shall be deemed to be null and void after the date of issue of such notices.
(6) Lokpal shall intimate such information to the Income Tax Department for appropriate action.
(7) Appeal against the orders of Lokpal shall lie in High Court of appropriate jurisdiction, which shall decide the matter within three months of filing of the appeal.
Provided that no appeal shall be entertained after expiry of 30 days from the date of order of Lokpal under sub-section (4).
(8) All properties confiscated under this section shall be auctioned to highest bidder. Half of the proceeds from the same shall be deposited by the Lokpal in Consolidated Fund of India. The balance amount could be used by Lokpal for its own administration.
Provided that if an appeal has been filed in any case, the auction shall not take place till the disposal of appeal.
28B. (1) Within three months after the conclusion of any elections to the Parliament, the Lokpal shall compare the property statements filed by the candidates with Election Commission of India with their sources of income available with Income Tax Department. In such cases where assets are found to be more than known sources of income, it shall initiate appropriate proceedings.
(2) For an allegation against a Member of Parliament that he has taken a bribe for any conduct in Parliament, including voting in Parliament or raising question in Parliament or any other matter, a complaint could be made to the Speaker of Lok Sabha or the Chairperson of Rajya Sabha, depending upon the House to which that member belongs. Such complaints shall be dealt in the following manner:
(a) The complaint shall be forwarded to the Ethics Committee within a month of its receipt.
(b) The Ethics Committee shall, within a month, decide whether to
29. Power to delegate and assign functions: (1) Lokpal shall be competent to delegate its powers and assign functions to the officials working in Lokpal.
(2) All functions carried out and powers exercised by such officials shall be deemed to have been so done by the Lokpal.
Provided that the following functions shall be performed by the benches and cannot be delegated:
(i) Granting permission to initiate prosecution in any case.
(ii) Order for dismissal of any government servant under CCS Conduct Rules.
(iii) Passing orders under section 10 on complaints against officials and staff of Lokpal.
(iv) Pass orders in cases of complaints, other than grievances, against officers of the level of Joint Secretary and above.
30. Time limits: (1) Preliminary enquiry under sub-section (1) of section 9 of this Act should be completed within a month of receipt of complaint.
Provided that the enquiry officer shall be liable for an explanation if the enquiry is not completed within this time limit.
(2) Investigation into any allegation shall be completed within six months, and in any case, not more than one year, from the date of receipt of complaint.
(3) Trial in any case filed by Lokpal should be completed within one year. Adjournments should be granted in rarest circumstances.
30A. Transparency and application of Right to Information Act: (1) Lokpal shall make every effort to put every information on its website.
(2) Once investigation or enquiry is complete in any case, all records related to that case shall be available for public scrutiny. Lokpal shall preferably post all such records on its website.
Provided that the information, which is likely to disclose the identity of any person, who has requested anonymity and such information which is likely to threaten internal and external security of India shall not be disclosed.

Political Career for Indian Youth- Draft Jan Lokpal Bill -part 7

Draft Jan Lokpal Bill -part 7

23. Staff of Lokpal, etc.- (1) There shall be such officers and employees as may be prescribed to assist the Lokpal in the discharge of their functions under this Act.

(2) The number and categories of officers and employees shall be decided by the Lokpal.
(3) The categories, recruitment and conditions of service of the officers and employees referred in sub-section (1) including such special conditions or special pay as may be necessary for enabling them to act without fear in the discharge of their functions, shall be such as may be prescribed by Lokpal.Provided that no official, whose integrity is in doubt, shall be considered for being posted in Lokpal. Provided further that all officers and employees, who work in Lokpal on deputation or otherwise shall be eligible for the same terms and conditions as prescribed under this clause.
(4) Without prejudice to the provisions of sub-section (1), the Lokpal may for the purpose of conducting investigations under this Act utilize the services of.-
(a) any officer or investigating agency of the Central Government; or
(b) any officer or investigating agency of any other Government with the prior concurrence of that Government; or
(c) any person, including private persons, or any other agency.
(5) The officers and other employees referred to in sub-section (1) shall be under the administrative and disciplinary control of the Lokpal:
(6) Lokpal shall have the powers to choose its own officials. Lokpal may enlist officials on deputation from other government agencies for a fixed tenure or it may enlist officials on permanent basis from other government agencies or it may appoint people from outside on permanent basis or on a fixed tenure basis.
(7) The staff and officers shall be entitled to such pay scales and other allowances, which may be different and more than the ordinary pay scales in the Central Government, as are decided by the Lokpal from time to time, in consultation with the Prime Minister, so as to attract honest and efficient people to work in Lokpal.
(8) Lokpal shall be competent to increase or decrease its staff at various levels, within its overall budgetary constraints, depending upon its workload and keeping in mind the terms and conditions of the staff employed.
24. Repeal and savings – (1) The Central Vigilance Commission Act shall stand repealed.
(2) Notwithstanding such repeal, any act or thing done under the said Act shall be deemed to have been done under this Act and may be continued and completed under the corresponding provisions of this Act.
(3) All enquiries and investigations and other disciplinary proceedings pending before the Central Vigilance Commission and which have not been disposed of, shall stand transferred to and be continued by the Lokpal as if they were commenced before him under this Act.
(4) Notwithstanding anything contained in any Act, the posts of the Secretary and other Officers and Employees of the Central Vigilance Commission are hereby abolished and they are hereby appointed as the Secretary and other officers and employees of the Lokpal. The salaries, allowances and other terms and conditions of services of the said Secretary, officers and other employees shall, until they are varied, be the same as to which they were entitled to immediately before the commencement of this Act.
(5) All vigilance administration under the control of all Departments of Central Government, Ministries of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government shall stand transferred, alongwith its personnel, assets and liabilities to Lokpal for all purposes.
(6) The personnel working in vigilance wings of the agencies mentioned in sub-section (5) shall be deemed to be on deputation to Lokpal for a period of five years from the date they are transferred to Lokpal. However, Lokpal may decide to repatriate any one of them anytime.
(7) That Department from where any personnel have been transferred to Lokpal under sub-section (5), shall cease to have any control over the administration and functions of transferred personnel.
(8) Lokpal shall rotate the personnel and create vigilance wing of each department in such a way that no personnel from the same department get posted for vigilance functions in the same department.
(9) No person shall be employed with Lokpal against whom any vigilance enquiry or any criminal case is pending at the time of being considered.
25. Investigation Wing of Lokpal: (1) There shall be an investigation wing at Lokpal.
(2) Notwithstanding anything contained in section 17 of Prevention of Corruption Act, such officers of Investigation wing, upto the level as decided by Lokpal, shall have, in relation to the investigation and arrest of persons throughout India, in connection with investigation of complaints under this Act, all the powers, duties, privileges and liabilities which members of Delhi Special Police Establishment have in connection with the investigation of offences committed therein.
(3) That part of Delhi Special Police Establishment, in so far as it relates to investigation and prosecution of offences alleged to have been committed under the Prevention of Corruption Act, 1988, shall stand transferred, alongwith its employees, assets and liabilities to Lokpal for all purposes.
(4) That part of Delhi Special Police Establishment, which has been transferred under sub-section (3), shall form part of Investigation Wing of Lokpal.
(5) The Central Government shall cease to have any control over the transferred part and its personnel.
(6) The salaries, allowances and other terms and conditions of services of the personnel transferred under sub-section (3) shall be the same as to which they were entitled to immediately before the commencement of this Act.
(7) All cases which were being dealt by that part of Delhi Special Police Establishment, which has been transferred under sub-section (3), shall stand transferred to Lokpal.
(8) After completion of investigation in any case, the investigation wing shall present the case to an appropriate bench of Lokpal, which shall decide whether to grant permission for prosecution or not.
25A. Prosecution wing: There shall be a prosecution wing of Lokpal. After completion of its investigations, the investigation wing shall forward the case to prosecution wing, which shall decide whether to proceed with prosecution or not.
Provided that in certain category of cases, as prescribed by Lokpal, the permission to prosecute or deny shall be taken by a bench of Lokpal.
Provided further that the prosecution wing shall decide whether to prosecute or not within a fortnight of receipt of a case from investigation wing, else prosecution wing shall be deemed to have decided to initiate prosecution.
26. Complaints against officers or employees of Lokpal: (1) Complaints against employees or officers of Lokpal shall be dealt with separately and as per provisions of this section.
(2) Such complaint could relate to an allegation of an offence punishable under Prevention of Corruption Act or a misconduct or a dishonest enquiry or investigation.
(3) As soon as such a complaint is received, the same shall be displayed on the website of Lokpal, alongwith the contents of the complaint.
Provided that if the complainant so desires, his identity shall be protected.
(4) Investigations into each such complaint shall be completed within a month of its receipt.
(5) In addition to examining the allegations against the said official, the allegations shall especially be examined against sections 107, 166, 167, 177, 182, 191, 192, 196, 199, 200, 201, 202, 204, 217, 218, 219, 463, 464, 468, 469, 470, 471, 474 of Indian Penal Code.
(6) If, during the course of investigations, it is felt that the charges are likely to be sustained, such officer shall be divested of all his responsibilities and powers and shall be placed under suspension.
(7) If after completion of enquiry or investigations, it is decided to prosecute that person under Prevention of Corruption Act, 1988 or he is held guilty of any misconduct or of conducting dishonest enquiry or investigations, then that person shall not work with Lokpal anymore. Lokpal shall either dismiss that person from the job, if that person is in the employment of Lokpal, or shall repatriate him, if he is on deputation, with a recommendation for his removal.
Provided that no order under this clause shall be passed without giving reasonable opportunity of being heard to the accused person.
Provided further that order under this clause shall be passed within 15 days of completion of investigations.
(8) A three member bench shall hear the cases of complaints against its staff and employees. However, for officers of the level of Chief Vigilance Officer or above, the hearings shall be done by full bench of Lokpal.
(9) Lokpal shall take all steps to ensure that all enquiries and investigations on complaints against its own staff and officials are conducted in most transparent and honest manner.

Political Career for Indian Youth- Draft Jan Lokpal Bill - part 6

Draft Jan Lokpal Bill - part 6

Grievance Redressal Systems
21. Citizens’ Charters: (1) Each public authority shall be responsible for ensuring the preparation and implementation of Citizens Charter, within a reasonable time, and not exceeding one year from the coming into force of this Act.
(2) Every Citizens Charter shall enumerate the commitments of the respective public authority to the citizens, officer responsible for meeting each such commitment and the time limit with in which the commitment shall be met.
(3) Each public authority shall designate an official called Public Grievance Redressal Officer, whom a complainant should approach for any violation of the Citizens Charter.
Provided that a public authority shall appoint at least one Public Grievance Redressal Officer in each station, where they have an office.
Provided further that the Public Grievance Redressal Officer shall either be Head of that Department or an officer not more than one rank below him but if that station does not have a Head of Department in any station, the seniormost officer in that station shall be appointed as the Public Grievance Redressal Officer.
(4) Every public authority shall review and revise its Citizens Charter at least once every year through a process of public consultation to be held in the presence of Chief Vigilance Officer in that public authority.
(5) Lokpal may direct any public authority to make such changes in their citizens’ charter as are mentioned in that order and that public authority shall make such changes within a week of receipt of such order.
Provided that such changes shall have to be approved by at least a three member bench of Lokpal.
Provided further than such changes should not increase the existing time limits or reduce the number of items in citizen’s charter.
21A. Receipt and disposal of Grievances: (1) The Chief Vigilance Officer of any public authority shall declare such number of Vigilance Officers, as it deems fit, to be known as Appellate Grievance Officers, to receive and dispose grievances related to that public authority.
(2)If a citizen fails to receive satisfactory redressal to his grievance within a month of making a complaint to Public Grievance Redressal Officer, can make a complaint to Appellate Grievance Officer.
Provided that if Appellate Grievance Officer feels that considering the gravity or urgency of the grievance, it is necessary to do so, he may decide to accept such grievance earlier also.
(3) If the complaint does not relate to an issue mentioned in Citizen’s Charter of that public authority, the Appellate Grievance Officer, within a month of receipt of complaint, pass an order either rejecting the grievance or directing the public authority to redress the grievance in the manner and within such time, as is mentioned in the order.
Provided that no grievance shall be rejected without giving a reasonable opportunity of being heard to the complainant.
(4) A complaint to the Appellate Grievance Officer shall be deemed to have a vigilance angle if any of the following two conditions are satisfied:
(i) for issues mentioned in citizen’s charter, if a citizen fails to get satisfactory redressal from Public Grievance Redressal Officer.
(ii) for issues other than those mentioned in citizen’s charter, if the orders of Appellate Grievance Officer made under sub-section (3) of this section are violated.
(5) Each case, as mentioned in sub-section (4) of this section, shall be dealt in the following manner:
(i) After giving a reasonable opportunity of being heard, the Appellate Grievance Officer shall pass an order fixing responsibility for failure to satisfactorily redress complainant’s grievance in prescribed time and direct the Drawing and Disbursing Officer of that public authority to deduct from the salary of such officials, as mentioned in the order, such penalty amounts as are directed by Appellate Grievance Officer, which shall not be less than Rs 250 per day of delay calculated from the day the time limit mentioned in citizens’ charter or the time limit specified in the order passed under sub-section (3) of this section, for redressing that grievance got over,
(ii) Direct the Drawing and Disbursing Officer to compensate the complainant with such amounts as are deducted from the salaries of the said officers.
(6) The Officers mentioned in the order made under clause (i) of sub-section (5) of this section shall be required to show cause that they acted in good faith and did not have corrupt motives. If they fail to do so, the Appellate Grievance Officer shall proceed to recommend penalties against the said officers under CCS Conduct Rules.
21B. Annual Integrity Audit: Lokpal shall conduct annual integrity audit of each department as per guidelines to be made in this behalf by the Lokpal from time to time.
Imposition of major and minor penalties

21B. Allegations of misconduct shall be received and enquired by vigilance officers.

21C. Allegations of misconduct and public grievances with deemed vigilance angle under section 21A shall be dealt in the following manner:
(1) The vigilance officer shall conduct an enquiry into each such case within three months of its receipt and present its report to the Chief Vigilance Officer.
(2) Within a fortnight of receipt of report, the Chief Vigilance Officer shall constitute a three member bench of Deputy Chief Vigilance Officers other than the one who conducted enquiry at clause (1) above.
(3) The bench shall hold a summary hearing giving reasonable opportunity to the vigilance officer who conducted enquiry, the complainant and the officers accused.
(4) The bench shall hold hearings on day to day basis and pass an order either imposing one or more of the minor or major penalties on the accused government servants.
Provided that such orders shall be passed within a month of constitution of the bench.
Provided that such order shall be in the form of a recommendation to the appropriate appointing authority.
(5) An appeal shall lie against the order of the bench before the Chief Vigilance officer, who shall pass an order within a month of receipt of appeal, after giving reasonable opportunity to the accused, the complainant and the vigilance officer who conducted enquiries.
Employees and staff and authorities in Lokpal
22. Chief Vigilance Officer: (1) There shall be a Chief Vigilance Officer in each public authority to be selected and appointed by Lokpal.
(2) He shall not be from the same public authority.
(3) He shall be a person of impeccable integrity and ability to take proactive measures against corruption.
(4) He shall be responsible for accepting complaints against any public authority and shall transfer the complaints related to other public authorities within two days of receipt.
(5) He shall be responsible for carrying out all such responsibilities as assigned to him from time to time by Lokpal including dealing with complaints in the manner as laid down by Lokpal from time to time.
Provided that the complaints which require investigations under Prevention of Corruption Act 1988 shall be transferred to the Investigative wing of Lokpal.
Provided further that the complaints, other than grievances, against officers of the level of Joint Secretary or above shall not be dealt by the Chief Vigilance Officer and shall be transferred to the Lokpal, who shall set up a committee of Chief Vigilance Officers of three other public authorities to enquire into such complaint.
(6) All the grievances shall be received and disposed by Chief Vigilance Officer on behalf of Lokpal, if the citizen fails to get satisfactory redressal from Public Grievance Officer under section 21 of this Act.
(7) Such number of Vigilance Officers shall be appointed under the Chief Vigilance Officer as are decided by Lokpal from time to time.
(8) The Vigilance Officers and the Chief Vigilance Officer shall have powers to enquire and impose penalties under CCS Conduct Rules in such cases and as per such rules as laid down by the Lokpal from time to time.

Political Career for Indian Youth- Draft Jan Lokpal Bill - part 5

Draft Jan Lokpal Bill - part 5

Recovery of Loss to the Government and punishments
19. Recovery of loss to the Government: When a person is convicted of an offence under the Prevention of Corruption Act 1988, then the trial court shall quantify the loss caused to the government and additional gains that the accused would have earned by investing the proceeds of corruption and apportion such total amount amongst various convicts from whom this money must be recovered as arrears of land revenue.
19A. Punishments for offences: For offences mentioned in Chapter III of the Prevention of Corruption Act, the proviso to section 2(4) of this Act and section 28A of this Act, the punishment shall not be less than one year of rigorous imprisonment and may extend upto life imprisonment.
Provided that the punishment shall be more severe if the accused is higher in rank.
Provided further that if the offence is of the nature mentioned in the proviso to section 2(4) of this Act and if the beneficiary is a business entity, in addition to other punishments mentioned in this Act and under the Prevention of Corruption Act, a fine amounting to five times the loss caused to the public shall be recovered from the accused and the recovery may be done from the assets of the business entity and from the personal assets of all its Directors, if the assets of the accused are inadequate.
Dealing with complaints against judges of High Courts or Supreme Court
19B. Receiving and disposing complaints against Judges of High Courts or Supreme Court: (1) Any complaint against any Judge of a High Court or Supreme Court shall be dealt only by the office of the Chairperson of Lokpal.
(2) Each such complaint shall be subjected to a preliminary screening, which shall determine whether prima facie evidence exists of an offence under Prevention of Corruption Act. The screening shall be done by a member of Lokpal, who shall then present his findings to a full bench of Lokpal.
(3) A case shall not be registered without the approval of a full bench of Lokpal with majority of members of that bench being from legal background.
(4) Such case shall be investigated by a special team headed by an officer not below the rank of a Superintendent of Police.
(5) A decision whether to initiate prosecution shall be taken by a full bench of Lokpal with majority of members with legal background.
Whistleblower protection
20. Protection of Whistleblower: (1) A whistleblower may seek the protection of the Lokpal if he has been subjected to or threatened with, professional or physical victimization.
(2) On receiving such a complaint, Lokpal shall take following steps:
(a) Professional victimization: If after conducting appropriate enquiries, the Lokpal feels that there is a real threat to the whistleblower on account of having made an allegation under this Act, it shall, as soon as possible but not more than a month of receipt of such complaint, direct appropriate authorities to take such steps as directed by the Lokpal.
(b) If a whistleblower complains that he has been victimized professionally on account of making an allegation under this Act and the Lokpal, after conducting enquiries, is of the opinion that the whistleblower has been victimized for having made an allegation under this Act, it shall, as soon as possible but in not more than a month, direct appropriate authorities to take such steps as directed by the Lokpal.
Provided that for clause (a) the Lokpal may, but for clause (b) the Lokpal shall, also issue orders imposing appropriate penalties under relevant Rules against the government servants who issued threats or caused victimization.
Provided further that no such penalties shall be imposed without giving an opportunity of being heard to the affected government servants.
(c) Threat of physical victimization: Lokpal shall conduct appropriate enquiries and if it feels that there is a real threat to the person and the threat is on account of that person having made an allegation under this Act or for having filed an RTI application to any public authority covered under this Act, then notwithstanding anything contained in any other law, the Lokpal shall pass appropriate orders, as soon as possible but in not more than a week, directing appropriate authorities, including police, to take such steps as directed by the Lokpal to provide adequate security to that person, to register criminal cases against those who are issuing threats and also to take all such steps necessary to mitigate circumstances leading to such threat.
Provided that if the threat is imminent, Lokpal shall act immediately, within a few hours to prevent physical assault on that person. If the complainant wishes to meet the Chairperson or a member, he shall be entitled to talk to them either on phone or through video conferencing or in person, according to the desire of the complainant.
(d) If a person complains that he has already been physically assaulted on account of making an allegation under this Act and if Lokpal is satisfied after conducting enquiries that the person has been assaulted because of his having made an allegation under this Act or for filing an RTI application in any of the public authorities covered under this Act, then notwithstanding anything else contained in any other law, the Lokpal shall pass such orders, as soon as possible but in not more than 24 hours, directing the concerned authorities to take such steps as directed by the Lokpal to provide adequate security to that person, to register criminal cases and also to ensure that no further harm visits on that person. If the complainant wishes to meet the Chairperson or a member, he shall be entitled to talk to them either on phone or through video conferencing or in person, according to the desire of the complainant.
(da) If a whistleblower alleges that police or any other authority has registered or initiated any case against the complainant or any other person on account of making a complaint under this Act or for using RTI Act, the Lokpal may, on the basis of enquiries, issue orders to appropriate authorities, to withdraw such case.
(db) In case of threat of physical victimization or if any person has been assaulted, that person, or any other person may complaint to any office of Lokpal anywhere in the country and it shall be the duty of that official of Lokpal to forward such complaint immediately to appropriate officer within Lokpal.
(dc) Lokpal may delegate the responsibility of providing protection to whistleblowers to upto the level of Vigilance Officers and in such case, such officers shall have the powers to direct the appropriate authorities, including local police, to take such steps as are necessary to ensure protection of that whistleblower.
(dd) If, after making a complaint to the Lokpal, any person is still assaulted, the concerned officials in Lokpal will be held responsible for criminal dereliction of duty or connivance or both, unless they are able to prove otherwise.
(e) If the whistleblower has alleged an act punishable under Prevention of Corruption Act, then for cases under clause (c), Lokpal may and for cases under clause (d), the Lokpal shall, assign the allegations made by that person to a special team, put it on a fast track and complete investigations in that case in not more than a month.
(f) If the whistleblower has alleged an act punishable under any law other than the Prevention of Corruption Act, then for cases under clause (c), Lokpal may and for cases under clause (d), the Lokpal shall, direct the agency which has the powers to enforce that law to assign the allegations made by the whistleblower to a special team, put it on a fast track and complete investigations in that case in such time as directed by the Lokpal.
(g) Lokpal shall have the powers to issue directions to appropriate agencies in the cases covered under clause (f), monitor such investigations and if necessary, issue directions to that agency to do the investigations in the manner as directed by the Lokpal.
(h) Whistleblowers, who face threat of physical victimization or are actually assaulted may directly approach the Chairperson of Lokpal who shall meet them within 24 hours of their seeking such meeting and shall take appropriate action as per provisions of this Act.
(3) If any complainant requests that his identity should be kept secret, Lokpal shall ensure the same. Lokpal shall prescribe detailed procedures on how such complaints shall be dealt with.
(4) Lokpal shall Issue orders to the Public Authorities to make necessary changes in their policies and practices to prevent recurrence of victimization.
(5) Lokpal shall make appropriate rules for the receipt and disposal of complaints from whistleblowers.

Political career for Indian Youth -Draft Jan Lokpal bill-part 4

Draft Jan Lokpal bill-part 4

15. Making a complaint to the Lokpal: (1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokpal.
Provided that in case of a grievance, if the person aggrieved is dead or for any reason, unable to act for himself, the complaint may be made or if it is already made may be continued by his legal representatives or by any other person who is authorized by him in writing in this behalf.
Provided further that a citizen may make a complaint to any office of Lokpal anywhere in the country. It shall be the duty of that office of Lokpal to transfer it to appropriate officer within Lokpal.
(2) A complaint could be on a plain paper but should contain all such details as prescribed by Lokpal.
(2A) After its annual report has been presented in the Parliament, the Comptroller and Auditor General of India shall forward all such cases, which constitute an allegation under this Act, to the Lokpal and Lokpal shall act on them as per provisions of this Act.
(3) On receipt of a complaint, the Lokpal shall decide whether it is an allegation or a grievance or a request for whistleblower protection or a mixture of two or more of these.
(4) Every complaint shall have to be compulsorily disposed of by the Lokpal.
Provided that no complaint shall be closed without giving an opportunity of hearing to the complainant.

16. Matters which may be investigated by the Lokpal– Subject to the provisions of this Act, the Lokpal may investigate any action which is taken by or with the general or specific approval of a public servant where a complaint involving a grievance or an allegation is made in respect of such action.

Provided that the Lokpal may also investigate such action suo moto or if it is referred to it by the government, if such action can be or could have been in his recorded opinion, subject of a grievance or an allegation.

17. Matters not subject to investigation:- (1) The Lokpal shall not conduct any investigation under this Act in case of a grievance in respect of any action-

(i) if the complainant has or had, any remedy by way of appeal, revision, review or any other recourse before any authority provided in any other law and he has not availed of the same.
(ii) Taken by a judicial or quasi-judicial body, unless the complainant alleges malafides
(iii) If the substance of the entire grievance is pending before any court or quasi-judicial body of competent jurisdiction.
(iv) any grievance where there is inordinate and inexplicable delay in agitating it.
(2) Nothing in this Act shall be construed as authorising the Lokpal to investigate any action which is taken by or with the approval of the Presiding Officer of either House of Parliament.
(3) Nothing in this section shall bar Lokpal from entertaining a complaint making an allegation of misconduct or corruption or a complaint from a whistleblower seeking protection.

18. Provisions relating to complaints and investigations-

(i) (a) The Lokpal, on receipt of a complaint in the nature of an allegation or a grievance or a combination of the two, or in a case initiated on his own motion, may on perusing the documents, either decide to proceed to enquire or investigate into that complaint or decide, to make such preliminary inquiry before proceeding to enquire or investigate into such complaint or direct any other person to make such preliminary inquiry as it deems fit for ascertaining whether there exists a reasonable ground for conducting the investigation. The outcome of such preliminary enquiry, and if the complaint is being closed along with reasons for the same and all material collected during preliminary enquiry, shall be communicated to the complainant.
Provided that if any case is closed, all documents related thereto shall thereafter be treated as public. Every month, a list of all such cases shall be put on the website with reasons for closing a case. All material connected with such closed cases will be provided to anyone seeking it under Right to Information Act.
Provided further that no complaint of allegation shall be rejected on the basis of the motives or intention of the complainant.
Provided further that all hearings before Lokpal shall be video recorded and shall be available to any member of the public on payment of copying costs.
(b) The procedure for preliminary enquiry of a complaint shall be such as the Lokpal deems appropriate in the circumstances of the case and in particular, the Lokpal may, if it deems necessary to do so, call for the comments of the public servant concerned.
Provided that the preliminary enquiry should be completed and a decision taken whether to close a case or to proceed with investigations preferably within one month of receipt of any complaint, and positively within three months. Where the preliminary enquiry has not been completed within one month, reasons for the delay will be recorded in writing at the completion of the enquiry and made public.
(c) No anonymous complaint shall be entertained under this Act. The Complainant will have to reveal his identity to the Lokpal. However, if the complainant so desires, his identity shall be protected by Lokpal.
(ii) Where the Lokpal proposes, either directly or after making preliminary inquiry, to conduct any investigation under this Act, it.-
(a) may make such order as to the safe custody of documents relevant to the investigation, as it deems fit.
(b) at appropriate stage of investigations or in the end, it shall forward a copy of the complaint, its findings and copy of the material relied upon to the public servant concerned and the complainant,
(c) shall afford to such public servant and the complainant an opportunity to offer comments and be heard.
Provided that such hearing shall be held in public, except in rare circumstances, to be recorded in writing, where it is not in public interest and in the interest of justice to hold it in public, it will be held in camera.
(iii) The conduct of an investigation under this Act against a public servant in respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to the investigation.
(iv) If, during the course of a preliminary inquiry or investigation under this Act, the Lokpal is prima facie satisfied that the allegation or grievance in respect of any action is likely to be sustained either wholly or partly, it may, through an interim order, recommend the public authority to stay the implementation or enforcement of the decision or action complained against, or to take such mandatory or preventive action, on such terms and conditions, as it may specify in its order to prevent further harm from taking place. The public authority shall either comply with or reject the recommendations of Lokpal under this sub-section within 15 days of receipt of such an order. Lokpal, if it feels important, may approach appropriate High Court for seeking appropriate directions to the public authority.
(v) The Lokpal, either during the course of investigations, if it is satisfied that prosecution is likely to be initiated in that case, or at the end of the investigations at the time of initiating prosecution, shall make a list of moveable and immoveable assets of all the accused in that case and shall notify the same. No transfer of the same shall be permitted after such notification. In the event of final conviction, the trial court may, in addition to other measures, recover the loss determined under section 19 of this Act from this property,.
(vi) If during the course of investigation or enquiry into a complaint, the Lokpal feels that continuance of a public servant in that position could adversely affect the course of investigations or enquiry or that the said public servant is likely to destroy or tamper with the evidence or influence the witnesses, the Lokpal may issue appropriate recommendations including transfer of that public servant from that position or his suspension, if he is a government servant. The public authority shall either comply with or reject the recommendations of Lokpal under this sub-section within 15 days of receipt of such an order. Lokpal, if it feels important, may approach appropriate High Court for seeking appropriate directions to the public authority.
(vii) The Lokpal may, at any stage of inquiry or investigation under this Act, direct through an interim order, appropriate authorities to take such action as is necessary, pending inquiry or investigation.-
(a) to safeguard wastage or damage of public property or public revenue by the administrative acts of the public servant;
(b) to prevent further acts of misconduct by the public servant;
(c) to prevent the public servant from secreting the assets allegedly acquired by him by corrupt means;
The public authority shall either comply with or reject the recommendations of Lokpal under this sub-section within 15 days of receipt of such an order. Lokpal, if it feels important, may approach appropriate High Court for seeking appropriate directions to the public authority.
(viii) Where after investigation into a complaint, the Lokpal is satisfied that the complaint involving an allegation against the public servant, other than the Ministers, Members of Parliament and judges, is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokpal shall pass orders to that effect. In case of public servant being a Minister or a Member of Parliament, Lokpal shall make such recommendation to the President, who shall decide either to accept such recommendation or reject it within a month of its receipt.
Provided that the provisions of this section shall not apply to the Prime Minister.
(ix) All records and information of Lokpal shall be public and shall be accessible under Right to Information Act, even at the stage of investigation or enquiry, unless the release of such information would adversely affect the process of enquiry or investigation.