11 Draft NCPRI Lokpal Bill 2011

8/4/2019 11 Draft NCPRI Lokpal Bill 2011

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NCPRI Presents an Alternative Approach: Collective and Concurrent Lokpal

Basket of Anti-corruption and Grievance Redress Measures.

(Draft Concept notes for widespread consultation)

The National Campaign for Peoples Right to Information (NCPRI) presen ted a

critique of the government draft of the Lokpal bill (as released on June 21) and

presented an alternate approach in the form of a basket of collective and concurrent

Lokpal anti-corruption and grievance redress measures at the Nehru Memorial

Museum and Library (NMML) on the 6th

of July 2011. On the 5th

of July, the NCPRI

held a consultation to discuss the alternate approach with various people. Theconsultations jointly organized by NCPRI, NMML and Inclusive Media for Change

were attended by several eminent people including Justice A. P. Shah, Admiral

Tahiliani, Wajahat Habibullah, Samar Singh, Vinod Mehta, Ram Bahadur Rai, TCA

Srinivasa Raghavan, Neelabh Mishra, Bharat Dogra, Sukumar Muralidharan, PV

Rajagopal, Medha Patkar, Kalpana Kannabiran, Yogendra Yadav, Madhu Kishwar,

Ravi Chopra, Amitabh Behar, Prashant Bhushan, CV Madhukar, Dipa Sinha, Kiran

Shaheen, Yamini Aiyar, Saikat Datta, Prashanto Sen, Subhash Chandra Aggarwal,

Harsh Mander, Shekhar Singh, Aruna Roy, Anjali Bhardwaj, and Vipul Mudgul.

The NCPRI critique and approach built on the public consultation organized by it on

the 16th

of April 2011. In the consultation, there was unanimity that all public servants

must be held accountable; however, it was felt that no single institution should be

made responsible for this mammoth task. A decentralised agency needs to be created

to address and redress the spate of grievances of the common citizen. Vesting such

all-encompassing power and responsibility in one institution would overload the

institution making it difficult for it to carry out any of its tasks. Therefore, a consensus

emerged that an approach of providing for a basket of collective and concurrent

Lokpal anti corruption and grievance redress measures should be explored.

In the consultations on the 5th

and 6th

of July, the NCPRI presented detailed draft

concept notes on enactment/ strengthening of five collective and concurrent anti-

corruption and grievance redress measures, namely:

1. Rashtriya Bhrashtachar Nivaran Lokpal ( National Anti-corruption Lokpal): Aninstitution to tackle corruption of all elected representatives, including the Prime

Minister (with some safeguards), Ministers and Members of Parliament and senior

bureaucrats (Group A officers) and all other co-accused including those in the

private and social sector. The Lokpal will be financially and administratively

independent from the government and will have both investigative and prosecution

powers.


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2. Kendriya Satarkta Lokpal(Central Vigilance Commission): Amending the CentralVigilance Commission Act to remove the single directive and empower the CVC to

investigate corruption and take appropriate action against mid-level bureaucracy.

3. Nyayapalika Lokpal (Judicial Standards and Accountability Lokpal): To strengthen

the existing Judicial Accountability and Standards Bill, that is currently before theParliament, to ensure that the judiciary is also made effectively and appropriately

accountable, without compromising its independence from the executive or the

integrity of its functions.

4. Shikayat Nivaran Lokpal (Public Grievances Lokpal): To set up an effectivetime-bound system for grievance redress for common citizens to make the

government answerable in terms of its functions, duties, commitments and obligations

towards citizens. The grievance redress structure would have decentralized

institutional mechanisms going right down to each ward/block level, and would

ensure a bottom-up, people centric approach so that complaints and grievances can be

dealt with speedily and in a decentralized, participatory and transparent manner. It

will integrate public vigilance processes like vigilance committees and social audits,and provide for facilitation for the filing of all grievances/complaints through the

setting up of block information and facilitation centres in every Block (rural) and

ward (urban) in the country. The grievance redress mechanism will be a three-tier

structure consisting of grievance redress officers at the local level within the

department, independent district level grievance redressal authorities (with power to

penalize and provide compensation) and appellate central/State level grievance

redressal commission. It will include and rationalize existing structures.

5. Lokrakshak Kanoon (Whistleblower Protection Lokpal): To strengthen the existingPublic interest Disclosure and Protection to Persons Making the Disclosure Bill, thatis currently before the Parliament, to ensure appropriate protection of whistleblowers.

These institutions, where relevant, will also be established at the state level. In

addition there will be a common selection process to staff these institutions.

The NCPRI feels that all these measures need to be brought in simultaneously to

effectively tackle corruption at all levels and provide a mechanism to redress

grievances of citizens.

The NCPRI hopes that this alternative approach will contribute positively to the anti-

corruption public discourse at a time when the government has come out with the

draft Lokpal Bill. The campaign is committed to substantive public debate on the draft

framework and provisions of each of these issues as part of its campaign for atransparent and participative pre-legislative process.

Signed:

Nikhil Dey, Venkatesh Nayak and Ramakrishnan Raju

Co-conveners, NCPRI

Dated: July 7, 2011


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Scope and Coverage of the Lokpal Basket of Measures

CORRUPTION GRIEVANCES

National Anti

CorruptionLokp

al

Rashtriya

/RajyaBhrashta

charNivaranLok

pal

Stronger

Central

Vigilance

Commission

KendriyaSatar

ktaLokpal

Strong

Judicial

Accountabilityand Standards

Bill

NyayPalikaLok

pal

Public Grievances

Redress Lokpal

ShikayatNivaranL

okpal

Whistleblower Protection Bill

LokrakshakKanoon


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Scope of the Lokpal Basket of Measures

National Anti

CorruptionLokpal

Central Vigilance

Commission

Judicial

AccountabilityCo

mmission

Public GrievancesCommission

Whistleblower

Protection

Strengthen existing Draft Government

Lokpal Bill/with state Lokayuktas

Reform and strengthen existing

Central Vigilance Commission Act,

2003/state SVCs (see note 2)

Strengthen existing Judicial

Accountability and Standards

Bill/similar state institutions (see note

3)

Creation of a National Law for Public

Grievances Redress applicable to the

Center and the states (see note 4)

Strengthen existing Public Interest

Disclosure and Protection of Persons

making the Disclosure Bill, 2010 (see

note 5).


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Jurisdiction of proposed Anti-Corruption Measures

Prime Minister

Ministers

Members of Parliament

Covered under National Anti-Corruption Lokpal



Judges of the Supreme

Court and High Court/

lower judiciary

Government Servants-

Group A officers

Covered under National Judicial Standards and

Accountability Lokpal/state judicial lokayuktas



Middle LevelCovered under the Central Vigilance Commission

Corporates and

govt. funded NGOsCovered under National Anti-Corruption

Lokpal as co-accused/ amended PC Act


Lower Levels

Covered under regular provision with appellate

jurisdiction with the CVC


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COLLECTIVE AND CONCURRENT LOKPAL ANTI-CORRUPTION AND GRIEVANCE REDRESS MEASURES

The purpose of this exercise is to present to the government a well thought out and widely discussed set

of measures that could be simultaneously and collectively adopted to prevent corruption at all levels,

especially in high places, and to effectively redress grievances. Such measures could include the

enactment of one or more laws in order to create the required institutions and authorities, theamendment of existing laws and practices, and the strengthening of existing institutions.

The concerns and issues that need to be kept in mind while formulating the anti-corruption and

grievance redress measures include:

1. Anti-corruption institutions must be financially, administratively and legally independent ofthose whom they are called upon to investigate and prosecute.

2. It is essential to have a multiplicity of decentralized institutions, geographically and across levels,with appropriate accountability mechanisms, to avoid the concentration of too much power,

especially unaccountable power, in any one institution or authority.

3. Irrational constraints, like the need to obtain prior sanction, to investigate or prosecute shouldnot be allowed.

4. However, institutions and processes must be fair and impartial to both the complainant and theaccused, and ensure that honest persons are not harassed in the process of investigation and

prosecution.

5. Each anti-corruption institution must itself be accountable in the same manner that it seeks tomake other institutions accountable.

6. Appointments to these institutions must be done transparently and in a participatory manner,so as to minimize the chances of the wrong sorts of people getting in.

7. The functioning of each of these institutions and authorities must also be transparent, whileprotecting whistle blowers and respecting legitimate privacy and other concerns, as laid out in

the RTI Act. Efforts must be made to proactively disclose as much information as possible,

complying with and moving beyond section 4 of the RTI Act.

8. Institutions must each be of a manageable size, with no one institution becoming so large thatits effective management and control becomes a problem.

9. Similarly, institutions and authorities should not be allowed to be overwhelmed but should beso designed that they can deliver results within a reasonable time frame.

10. If democratic institutions falter or weaken, there is no alternative to repairing andstrengthening them. Setting up a parallel regulatory or decision making process is unlikely to

help and such a parallel system is likely to itself get corrupted.


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11.Consequently, at the very least, initial complaints must lie with each public authority, and theymust be given an opportunity of setting their own house in order. Only appeals against what are

seen as unsatisfactory responses should come to the proposed independent bodies.

12.The basic framework of the Constitution need not be challenged and solutions could be foundthat are within the framework of the Constitution.

13. In order to ensure that the proposed institutions and authorities are themselves credible andnot prone to mutual back-scratching, circular powers of oversight must be avoided where

institutions and authorities oversee each others functioning and integrity.

14. In order to ensure efficacy and independence of an institution, it must be given adequatepowers and resources to both investigate complaints and to ensure the effective prosecution of

cases.

15.The development, in a bottom up manner, of appropriate citizens charters, as also thecodification of a comprehensive set of entitlements for citizens, both in service delivery as wellas for democratic rights, should be a pre-requisite to the setting up of a grievance redress

mechanism.

16.Lessons need to be learnt from the experience with social audits, especially in relation to theMGNREGA. These lessons should influence the design and practice of social audits for large

government expenditures and contracts. Social audits should also be conducted for assessing

policies and their impacts.

17.The window of opportunity currently available, because of the widespread public sentimentagainst corruption, must be respected and fully utilized to bring in these measures as soon as

possible.

Following from these principles, some of the measures that need to be concurrently and collectively

implemented include:

1. Enacting a legislation for the setting up of Lokpal/Lokayukta Anti-Corruption Lokpals(Rashtriya/Rajya Bhrashtachar Nivaran Lokpal) at the Centre and in each of the states, that

would receive, investigate and ensure effective prosecution of complaints about corruption

relating to all elected representatives, including the Prime minister, Chief Ministers, Central and

state Ministers, MPs, MLAs, MLCs, elected councilors, etc, and all class A officers, and to

prosecute those against whom sufficient evidence is found. They would also have the power toinvestigate and prosecute any other person who is a co-accused in any of the cases being

investigated or prosecuted by the Lokpal. Please see note no. 1 for detailed amendments

suggested by NCPRI to strengthen the Lokpal bill that is currently before the Parliament.

2. Strengthening the institution of the CVCand bringing in under its purview all officers not coveredunder the Lokpal bill. Towards that end, providing the institution of the CVC with adequate

investigative and prosecution powers and resources. Creating similar, independent, State


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Vigilance Commissions for each of the states, and also strengthening departmental enquiry

procedures. Please see note no. 2 for detailed suggestions made by NCPRI to appropriately

amend the Central Vigilance Act.

3. Amending theJudicial Accountability and Standards Bill, that is currently before the Parliament,to ensure that the judiciary is also made effectively and appropriately accountable, withoutcompromising its independence from the executive or the integrity of its functions. Please see

note no. 3 for detailed suggestions made by NCPRI to strengthen the Judicial Accountability and

Standards Bill.

4. Drafting an act that provides for the setting up and functioning of Public Grievances Lokpal(Shikayat Nivaran Lokpal) at the centre and in each of the states. These commissions would

have powers to ensure that detailed citizens charters and norms of functioning are prepared

for each public authority. They would also ensure that other entitlements and rights are

codified, and that the obligations of each public authority are fulfilled. The grievance redress

commissions would have decentralized institutional mechanisms going right down to each

ward/block level, and would ensure a bottoms up people centric approach so that complaints

and grievances could be dealt with speedily and in a decentralized, participatory and

transparent manner. The functioning of the grievance redress processes could be linked to the

RTI Act and also to recent, time-bound, service delivery laws providing for the imposition of

penalty on officials who do not meet the prescribed time frames for providing services to the

public. The experience of the Delhi Grievance Redress Commission could also be instructive.

Please see note no. 4 for details of the grievance redress mechanism being suggested by NCPRI.

5. An effective legislation to protect whistleblowers will be enacted. In addition, each of theseinstitutions would also have provisions for protecting whistleblowers and their identity. Please

see note no. 5 for detailed suggestions made by NCPRI to strengthen the Whistleblowers

Protection bill that is currently before the Parliament.

Each of these institutions and authorities will function transparently and will have to be accountable to

the public for their actions (and inactions) through strong and effective accountability measures. An

option that can be considered is that only one law be enacted that would contain all these proposed

institutions and measures. However, the institutions must be separate and independent of each other.


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Note 1

1

MAJOR AMENDMENTS SUGGESTED TO THE GOVERNMENTS LOKPAL BILL

(As Introduced in Parliament on 4th

August 2011)

General remarks

1. The proposed bill seems only to cover only the Central government and not the

states. We feel that it is crucial that the same law also set up Lokayutkas, with

similar powers and functions as the Lokpal, in each of the states. We believe this is

within the legislative competence of the Parliament.

2. We have listed below some of the main problems we have with the current bill (as

introduced in LokSabha) in so far as it goes. However, we are alarmed to note that while

leaving out many categories of public servants and the redress of grievances, there is

nothing in the attached note or elsewhere that reassures us about the governments

commitment to also cover these gaps through other legislations or institutions.

3. Specifically, at the very least, we think that there should be a grievance redress

mechanism, for central institutions and schemes, and separately for each of the states. We

also believe that the Judicial Standards and Accountability bill that is currently before

Parliament needs to be significantly strengthened so as to cover the higher judiciary

effectively.Also required are Judicial Standards and Accountability institutions in each

state to assist the High Courts in ensuring standards and probity in the lower courts.

4. To cover public servants other than group A officers, we believe that the institution of

the Central Vigilance Commission needs significant strengthening and renewed

independence. Similar independent institutions (state vigilance commissions) need to becreated in each state and can, we believe, be done by a Central act.

5. The Public Interest Disclosure and Protection to Persons Making the Disclosures bill

(WhistleblowersProtectionbill) which is also before Parliament needs to be revamped and

made applicable to all the above mentioned institutions and also to all other relevant

institutions.

6. A schematic depiction of our proposed collective and concurrent Lokpal measures to

control corruption and redress grievances, for all public servants and at all levels, is given

in the tables enclosed at the end of the document.

Specifically we have the following issues with the draft Lokpal Bill, as introduced in the

LokSabha.


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Note 1

2

Exclusion of the Prime Minister

Current Provisions in the Governments Bill:Section 2(1)(i) Minister means an Union

Minister but does not include the Prime Minister;

Our Rationale for Disagreement:

We believe there is no legal or moral justification in excluding the Prime Minister from the

purview of the Lokpal Bill. However, we do recognise that public and national interest requires

some safeguards, and these have been suggested below.

Our Recommendations:

Replace by:(i)Minister means an Union Ministerand includes the Prime Minister;

1. Provided that no investigation would be launched against the Prime Minister unless areference has been made by a full bench of the Lokpal to the Chief Justice of India and

that the Chief Justice of India has constituted a full bench of the Supreme Court whichhas examined the complaint and the relevant grounds and evidence and come to the

conclusion that such an investigation is warranted;

2. Provided further that complaints regarding actions done by others where the PrimeMinister is not directly involved but can be held responsible as the head of the

government or cabinet would not be entertained (no vicarious liability).

3. Also provided that where the Prime Minister is of the opinion that some information thatis asked for by the Lokpal as a part of an investigation is such that its disclosure might

compromise national security or other critical national interests, the prime Minster

would in confidence brief the CJI, whose decision on whether the information should be

disclosed to the Lokpal, and if so, under what conditions, would be final.

______________________

Section 17(1) Subject to the other provisions of this Act, the Lokpal shall inquire into any matter

involved in, or arising from, or connected with, any allegation of corruption made in a complaint

in respect of the following, namely:

(a) a Prime Minister, after he has demitted the office of the Prime Minister;


Replace by:17(1)(a) a Prime Minister;


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Note 1

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Qualification for Chairperson

Current Provisions in the Governments Bill:Section 3(1) As from the commencement of this Act, there shall be established, for thepurpose of

making inquiries in respect of complaints made under this Act, an institution to be called the

Lokpal.(2) The Lokpal shall consist of

(a) a Chairperson, who is or has been a Chief Justice of India or a Judge of theSupreme Court;


We believe that there is no justification in restricting the position to judges, especially as the law

provides for an adequate number of judicial members. Therefore, the eligibility criteria for the

chairperson must be widened, as suggested below.


Replace by: 3(2)(a) A Chairperson, who is or has been a Chief Justice of India or a Judge of theSupreme Court; or is otherwise qualified to be a member of the Lokpal.

Selection Committee

Current Provisions in the Governments Bill:4. (1) The Chairperson and Members shall be appointed by the President after obtaining

the recommendations of a Selection Committee consisting of(a) the Prime Ministerchairperson;

(b) the Speaker of the House of the Peoplemember;

(c) the Leader of Opposition in the House of the Peoplemember;(d) the Leader of Opposition in the Council of Statesmember;

(e) a Union Cabinet Minister to be nominated by the Prime Ministermember;

(f) one sitting Judge of the Supreme Court to be nominated by the Chief Justiceof Indiamember;

(g) one sitting Chief Justice of a High Court to be nominated by the Chief Justice

of Indiamember;(h) one eminent Jurist to be nominated by the Central Government member;

(i) one person of eminence in public life with wide knowledge of and experience

in anti-corruption policy, public administration, vigilance, policy making, finance

including insurance and banking, law, or management to be nominated by the Central

Governmentmember.


In this committee five out of nine members: the PM, the Speaker, the cabinet minister and the

two eminent persons would all be part of/appointed by the central government, This is not

acceptable. Therefore, we suggest that the selection committee be a balance between the

government, the opposition and the judiciary, as follows.


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Note 1

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Replace by: 4. (1) The Chairperson and Members shall be appointed by the President after

obtainingthe recommendations of a Selection Committee consisting of(a) the Prime Ministerchairperson;

(b) the Leader of Opposition in the House of the Peoplemember;(e) one sitting Judge of the Supreme Court to be nominated by the Chief Justiceof Indiamember;

Process of Selection

Current Provisions in the Governments Bill:Section 4(3) The Selection Committee may, if it considers necessary for the purposes of

selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be

considered for appointment as such, constitute a Search Committee consisting of such persons of

standing and having special knowledge and expertise in the matters relating to anti-corruption

policy, public administration, vigilance, policy making, finance including insurance and banking,

law, and management, or in any other matter which, in the opinion of the Selection Committee,

may be useful in making selection of the Chairperson and Members of the Lokpal.


Our experience has been that high powered selection committees do not have the time to search

out appropriate candidates. Therefore, the final selection is invariable decided by the dealing

department which often puts before the selection committee an inadequate and/or inappropriate

set of choices (as seem in the appointments of the CVC and various information commissionersand chief information commissioners). Therefore, we feel that there must be a search committee,

as follows:


Replace by: (3)The selection committee shall select out of a panel of not less than three and not

more than five eligible candidates for each vacancy. This panel of eligible candidates shall befinalised by a search committee set up for the purpose; provided that the selection committee can

require the search committee to submit up to two additional names for any vacancy, over and

above those initially suggested, if they so deem necessary.

a) The search committee shall comprise of five members appointed by the selectioncommittee.

b) Members of the search committee would be selected from among former:i. Chief Justices of India

ii. Judges of the Supreme Court of Indiaiii. Comptroller and Auditor Generals of Indiaiv. Chief Election Commissioners of Indiav. Chief Information Commissioners of India


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Note 1

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vi. Former or outgoing Chief Lokpals (after the appointment of the first ChiefLokpal)

vii. Former Lokpals (for appointment of Lokpals only)Provided that not more than two members should belong to any one of the categories

listed above.

Provided further that the following persons shall not be eligible for becoming

members of the search committee:

i. Any person who has joined any political party.ii. Any person who is still in the service of the government in any capacity

iii. Any person who took up a government assignment after retirement, barringthose assignments which are reserved for the post from which the person

retired.

c)In addition, the search committee will consist of another five members who would beselected by the five members, appointed under (a) above, from among the civil society

and could include activists, academics, journalists, professionals, etc.d) The search committee shall devise its own procedures to develop a short list of names

that could be considered for recommending to the selection committee.

e) The search committee shall put up on a website the names and relevant details of allthe candidates being considered. The public would be given sufficient time (not less

than a month) to send in their views, if any, pertinent to the candidature of any one or

more of these candidates, along with relevant material, if any.

f) The search committee will compile all the comments so received and, wherever itdeems necessary, will further investigate the comments about, or credentials of, anyof the candidates under consideration.

g) Based on all this material, the search committee will recommend not less than threeand not more than five names to the selection committee for each vacancy.

All the material received or considered by the search committee in order to reach its final

recommendation, as well as the details and documents related to its own proceedings, would be

available for public scrutiny once the relevant appointments have been made.

Treating Employees and Office bearers ofNGOs and Peoples Movements, not funded by the

government, as Public Servants

Current Provisions in the Governments Bill:2(1) (l) public servant means a person referred to in clauses (a) to (g) of subsection

(1) of section 17;

17(1)


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Note 1

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XXX

(g) any person who is or has been a director, manager, secretary or other officer

of every other society or association of persons or trust (whether registered under

any law for the time being in force or not) in receipt of any donation from the public andthe annual income of which exceeds such amount as the Central Government may by

notification specify:Provided that nothing in this section shall apply in relation to the Prime Minister,in whatever capacity he may be holding an office as a public functionary:

Provided further that any person referred to in this clause shall be deemed to be

a public servant under clause (c) of section 2 of the Prevention of Corruption Act, 1988and the provisions of that Act shall apply accordingly:

Provided also that nothing in clauses (e) and (f) and this clause shall apply to

any society or association of persons or trust constituted for religious purposes.

Relevant Extract from the PC Act

2(c)Public Servant means:

XXXXXXX(xii) any person who is an office-bearer or an employee of an educational, scientific,

social, cultural or other institution, in whatever manner established, receiving or havingreceived any financial assistance from the Central Government or any State Government,

or local or other public authority.


We believe it is a draconian provision to declare office bearers of NGOs and movements that do

not receive any government funds as public servants. Not only would this result in a huge

amount of harassment but also be impractical as such bodies are not bound by government rules

and procedures, and cannot be held accountable to those. If any of these organisations violate theexisting laws relating to the management of funds etc., there are adequate provisionto prosecute

them. Therefore:


Delete 17(1)(g)

Complaints Against the Chair and Members of the Lokpal

Current Provisions in the Governments Bill:

Section 8(1) Subject to the provisions of sub-section (3), the Chairperson or any Member shall beremoved from his office by order of the President on the grounds of misbehaviour after the

Supreme Court, on a reference being made to it

(i) by the President, or

(ii) by the President on a petition being signed by at least one hundred Members of Parliament,or

(iii) by the President on receipt of a petition made by a citizen of India and where the President issatisfied that the petition should be referred, has, on an inquiry held in accordance with the


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Note 1

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procedure prescribed in that behalf, reported that the Chairperson or such Member, as the case

may be, ought to be removed on such ground.

(2) The President may suspend from office the Chairperson or any Member in respect of whom a

reference has been made to the Supreme Court under sub-section (1) until the President haspassed orders on receipt of the report of the Supreme Court on such reference.


The current provisions compromise the independence of the Lokpal by giving the Central

Government various powers related to complaints against members of the Lokpal. This is not

desirable and we propose that these powers and function be given instead to the Supreme Court,

as suggested below.


Replace by:8(1) Subject to the provisions of sub-section (3), the Chairperson or any other

Member shall be removed from his office by order of the President on grounds of misbehaviourafter the Supreme Court, on a complaint made to it has, on inquiry, held in accordance with the

procedure prescribed in that behalf, advisedthat the Chairperson or such other Member, as the

case may be, oughtto be removed on such ground.

8(2) The President may suspend from office the Chairperson or any other Member in respect of

whom a complaint has been made to the Supreme Court under sub-section (1), if the Chief

Justice of India so advises, until the President has passed orders on receipt of the report of the

Supreme Court on such a complaint.

_____________

40(2) Any complaint against the Chairperson or Member shall be made by an application by the

party aggrieved, to the President.

40(3)The President shall, in case there exists a prima facie case for bias or corruption, make a

reference to the Chief Justice of India in such manner as may be prescribed for inquiring into the

complaint against the Chairperson or Member.


Replace by:

40 (2) Any complaint against the Chairperson or Member shall be made by an application by the

party aggrieved, to the Chief justice of India.

40 (3) The Chief Justice of India, on receipt of such a complaint, shall constitute a committee

which will examine whether there exists a prima facie case for bias or corruption and this

committee shall advise the Chief Justice on whether the complaint merits detailed investigation.


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Note 1

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Where the committee advises the Chief Justice of India that an investigation is merited, the CJI

may have the matter investigated.

Exempting Statements of MPs in Parliament

Current Provisionsin the Governments Bill

:17(2) Notwithstanding anything contained in sub-section (1), the Lokpal shall not inquire

into any matter involved in, or arising from, or connected with, any such allegation ofcorruption against any Member of either House of Parliament in respect of anything said or

a vote given by him in Parliament or any committee thereof covered under the provisions

contained in clause (2) of article 105 of the Constitution.


This is an unjustified exemption, but as its deletion would involve amendment of the

Constitution, it should not be dropped at the moment but there should be a government

undertaking that it would appropriately move Parliament with such a proposal for theamendment of the Constitution within a year. For the moment, the Lokpal bill could more

faithfully reflect the constitutional position


Replace by:

17(2) Notwithstanding anything contained in sub-section (1), the Lokpal shall not inquire

into any matterin respect of any thing said or any vote given by him in Parliament or any

committee thereof.

Provided that this exemption applies only to the Members of the Parliament while attendingParliament on the floor of the House and/or in Parliament Committees during session.

Complaints Against the Lokpal Staff

Current Provisions in the Governments Bill:41. (1) Every complaint of allegation or wrongdoing made against any officer or employeeor investigation agency under or associated with the Lokpal for offence punishable under

the Prevention of Corruption Act, 1988 shall be dealt with in accordance with the provisions

of this section.

(2) The Lokpal shall complete the inquiry into the complaint or allegation made, within

a period of thirty days from the date of its receipt.


In keeping with the philosophy behind the independent Lokpal that no institution should be

solely responsible for investigating and prosecuting its own officers in matters related to


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corruption, we think that it is only appropriate if the Lokpal does not deal with corruption

complaints against its own officers. Therefore, an alternate system is being suggested.


Replace 41(2) by:The Lokpal shall refer the matter to the Ombudsman appointed for the purposeby an independent committee, who will complete the inquiry into the complaint or allegation

made, withina period of thirty days from the date of its receipt. Towards this end, theOmbudsman would be empowered to utilise the services of any investigating agency with the

central government or that of the Lokpal.

In 41(3) and 41(4) replace Lokpal with Ombudsman appropriately.

Transfer of Cases


21. On an application for transfer made by the complainant or the public servant, the

Chairperson, after giving an opportunity of being heard to the complainant or the public servant,

as the case may be, may transfer any case pending before one bench for disposal to any other

bench.


This clause would give enormous power to the chairperson, which could be used arbitrarily to

the detriment of justice or of members of the Lokpal. We believe this power needs to be

qualified, as below:


Replace by:21. On an application for transfer made by the complainant or the public servant, the

Chairperson, after giving an opportunity of being heard to the complainant or the public servant,

as the case may be, may transfer any case pending before one bench for disposal to any other

bench;provided that no such transfer would be made unless the chairperson is satisfied that

there are good reasons to believe that the ends of justice could not be met without such a

transfer. Provided, further, that the reasons for such a transfer must be, within a week of the

transfer being ordered, put into the public domain.

Opportunity to be Heard at the Preliminary Enquiry Stage

Current Provisions in the Governments Bill:23(4) Before the Lokpal comes to the conclusion in the course of a preliminary inquiryand after submission of a report referred to in sub-section (3) that a prima facie case is made

out against the public servant pursuant to such a preliminary inquiry, the Lokpal shall afford

the public servant an opportunity of being heard.


18/79

Note 1

10


There is no need to provide this right to the accused at this stage, especially as this is not

provided under any other criminal procedure. However, there is nothing to stop the Lokpal from

hearing an accused at any stage, if the Lokpal feels that this is required in the interest of justice.

This need not be a statutory right of the accused.


Delete 23(4)

Inspection of records by accused

Current Provisions in the Governments Bill:Section 24 In cases where, an investigation or inquiry into a complaint is proposed to be initiated

by the Lokpal, every person against whom such inquiry or investigation is proposed to be

conducted, shall be entitled to inspect any record in connection with the commission of any

alleged offence and take an extract therefrom, as is considered necessary to defend his case.


It must be ensured that the provision of this right does not compromise the interests of

whistleblowers, witnesses and other vulnerable persons connected with the complaint or the

investigation.


Add:Provided that where the complaint involves allegations or information from a

whistleblower or a witness who wishes to have his identity protected, the Lokpal shall ensure

that advance notice is given to such whistleblower and/or witness and they are given an

opportunity of being heard prior to the accused being given access to any records: provided

further that in no case would the identity and/or witness be revealed without their prior consent

in writing.

Contempt Powers

Whereas the earlierministerial draft of the Lokpal bill had given the Lokpal contempt powers

in Section 31.This section has been dropped from the bill introduced in the LokSabha.

Our Recommendation:

Whereas, we were not in favour of giving broad criminal contempt powers to the Lokpal, and we

even think that those with the upper judiciary should be significantly curbed, after dropping this

section, it is unclear how the Lokpal would ensure that its directions under this Act are complied

with. Therefore, some specific provisions should be added for this, in the form of civil contempt

powers.


19/79

Note 1

11

Time Frame for Conducting Trials

Current Provisions in the Governments Bill:Section 38(2) The Special Courts constituted under sub-section (1) shall ensure completion of

each trial within a period of one year from the date of filing of the case in the Court:

Provided that in case the trial cannot be completed within a period of one year, the Special Court

shall record reasons therefor and complete the trial within a further period of not more than three

months or such further periods not exceeding three months each, for reasons to be recorded in

writing, before the end of each such three months period, but not exceeding a total period of two

years.


Whereas there must be a time frame for the trial of cases, the law should not create a situation

where if there is a delay that becomes a basis for the case being closed. Also, there must be some

adverse consequences on the judge responsible for unreasonable delays.


Replace by:38 (2) The Special Courts constituted under sub-section (1) shall ensure completion

of each trial within a period of one year from the date of filing of the case in the Court:

Provided that in case the trial cannot be completed within a period of one year, the Special Courtshall record reasons therefor and complete the trial within a further period of not more than three

months or such further periods not exceeding three months each, for reasons to be recorded in

writing, before the end of each such three month period, but ordinarily not exceeding a total

period of two years;provided that no case would be closed on the basis of the trial not having

been completed within two years. However, wherever a trial continues beyond two years, a

mandatory reference would be made to the High Court which shall examine the matter and pass

such directions as it might deem necessary to bring the trial to an early conclusion and, where

the High Court thinks it appropriate, pass strictures against the trial judges(s).

Penalties


49. (1) Notwithstanding anything contained in this Act, whoever makes any false and frivolous

or vexatious complaint under this Act shall, on conviction, be punished with imprisonment for a

term which shall not be less than two years but which may extend to five years and with fine

which shall not be less than twenty-five thousand rupees but which may extend to two lakh

rupees.


20/79

Note 1

12


This is another draconian provision, especially as it is impossible to objectively define

frivolousor vexatious. This would strongly discourage most people from making any

complaints.


Replace by: 49(1) Notwithstanding anything contained in this Act, whoever makes any malafide

and false complaint, with malicious intent, under this Act, shall, on conviction, be punished with

fine which shall not be less than five thousand rupees but which may extend to one lakh rupees.

Providing legal assistance to the accused


56. The Lokpal shall provide to every person against whom a complaint has been made, before

it, under this Act, legal assistance to defend his case before the Lokpal, if such assistance is

requested for.


Though this might be fair in order to ensure that the innocent among the accused do not have to

spend large amounts of money that they cannot afford to defend themselves against malicious or

false allegations, this should not end up subsidising the corrupt on public expense.


Add: Provided that where the accused is finally found guilty of any of the charges made against

him, by the special court provided for in the Act, and subject to further appeals, the accused

would be requires to refund the total cost of the assistance so provided. In exceptional

circumstances where the Lokpal so determines that the recovery of such dues might result in

unwarranted hardship to the accused or his family, the amount can be adjusted against

confiscation of property as specified under sections 33 and 34.

Covering the Private Sector

Our Recommendation:

Add: (appropriately amend the PCA to include) Where any private body, corporation or profit

seeking entity receives from any public authority any concession or dispensation, including but

not restricted to licences, subsidies, contracts, orders, quotas, allocations, clearances, grants, etc,

that is in violation of the law or of any prevailing rules, it would be deemed to have indulged in


21/79

Note 1

13

corrupt practices unless it can show that it was unreasonable to expect the corporation to know

that a law or a rule had been violated.


22/79

Note 1

14

Scope and Coverage of the Lokpal Basket of Measures

CORRUPTION GRIEVANCES

National Anti

CorruptionLokp

alRashtriya

/RajyaBhrashta

charNivaranLok

pal

Stronger

Central

Vigilance

Commission

KendriyaSatark

taLokpal

Strong JudicialAccountability

and Standards

Bill

NyayPalikaLok

pal

Public GrievancesRedress Lokpal

ShikayatNivaranL

okpal

Whistleblower Protection Bill

LokrakshakKanoon


23/79

Note 1

15

Scope of the Lokpal Basket of Measures

National Anti

CorruptionLokpal

Central Vigilance

Commission

Judicial

AccountabilityCo

mmission

Public GrievancesCommission

Whistleblower

Protection

Strengthen existing Draft Government

Lokpal Bill/with state Lokayuktas (see

note 1)

Reform and strengthen existing

Central Vigilance Commission Act,

2003/state SVCs (see note 2)

Strengthen existing Judicial

Accountability and Standards

Bill/similar state institutions (see note

3)

Creation of a National Law for Public

Grievances Redress applicable to the

Center and the states (see note 4)

Strengthen existing Public Interest

Disclosure and Protection of Persons

making the Disclosure Bill, 2010 (see

note 5).


24/79

Note 1

16

Jurisdiction of proposed Anti-Corruption Measures

Prime Minister

Ministers

Members of Parliament




Judges of the Supreme

Court and High Court/

lower judiciary


Group A officers

Covered under National Judicial Standards and

Accountability Lokpal/state judicial lokayuktas



Middle LevelCovered under the Central Vigilance Commission

Corporates and

govt. funded NGOsCovered under National Anti-Corruption

Lokpal as co-accused/ amended PC Act


Lower Levels

Covered under regular provision with appellate

jurisdiction with the CVC


25/79

Note 2

COVERING MIDDLE AND JUNIOR LEVEL PUBLIC SERVANTS

Amending the Central Vigilance Commission Act, 2003

1. The Lokpal Bill of the Government, as introduced in Parliament on August 4, 2011, hasjurisdiction over only group A public servants of the Central Government, corporations etc.

However, there is no mention of how the remaining public servants (other than group A)

would be covered.

2. We believe that all public servants should be adequately covered under appropriate anti-corruption institutions. Towards that end, we are proposing that a revamped Central

Vigilance Commission play a critical role in providing such a cover. This is especially so as, at

the moment, the primary function of the CVC is to receive and investigate or have

investigated complaints against group A officers of the Central Government. Once the Lokpal

is set up, complaints against group A officers would be handled exclusively by the Lokpal,

freeing the CVC for other functions.

3. We propose that all Central Government public servants not covered under the Lokpal billbe covered by the CVC as follows:

a. Where an offence is alleged under the Prevention of Corruption Act (PCA) that primafacie has caused a loss to the public exchequer of an amount greater than a

specified amount (say rupees ten lakh), then a complaint can be directly filed with

the CVC, which would be empowered and adequately staffed to conduct a

preliminary enquiry, an investigation, and prosecute appropriately.

b. Where an offence is alleged under the Prevention of Corruption Act (PCA) that primafacie has resulted in a public servant demanding or receiving illegal gratification of

an amount greater than a specified amount (say rupees one lakh), then a complaint

can be directly filed with the CVC, which would be empowered and adequately

staffed to conduct a preliminary enquiry, an investigation, and prosecute

appropriately.

c. In all other casesof a complaint under the PCA, the original complaint would be withthe police and the CVC would be the first appellate body against faulty or delayed

investigation or prosecution.

4. To ensure the proper functioning of the CVC, it would be made independent of thegovernment in a manner similar to that suggested for the Lokpal, and its appointment would

also be through the same committee and process as that suggested for the Lokpal.

5. It would be empowered and resourced to set up its own investigation and prosecutionwings, and require no permission from anyone to investigate or prosecute a public servant

under its jurisdiction.

6. In order to facilitate the appellate functions of the CVC (3c above), a detailed protocol layingout the prescribed procedures for investigating complaints and prosecuting cases under the

PCA, including mandatory time frames, would be codified. Any violation of these would

entitle the complainant to move the CVC as an appellate authority.

7. The CVC would have all the powers,while investigating complaints or prosecuting cases, asprovided to the Lokpal in the proposed Lokpal bill.


26/79

Note 2

8. There would be set up, in each state, a State Vigilance Commission (SVC), which would play asimilar role as the CVC in relation to the public servants of the state not covered by the

proposed state lokayuktas.

9. The state vigilance commissions would be selected through a process similar to that beingproposed for the CVC, with central functionaries being replaced by corresponding state

functionaries.

10.The SVCs would also have all the powers and appropriate resources, as proposed for the CVCand would be independent of the state government in the same way as the revamped CVC.


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1

Strengthening The Judicial Standards and Accountability Bill, 2010

A Note for Discussion1

This note seeks to critique the Judicial Standards and Accountability Bill, 2010, as introduced in

Parliament. It highlights four broad areas of disagreement: composition and selection of the

Judicial Oversight Committee, structure of the oversight mechanism, transparency provisions,

and frivolous and vexatious complaints. The details and specific recommendations are given

below.

1. Composition of the National Judicial Oversight Committee and the selection ProcessClause 18 of the Bill tabled in Parliament envisages a 5-member Oversight Committee that will

handle complaints against judges received directly from citizens or look into the materials

received from Parliament, pursuant to a motion regarding the removal of a judge initiated in

either House:18. (1) The National Judicial Oversight Committee shall consist of the following,

namely:

(a) a retired Chief Justice of India appointed by the President after ascertaining the views

of the Chief Justice of India Chairperson;

(b) a Judge of the Supreme Court nominated by the Chief Justice of India Member;

(c) the Chief Justice of a High Court nominated by the Chief Justice of India Member ex

officio;

(d) the Attorney-General for India ex officio Member;

(e) an eminent person nominated by the PresidentMember:

Replace by:

18. (1) The National Judicial Oversight Committee shall consist of the following, namely:

(a) a retired Chief Justice of India appointed by the President after ascertaining the views of

the Chief Justice of India Chairperson;

(b) a serving or retired Judge of the Supreme Court selected by a collegium comprising of all

puisne judges of the Supreme Court. Member;

(c) A serving or retired Chief Justice of a High Court selected by the collegium of all Chief

Justices of the High Courts. Member;

(d) one eminent jurist Member

1This note is based on a previous that was prepared by Justice A P Shah and Venkatesh Nayak. Some ideas have

been further refined from the previous note and new recommendations have been included in this note.


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2

(e) one eminent person - Member

Members appointed under clauses (d) and (e) of this sub-section shall be selected by a

committee chaired by the Prime Minister, with the Chief Justice of India and the Leader of

the Opposition in the Lok Sabha being the other members.

18(1A) (i) Serving judges, including serving chief justices, when appointed to the Oversight

Committee, must serve as full time members for a period not exceeding two years and

should not take up any other work other than that assigned by the Oversight Committee;

(ii) the eminent jurist and eminent person appointed to the Oversight

Committee shall serve for a period of three years;

(iii) The Chairperson and the members of the Oversight Committee shall not be

eligible for reappointment;

18(1B) The remuneration and privileges of the members appointed under clauses (d) and (e)

of sub-section (1) shall be the same as that of a Supreme Court Judge and other terms and

service conditions of such members shall be as may be prescribed.

Rationale:

The composition proposed in the Governments Bill does not adequately provide for the

independence of the Oversight Committee for two reasons. First, the judicial members will be

appointed by the Chief Justice of India at his/her discretion while the sole non-judicial member

and the Chairperson will be appointed by the President at the recommendation of the Central

Government, in other words by the ruling party or alliance. This is not a very objective and

transparent process of selection of the members of the committee. Second, the inclusion of the

Attorney General in this committee is flawed on grounds of conflict of interests. The Attorney

General being the first Law Officer of the Central Government may be required to appearbefore a judge against whom a complaint has been filed before the Oversight Committee of

which he/she happens to be a member. So it is not advisable to have the Attorney General on

the Oversight Committee.

Further, the Bill does not define the terms and conditions of service of those members of the

committee who are not serving judges. This lacuna must be addressed as well by clearly

defining their terms and conditions in the Rules. Members who are sitting judges may serve

only for a period of two years without being eligible for reappointment.

2. Refining the structure of the judicial oversight mechanismTheBill currently envisages a three-tiered structure for dealing with complaints against judges.

The National Judicial Oversight Committee (Clause 17, quoted above) receives complaints and

the materials relating to the motion for the removal of a judge initiated in Parliament. This is

the topmost tier. The second tier is the scrutiny panels (Clauses 9, 10, 11 quoted below)


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3

which will examine the complaint or the materials received. These panels are to be constituted

in the Supreme Court and every High Court. Judges serving in the same High Court will

scrutinize a complaint against their own colleague. The Oversight Committee may constitute an

Investigation Committee (Clause 22 quoted below) for the purpose of investigating the

charges against a judge based on a report of the scrutiny panel. This is the third tier. The Bill is

silent about eligibility criteria for the membership of this committee. Each tier of the oversightstructure is required to work according to a time limit specified in the Bill. The relevant sections

from the draft Bill are given below.

9. Save as otherwise provided under this Act, the Oversight Committee shall refer

all such complaints to the appropriate Scrutiny Panel constituted under Chapter V for

scrutiny.

10. There shall be constituted a panel to be called Complaints Scrutiny Panel in the

Supreme Court and in every High Court to scrutinise the complaints against a Judge received

under this Act.

11. (1) The Scrutiny Panel in the Supreme Court shall consist of a former Chief Justiceof India and two Judges of the Supreme Court to be nominated by the Chief Justice of

India.

(2) The Scrutiny Panel in every High Court shall consist of a former Chief Justice of

that High Court and two Judges of that High Court to be nominated by the Chief Justice of

that High Court.

_____________

22. (1) The Oversight Committee, shall for the purpose of inquiry for misbehaviour by

a Judge, constitute an investigation committee (by whatever name called) to investigate

into the complaint in respect of which the Scrutiny Panel has recommended in its report

under clause (a) ofsub-section (1) of section 12 for making inquiry against the Judge inaccordance with the provisions of this Act.

(2) The composition and tenure of the investigation committee shall be such as may be

decided by the Oversight Committee:

Delete: Clauses 9 to 16

Replace by:

9(1) The procedure for scrutiny or preliminary investigation in respect of a complaint made

under this Act shall be such as the Judicial Oversight Committee deems appropriate in

the circumstances of the case and in particular, the Committee shall call for the

comments of the Judge complained against.

(2) Any scrutiny or preliminary investigation under this Section will be done in camera.


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4

(3) The committee constituted for the purpose of conducting a scrutiny or a preliminary

investigation under sub-section (1) shall consist of at least two members of the Judicial

Oversight Committee of which at least one member shall be a sitting judge.

10. (1) If the Oversight Committee, after scrutiny or preliminary investigation of the

complaint taken up by it for scrutiny under section 9, as it deems appropriate, is satisfiedthat

(a) there are sufficient grounds for proceeding against the Judge, it shall, after recording

reasons therefor, initiate an inquiry against the Judge in accordance with the provisions of

this Act;

(b) the complaint is frivolous or vexatious, or, is not made in good faith, or there are not

sufficient grounds for inquiring into the complaint, or the complaint relates only to the

merits of the judgment or a procedural order, and, then, it shall after recording reasons

therefor will not proceed with the complaint and treat the matter as closed.

(2) The Oversight Committee shall carry out scrutiny or preliminary investigation under

section 9 within a maximum period of three months from the date of receipt of the

complaint.

11 Save as otherwise provided in this Act, the Oversight Committee shall have power to

regulate its own procedure in examining the complaints taken up for scrutiny or preliminary

investigation under section 9.

12. The Oversight Committee shall, while examining the complaints taken up for scrutiny or

preliminary investigation under section 9, have all the powers of a civil court trying a suit

under the Code of Civil Procedure, 1908 and in particular, in respect of the followingmatters, namely:

(a) summoning and enforcing the attendance of any person from any part of

India and examining him on oath;

(b) requiring the discovery and production of any document; (c) receiving evidence on

affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or other documents;

and

(f) any other matter which may be prescribed.

________________________

22. (1) The Oversight Committee, shall for the purpose of inquiry for misbehaviour by a

Judge, constitute an investigation committee (by whatever name called) to investigate into


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5

the complaint in respect of which the Oversight Committee has determined under

clause (a) ofsub-section (1) of section 10 that there are enough grounds for making inquiry

against the Judge in accordance with the provisions of this Act.

(2) The composition and tenure of the investigation committee shall be such as may be

decided by the Oversight Committee;

Provided that it must comprise of at least two serving members of the Oversight

Committee. If the accused is a High Court judge at least one of these members must be or

have been the Chief Justice of a High Court. If the accused is a judge of the Supreme

Court, then a least one member must be or have been a Supreme Court Judge:

Rationale:

It seems undesirable that sitting judges of the same High Court scrutinise complaints against

their colleagues. Instead, the Oversight Committee must be established as a permanently

functioning committee that will look into complaints received against all judges of the Supreme

Court and the High Courts. This will ensure uniformity of treatment of all complaints andreferences from Parliament. All serving judges appointed to this committee must serve full-

time. They may not undertake any other duties for the duration of their membership of this

committee. The Oversight Committee itself must scrutinize the complaints against judges by

evolving its own procedures. If there are adequate grounds for launching an investigation, post-

scrutiny, the Oversight Committee may constitute an Investigation Committee which must

comprise of at least two serving members of the Oversight Committee.

3. Transparency in the conduct of investigations:The Bill requires the Investigation Committee to conduct its proceedings in camera (Clause29(2) quoted below) and imposes various other restrictions on transparency (Clauses 39 and

43 also quoted below).

29. (1) The investigation committee shall frame definite charges against the Judge on the

basis of which the inquiry is proposed to be held.

(2) Every such inquiry shall be conducted in camera by the investigation committee.

39. Notwithstanding anything contained in any other law for the time being in force, the

complainant and every person who participates in the scrutiny or investigation or

inquiry as a witness or as a legal practitioner or in any other capacity, whether or not he

seeks confidentiality about his name, shall undertake to the Oversight Committee or

Scrutiny Panel or investigation committee that he shall not reveal his own name, the

name of the Judge complained against, the contents of the complaint or any of the

documents or proceedings to anybody else including the media without the prior written


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6

approval of the Oversight Committee.

43. Notwithstanding anything contained in the Right to Information Act, 2005 or any other

law for the time being in force, all papers, documents and records of proceedings related

to a complaint, preliminary investigation and inquiry shall be confidential and shall not be

disclosed by any person in any proceeding except as directed by the Oversight

Committee:

Delete: Clauses 29(2) and 43

Replace Clause 39 by:

39. Notwithstanding anything contained in any other law for the time being in force, the

complainant and every person who participates in the scrutiny, under section 9, as a witness or

as a legal practitioner or in any other capacity, whether or not he seeks confidentiality about his

name, shall undertake to the Oversight Committee that he shall not reveal his own name, the

name of the Judge complained against, the contents of the complaint or any of the documentsor proceedings to anybody else including the media without the prior written approval of the

Oversight Committee;

Rationale:

Clauses 29(2), 39 and 43 of the bill are retrograde sections. The Judges (Inquiry) Act, 1968 which

this Bill seeks to replace does not require proceedings of investigation to be conducted behind

closed doors. This transparent procedure must be continued in the interests of justice under

the proposed law as well. However the process of scrutinizing a complaint may be undertaken

in camera as the complaint would be only in the form of allegation which may have been

received without any proof or supporting evidence (This has been provided for in the revisedClause 9 above). There is a need to balance this process with other important public interests

such as protecting the reputation of the accused and prevention of defamation or trial by the

media. The accused if exonerated must be in a position to command the respect of the public

upon resumption of his/her official duties.

In the ultimate analysis the degree of transparency and/or confidentiality chosen for the entire

process must be such that it inspires confidence amongst the people about the credibility of the

process while at the same time having regard to the reputation of the accused person.

4. Dealing with frivolous and vexatious complaintsThe Bill prescribes very harsh penalties for filing false and vexatious complaints against a judge.

The complainant is liable to be sentenced to a rigorous prison term of up to five years with or

without fine which may extend up to five lakh rupees (Clause 53 quoted below).


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53. (1) Any person who makes a complaint which is found, after following the procedure

under this Act to be frivolous or vexatious or made with an intent to scandalise or intimidate

the Judge against whom such complaint is filed, shall be punishable with rigorous

imprisonment for a term which may extend to five years and also to fine which may extend to

five lakh rupees.

(2) The provisions of this section shall have effect notwithstanding anything contained in

the Code ofCriminal Procedure, 1973.

Replace by:

53. (1) Any person who makes a complaint which is found, after following the procedure under

this Act, to be false and made with malicious intent to scandalise or intimidate the Judge

against whom such complaint is filed, shall be punishable with a fine which may extend

to one lakh rupees.

(2) The provisions of this section shall have effect notwithstanding anything contained in the

Code ofCriminal Procedure, 1973.

Rationale:

We believe such draconian penalties are undesirable. Instead the prison term should be

dropped and the maximum penalty amount also reduced to one lakh.

The punishment should be imposed only when the allegations against a judge are disproved

and it can be shown that the allegations were made with malicious intent. The terms

vexatious and frivolous are impossible to objectively define.

5. Investigative staff of Judicial Oversight CommitteeThe Bill does not provide for staff that specialise the inquiring into complaints against judges.

32.(4) The Oversight Committee shall provide such number of its officers and other

employees to assist the investigation committee as the Oversight Committee considers

appropriate having regard to the nature of investigation in a case.

Replace by:

(4) The Oversight Committee shall take such steps as may be necessary to develop a team

of experts drawn from its staff that are capable of conducting investigations in an efficientand timely manner for the purpose of assisting the investigation committee.

(5) The Oversight Committee shall provide such number of experts from the team

mentioned in sub-section (1) to assist the investigation committee as the Oversight

Committee considers appropriate having regard to the nature of investigation in a case.


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8

Rationale:

It is necessary to empower the Judicial Oversight Committee to develop a team of specialists

capable of inquiring into complaints and references received against judges after the scrutiny

has established sufficient cause to proceed with a full scale inquiry.

6. Laying down of Judicial StandardsClause 3 of the Bill lays down standards of conduct for the members of the higher judiciary.


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9

Replace by:

3. (1) The National Judicial Oversight Committee constituted under Section 17 of this Act

shall, in the interests of administration of justice, issue from time to time, a Code of Conduct

containing guidelines for the conduct and behaviour of Judges.

(2) Till the Code of Conduct referred to in sub-section (1) is issued, The Restatement of

Values of Judicial Life adopted by the Chief Justices Conference of India, 1999, shall be the

Code of Conduct for the purposes of this Act.

(3) The Code of Conduct shall be published in the Official Gazette and the Council shall

in the like manner amend the said Code from time to time.


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Rationale:

Clause 3 of the Bill lays down standards of conduct for the members of the higher judiciary.

However Article 124(5) of the Constitution empowers Parliament to make laws only to regulate

the procedure for:

a) The presentation of an address to the President seeking the removal of a judge; andb) The investigation and proof of misbehavior or incapacity of a judge.

The Constitution is silent on the issue as to who is competent to define standards of behavior

for members of the higher judiciary. Given this grey area it is important for any legislative

proposal for dealing with complaints of misbehavior to be in accordance with the principle of

the independence of the judiciary. So the National Judicial Oversight Committee proposed to be

set up under this Bill may be vested with the responsibility of refining standards of judicial

behavior and conduct. Until such time as it refines the standards the existing Restatement of

Values of Judicial Life adopted by the Chief Justices Conference of India, 1999 shall apply to alljudges of the Supreme Court and the High Courts.

7. Code of Conduct

The Bill does not provide for any code of behaviour that applies to a judge after retirement.

Insert a provision as follows:

A retired judge of the High Court or the Supreme Court shall not be eligible for any

official assignment or appointment to a statutory commission or body under the Central

or State Governments until his or her completion of one year from the date ofsuperannuation.

Rationale:

It is also necessary to lay down a code of conduct for judges post-retirement in order to prevent

situations where a Government may lure them with plum postings after they have demitted

office. A cooling off period of one year may stipulated in the law.

8.Minor Measures

Clause 34(b) provides for the imposition of minor measures against a Judge if the inquiry

establishes that the misbehavior occurred but it is not serious enough to warrant his or herremoval. An inquiry against a judge may continue even after his or her retirement but only if

the charges are serious enough.


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X X X

_____________

Replace 34(b) by:

(3) all or any of the charges in regard to misbehaviour or incapacity have been proved and

the Oversight Committee is of the opinion that the charges proved do not warrant removal

of the Judge, it may impose all or any of the following minor measures, namely:

(i) issuing advisories;

(ii) issuing warnings;

(iii) withdrawal of judicial work for a limited time including cases already assigned;

(iv) request that the Judge may voluntarily retire;(v) censure or admonition, public or private.

Insert new sub-clauses after 34(3) as follows:

(4) Any inquiry or investigation initiated against a Judge under this Act shall not be

discontinued on the ground that the Judge has demitted office.

(5) Where the Oversight Committee concludes after any inquiry into a complaint against a

judge who has demitted office during the course of the inquiry, that all or any of the

charges have been proved it shall forward its findings to the Central Government to take

further action in the matter under relevant law for the time being in force.

(6) The Oversight Committee may in its findings recorded under sub-section (4)

recommend stoppage of or reduction in the amount of pension and other benefits that


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12

the person concerned may be entitled to or declare such person ineligible for

appointment to any public office or both;

(7) Any recommendation or declaration made by the Oversight Committee under sub-

section(5) shall be binding on the Central Government.

Rationale:

An inquiry into any complaint made under this Act must be taken to its logical conclusion. If the

findings establish that the complaint was not proved or disproved there will be no

consequences for the judge concerned. However retirement or demitting office should not be a

ground for stopping the inquiry. The truth must be discovered and if the Judge is found guilty

he or she must face some consequence for the misbehavior. This can include stoppage or

reduction of pension and ensuring that the person is not appointed to any public office in

future. The recommendation of the Judicial Oversight Committee should be binding on the

Central Government. These recommendations are sourced from the 195th

Report of the Law

Commission on the Judges (Inquiry) Bill 2005.

*****


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Measures for Fighting Corruption and Ensuring Better Governance

Note for discussion on the LokshikayatGrievance Redress Commission

The purpose of the paper is to discuss mechanisms which would allow the public to directly and on an

ongoing basis make the government accountable in terms of the functions it is supposed to perform,

specifically with relation to its duties to the nation, and obligations and commitments to the people

of India. This paper presents some of the important general principles that would underlie these

mechanisms, as an element of the Measures for fighting corruption and ensuring better governance.

The paper proposes that Grievance Redress Commissions be set up at the Centre and in the states to

develop an institutional capacity to receive, enquire into and redress any complaints relating to

deficiencies in the functioning of the government.

Annexed is a flow chart that describes the functioning of the proposed mechanism.

Objectives

To create a system whereby common citizens can make the government answerable interms of its

functions, specifically with relation to its duties, commitments and obligations towards citizens.

1. Develop a clear and tangible statement of obligations of all public authorities, offices and publicservants1

2. Develop systems to ensure that the people of India are appropriately made aware of thesestatements of obligations and are also made aware of their rights and entitlements in relation to

these.

3. To build on the existing structures of grievance redress set up under various laws such as NREGAor are envisioned to be set up under proposed entitlements laws like the National Food Security

Act.

4. Develop institutional capacity to receive, enquire into and redress complaints regarding anygrievance in terms of:

a. Any deficiency in the functioning of a public authority/office in relation to its definedstatement of obligations.

b. Violation by a public authority/office, of any timeline, service, obligation, commitmentetc. laid out in any other law, rule, policy, guideline, order etc.

c. Failure to provide any service or obligation in a manner that would be reasonable toexpect of the public authority/office.

Creation of statement of obligations

The statement of obligations of each public authority/ office in terms of its duties, obligations and

commitments towards citizens, should include but not necessarily be restricted to-

a. Defining the services and goods that the particular public authority/office providesdirectly (or indirectly through any other agency/contractor).

1 Though there are various documents including citizens charters which lay down the statement of

obligations of various departments, however, the functions, obligations, duties and commitments of

elected representatives do not appear to be specified in a similar manner. Even for public authorities

and officials, very often the citizens charters and other documents are inadequate, unclear, and

vague. Taskforces would be set up which would help pubic authorities evolve and codify their

statement of obligations. These task forces should hold wide public consultations.


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b. Detailing and describing the processes by which the public can access and/or receive thegoods and services that they are entitled to from the public authority/office.

c. Describing the conditions under which a person becomes eligible for the goods andservices, and consequently the categories of people who are entitled to receive the

goods and services.

d. Defining the quantitative and tangible parameters, (weight, size, frequency etc,) andtimelines, that are applicable to the goods and services that are accessible to the public.

e. Defining the qualitative and quantitative outcomes that each public authority/office hadundertaken to achieve through the goods and services that it was obligated to provide.

(For example- level of cleanliness for sanitation services, incidence of vector based

diseases for health care services etc.)

f. Laying down individual responsibility for providing the goods and services (who isresponsible for delivery/implementation and who is responsible for supervision).

Section 4 of the RTI Act requires each public authority to put its obligations in the public domain. The

statement of obligations should become a part of the required suo motu disclosures under section

4(1)(b) of the RTI Act, where required, by invoking the power to add topics, as provided for in sub-

section xvii.

Making people aware of the statement of obligations of public authorities/offices

5. It would be the obligation of each public authority/office to ensure that the statement of itsobligations is widely disseminated in all appropriate manners, is verified to be correct, and is

updated in keeping with the timeline specified.

Essential features of the grievance redress system

6. Every public authority/office would have a designated Grievance Redress Officer (GRO) forreceiving

2and disposing of complaints about any deficiency by an officer/functionary, in a

specified timeframe3. The GRO should have adequate authority and power to ensure that:

a. the deficiency is redressed in a reasonable timeframeb. responsibility is fixed for the deficiency occurring in the first place and, where thought

necessary, the errant functionary is reprimanded or punished

7. Facilitation centres would be set up at the block level which would register grievances of citizensand forward these to the appropriate GRO. These centres would also function as information

centres and would proactively provide information to citizens about the schemes and programs

of the government and would also assist citizens in filing grievances and in tracking their

applications and entitlements. These facilitation centres would be under the administration of

the Grievance Redress Commission. Rajiv Gandhi Sewa Kendras and Common Service Centres

that already exist in several states could be equipped and mandated to function as facilitation

and information centers.

2Grievances could be received in multiple ways, on paper, through emails, SMS, website,

telephonically, etc, and for each complaint a dated receipt must be issued.3

The timeframe could be specified in relation to the nature of the complaint. For example-

complaints of an immediate nature (non delivery of ration, drinking water, emergency medical

services etc.) would have to be redressed within 48 hours; complaints which are not of an immediate

nature (example- no response to an application for a ration card or any certificate within the

specified time frame etc.) would have to be redressed within 15 days and other complaints

(example- non availability of a flyover) would have to be redressed within 100 days.


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8. Where a complaint is not redressed by the GRO in the time specified, or a person is aggrieved bythe action taken by the GRO to redress the complaint, the complainant could approach the

District Grievance Redress Authority of the Grievance Redress Commission set up for the

purpose, which shall in a time-bound manner, enquire into the grievance and into the action

taken, if any, by the GRO. For the purpose of inquiring into complaints, the District Grievance

Redress Authority shall ordinarily hold open court hearings in different parts of the district, close

to the location of the complainant, and visit the site of the complaint, as required.9. An appeal against the order (or lack of order) of the District Grievance Redress Authority will lie

with the state commission in each state, and with the Central Commission for central

government authorities.

10.Where the Commission, or the District Grievance Redress Authority, determines that thecomplaint was genuine and that no action or no sufficient action was taken on it, or taken within

the required time frame, by the GRO, it would:

a. order redress of the grievance in an appropriate time frame;b. order, if it felt necessary, compensation4 to any person(s) adversely affected by the

deficiency5;

c. penalise the GRO in keeping with the gravity of the deficiency and, where there is adelay, penalise the GRO as per the quantum of delay.

11.Where the Commission determines that though the GRO had taken appropriate and adequateaction in order to redress the grievance, however, further required action by some other public

servant or authority was not taken, or delayed, then the Commission shall penalise this

authority/public servant.

12. In every complaint, received by the Commission, where it is either alleged by the complainant orthe Commission feels that there is prima facie grounds for believing that there is a prima facie

case of violation of the Prevention of Corruption Act to the deficiency, the Commission may

apart from issuing the necessary orders relating to the redress of grievance, also refer the

matter for further enquiry and/or investigation to the appropriate authority.

13.The Commission would also receive complaints from the public regarding the absence orinadequacy of a statement of obligations of any public authority/office and/or ineffective

dissemination of the same. Where such a complaint is received or where suo motu cognisance is

taken by the Commission of such deficiencies, the Commission may issue directions to the

concerned public authority/office to rectify the deficiency in the time frame specified.

14. If the public authority/office fails to comply with these directi

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