THE LOKPAL AT LAST
The Lokpal Act of 2014: An Assessment (Free
Brief History and Salient Features (Free
Critique of the Act (Free Available)
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
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
(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
(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?