The Lokpal at Last: Civil Services Mentor Magazine - March 2014

THE LOKPAL AT LAST

The Lokpal Act of 2014: An Assessment

The Lokpal and Lokayuktas (L&L) Act 20141 was passed by Parliament in December 2013, and got Presidential assent on 1 January 2014. It aims to prevent and control corruption through the setting up of an independent and empowered body at the central level, called the Lokpal that would receive complaints relating to corruption against most categories of public servants and ensure that these are properly investigated and, where warranted, effectively prosecuted. All this is envisaged in a timebound manner, with the help of special courts set up for the purpose. The Act also makes it incumbent for each state to pass, within a year, a law setting up a body of Lokayuktas at the state level, but leaves it to the states to work out the details.

Brief History and Salient Features

The process leading to the enactment of the L&L Act started in 2010, when the government formulated a new Lokpal Bill. This bill, however, was widely criticised for being weak. In December 2011, the revised and renamed Lokpal and Lokayuktas Bill, 2011 was introduced in, and subsequently passed by, the Lok Sabha. However, this bill could not be passed in the Rajya Sabha due to objections by some of the opposition parties to various sections of the bill.

In May 2012, the bill was referred to a Select Committee of the Rajya Sabha to try and develop a consensus on the disputed issues. After the report of the Select Committee was submitted in November 2012, the bill was again taken up in the Rajya Sabha and passed, with several amendments, on 17 December 2013. The amended bill was sent back to the Lok Sabha, which passed it on 18 December 2013. The bill received the assent of the president on 1 January 2014, thereby becoming the L&L Act of 2014.

Process of Investigating and Prosecuting Complaints of Corruption: The L&L Act 2014 provides for setting up a body called the Lokpal at the central level to have complaints of corruption against various categories of public servants enquired into, investigated, and prosecuted, as warranted. The bill makes it mandatory for states to set up Lokayuktas within one year of the passage of the bill, but the nature and type of Lokayukta is left to the discretion of the state legislatures.

The legislation envisages that the Lokpal would receive complaints of corruption against the prime minister, ministers, Members of Parliament (MPs), officers of the central government (all levels), and against functionaries
of any entity that is wholly or partly financed by the government with an annual income above a specified limit, and also, all entities receiving donations from foreign sources in excess of 10 lakh per year.

The Act states that on receipt of a complaint against any public servant, except for officers from groups A, B, C or D, the Lokpal will order a preliminary inquiry against the public servant. The inquiry may be done by its own inquiry wing, provided for this purpose, or the Lokpal may direct the Central Bureau of Investigation (CBI) or any other agency to do the preliminary inquiry. The preliminary inquiry has to ordinarily be completed
within 60 to 90 days6 and a report has to be submitted to the Lokpal. For complaints against public servants belonging to groups A, B, C or D, the Lokpal will refer the complaints to the Central Vigilance Commission (CVC) for preliminary inquiry. After the completion of the preliminary inquiry, the CVC will submit its report to the Lokpal in respect of public servants belonging to group A or B, while in cases of public servants belonging to group C or D, the CVC will proceed in accordance with the provisions of the CVC Act, 2003.

Upon receiving the report of the preliminary inquiry (for groups A and B officers and other public servants, including ministers and MPs), the Lokpal will give an opportunity to the public servant to be heard, and if it decides that there exists a prima facie case, order an investigation by the CBI (or any other agency) or order departmental proceedings against the concerned public servant. The investigation has to be ordinarily completed within six months, extendable to one year, and a report has to be submitted to the appropriate court having jurisdiction, with a copy being sent to the Lokpal.

Every investigation report must be considered by a bench consisting of not less than three members of the Lokpal and, after obtaining the comments of the public functionary, the Lokpal may grant sanction to its own prosecution wing, or to the investigating agency, to file a charge sheet before the special court, or direct filing of a closure report, or direct initiation of departmental proceedings against the concerned public servant.

Apart from providing the Lokpal with its own prosecution wing,9 the bill provides for amending the Delhi Special Police Establishment Act, 1946 to set up a Directorate of Prosecution headed by a Director of Prosecution under the overall control of the CBI director.

For the purpose of deciding cases arising out of the Prevention of Corruption Act (PCA), 1988, the bill provides for setting up of special courts. All trials in the special courts have to be ordinarily completed within one year, extendable to two years for reasons to be recorded in writing.

Selecting Members of the Lokpal: The Lokpal chairperson and its eight members will be selected by a committee consisting of the prime minister, the speaker of the Lok Sabha, the leader of opposition in the Lok Sabha, the chief justice of India (CJI) or a judge of the Supreme Court nominated by the CJI, and one eminent jurist, as recommended by the other four members of the committee. A search committee of at least seven members will be constituted to shortlist a panel of eligible candidates for the post of chairperson and members of the Lokpal. This panel would be put up to the selection committee. At least half the members of the search committee,13 and of the Lokpal,14 must be from amongst persons belonging to the scheduled castes, the scheduled tribes, Other Backward Classes, minorities and women.

Critique of the Act

The appropriateness and efficacy of the Act can be determined by applying the five-point test: are the institutions and processes proposed to be set up under the Act:

(a) Adequately independent of the government and others whom they are mandated to scrutinise, so that they can function without interference, pressure, and conflict of interest;

(b) Adequately empowered to detect, investigate and prosecute cases of corruption;

(c) With adequate jurisdiction, so that no category of public servant is exempt from effective scrutiny;

(d) Adequately accountable to the people of India; and

(e) Yet, practical and realistically workable?

Ajay Kumar

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