The Draft Lokpal Bill 2010 and the Jan Lokpal Bill 2011
Jurisdiction, Powers and Functions of the Proposed Lokpal
A Quick Comparison
Prepared by
Justice A P Shah
Chief Justice (Retd), Delhi High Court, New Delhi
&
Venkatesh Nayak
Commonwealth Human Rights Initiative, New Delhi &
Co-Convenor, National Campaign for People’s Right to Information
(April 2011)
Even as the Joint Committee set up by the Government of India prepares itself for drafting a Bill to establish the institution of the Lokpal (Ombudsperson cum Anti-Corruption Agency) in India, as a preparatory step towards public debate it is important to examine the contents of the draft Bills currently available in the public domain. This brief note compares the jurisdiction, powers and functions of the Lokpal as envisaged in the draft Bills prepared by the Government of India and civil society actors. The text of the Government’s Lokpal Bill 2010 was circulated through the email circuit prior to the public consultation organised by the National Campaign for People’s Right to Information in Delhi on 3rd April 2011. The draft Jan Lokpal Bill (version 2.2) is obtained from the civil society actors working tirelessly on the subject. This comparative picture is prepared with the objective of encouraging informed debate on this important subject. This is not a qualitative assessment of the provisions contained in either draft Bill.
The Lokpal Bill, 2010
Jurisdiction:
Who is covered?
Public functionaries such as the Prime Minister (except for matters relating to national security, maintenance of public order, national defence and foreign relations), Ministers, Ministers of State, Deputy Ministers and Members of Parliament. [Clause (2)(h)]
Who is not covered?
The President of India, the Vice President, the Speaker and the Deputy Speaker, Lok Sabha (House of the People) Deputy Chairperson, Rajya Sabha (Council of States), Chief Justice of India, Chief Justices of the High Courts, Justices of the Supreme Court and the High Courts, the Comptroller and Auditor General of India, the Attorney General of India, the Chairperson and Members of the National Commission for Scheduled Castes (SCs) and Scheduled Tribes (STs)(2), the Chief Election Commissioner, Election Commissioners, Chairperson and Members of the Union Public Service Commission, any constitutional authority and all bureaucrats. [Clause 28]
Functions:
1. Lokpal can inquire into only such complaints as may be referred by the Speaker of the Lok Sabha, the Chairman of the Rajya Sabha or the President of India. [Clauses 12 & 13]
2. Lokpal is required to inform the complainant and the competent authority about the findings of an inquiry into a complaint. [Clause 17]
3. Lokpal must submit annual reports to the President of India.
4. Lokpal cannot inquire into complaints received directly from citizens. Bureaucrats cannot make any complaints against public functionaries. [Clauses 10 & 12 ]
5. Lokpal cannot initiate action suo motu.
6. Lokpal is forbidden from inquiring into complaints relating to matters that are more than five years old. [Clause 13]
Powers:
Lokpal has the:
1. power to compulsorily collect fees from a complainant in a case; [Clause 12]
2. power to dismiss complaints after recording reasons in writing and inform the complainant; [Clause 13]
3. power to issue orders for safe custody of documents; [Clause 14]
4. power to order in camera hearings in exceptional circumstances; [Clause 14(2)]
5. power to define procedure for conducting inquiry into complaints received; [Clause 14]
6. powers of civil court to summon persons, to require discovery and production of documents, receiving affidavits, examining witnesses etc; [Clause 15]
7. powers to cause search and seizure of documents; [Clause 16]
8. power to initiate defamation proceedings under Section 199, Criminal Procedure Code, 1973; [Clause 19]
9. power to detain an offender who insults the Lokpal, summarily try him or her and award a sentence of up to one month imprisonment and/or a fine of Rs. 500; [Clause 20]
10. power to compensate the public functionary complained against from the fees deposited by the complainant; [Clause 21]
11. power to order reward or compensation to the complainant in fit cases; [Clause 21]
12. power to take cognizance of false or mala fide complaints, summarily try such cases and sentence the offender to a prison term of at least one year extendable up to three years and or fine of Rs. 50,000; [Clause 21]
13. power to delegate functions to officers of the Lokpal and other agencies except the powers of receiving complaints, dismissing complaints, trying offenders for false or mala fide complaints; [Clause 26] and
14. Lokpal and its officers have immunity from legal proceedings for action taken in good faith [Clause 24].
The Jan Lokpal Bill, 2011
Jurisdiction:
Who is covered?
Public servants such as the Prime Minister, Ministers, Ministers of State, Deputy Ministers Members of Parliament, judges of the Supreme Court and the High Courts, government servants, Chairperson and members of a local authority (panchayats and municipalities), statutory corporations established by or under any law made by parliament, cooperative societies, government companies, members of any committee or Board whether statutory or non-statutory constituted by the Central Government and all government servants under the Central Government. A member of a private entity, if found to be involved in a case inquired into or investigated by the Lokpal falls within its jurisdiction. [Clauses 2(11), (5) & 8(2)(b)]
Who is not covered?
The President of India, the Vice President and the Speaker, Lok Sabha. [Clause 17]
What is not covered?
Lokpal is barred from investigating a case of grievance in respect of any action-
a) if the complainant has not availed himself or herself of any remedy available in any other law;
b) in respect of any action taken by a quasi-judicial body unless the complainant alleges mala fides;
c) if the entire matter is pending before a court or quasi-judicial body of competent jurisdiction; and
d) if there is an inordinate and inexplicable delay in filing the grievance. [Clause 17]
Functions:
1. Lokpal to receive, inquire and or investigate complaints about acts of commission or omission punishable under the Prevention of Corruption Act, 1988. [Clause 8 (1)]
2. Lokpal to receive, inquire and or investigate complaints where there are allegations of misconduct by a government servant. [Clause 8 (1)]
3. Lokpal to receive, inquire and or investigate complaints from whistleblowers. [Clause 8 (1)]
4. Lokpal to receive, inquire and or investigate complaints against its own staff. [Clause 8 (1)]
5. Lokpal must ensure the integrity of its own staff and employees. [Clause 8 (1A)]
6. Lokpal to submit a consolidated report on its performance to the President of India. The President to cause laying of the report on the table of both Houses of Parliament. [Clause 11]
7. Lokpal to publish every month the list of cases disposed with brief details of every case, outcome and action taken or proposed to be taken, list of cases received during the previous month and list of pending cases. [Clause 11(3)]
8. Lokpal to put on its website all records related to a case after the completion of the inquiry or investigation. Information that will not be disclosed includes the identity of a complainant who has requested confidentiality and anything that may threaten the internal and external security of the country. [Clause 30A]
9. Lokpal to conduct annual integrity audit of each department as per guidelines it may lay down from time to time. [Clause 21B]
10. Lokpal to select, appoint and transfer Chief Vigilance Officers in all public authorities. [Clause 22]
11. Lokpal to compare the property statements of candidates contesting election to Parliament filed with the Election Commission of India with the information available with the Income Tax Department within three months after every election. Proceedings to be initiated in deserving cases. [Clause 28B]
12. Lokpal to create public awareness about this law. [Clause 31A]
13. Lokpal to prepare an appropriate scheme to give financial rewards to complainants under this law. [Clause 31B]
14. Lokpal to make its own Regulations. There is no requirement of laying the Regulations on the table of the Houses of Parliament for the purpose of approval or modification. [Clause 34]
Powers:
Powers relating to inquiry and investigation:
Lokpal (Chairperson, members, officers and staff) is to be a deemed police officer. Lokpal has the same powers as granted to superior police officers under Section 36 of the Criminal Procedure Code, 1973.(2)This will include powers of arrest. [Clauses 3(1), 12 & 25].
Lokpal is to be deemed a designated authority under the Indian Telegraph Act, 1885 for the purpose of phone tapping and interception of messages including those sent through the Internet. [Clause 13C]
1. Power to conduct preliminary inquiry and/or full investigation into a complaint received from any person about corruption, misconduct, harassment of whistleblowers and errant Lokpal staff. [Clauses 8 & 18]
2. Power to initiate suo motu action to inquire into any matter relating to offences under the Prevention of Corruption Act, 1988, misconduct of government servants, whistleblowers and its own erring staff. [Clause 8(3)]
3. Power to inquire or investigate cases forwarded by the Comptroller and Auditor General of India after submission of its annual report to Parliament. [Clause 15(2A)]
4. Power to close a case if the complaint is not made out. [Clause 8(2)(a)]
5. Power to investigate any offence under any other law if related to the original case under investigation. [Clause 12(2)]
6. Power to issue search warrant to an officer not below the rank of Inspector of Police in relation to an ongoing inquiry or investigation. This warrant will be deemed to have been issued by a court of competent jurisdiction under the Criminal Procedure Code, 1973. [Clause 9]
7. Power to order seizure of any property found during the search. [Clause 9]
8. Power to issue order for the safe custody of documents relevant to an investigation. [Clause 16(ii)]
9. Powers of civil court available during a preliminary inquiry or investigation to summon and enforce attendance of any person and examine him or her under oath; require the discovery and production of any document, receive evidence on affidavit, requisition any public record from any court or office. [Clause 10]
10. Powers to approve interception and monitoring of messages of data and voice transmitted through telephones, internet or any other medium under Indian Telegraph Act, 1885 read with the Information Technology Act, 2000. [Clause 13C]
11. Power to investigate any action taken with the general or specific approval of a public servant where a complaint involving a grievance or allegation is made in respect of such action. Such investigation may be launched suo motu or upon a reference received from the Government of India if such action in the recorded opinion of the Lokpal can be or could have been the subject of a grievance or allegation. [Clause 16]
12. Power to make public all documents relating to a case that has been closed by the Lokpal after preliminary inquiry or investigation. All information to be provided to any person making a request under the Right to Information Act, 2005. [Clause 16 (i)(a)]
13. Power to ensure videography of all hearings before the Lokpal and to make available copies to any member of the public on payment of copying costs. However in exceptional circumstances in camera hearings are allowed. [Clauses 16(i)(b) & 16(ii)(c)]
14. Power to protect the identity of the complainant on a specific request. [Clause 16(i)(c)]
Prosecutorial powers:
1. Power to prosecute offenders in designated courts under the Prevention of Corruption Act, 1988 without the requirement of sanction from the Government under that law or under the Criminal Procedure Code, 1973. [Clauses 8(6) & (7)]
2. Power to initiate prosecution against private entities that are parties to an offence under the Prevention of Corruption Act, 1988. [Clause 8(2)(b)]
3. Full bench of the Lokpal to grant permission for prosecution. [Clause 14(5)(i)]
4. Power to initiate prosecution against a public servant who does not comply with the requirement of filing annual statements of assets and liabilities to the Head of the Department under Section 176 of the Indian Penal Code. [Clause 28(4)]
Powers to ensure compliance:
Lokpal to have the powers of a High Court to ensure compliance with its orders. [Clause 13(4)]. The draft Bill seeks to amend the Contempt of Courts Act, 1971 to give this power and authority to the Lokpal. [Clause 13(4)].
1. Power to impose a fine on officials responsible for not complying with its orders and to direct the Drawing and Disbursing Officer of the Department to deduct the fine as specified in its order. No minimum or upper limit for fine is mentioned. [Clause 13]
2. Power to penalise the Drawing and Disbursing Officer for not complying with the order of deduction of fine. [Clause 13(3)]
Power of appeal:
Power to hear appeals when cases are closed by its own officials. [Clause 14(5)(iii]
Extraordinary powers:
Any proceedings before the Lokpal is deemed to be a judicial proceeding.
1. Power to order cancellation or modification of a license or lease or permission or contract or agreement which was the subject matter of the investigation. [Clause 8(2)(d)]
2. Power to blacklist a concerned firm or company or contractor or any other entity involved in the act of corruption. [Clause 8(2)(e)]
3. Power to issue directions to appropriate authorities for redress of grievances. [Clause 8(2)(f)]
4. Power to issue interim orders during preliminary inquiry or full investigation, recommending that the public authority stay the implementation or enforcement of a decision or action complained against or take such mandatory preventive action on such terms and conditions as the Lokpal may specify to prevent further harm from taking place. [Clause 16(iv)]
5. Power to issue interim orders during the preliminary inquiry or full investigation recommending the suspension or transfer of a government servant. [Clause 18(vi)]
6. Power to issue interim orders during the preliminary inquiry or full investigation recommending safeguarding public property from wastage or damage likely to be caused by the acts of the public servant. [Clause 18(vii)]
7. Right to move the appropriate High Court for seeking appropriate directions to be issued to a public authority that does not comply with a recommendation contained in an interim order issued by the Lokpal. [Clause 18]
8. Power to order removal of a public servant from his or her post at the end of an investigation. In the case of Ministers and MPs recommendation for removal will be made to the President of India. President may accept or reject the recommendation within a month. [Clause 18(viii)]
9. Power to take action for the protection of whistleblowers. [Clause 8(2)(h)]
10. Power to recommend imposition of appropriate penalties under the Civil Service Conduct Rules including power to recommend dismissal of a government servant if convicted under the Prevention of Corruption Act, 1988. These recommendations are binding on the Government and must be implemented within a week. [Clauses 8(2)(c) & 8(5)]
11. Power to recommend appointment of judges for the purpose of trying cases investigated by the Lokpal. Government must comply with this recommendation within three months. [Clause 13A]
12. Right to be consulted by the Government on the procedure to be followed in the selection of judges to ensure integrity of the candidates. [Clause 13A]
13. Power to order payment of compensatory cost in respect of a vexatious, false claim or defence. [Clause 10(2)]
14. Power to order cost for causing delay. [Clause 10(2)]
15. Power to issue Letters Rogatory in any pending case. [Clause 13B]
16. Power to impose penalties on government servants who issued threats to or caused the victimisation of a whistleblower. [Clause 20(2)]
17. Power to confiscate the properties of a public servant who fails to provide a satisfactory reply as to why such properties were not declared in the annual statement of assets and liabilities submitted to the head of the department. [Clause 28A]
18. Power to impose fines on complainants who file complaints without any basis or evidence and in the opinion of the Lokpal is intended to harass certain authorities. Fine may be up to Rs. 1 lakh. [Clause 31]
19. Power to initiate proceedings against candidates who contested parliamentary elections if their assets and liabilities statements do not match with the information available with the Income Tax Department. [Clause 28A]
20. Power to receive one half of the properties confiscated from public servant for the purposes of meeting the expenses of its own administration. [Clause 28A(8)]
21. Power to approve Rules proposed to be made under this law by the Central Government. There is no requirement of laying the Rules on the table of the Houses of Parliament for the purpose of approval or modification. [Clause 32(1)]
Administrative powers:
1. Lokpal to function in benches of three or more members constituted randomly by computer. Each bench must have one member with legal background. [Clause 14(4)]
2. Power to hear complaints against its own staff. [Clause 14(3)(ii)]
3. Power to lay down norms categorising cases that may be dealt with by the members of Lokpal and those to be dealt with by Chief Vigilance Officers or Vigilance Officers. [Clause 14(5)(iv)]
4. Power to make rules for the receipt and disposal of complaints from whistleblowers. [Clause 20(5)]
5. Power to decide the number of categories of officers and employees required for its functioning, their recruitment, conditions of service, payscales, allowances and special pay, if any. [Clause 23]
6. Power to requisition the services of any officer or investigating agency of the Central Government or any other Government or any private person or any other agency. [Clause 23(4)]
7. Power of administrative and disciplinary control over any officer whose services may be requisitioned and obtained by the Lokpal under this law. [Clause 23(5)]
8. Power of administrative and disciplinary control over the Delhi Special Police Establishment which will stand transferred to the Lokpal and become its investigation wing. [Clause 25]
9. Transfer of all cases already being handled by the Delhi Special Police Establishment and the Central Vigilance Commission as on the date of enactment. [Clauses 24 & 25]
10. Officers of the investigation wing will have the same powers of arrest and other such powers as is given to the Delhi Special Police Establishment. [Clause 25]
11. Power to select, appoint and transfer Chief Vigilance Officers in all public authorities under the Government of India. [Clause 22]
Powers to protect whistleblowers:
1. Power to issue directions to the appropriate authorities to prevent victimisation of a whistleblower who makes a complaint under this law or files an information request under the Right to Information Act, 2005. [Clause 20(2)]
2. Power to direct the police to provide adequate security to a whistleblower and to register a criminal case against those who threaten or victimise the whistleblower. The responsibility of providing protection to whistleblowers may be delegated to Vigilance Officers. [Clauses 20(2)(a) & 20(2(dc)]
3. Power to hold its own officers responsible for criminal dereliction of duty or connivance or both if the person who makes a complaint under this law is assaulted. [Clause 20(2)(dd)]
4. Power to order the appropriate authorities to withdraw a case filed against whistleblower on the basis of inquiries conducted by the Lokpal. [Clause 20(2)(da)]
Powers of Oversight:
1. Power to issue directions from time to time to appropriate authorities so as to change their work practices, administration and other systems in order to reduce the scope and possibility for corruption, misconduct, public grievances and whistleblower victimisation. [Clause 8(4)]
2. Power to monitor the progress of investigation into offences alleged by the complainant to have been committed under any law other than the Prevention of Corruption Act, 1988 but in relation to the original complaint made under this law. [Clause 20(2)(g)]
3. Power to issue directions from time to time to appropriate authorities so as to prevent recurrence of victimisation of whistleblowers. [Clause 20(4)]
4. Power to issue directions to any public authority to make changes in its Citizens Charter (directions must be approved by a three member bench). Public authority to comply with such orders within a week. [Clause 21(5)]
5. Power to appoint Chief Vigilance Officers in every public authority. [Clause 22(1)]
Clauses involving the judiciary or affecting its powers:
1. A bench to hear a petition for removal of the Chairperson or a member of the Lokpal will consist of five senior-most judges of the Supreme Court. [Clause 7(3)(e)](3)
2. The Supreme Court cannot dismiss petitions for removal of the Chairperson or a member of the Lokpal in liminae. [Clause 7(3)(f)](4)
3. Chairperson of the Lokpal to deal with complaints against judges of the Supreme Court and the High Court. Screening of the complaint to be done by a member of the Lokpal who will present the findings to the full bench of the Lokpal. [Clause 19B]
4. Registration of a case against a judge of the Supreme Court or the High Courts to be done only with the approval of a full bench of the Lokpal where 2/3rds of the members have legal background. [Clause 19B]
5. Such cases are to be investigated by police officers above the rank of Superintendent of Police. [Clause 19B]
6. A decision to prosecute a judge of the Supreme Court or the High Courts will require the approval of a full bench of the Lokpal where 2/3rds of the members have legal background. [Clause 19B]
1. Since 2004 this Commission has been bifurcated into separate National Commissions, one for SCs and the other for STs.
2. Section 36: “Powers of superior officers of police.– Police Officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of the station.”
3. This clause overrides the power of the Supreme Court to make rules in consultation with the President of India as to the number of judges who are to sit for any purpose under Article 145(2) of the Constitution.
4. This clause overrides the inherent powers of the Supreme Court.
