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 time-bound 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.

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 days 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, 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, and of the Lokpal, 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?

Independence

Superintendence and Administrative Control over the CBI: 

Though the L&L Act envisages that the Lokpal may use any agency it chooses to enquire or investigate complaints under its jurisdiction, in actual fact there are very few choices at the moment apart from the CBI. But, in order to ensure that such investigations, many of which might involve very senior and powerful members of the government, are fair and professional, the CBI must be functionally independent of the central government.

To some degree this independence has been achieved by the L&L Act changing the process of selecting the director of the CBI, who would now be selected by a committee consisting of the prime minister, leader of opposition of the Lok Sabha, and the CJI or a Supreme Court judge nominated by him. Prior to this, the CBI director was appointed by a committee dominated by functionaries of the incumbent government.

The Act also envisages that the Lokpal will have powers of “superintendence” over the CBI. However, experience has shown that such powers are meaningless without instruments to ensure actual administrative control. The Act empowers the Lokpal with partial administrative control over the CBI as it states that transfer of CBI officers investigating cases referred by the Lokpal can be done only with the approval of the Lokpal. Unfortunately, all this is still not adequate to provide the required functional independence to the CBI.

The central government still controls the budget of the CBI, appoints its officials, and is the receiving authority for the annual confidential reports of senior CBI officials, thereby making them vulnerable to pressure from the government. It would have been much better if the CBI had been brought under the comprehensive administrative and financial control of the Lokpal, whose own expenditure is chargeable to the consolidated fund of India. Or at the very least, the appointment and removal of senior CBI officers should have required the approval of the Lokpal and for officers working on cases referred by the Lokpal, the chairperson of the Lokpal should have been the receiving authority for the annual confidential reports. These measures were suggested by various civil society groups, but ignored by the government.

Empowerment

Arbitrary Time Frame for Completion of Trial:

 The Act, in Section 35, specifies that any trial before the special court must be completed in two years. While it is a welcome move towards ensuring time-bound completion of trial, the Act does not specify what would happen in those rare cases where, despite best efforts, this was not possible. This ambiguity could lead to the proceedings being abandoned just because they could not be completed in time, and the accused getting off scot-free. This would also give an incentive for the accused to delay the proceedings. Therefore, a caveat to prevent benefit or undue advantage to the accused should have been included in the Act.

Power to Order Inquiry or Investigation without Seeking Government Approval: 

Unfortunately Section 6A of the Delhi Special Police Establishment Act of 1946, which specifies that the CBI cannot inquire or investigate into any offence committed by an officer of the rank of a joint secretary or above of the Government of India, and of equivalent rank in government-owned or controlled bodies, without the previous approval of the central government has not been specifically amended or overridden in this Act. Though in Section 23(1) of the L&L Act of 2014 it is specified that the Lokpal shall have the right to order prosecution, notwithstanding anything contained in Section 6A referred to above, it does not similarly talk about inquiry or investigation. However, this appears to be an oversight as the general tenor of the L&L Act and many other sections suggest that the Lokpal should be able to order the CBI to inquire or investigate without seeking permission of the central government. Nevertheless, it needs to be corrected, otherwise it could make the Lokpal a non-starter for, though the Lokpal can ask agencies other than the CBI to inquire or investigate, presently there are very few such at the central level.

Jurisdiction

Power and Jurisdiction of the Lokayuktas in States: 

The biggest shortcoming of the Act is that while it makes it mandatory for Lokayuktas to be set up in each state within one year, state legislatures will be free to determine the powers and jurisdiction of the Lokayukta. The apprehension is that this could result in very weak and ineffective Lokayuktas being set up in many of the states, with limited jurisdiction. As much of the corruption that affects the common person, especially the poor and marginalised, occurs under the jurisdiction of the state government, the absence of strong and effective state Lokayuktas would deny the majority of Indians, especially those who are most in need of relief, any respite from rampant corruption.

Admittedly, this is one of the most politically sensitive issues. In fact, perhaps the main reason why the earlier bill was objected to by many of the opposition parties and even some of the constituent and support parties of the UPA, was because it provided for the simultaneous setting up of Lokayuktas in the states along the same lines as the Lokpal invoking Article 253 of the Constitution.

However, in the revised bill the government had the option of invoking Article 252 of the Constitution, which would allow each state to decide whether it wanted to enact a Lokayukta law or not. However, the law, when enacted, would have been identical to the central Act in terms of jurisdiction and efficacy. This would have been a preferred alternative.

Statute of Limitation

The Act envisages that the Lokpal “shall not inquire or investigate into any complaint, if the complaint is made after the expiry of a period of seven years from the date on which the offence mentioned in such complaint is alleged to have been committed.” This seems to be unnecessarily restrictive, especially in relation to some of the large and complex scams that are exposed from time to time. Scams are often unearthed only after a political regime change, especially if they involve high level public functionaries. If a complaint is accompanied with credible proof, there is no reason why it should not be examined by the Lokpal.

Coverage of the Private Sector

The jurisdiction of the Lokpal covers all complaints under the PCA 1988. Unfortunately, the PCA is weak insofar as fixing responsibility of the private sector is concerned. Recent events have shown that even where companies or other private entities are in receipt of government patronage in the form of illegitimate profit-making opportunities, unless it can be proved that they had bribed or otherwise benefited a public servant, it is almost impossible to indict them under the PCA. 

Accountability

The Act falls short on several counts on ensuring the accountability of the Lokpal. Being a high-powered anti-corruption agency with powers of enquiry, investigation and prosecution, strong measures were required to ensure the accountability of the institution and officials of the Lokpal.

Parliamentary Oversight

As per Section 48 of the Act, the Lokpal is required to send an annual report to the president on the work done by it which is to be laid before each house of Parliament. The Lokpal should have been made accountable to Parliament for the maintenance of ethical standards within the institutions, specifically maintaining impartiality in functioning, especially the absence of political, caste, class, gender and religious bias, the prevention of victimisation, and the avoidance of conflict of interests. This could have been ensured by constituting a multiparty Standing Parliamentary Committee which would have the responsibility of examining the functioning of the Lokpal and be empowered to receive complaints against the Lokpal and its members and officers regarding parameters of ethical functioning.

Complaints against the Chairman and Members of the Lokpal: The L&L Act envisages that any complaint against a member or chairperson of the Lokpal will be taken cognisance of only if it is signed by at least a 100 MPs.²⁵ However, past experience has shown that this is very difficult to implement, especially as the matter often becomes politicised. Civil society groups had suggested that ordinary citizens also be empowered to make complaints against members of the Lokpal – a suggestion that was not accepted by the select committee and has not been included in the Act.²⁶ The select committee in its report has noted that it was felt that “empowering citizens to approach the Supreme Court directly would result in flooding the Supreme Court with large number of petitions”.²⁷

Complaints of Corruption against Lokpal Staff: The Act envisages that the Lokpal would itself deal with complaints of corruption against its own staff.²⁸ Considering one of the basis of setting up an independent Lokpal is the principle that all complaints of corruption should be dealt with by independent bodies, and considering the type of powers the Lokpal has, there would be many opportunities by its staff to indulge in corrupt practices, the Act should have provided for a system that is independent of the Lokpal to deal with complaints of corruption against Lokpal staff. A suggestion made to the Standing Committee²⁹ was that an ombudsman be appointed by an independent committee, which would in a time-bound manner enquire into the complaints against Lokpal staff, and make recommendations to the Lokpal, which would be binding. However, the suggestion was not accepted.

Workability

Coverage of Public Servants Belonging to Groups C and D: The Act envisages that all the nearly 30 lakh groups C and D public servants³⁰ would be covered by the CVC.³¹ However, it does not specify how a CVC, located in Delhi, would receive complaints, conduct preliminary enquiries, and exercise superintendence and issue directions on investigations, against lakhs of employees who are spread across thousands of post offices and manned railway crossings, for example, in the villages of India. Would they set up thousands of thanas in the villages and rural blocks of India, or would they expect villagers to come to Delhi, or to state or district headquarters, to lodge and pursue complaints and conduct enquiries and oversee investigations? And would it be desirable to have thousands of new CVC thanas all over the country? Would these prevent or promote corruption? The Act and the explanatory notes accompanying the Act do not clarify the envisaged process.

Conclusions

If the L&L Act is properly implemented, it should provide a significant deterrent to corruption, especially the high level of corruption that seems to have become increasingly common in India. Of course, in order to achieve that, it has to be ensured that the right sorts of people are appointed to the Lokpal, that they and the agencies assisting them are provided adequate and appropriate human and financial resources, and that there is political will, especially among the top political and bureaucratic leadership, to make this institution succeed.

Though getting this far has been a major struggle for the people of India, they need to continue to be vigilant and to keep up the pressure on the government to ensure proper implementation. And the L&L Act by itself is only a part of the battle won, other legislations are required to ensure a comprehensive reform of the anti-corruption and grievance redress framework of the country. The three critical bills pending in Parliament are the Judicial Standards and Accountability Bill, the Whistle Blowers Protection Bill, and the Grievance Redress Bill. These need to be appropriately amended and urgently passed by Parliament.

“DoPT diluting Lokpal selection process”

Bharatiya Janata Party leader Arun Jaitley has slammed the Department of Personnel and Training (DoPT) for diluting the role of Selection and Search Committees for Lokpal, the anti-corruption ombudsman.

Referring to the refusal of senior lawyer Fali Nariman to join the Search Committee, Mr. Jaitley said “the best people should be appointed to the anti-corruption body and the procedure should be strictly on the basis of the Lokpal Act. The purpose of the DoPT is only to provide administrative and logistic support to the Selection Committee and the Search Committee.”

Mr. Jaitley, who had written to Prime Minister Manmohan Singh on the issue twice earlier, alleged that the DoPT violated the Lokpal Act to rush through the appointments and “pack it with its own men.”

K.T. Thomas refuses to head Lokpal search panel

‘Job only to pick names provided by Centre’

In a setback for the UPA government’s efforts to put in place the Lokpal before the expiry of its term, former Supreme Court Judge K.T. Thomas on Monday decided not to head the search committee.

The panel’s mandate is to forward names to a selection committee headed by the Prime Minister for appointment of the chairperson and other members of the Lokpal.

Last week, eminent lawyer Fali Nariman declined to be part of the same panel stating that the current selection process would overlook “the most competent, the most independent and the most courageous.”

Speaking to The Hindu from Kottayam, Justice Thomas said, “When Mr. Nariman opted out of the search panel, I got a copy of the Lokpal rules and after going through the rules I fully agree with what Mr. Nariman has said.”

He found the “recommendations of the search committee are not binding on the selection committee. Therefore, the work of the search committee can as well be done by the selection committee itself.” In his letter to Minister of State in the PMO V. Narayanasamy, in which he declined to be part of the search committee, Justice Thomas said its job was only to pick names from the list given by the Department of Personnel and not make an independent search.

He said the move to seek applications from persons to be considered for Lokpal membership had been widely criticised, and there was no doubt it would deter deserving persons from being considered. Justice Thomas said he did not consider it worthwhile to travel to New Delhi just to draw up a panel from the list.

Besides the Prime Minister, the selection panel has the Lok Sabha Speaker, the Leader of the Opposition, the Chief Justice of India or a judge of the apex court nominated by him, and an eminent jurist nominated by the President or any other member.

The mischief in the rules

The refusal by two eminent jurists to join the Lokpal Search Committee is symptomatic of the credibility crisis that the United Progressive Alliance (UPA) regime faces in its last days. Even the process of putting in place an independent anti-corruption ombudsman has been engulfed in controversy, exposing the government to the charge that it is in an unseemly hurry to appoint the body before the expiry of its term.

At the very first meeting of the Selection Committee, Sushma Swaraj, Leader of the Opposition in the Lok Sabha, objected to the inclusion of senior advocate P.P. Rao in the selection panel as the fifth member, and her objection was overruled. Senior advocate Fali Nariman declined to be on the Search Committee, voicing the fear that in the two-stage selection process, “the most competent, the most independent and the most courageous will get overlooked.”

Retired Supreme Court judge, Justice K.T. Thomas, went through the Rules framed under the Lokpal and Lokayukta Act, and noted that the Search Committee’s recommendations were not binding on the Selection Committee, headed by the Prime Minister. Such controversies need not imply that the statutory framework for the Lokpal is substantively flawed; but when the finer points in the process that emerge after rules are framed appear loaded in favour of the ruling dispensation, the process itself becomes suspect.

When the much-delayed Bill was passed in Parliament in December 2013, there was a sense of relief that a reasonably sound law was in place. However, the government equipped itself with some potential filters while framing the rules. The process involves a Selection Committee that will appoint a Search Committee. Going by the rules, the search panel will scrutinise only applications forwarded to it by the Department of Personnel and Training. The rule circumscribes the Search Committee’s role to choosing names out of a list submitted by the government and blocks any independent nomination from the community at large. Further, the panel of names recommended by it need not be accepted by the Selection Committee, which is free to consider names from outside the panel too. Empowering the apex committee with the freedom to go beyond the recommendations may not be inherently wrong. However, the potential for mischief in confining the first stage to a government list and conferring wide discretion on the selection panel in the second stage may ultimately result in some deserving candidates being ignored or, worse, someone deemed inconvenient being deliberately disregarded. The government needs to shore up the credibility of the process; as an immediate step, it should revisit the rules and give a free hand to the Search Committee to do its job.

Rule falls foul of independent Lokpal: plea

The Supreme Court has been moved challenging the entire process of selection of the chairperson and members of the Lokpal.

In a writ petition, Common Cause said, “the Rule, in so far as it provides that the Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment of the chairperson and members of the Lokpal from amongst the list provided by the Central government, directly runs counter to the very object of having an independent Lokpal and the provisions of the said Act.”

The petitioner said “Rule 10 (4) (i), which states that non-judicial members of the Lokpal, apart from having special knowledge and expertise of not less than 25 years in matters relating to the anti-corruption policy, public administration, vigilance or law, must have held or must be holding the post of Secretary to the Government of India or any equivalent thereto under the Central government or a State government travels beyond the scope of the Lokpal Act.”

It pointed out that at least four sitting judges of the Supreme Court “are reported to have expressed their willingness for being considered for the post of judicial member of the Lokpal. Their candidature, even though permitted under Section 3 (3) of the Act, will seriously compromise the independence of the judiciary which is a part of the basic feature of our Constitution.”

Why the rush on Lokpal appointments, asks BJP

Jaitley questions propriety; raises code issue

The BJP has launched an attack on the United Progressive Alliance government’s attempt to appoint the first Lokpal, calling it a violation of the Election Commission’s Model Code of Conduct. A BJP spokesperson said that the party had also written to the Election Commission asking that the process be halted. R. Ramakrishna, National Convener, BJP Election Cell, wrote to the EC on Saturday, asking Election Commissioner V. Sampath to put on hold all major appointments until a new government was formed.

In a letter Mr. Ramakrishna maintained that government was trying to hurry major appointments during the elections and cited the case of the new Naval chief’s appointment.

“We learn that something similar is cooking in respect of the Army chief, where the present incumbent is due to superannuate in July, 2014. We also hear that there is some hurried activity in hastening the selection process of the Lokpal. It may be recalled the process of selection got aborted by the exit of the eminent jurists and as such the whole selection process currently stands vitiated. These are not desirable trends in a healthy democracy,” Mr. Ramakrishna said.

The EC on Sunday could not confirm receipt of the letter and had no decision to announce. Prime Minister Manmohan Singh had written to members of the Selection Committee on April 11, asking if they were available to meet in the last week of April.

The NGO Common Cause which has challenged the rules governing appointment of the Lokpal, a proposed anti-corruption watchdog, moved a fresh application before the Supreme Court last Thursday, asking that the entire process be put in abeyance.

Meanwhile, BJP leader Arun Jaitley asked if it was proper for the UPA “on the eve of its departure” to rush through the appointment of the Lokpal.

Centre puts Lokpal on hold

The Centre on Thursday assured the Supreme Court that no meeting of the selection committee headed by Prime Minister Manmohan Singh would take place to finalise the names for the Lokpal panel.

Hearing a writ petition filed by NGO Common Cause challenging the Lokpal selection process, Solicitor-General Mohan Parasaran gave this assurance before a Bench of Justices R.M. Lodha and M.Y. Eqbal.

In its petition, the NGO said the government, despite an assurance, was going ahead with the process.

Lokpal: Modi government to rectify selection process

work has begun to effect changes in the rules on the mandate of the search committee which will be notified soon.

As per existing rules, an eight-member search committee is tasked with drawing up a panel of persons for consideration by the selection committee led by Prime Minister. These persons have to be chosen from among the panel provided by the DoPT, the rules say.

However, the government will now empower the search committee to include people from outside the list provided by DoPT for consideration by the committee, the sources said.