What will be the Lokpal?s jurisdiction?

The GoI Bill gives the Lokpal powers to pursue all corruption cases against the PM after he has demitted the office, MPs (exempting statements and votes given by MPs in Parliament or parliamentary committees), ministers, Group A officers, and officers of societies or trusts financed by government or through public funds. The GoI cites Article 105(2) to say what MPs do in Parliament is protected by the Constitution.

The Jan Lokpal (JLP) Bill covers all public servants, including judges, MPs, ministers and also the sitting PM. But no investigation or prosecution against the PM, minister, judge or MP can be initiated without obtaining permission from a 7-member bench of the Lokpal. NGOs aren?t covered. But MPs? actions within Parliament and also investigations into complaints by whistleblowers are given special emphasis. There is also a call for a citizens? charter here, wherein each public authority shall prescribe a charter for the performance of its public functions and accordingly be held accountable to the Lokpal.

The National Campaign for Peoples? Right to Information (NCPRI) argues there is no legal or moral justification for excluding the PM from the Lokpal?s purview, albeit this should be done with safeguards involving the full bench of the Lokpal, the CJI and a full bench of the SC. NCPRI also recommends that the Lokpal?s purview should extend to any private body, corporation or profit-seeking entity that receives from any public authority any concession or dispensation that is in violation of the law or of prevailing rules. It further seeks the speedy activation of a strengthened Judicial Standards and Accountability Bill, extension of the GoI Bill to set up and cover Lokayutkas in all the states, and mechanisms for covering the categories of public servants excluded from the current government Bill.

What are the Lokpal?s powers of investigation and prosecution?

The GoI Bill provides the Lokpal with independent investigation and prosecution wings. However, if the Lokpal requires, the central government will make available such number of investigation officers as needed, who shall both complete their investigation and submit their report within the time frame specified by the Lokpal. Investigating officers can search seize documents in conformity with the Code of Criminal Procedure, 1973, and also attach assets (for a limited period) but only as long as the Special Court is notified immediately. If the public servant is subsequently convicted for corruption, the attached property shall vest with the central government. Special Courts will be set up to ensure completion of each trial within one year from filing of the case in the Court.

The JLP Bill also provides for search and seizure under the provisions of the Code of Criminal Procedure, 1973. For investigation and prosecution purposes, this Bill envisions the merger of the anti-corruption branch of the CBI into the Lokpal. There is a provision for Special Courts here as well, as under the Prevention of Corruption Act, 1988.

What kind of penalties can the Lokpal prescribe?

Under the Prevention of Corruption Act, 1988, ?any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine?. This is what guilty parties can generally expect under the GoI Bill.

Under the JLP Bill, public servants can get punishment of not less than six months of rigorous imprisonment, which may extend up to imprisonment for life. Fines are provisioned for up to five times the loss caused to the public. Public servants convicted under the Prevention of Corruption Act shall stand removed from office. And if any company or any of its officers are similarly convicted, the company could be blacklisted and become ineligible for government contracts.

What about penalties for frivolous complaints?

The GoI Bill prescribes that those who make false, frivolous or vexatious complaints will be punished with imprisonment of not be less than two years, extending up to five years. Convicts could be fined between R25,000 and R2 lakh.

The JLP Bill, with reference to frivolous or malafide complaints against the Lokpal itself, says the Supreme Court may impose a fine or an imprisonment up to one year or both on the complainant.

NCPRI finds the provisions of the government Bill draconian?as these would strongly discourage most people from making any complaints?and suggests that the fine should be in the range of R5,000 and R1 lakh rupees.

How is the Lokpal to be appointed?

The GoI Bill requires that the Lokpal chairperson and members shall be appointed by the President after obtaining the recommendations of a selection committee consisting of the PM, the Lok Sabha Speaker, the Leader of Opposition in Lok Sabha, the Leader of Opposition in Rajya Sabha, a Union Cabinet minister nominated by the PM, one sitting judge of the SC nominated by CJI, one sitting chief justice of a high court nominated by CJI, one eminent jurist nominated by the central government, and one person of eminence nominated by the central government. Such a selection committee could also resort to a search committee to shortlist candidates.

The JLP Bill requires that the selection committee comprise of the PM as committee chairperson, alongside the Leader of the Opposition in the Lok Sabha, two judges of Supreme Court of India and two permanent chief justices of the high courts selected by a collegium of all Supreme Court judges, the chief election commissioner of India, the CAG and all previous chairpersons of Lokpal. Here, it is required that at least four members of Lokpal have a legal background.

Objecting that five out of nine members in the GoI Bill would be appointed by the central government, NCPRI suggests that the Lokpal chairperson and members be appointed by the President upon recommendations from a selection committee comprising the PM, the Leader of Opposition in Lok Sabha, and one sitting judge of the SC to be nominated by CJI.

Note that the PM is the chairperson of the selection committee in all three cases.

How can the Lokpal be removed?

The GoI Bill requires that any complaint against the Lokpal chairperson or member should be made to the President who would then seek the CJI?s opinion before removing the concerned Lokpal functionary and ordering the initiation of prosecution. Even an ordinary citizen can petition the President who, after examining the appeal, can forward it to the Supreme Court. In cases under the Prevention of Corruption Act, 1988, the Lokpal itself would also pursue and wrap up an inquiry within 30 days of its receipt.

The JLP Bill makes provision for the complaint to be directed to the SC but, here too, the chairperson or any other member of the Lokpal is to be removed from office only by the President.

NCPRI, after pointing out that the basic philosophy behind an independent Lokpal is that no institution should be solely responsible for investigating and prosecuting its own officers in matters related to corruption, suggests that the Lokpal shall refer such matters to an Ombudsman appointed for this purpose by an independent committee, who will complete its inquiry within 30 days.

Have the government and Team Anna showed signs of reconciling their differences over the Lokpal?

There are the obvious differences on whether the PM should be covered, and Anna Hazare?s team is convinced that the government wants to settle scores by saying that NGOs will be under the purview of the Lokpal. The government only wants senior bureaucrats to be under the Lokpal and its Bill has no provisions for the Lokpal to cancel licences or blacklist firms.

But there has been plenty of progress. For example, the government has hitherto deployed its right to give sanction to prosecution of public servants for corruption as a device for delaying rather than delivering justice: as of end-2010, the Centre had not provided responses to 236 requests for prosecuting bureaucrats, 66% of which were pending for over three months. It has come really far in now declaring that no sanction shall be required by the Lokpal for investigations into complaints against public servants.

On the opposing side, earlier JLP drafts had demanded that the selection committee for the Lokpal must include the last two Magsaysay Award winners of Indian origin. That demand is now history as is the demand for the Lokpal?s power to order cancellation or modification of any licence or lease or permission or contract or agreement in case corruption is proved. We now see a much more reasonable power to ?recommend? cancellation or modification on the JLP side. If the concerned public authority rejects the same demand in a month?s time, the JLP Bill now says that the Lokpal may approach the appropriate high court for appropriate directions.

The JLP Bill wants the CBI?s anti-corruption and prosecution wings as part of the Lokpal. While the GoI doesn?t agree, its Lokpal Bill provides for the Lokpal to have its own investigation and prosecution wings. Democracy is on the march. It?s a pity that the standoff approach of both sides has prevented any appreciation of this.

renuka.bisht@expressindia.com