News-Police takes action against Baba Ramdev

Government says, the Yoga Guru Ramdev violated the terms of permission given by the Delhi Police for holding the Yoga shibir at Ramlila Maidan.

The government today justified police action to end Baba Ramdev's agitation against corruption in Delhi's Ramlila maidan. Speaking to reporters in New Delhi, Union minister Kapil Sibal said the yoga guru had violated the undertaking for permission and had even backed out on his assurances to end fast yesterday. Mr. Sibal, who was holding negotiations with Ramdev over the last few days, said there were apprehensions about law and order situation in Delhi. Mr Sibal said 50,000 people were at Ramlila Maidan although Ramdev had sought permission for a yoga camp for a gathering of 5,000 only.

As far as we are concerned the issue that were raised and these are issue in the public domain which we are addressing even in dealing with the Lokpal Bill, issues in relation to corruption, issue in relation how to deal with corruption at high places and of course as far as Swami Ramdev's agenda was concern it was even broader than that. We set out in writing in clear terms that what the government is doing and he publicly stated that 90 per cent of the demands have been met and this is exactly why he gave a written undertaking and this written undertaking came from him that commitment was by the afternoon of yesterday he will give up his tap because they was no question of fasting committed that you would only do a tap than in the afternoon he did not do so.

The Delhi Police today registered a case against unnamed persons on charges of rioting in connection with the Baba Ramdev-led protest at Ramlila Maidan in the National Capital. Talking to our correspondent, Delhi Police spokesman Rajan Bhagat said the case was registered at Kamla Market police station against unidentified people on charges of rioting, preventing public servants from discharging duties and damaging public property. Police sources said, Ramdev has been banned from entering Delhi for 15 days. Reacting to the development, Congress leader Digvijay Singh justified the action against Baba Ramdev. Mr Singh accused him of inciting people despite striking a deal with the government for ending his protest. Mr Singh also demanded an inquiry into the thousands of crores of rupees of property owned by Ramdev.

\BJP has criticised the police action. Addressing newsmen in Lucknow today, BJP President Nitin Gadkari alleged that Congress is not ready to discuss corruption issue through democratic means. Replying to questions, he said the issue of corruption should not be politicised. Speaking to reporters in New Delhi, leader of the opposition in Lok Sabha leader Sushma Swaraj condemned the happenings at Ramlila Maidan. Speaking to AIR, senior CPI leader Gurudas Dasgupta wondered why a yoga guru like Baba Ramdev has sought to become an exponent against corruption. Addressing his followers on arrival at his Ashram in Haridwar today Baba Ramdev said, his Satyagraha against Black Money' would continue. Meanwhile, leader of Opposition in Uttarakhand Assembly Harak Singh Rawat briefing the media persons in Dehradhun made allegation of corruption against Baba Ramdev and demanded a high level inquiry against him and his Ashram.

news-Govt fails to break Baba fast

Govt fails to break Baba Ramdev's fast

After a five-hour marathon meeting, the Union government and Baba Ramdev failed to reach a compromise on the demands raised by the yoga guru, who said he will launch his indefinite fast as planned.Emerging from the meeting at a hotel in New Delhi, HRD Minister Kapil Sibal said the two sides had constructive dialogue on several matters and they are very happy with the progress but these issues cannot be resolved in a day."We have yet not reached a compromise and I will sit on fast" Ramdev said after his meeting with Sibal and and Subodh Kant Sahai.

Meanwhile, Prime Minister Manmohan Singh also briefed President Pratibha Patil on the deliberations.Sibal said the government has responded positively to the Baba's suggestions and hoped that Ramdev will do "what is right".

Political Career for Indian Youth- Lokpal Bills 2010-11 Comparision

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.

Political Career for Indian Youth- Jan Lokpal Bill- Theme-7 Drafting Errors

Issues for Consideration and Recommendations for Improvement

Theme 7: Drafting Errors

Issue 1: No ouster clause attached to Clause 28(4)

Clause 28(4) in the Draft Bill seeks to make submission of property statements a statutory obligation for all government servants. It also seeks to empower the proposed Lokpal to initiate prosecution against errant public servants in the event of non-compliance. While this is a welcome measure this provision is not linked to an ouster clause that bars the operation of Section 197 of the CrPC. Under Section 197 no court may take cognizance of an offence without the previous sanction of the appropriate Government. The ouster clause contained in Clause 8(7) earlier in the text states that it is applicable to all proceedings initiated under the Act. However that Clause ought to have been placed in the last part of the Draft Bill under the chapter relating to Miscellaneous provisions. This would ensure that arguments about general law and special law and earlier law and later law are not launched in a bid to scuttle the intent of Clause 8(7) vis-à-vis Clause 28(4).

Recommendation:

The ouster clause contained in Clause 8(7) may be placed in the Chapter on Miscellaneous provisions to avoid unnecessary confusion.

Issue 2: Exercise of the powers of delegated legislation

Clause 32 empowers the Central Government to make Rules to carry out the provisions of this Act when adopted. However the Rules can be made only after obtaining the approval of the proposed Lokpal. This requirement is contrary to principles of delegated legislation. A Government’s power to make Rules under an Act cannot be fettered in this manner. However there is no harm in requiring the Central Government to consult with the Lokpal prior to notifying the final version of the Rules. This is in fact desirable. The Judicial Standards and Accountability Bill, 2010 requires the Central Government to consult with the Chief Justice of India before making Rules under its provisions. The making of Rules is not contingent upn securing the approval of the Chief Justice.

Recommendation:

In the proviso under Clause 32(1) of the Draft Bill, the words: “and” and “approval of” occurring after the words: “made only in consultation” may be dropped.

Issue 3: Make Rules and Regulations after prior publication

The Draft Bill does not contain any requirement for consulting the people while making Rules and Regulations. This is contrary to the very process that has informed the drafting of the Bill itself. When the main law is drafted in consultation with people, there is no reason why subsidiary legislation must not involve public consultations. Section 23 of the General Clauses Act contains a procedure for notifying Rules and Regulations after prior publication. This procedure enables people to participate in the rule making process and ensures that people exercise oversight over excessive use of delegated powers to the detriment of the letter and spirit of the principal Act. Under this procedure people will have the opportunity for suggesting amendments to the draft rules and regulations before they are operationalised.

Recommendation:

Clauses 32 and 34 may be amended to require prior publication of the Rules and Regulations notified under the law.

Issue 4: Absence of laying requirements for Rules, Regulations and Orders

The Draft Bill does not require that the Rules, Regulations and Clarificatory orders notified by the Government or the proposed Lokpal to be tabled in Parliament for modification, if necessary. Laying of subsidiary legislation in both Houses of Parliament is essential for Parliament to exercise oversight on the actions of delegatees. If enabling provisions are not incorporated in a Bill delegated legislation will escape parliamentary scrutiny and deprive Parliament of an opportunity to annul or modify Rules and Regulations that are contrary to the spirit of the principal Act.

Recommendation:

Clauses 32, 33 and 34 may be amended to include laying provisions for Rules, Regulations and Clarificatory orders using the standard formula. (See Section 29 of the RTI Act)

Issue 5: Overriding effect of the law

Clause 35 of the Draft Bill states that it will override all other laws in their entirety. This is contrary to established practice. As it deals with a specific category of criminal offences this law must be subject to the safeguards in the CrPC. Therefore it is advisable to give this law an overriding effect on other laws only to the extent of inconsistency.

Recommendation:

Clause 35 may be substituted with the following:
“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Issue 6: Minor drafting errors need to be ironed out

There are several drafting errors in the Draft Bill. Some glaring examples are as follows:

a) Clause 6(1) states that the President shall appoint the Chairperson and the Members of the Lokpal. However earlier in the Draft Bill Clause 3(4) states that the Government shall appoint the Chairperson and members of the first Lokpal within six months of enactment. This amounts to contradiction as to who will appoint the first Lokpal.

b) Clause 3 does not differentiate between the ‘establishment’ and the ‘constitution’ of the Lokpal. The Government will have to first create the institution of the Lokpal through a gazette notification. Then the members will have to be appointed. These sub-clauses need to be differently worded. Sections 12 and 15 of the RTI Act can provide guidance in this regard.

c) Clause 6(8)(a) states that the selection committee will select a five member search committee comprising of former C&AGs and Chief Election Commissioners (CEC). At any given point of time only one person will be functioning as the CEC. This clause needs to be amended to include the term ‘former’ before the words: “Chief Election Commissioners.”

d) Clause 6(8)(d) makes for convoluted reading. The ostensible purpose of this Clause is to provide for situations such as the appointment of a person as Chairperson of the National Human Rights Commission. The eligible candidate must have served as the Chief Justice of India. However this sense is not properly conveyed by this Clause in its current formulation.

e) The Draft Bill’s provisions are loosely worded in several places. For example Clause 31(2) states as follows: “Such fines shall be recoverable as dues under Land Revenue Act.” Laws relating to land revenue differ from State to State and have different names. This clause may be redrafted to state as follows: “Fines imposed under this section shall be recovered in the manner of arrears of land revenue.”

Political Career for Indian Youth- Jan Lokpal Bill-Theme 6-Penalties

Issues for Consideration and Recommendations for Improvement

Theme 6: Penalties
Issue 1: Providing limits to fines

Clause 7(g) of the Draft Bill empowers the Supreme Court to impose an unlimited fine on complainants who make frivolous petitions seeking the removal of a Chairperson or Member of the proposed Lokpal. Similarly Clauses 13(2) and (3) also do not stipulate any maximum limit for fines that may be imposed by the Lokpal on officers for non-compliance of their orders. Unlimited fines violate the principle of proportionality that must guide the imposition of penalties and punishments. We have already recommended replacement of the procedure for removal of Members of the Lokpal. So Clause 7(g) will have to be dropped. In Clause 13 a maximum limit on the fines that can be imposed by the Lokpal may be stipulated.

Recommendation:

A maximum limit for the fines may be stipulated in Clauses 13(2) and (3).

Issue 2: Enhancement of penalties contained in other laws

Clause 19A of the Draft Bill seeks to enhance the term of imprisonment for offences recognised under the Prevention of Corruption Act. This is not in tune with proper legislative practice. Punishments may be enhanced only by amending the parent law. Further, the first proviso to this Clause stipulates that the severity of the punishment will be in accordance with the rank of the accused officer- higher the rank, more severe the punishment. The second proviso stipulates that a fine amounting to five times the loss caused to the public exchequer may be imposed on a business entity that may have benefited from the act of corruption. These provisos violate Article 14 of the Constitution as they violate the principle of equal treatment of all persons before the law. If necessary, punishments may be enhanced by amending the Prevention of Corruption Act. However sentencing a person to prison for life or realizing five times the loss caused in addition to other punishments may violate the principle of proportionality in stipulating punishments in the law. Such exemplary punishments will only make the task of obtaining a conviction harder.

Recommendation:

Clause 19A may be dropped.

Political Career for Indian Youth- Jan Lokpal Bill- Theme 5-Finacial Matters

Issues for Consideration and Recommendations for Improvement

Theme 5: Financial Matters
Issue 1: Financing the Lokpal

The Draft Bill seeks to provide the proposed Lokpal with three sources of funding. Clause 4(4) provides for the charging of all administrative expenses of the Lokpal including salaries, allowances and pensions on the Consolidated Fund of India. According to Clause 14(3) the monies required for meeting the financial and human resource expenses will be decided in a meeting between the Lokpal and the Prime Minister. The Government will be duty bound to provide these resources. Clause 4(5) provides for the creation of a separate Lokpal Fund in which penalties and fines imposed by the Lokpal will be deposited. 10% of the loss of public money recovered under Clause 19 will also be deposited under this fund. According to Clause 28A 50% of the proceeds from the auction of the property of public servants forfeited to the Lokpal will be deposited in this fund and can be used for its administrative expenses. Some of these principles of funding are questionable for the following reasons:

a) While it is good practice to create a separate fund into which monies will be deposited for use by the Lokpal, limiting the discussions on the budget to the Prime Minister is undesirable. The Lokpal is currently envisaged as a statutory authority created by Parliament. Logically, the Lokpal should be made answerable to Parliament for its perfromance. So Parliament should have a role to play in assessing the performance of the Lokpal. The Draft Bill should provide for a clear procedure for Parliament to scrutinize the performance of the Lokpal.

b) Under the General Financial Rules (GFR) applicable to the Government of India all fines levied and collected and the proceeds of auctioning forfeited properties must be deposited in the treasury (Rule 16). Similarly the proceeds of an auction will have to be deposited with the public exchequer. The absorption of funds in the manner provided in the Draft Bill will require amendment to the GFR. However this practice is not advisable as it amounts to financing the Lokpal with monies not sanctioned by Parliament. This is contradictory to the principle of financial accountability of all public authorities to Parliament.

It is advisable that the manner of funding the Lokpal be debated more widely and solutions be found to ensure that the autonomy of the Lokpal is protected while at the same time making it accountable to Parliament for every paisa spent.

Recommendation:

The Draft Bill may be suitably amended after a wider debate on the manner in which the Lokpal must be funded.

Issue 2: Remuneration for Lokpal staff

According to Clause 23(7) of the Draft Bill the staff and officers of the Lokpal will be entitled to such pay and allowances which may be different and more than the ordinary pay scales in the Central Government as may be decided by the Lokpal in consultation with the Prime Minister. While the intention of this provision is to ensure that the Lokpal staff are not corrupted by extraneous influences the formulation of this provision may fall foul of Article 14 of the Constitution which mandates equality for every person before the law. Instead the existing Clause 23(3) is adequate for the purpose of deciding the pay structure for the staff of the Lokpal.

Recommendation:

Clause 23(7) may be dropped.

Political Career for Indian Youth- Jan Lokpal Bill-theme 4-power

Issues for Consideration and Recommendations for Improvement

Theme- 4 – Power

Issue 1: Need for clarity on procedures for inquiry and investigation

The Draft Bill uses the terms ‘inquiry’ and ‘investigation’ interchangeably in several places and in a few as two separate actions. These terms have specific meaning in criminal law and the Draft Bill must recognize them as such. There is no clarity on the scope of actions that constitute an inquiry process that is different from an investigation process. It is also not clear as to when a complaint will be recorded as a First Information Report (FIR) or when suo motu cognizance of a matter by the Lokpal will be converted into an FIR. No investigation may be conducted without an FIR being registered under the existing criminal law procedure. Will this be done in a police station or will the Lokpal itself be a police station for the purpose of the CrPC? Also, there is little clarity in the Draft Bill about the exercise of powers relating to arrest, bail, summoning witnesses for interrogation etc. which are all part and parcel of the criminal law procedure. Provisions clearly spelling out these matters need to be incorporated in the draft Bill.

Recommendation:

The Draft Bill must clarify the scope of actions in an ‘inquiry’ process as well as the procedure that will be adopted in the lead up to the investigation of an offence covered by this law.

Issue 2: Powers of civil court vis-à-vis investigation

Clause 12 seeks to make the proposed Lokpal a deemed police officer as understood in Section 36 of the CrPC. Clause 10(3) states that any proceeding before the Lokpal will be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. Clause 10(2) seeks to give the powers of a civil court to the Lokpal for the purpose of conducting any investigation including preliminary inquiry. These powers include examining any person on oath. This combination of powers is hugely problematic for the following reasons:

a) an inquiry or investigation launched into a criminal offence is not a judicial proceeding under criminal law.

b) Statements made to an Investigating Officer (IO) under Section 161 cannot be adduced as substantive evidence during a trial. Under Section 162 the IO cannot require a witness making such a statement to sign it nor can it be used in a court of law for any purpose except for the purpose of cross examination.
c) However if statements are collected on oath they will be in the nature of confessions or statements made under Section 164 of the CrPC. These statements have substantive evidentiary value as they are made before a Magistrate. Under this procedure the Magistrate is required to inform the witness that he or she is not bound to make such a statement [this is the fundamental right of non-self incrimination guaranteed under Article 20(3) of the Constitution] and that any statement made by him or her may be used against him or her. The combination of powers enables the Lokpal to act as a police officer and compel a witness to make a statement on oath which can then be used as substantive evidence in a trial. Important safeguards under the criminal law procedure will come to naught under the scheme of powers proposed in the Draft Bill. It is not advisable to give the powers of a civil court to the Lokpal for the purpose of investigating or inquiring into any matter. The powers available to the Lokpal on account of being a deemed police officer under the CrPC and the ability to approach the designated courts for the purpose of conducting search and seizures appear to be adequate.

Recommendation:

Sub-clauses (2) and (3) of Clause 10 may be dropped.

Issue 3: Power to punish for contempt

Clause 13(4) of the Draft Bill empowers the proposed Lokpal to punish any person as it were a court exercising contempt powers under the Contempt of Courts Act, 1971. This is also hugely problematic because powers to punish for one’s contempt are given only to the High Courts and the Supreme Court which have the power to impose punishments and fines. The Lokpal is not a court of record nor are its proceedings judicial in nature as has been argued above. However a way must be found to ensure that the Lokpal is able to do its work without hindrance and its directions and orders are complied with. This can be accomplished by permitting the Lokpal to move the High Court to get an enforcement order in the manner described in Clauses 18(iv) and (vi).

Recommendation:

Clause 13(4) may be replaced with provisions for enforcement contained in Clauses 18(iv) and (vi).

Issue 4: Powers of message interception and eavesdropping

Clause 13C of the Draft Bill seeks to make the proposed Lokpal the deemed designated authority for the purpose of intercepting and monitoring messages or data or voice transmitted through telephones or any other medium under the Indian Telegraph Act, 1885. This proviso is to be read with the provisions of the Information Technology Act which permits the interception of message transmitted through the Internet. Under the Indian Telegraph Act telephone tapping is permissible only in the event of occurrence of any public emergency or in the interest of public safety. The Hon’ble Supreme Court of India explained these grounds in the matter of People’s Union for Civil Liberties v Union of India and Anr. [JT1997(1)SC288] as follows:

“Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government specially authorised officer to take possession of any telegraph. Firstly, the occurrence of a "public emergency" is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to existence of such an emergency. Further, the existence of the emergency which is a pre-requisite for the exercise of power under this section, must be a 'public emergency’ and not any other kind of emergency. The expression 'public emergency has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which as to be read as a whole. In Sub-section (1) the phrase 'occurrence of any public emergency is connected with and is immediately followed by the phrase "or in the interests of the public safety". These two phrases appear to take colour from each other. In the first part of Sub-section (2) those two phrases again occur in association with each other, and the context further clarifies with amplification that a 'public emergency’ within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity or India, the security of the State, friendly relations with foreign States of public order or the prevention of incitement to the commission of an offence. It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a 'public emergency’ with a view to taking further action under this section. Economic emergency is not one of those matters expressly mentioned in the statute. Mere 'economic emergency'-as the High Court calls it -may not necessarily amount to a 'public emergency' and justify action under this section unless it raises problems relating to the matters indicated in the section.”

The Apex Court observed further as follows:

“Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. "Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
This judgement makes it abundantly clear that the powers to intercept messages and eavesdrop on conversations are ordinarily not required for the performance of the functions and duties of the Lokpal. There is no reason why this power should be vested in the Lokpal.

Recommendation:

Clause 13C may be dropped.

Issue 5: Conducting investigations in public and the disclosure of information

Clause 18 of the Draft Bill deals with provisions relating to investigations of complaints received by the Lokpal. All hearings are to be videographed and made available to any member of the public. Except for rare circumstances, all hearings during an investigation process where a public servant rebuts the allegations contained in a complaint against him or her are to be held in public [Clause 18(ii)]. If a case is closed all documents relating to the case are to be treated as public [first proviso under Clause 18(1)]. Clause 30A states that once an investigation or inquiry is complete in any case all records shall be posted by the Lokpal on a website. Information may be withheld only if disclosure will involve the identity of a person who has requested anonymity or if the disclosure is likely to threaten the internal and external security of India. It is laudable that the draft Bill places a lot of emphasis on transparency in the proceedings of the Lokpal. However the draft Bill fails to balance this public interest with other important public interests such as the right to privacy and the right to one’s reputation. In our society it is not uncommon for persons accused of offences to be stigmatised even though they may eventually be acquitted by a court of law. It is important to ensure adequate balance between the need for transparency and the need to protect privacy and reputation of individuals. The RTI Act provides adequate procedures and protection for protecting important public interests. The Draft Bill may be aligned with the provisions of this Act. This would also ensure that the Central Information Commission will be able to adjudicate over access disputes instead of the Lokpal which will become an interested party in such matters.

Recommendation:

The Draft Bill may be amended in the appropriate places to ensure that access to information may be provided by the Lokpal in accordance with the procedures and provisions of the RTI Act.

Issue 6: Hiring private agencies for investigation

Clause 23(4)(c) of the Draft Bill seeks to empower the proposed Lokpal to utilize the services of any person including private persons or any other agency for the purpose of conducting investigations. This is also a problematic provision as investigations must be conducted by government servants only as they are accountable to the law. Private agencies cannot be held accountable in a similar manner as they do not fall within the meaning of the term ‘State’ as defined in Article 12 of the Constitution. Private agencies may be hired only for the purpose of providing specialised services such as forensics.

Recommendation:

Clause 23(4)(c) may be amended to ensure that private persons or agencies may be hired only for the purposes of highly specialized or skilled services which may otherwise not be available to the Lokpal from the government sector.

Issue 7: Maintaining independence of the prosecuting agency

The Draft Bill seeks to empower the proposed Lokpal with the powers to both investigate and prosecute cases of corruption. This provision is contradictory to the principle of separation of powers of investigation and prosecution. Until the CrPC’s thorough revamp in 1973 criminal investigation and prosecution were handled by a single agency namely, the police. The Law Commission in its 14th report argued for their separation on the following grounds:

1) There was too much control of the police department over the prosecution despite the latter being a function organically linked but theoretically independent of the former.
2) The Police Dept. had neither the legal know how to conduct a criminal prosecution nor the high degree of objectivity and detachment that is necessary for a prosecutor in the case. High degree of subjectivity and attachment with the case implies that the prosecutor will be more biased towards securing a conviction.
3) A prosecutor is an agent of justice and an officer of the trial court. He/she must have the independence to function in an unbiased manner. If not the basic principle of the criminal justice system – “the accused is to be presumed innocent until proven guilty” will be compromised.

The Law Commission’s recommendations were accepted and several States set up independent criminal prosecution directorates detaching the prosecution service from the police department. There is no reason why corruption cases cannot be investigated by the Lokpal and the prosecution be carried out by prosecutors selected from a panel of lawyers who are not on the payrolls of the Lokpal. Some have argued that the Central Bureau of Investigation (CBI) undertakes both investigation and prosecution of corruption cases. This is indeed true. However this mechanism appears to be different from the guidelines laid down by the Hon’ble Supreme Court in the matter of Vineet Narain and Ors v Union of India and Ors [JT 1997(10) SC247] Chief Justice J S Verma laid down guiding principles for the Prosecution Agency of the CBI as follows:

“1. A panel of competent lawyers of experience and impeccable reputation shall be prepared with the advice of the Attorney General. Their services shall be utilised as Prosecuting Counsel in cases of significance. Even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the CBI/Enforcement Directorate.

2. Every prosecution which results in the discharge or acquittal of the accused must be reviewed by a lawyer on the panel and, on the basis of the opinion given, responsibility should be fixed for dereliction of duty, if any, of the concerned officer. In such cases, strict action should be taken against the officer found guilty of dereliction of duty.
3. The preparation of the panel of lawyers with the approval of the Attorney General shall be completed within three months.
4. Steps shall be taken immediately for the Constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecutions in U.K. On the Constitution of such a body, the task of supervising prosecutions launched by the CBI/Enforcement Directorate shall be entrusted to it.

The aforementioned guidelines make it clear that the prosecution agency was never intended to be a part of the CBI. Its members were to be able to supervise the prosecutions launched by the CBI. However today the Directorate of Prosecution (Legal Division) is one of the seven divisions of the CBI under the overall supervision of the CBI Director. This appears to be the second instance of skirting around the letter and spirit of the guidelines laid down by the Apex Court in this case. The scheme proposed by the Apex Court for the CBI appears to be appropriate for the Lokpal as well. The Lokpal could draw up a panel of lawyers in consultation with the Attorney General for the purpose of conducting prosecutions. They could be remunerated for their services instead of putting them on the payrolls of the Lokpal.

Recommendation:

The Draft Bill may be amended to provide for prosecution of corruption cases in a manner comparable to that stipulated by the Hon’ble Supreme Court in the matter of Vineet Narain and Ors v Union of India and Ors.

Issue 8: Assigning work within the Lokpal

Clause 14(4) of the Draft Bill provides for the random assignment of members to benches using a computer. This is a strange provision given the fact that computers have not yet advanced to the stage where they will function without human intercession. A human being will still need to work the computer. It is commonplace for the head of such institutions to be given the responsibility for its general administration and superintendence including the constitution of benches. The Chairperson of the Lokpal must be empowered to constitute benches based on the principles laid down in the Draft Bill.

Recommendation:

Clause 14(4) may be substituted with a provision that empowers the Chairperson of the Lokpal to constitute benches for the purpose of performing various functions under the law.