The Lokpal and Lokayuktas Act 2013

The Lokpal and Lokayuktas Act, 2013

[A Critical Analysis]

Submitted to-

Ms. Neha Sinha

(Faculty of Law, HNLU Raipur)

Submitted by-

Aunnesha Dey

Semester VI- Section ‘C’

Roll no.- 38

Sociolology (Majors)

Hidayatullah National Law University, Raipur (C.G.)

Submitted on 18th February, 2015

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The Lokpal and Lokayuktas Act 2013

Acknowledgement

The project has been prepared in consideration within the available time and resources. On

completion of the project satisfactorily and successfully land new in the midst of elation at the

movement. On the culmination of finishing my project, I am in dept to all those who helped me

continuing my task, up till end especially to my lecturers who were the sources of constant

inspiration and encouragement for the completion of the project. I owe a deep sense of gratitude

and in debt to our lecturers for giving us opportunity to write and help us and guide us with

throughout the project. To make subject clearer suitable details have been given. Errors do creep

of every care has been taken as it is well known fact that it is impossible to escape the devil of

errors.

Words fail to express my deep sense of glee to my honorable teacher, Ms. Neha Sinha who

enlightened me with her beautiful work on the topic. I would like to thank her for guiding me in

doing all sorts of researches, suggestions and having discussions regarding my project topic by

devoting her precious time.

My heartiest thanks also go to H.N.L.U for providing Library, Computer and Internet facilities.

And lastly I thank my friends, seniors and all those around me who have helped me in the

completion of the project in collecting and locating all the required source of materials. It is my

great pleasure to acknowledgement my deep sense of gratitude to our teachers for their valuable

guidance and thanks to all my friends for their valuable contribution and help in completion of

the project.

Aunnesha Dey

Roll No-38

Sociology(Majors)

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The Lokpal and Lokayuktas Act 2013

Objectives

To study the background and the need for a Lokpal Act.

To critically analyze its compositions and provisions under the Act.

To study the major drawbacks of the Act.

Research Questions.

1. Why the Lokpal Act was needed to curb down Corruption?

2. What is the significance of the Act?

3. What were the recommendations of the Select Standing Committee of Rajya Sabha?

Research Methodology

This research project is largely based on secondary & electronic sources of data. Books, case

laws, journals & other reference as guided by faculty are primarily helpful for the completion of

this project.

Nature of Study

This research project is Theoretical in nature since it is largely based on secondary & electronic

sources of data and also since there is no field work involved while producing this research and it

largely involves study of various articles and comparison from different books, journal and other

online sources thus not being empirical in nature.

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The Lokpal and Lokayuktas Act 2013

Index

Introduction……………………………………………………………..5

Significance of the Bill………………………………………………….6

Background……………………………………………………………..7

Salient Features of the Bill ……………………………………………....8

Recommendations of the

Standing Select Committee of Rajya Sabha…………………………….10

Major Drawbacks of

The Lokpal and Lokayuktas Act, 2013………………………………..14

Conclusion……………………………………………………………… 15

Bibliography……………………………………………………………..16

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The Lokpal and Lokayuktas Act 2013

Introduction

The Lokpal Act, 2013, officially The Lokpal and Lokayuktas Act, 2013, is an anti-

corruption Act of Indian Parliament in India which "seeks to provide for the establishment of the

institution of  Lokpal  to inquire into allegations of corruption against certain public

functionaries and for matters connecting them".1

The bill was tabled in the Lok Sabha on 22 December 2011 and was passed by the house on 27

December 2011 as The Lokpal and Lokayuktas Bill, 2011. The bill was subsequently tabled in

the Rajya Sabha on 29 December 2011. After a marathon debate that stretched until midnight of

the following day, the vote failed to take place for lack of time.2 On 21 May 2012, the bill was

referred to a Select Committee of the Rajya Sabha for consideration. The bill was passed in the

Rajya Sabha on 17 December 2013 after making certain amendments to the earlier Bill and in the

Lok Sabha on 18 December 2013.3 The Bill received assent from President Pranab Mukherjee on

1 January 2014 and came into force from 16 January 2014.[14][15]

The bill was introduced in parliament following massive public protests led by anti-corruption

crusader Anna Hazare and hisassociates.4 The bill is one of the most widely discussed and

debated bills in India, both by the media and the People of India at large, in recent times. The

protests were named among the "Top 10 News Stories of 2011" by the magazine Time. The bill

received worldwide media coverage. A recent survey estimated that corruption in India had cost

billions of dollars and threatened to derail growth.5 India lost a staggering $462 billion in illicit

financial flows due to tax evasion, crime and corruption post-Independence, according to a report

released by Washington-based Global Financial Integrity. 6

1 "Lokpal Bill tabled in Rajya Sabha, din blocks debate". Business Standard India. 13 December 2013. Retrieved 4 October 2014

2 K.V. Prasad (30 December 2011). "News / National   : No vote on Lokpal, Rajya Sabha adjourns abruptly" . Chennai, India: The Hindu. Retrieved 29 May 2012.

3 Economic Times (18 December 2013). "Lokpal Bill passed in Lok Sabha". Economic Times. Retrieved18 December 2013.

4 "Lokpal Bill tabled in RS, sent to select committee – Politics – Politics News – ibnlive". Ibnlive.in.com. 21 May 2012. Retrieved 29 May 2012.

5 "Survey on Bribery and Corruption". KPMG. Retrieved 11 June 2012.

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The Lokpal and Lokayuktas Act 2013

The historic Lokpal and Lokayuktas Bill, 2011 passed by Parliament (December 17, 2013

in Rajya Sabhaand December 18, 2013 in Lok Sabha) paves the way for setting up of the

institution of  Lokpal at the Centre and Lokayuktas in States by law enacted by the respective

State Legislatures within one year of coming into force of the Act.  The Bill as passed by both

Houses went to the President for his assent and became law upon being assented by the

President.  The new law provides for a mechanism for dealing with complaints of corruption

against public functionaries, including those in high places.

 

Significance of   the   Bill:

           

The passing of this Bill by both Houses of Parliament is significant in itself, having regard to the

fact that all attempts in the past to bring a Lokpal law have failed.  Eight Bills on Lokpal had

been introduced in the Lok Sabha in the past.  However, these Bills had lapsed consequent upon

the dissolution of the respective Lok Sabha except in the case of the 1985 Bill, which was

subsequently withdrawn after its introduction.  The passing of the present Bill by both Houses on

this occasion is indicative of the resolve of the Parliament and the Government to give to the

nation an effective anti-corruption framework. 

Another significant feature of the Bill is that it has taken its present shape after repeated

consultations with all stake holders including civil society. The Lokpal and Lokayuktas Bill is

perhaps the only Bill in the history of independent India, which has been so widely discussed,

both inside and outside Parliament and has, thus generated so much awareness in the public mind

about the need to have an effective institution of Lokpal to tackle corruption. 

 

Background

 

6 "Graft and bribe: India lost $462 billion post-independence". The Economic Times. 18 June 2011. Retrieved 11 June 2012.

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The Government constituted a Joint Drafting Committee (JDC) on April 08, 2011 to draft

a Lokpal Bill.  There were extensive deliberations on the ‘basic principles’ of the Bill.  The

divergence of views between the representatives of the Government and the representatives of

the Civil Society on some issues resulted in two separate drafts of the Lokpal Bill, namely, the

Jan Lokpal Bill prepared by the representatives of the Civil Society and the draft Bill prepared by

the Government side.  The divergence of views of the Government and of the representatives of

the Civil Society in the Joint Drafting Committee, was a pointer towards the complexities of the

legislative exercise which required striking of a balance of the provisions of the proposed

legislation with the Constitutional provisions without tinkering with the basic fabric of the

Constitution.  Consultations were, therefore, held with all Political Parties and the State

Governments on the contours of the proposed Bill.  An all Party Meeting was held on  July 03,

2011.

Government, thereafter, introduced the Lokpal Bill, 2011 in the Lok Sabha on August 04,

2011. The Bill was referred to the Department-Related Parliamentary Standing Committee on

Personnel, Public Grievances, Law and Justice for examination and report. Subsequently, when

the matter was discussed in both the Houses of the Parliament simultaneously on August 27,

2011, the sense of the House was summed up by the then Finance Minister, in the following

words:

 "This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought

under Lokpalthrough appropriate mechanism and establishment of Lokayuktas in the States. I

will request you to transmit the proceedings to the Department-related Standing Committee for

its perusal while formulating its recommendations for a Lokpal Bill."

The Standing Committee, after extensive discussions with all the concerned stakeholders, in its

Report on the Bill, made a number of recommendations suggesting major amendments in the

Bill, both as regards the scope and content of the Bill.   This Committee also recommended that

necessary provisions be made, in the Union legislation, for establishment of Lokayuktas in the

States, so  as  to provide leverage to the States where no such institution exists and to bring in

uniformity in the laws relating to State Lokayuktas which are already in existence in a number of

States. Upon consideration of the recommendations of the Standing Committee, the Government

withdrew the Lokpal Bill, 2011 pending in the Lok Sabha and introduced a new

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comprehensive Lokpal and Lokayuktas Bill, 2011 in the Lok Sabha on December 12, 2011.  The

Bill was passed by Lok Sabha on December 27,  2011.  The Rajya Sabha adopted a motion on

May 21, 2012 to refer the Bill to a Select Committee of the Rajya Sabha for examination and

report. The Select Committee, after extensive consultations with stakeholders, submitted its

report to the Rajya Sabha, recommending a number of amendments in the Bill.  Having regard to

the repeated consultations which this Bill has undergone both before and after having been

passed by Lok Sabha, and the extensive changes it has undergone during this process,  it may not

be incorrect to say that the present Bill represents the broad consensus of the people of India.

 

Salient Features of the Bill  

 

The Bill as passed by Parliament provided broadly for the following:

 

(a)        Establishment of the institution of Lokpal at the Centre and Lokayuktas at the

level of the States, thus providing a uniform vigilance and anti-corruption road-

map for the nation, both at the Centre and the States. 

(b)        The Lokpal to consist of a Chairperson and a maximum of eight Members, of

which fifty percent shall be judicial Members. Fifty per cent of members

of Lokpal shall be from amongst SC, ST, OBCs, Minorities and Women. 

(c)        The selection of Chairperson and Members of Lokpal shall be through a Selection

Committee consisting of –

Prime Minister;

Speaker of Lok Sabha;

Leader of Opposition in the Lok Sabha;

Chief Justice of India or a sitting Supreme Court Judge nominated by CJI;

An eminent jurist to be nominated by the President of India

 

(d)       A Search Committee will assist the Selection Committee in the process of

selection.  Fifty per cent of members of the Search Committee shall also be from

amongst SC, ST, OBCs, Minorities and Women.

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(e)        Prime Minister was brought under the purview of the Lokpal with subject matter

exclusions and specific process for handling complaints against the Prime

Minister. 

(f)        Lokpal’s jurisdiction will cover all categories of public servants including Group

‘A’, ‘B’, ‘C’ & ‘D’ officers and employees of Government.  On complaints

referred to CVC by Lokpal, CVC will send its report of Preliminary enquiry in

respect of Group ‘A’ and ‘B’ officers back to Lokpal for further decision.  With

respect to Group ‘C’ and ‘D’ employees, CVC will proceed further in exercise of

its own powers under the CVC Act subject to reporting and review by Lokpal.

(g)        All entities receiving donations from foreign source in the context of the Foreign

Contribution Regulation Act (FCRA) in excess of Rs. 10 lakhs per year are

brought under the jurisdiction of Lokpal.

(h)        Lokpal will have power of superintendence and direction over any investigation

agency including CBI for cases referred to them by Lokpal.  

(i)         A high powered Committee chaired by the Prime Minister will recommend

selection of the Director, CBI. 

(j)         Attachment and confiscation of property of public servants acquired by corrupt

means, even while prosecution is pending.

(k)        Clear time lines for:-

Preliminary enquiry – three months extendable by three months.

Investigation – six months. (This may be extended by six months at a time.)

Trial – one year extendable by one year and, to achieve this, special courts to

be set up.

(l)         Enhancement of maximum punishment under the Prevention of Corruption Act

from seven years to 10 years.  The minimum punishment under sections 7, 8, 9

and 12 of the Prevention of Corruption Act will now be three years and the

minimum punishment under section 15 (punishment for attempt) will now be two

years.

Recommendations of the Standing Select Committee of Rajya Sabha.

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Improvements recommended by the Standing Select Committee of Rajya Sabha, in its Report,

made recommendations suggesting amendments to several clauses of the Bill.  Most of these

recommendations have been accepted and have now become part of the Bill as passed by both

Houses of Parliament.  Some of the significant amendments in the Bill in this regard are as

follows:-

(a)        Freedom to States to decide upon the contours of their

respective Lokayuktas:

 

The Select Committee  recommended the omission of Part-III of the Bill which dealt

with setting up of the Lokayuktas in the States.  The Select Committee recommended that

this part of the Bill may be replaced with a new Section 63 which contains a mandate for

setting up of the institution of Lokayukta through enactment of a law by the State

Legislature within a period of 365 days from the date of commencement of the Act.   This

was accepted by the Government. Thus, the Bill as passed by Parliament finally has,

whilefully  respecting the true spirit of federalism and the freedom of the States to decide

upon the contours of the Lokayukta mechanism in their respective States, mandated the

States to set up Lokayuktas under their own enactment within one year from the coming

into force of the present Act.

 

(b)       Broad basing of the Selection Committee for selection of Chairperson and

Members of Lokpal:

 

The fifth member of the Selection Committee for selection of Lokpal, under the

category of “eminent jurist”, will now be nominated by the President on the basis of

recommendation of the first four members of the Selection Committee, namely, (1)the

Prime Minister, (2)the Speaker, Lok Sabha,  (3)the Leader of Opposition, Lok Sabha and

(4)the Chief Justice of India.  This has ensured that there is no dominance of Government

representation on the Selection Board.

 

(c)        Jurisdiction of Lokpal to cover institutions fully or partly ‘financed” by

government:

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Institutions which are “financed” fully or partly by government have been

retained under the jurisdiction of Lokpal, but the institutions “aided” by government have

been excluded.  This has ensured that the Lokpal is not clogged with complaints relating

to small institutions such as schools, societies, etc. which are aided by government in one

form or the other, thus leaving the Lokpal free to handle big ticket corruption cases more

effectively.

 

(d)       Adequate protection for honest and upright public servants.

The Bill ensures that no honest public servant is subjected to unnecessary

harassment by providing for affording of opportunity of hearing to the public servant

before order of investigation/prosecution except in cases requiring search and seizure.

(e)        Lokpal conferred with power to sanction prosecution of public servants in

place of the government/competent authority:

The power to grant sanction for prosecution of public servants has been shifted to

the Lokpal in place of the Government/competent authority. The Lokpal will, however,

seek comments of the competent authority and the public servant before taking such

decision.            After taking a decision on filing of charge sheet in a case (upon

consideration of the investigation report), the Lokpal may authorise its own Prosecution

Wing or the concerned investigating agency to initiate prosecution in the Special

Court.  The original Bill as passed by Lok Sabha provided for prosecution of the case

only by the Prosecution Wing of the Lokpal.

 

(f)        Strengthening of CBI:

The Bill also contains a number of provisions aimed at strengthening the Central

Bureau of Investigation, such as -

(i)                 the setting up of a Directorate of Prosecution headed by a Director of

Prosecution under the overall control of Director, CBI;

 

(ii)        the appointment of the Director of Prosecution on the recommendation of

the Central Vigilance Commission;

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(iii)       maintenance of a panel of advocates by CBI, other than the Government

Advocates, with the consent of the Lokpal for handling Lokpal referred

cases;

 

(iv)      transfer of officers of CBI investigating cases referred by Lokpal with the

approval of Lokpal;

 

(v)       provision of adequate funds to CBI for investigating cases referred

by Lokpal, etc.7

Major Drawbacks of the Lokpal and Lokayuktas Act, 2013

The first thing that we observe when we scrutinize the current anti graft laws is that most them

are applicable (more or less specifically) to public servants. Section 12 of Money Laundering act

7 The Lokpal and Lokayuktas Bill, 2013 Ministry of Personnel, Public Grievances and Pensions, retrieved 23 rd

December, 2013 http://pib.nic.in/newsite/erelease.aspx?relid=102096

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of 2002 which lays down the guidelines for Banking Companies, Financial Institutions and

Intermediaries of securities market however, exempts them from any civil proceedings against

them for furnishing information under clause b of Section 12. This loophole in the act may allow

for many “under the table” deals for the corporate. Even the Lokpal and Lokayukta bill 2013

specifically targets corruption in the public systems and the public servants.

The major flaw of the Lokpal act is that it excludes religious bodies and NGOs which account

for major foreign inflows to the nation. Leaving aside the recent IB report and the outcry against

NGOs, there are some good NGOs engaged in the public domain and there are these others

which are simply a front for turning black money white. Religious bodies along with NGOs and

educational institutes accounted for 19 % of the total foreign inflows last year. Leaving these

bodies outside the scrutiny of Lokpal act is the same as leaving political parties out of the

jurisdiction of the RTI. Although such a move can raise a bigger outcry in a highly

“religious” country as ours, there needs to be a regulatory authority to check the finances and

accounts of these religious bodies and NGO’s.8

Conclusion

The Lokpal and Lokayuktas Act, 2013 is indeed a great step but its effective results depend upon

its effective implementation. There are certain flaws like no protection to the whistleblower and

8 Why A Single Lokpal Will Not End Corruption: Loopholes In India”s Anti Graft Laws June 19, 2014 Akshay

Thakre: http://www.youthkiawaaz.com/2014/06/single-lokpal-will-end-corruption-loopholes-indias-anti-graft-

laws/

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five years of imprisonment for making a false complaint. Also the Lokpal will get the cases

investigated by any other probing agency including CBI. The investigating agencies are under

the administrative control of government.

One must not, however, be under any illusion that the Lokpal law by itself would solve the

problem of corruption. Unless we tackle and change the policies that create enormous incentives

for corruption and monster corporations that become too powerful for any institution to control,

the fight will be incomplete. The judiciary too is in need of comprehensive reforms.

So the Lokpal Bill will surely help in combating corruption but to weed out this problem every

sector must be audited. The desired change can be brought by completely freeing the Lokpal and

its investigating agencies.

The Lokpal Bill in isolation cannot work successfully. So along with this the Right of Citizens

for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2010,

Whistleblowers Protection Bill and Judicial Accountability Bill should have been passed.

But an independent, credible and empowered Lokpal is a necessary, though not a sufficient,

condition to effectively control corruption.

Bibliography

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Justice C.K. Takwani's Lectures on Administrative Law - Eastern Book Company; 5th edition

(2012) Reprinted in 2014.

 Dr. I.P. Massey – Administrative Law, Eastern Book Company; 8th Edition (2012).

Articles Referred

"Lokpal Bill tabled in Rajya Sabha, din blocks debate". Business Standard India. 13 December 2013. Retrieved 4 October 2014

K.V. Prasad (30 December 2011). "News / National   : No vote on Lokpal, Rajya Sabha adjourns abruptly". Chennai, India: The Hindu. Retrieved 29 May 2012.

Economic Times (18 December 2013). "Lokpal Bill passed in Lok Sabha". Economic Times. Retrieved18 December 2013.

"Lokpal Bill tabled in RS, sent to select committee – Politics – Politics News – ibnlive". Ibnlive.in.com. 21 May 2012. Retrieved 29 May 2012.

"Survey on Bribery and Corruption". KPMG. Retrieved 11 June 2012."Graft and bribe: India lost $462 billion post-independence". The Economic Times. 18 June 2011. Retrieved 11 June 2012.

The Lokpal and Lokayuktas Bill, 2013 Ministry of Personnel, Public Grievances and Pensions, retrieved 23rd December, 2013 http://pib.nic.in/newsite/erelease.aspx?relid=102096

Why A Single Lokpal Will Not End Corruption: Loopholes In India”s Anti Graft Laws June 19, 2014 Akshay Thakre: http://www.youthkiawaaz.com/2014/06/single-lokpal-will-end-corruption-loopholes-indias-anti-graft-laws/

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