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Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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Section wise Analysis of Govt Lokpal and Jan Lokpal Bill by Krishnaraj Rao (RTI activist, Maharashtra)
82
1 Lokpal Bills – A Comparative Picture Row nos. Lokpal Bill Govt version – “Bill no 39 of 2011” (Sections in the same order as in the proposed Bill i.e. in serial order) Jan Lokpal Bill IAC’s Version 2.3 (Sections in this column more-or-less correspond to govt version. They are NOT IN SERIAL ORDER. Some sections, which are comparable to more than one section of the Govt Lokpal Bill, are REPEATED.) Comparison, Main Points & Observations (This draft provides only for the Lokpal for central public servants. Similar provisions for Lokayuktas in the States to deal with public servants of the State will have to be incorporated in the bill) The footnote to Jan Lokpal Bill on IAC website says that Jan Lokpal is only for central public servants. So we must ignore the inclusion of “state legislature” in Section 2(k) -- the pivotal definition of “public authority”. 1 LONG TITLE A Bill to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. A Bill to establish an independent authority to investigate offences under the Prevention of Corruption Act, 1988 to detect corruption by expeditious investigation and to prosecute offenders and to ensure timely redressal of certain types of public grievances and to provide protection to whistleblowers. 1. Govt. Lokpal is intended to be an institution to: Enquire into allegations of corruption against SOME public functionaries if prima facie case is made out, to present a case before a special court to recommend disciplinary action by the Competent Authority 2. Jan Lokpal is NOT intended to recommend disciplinary action by the Govt department. It is intended to: motivate and protect whistleblowers hear public grievances against ALL public authorities at the Centre and in States investigate complaints of corruption wield powers of detection, search & seizure hold trials (not just hearings) award punishments (not just recommend
Transcript
Page 1: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

1

Lokpal Bills – A Comparative Picture

Row nos.

Lokpal Bill

Govt version – “Bill no 39 of 2011” (Sections in the same order as in the proposed Bill

i.e. in serial order)

Jan Lokpal Bill

IAC’s Version 2.3 (Sections in this column more-or-less correspond to

govt version. They are NOT IN SERIAL ORDER. Some

sections, which are comparable to more than one

section of the Govt Lokpal Bill, are REPEATED.)

Comparison,

Main Points &

Observations (This draft provides only for the Lokpal for central

public servants. Similar provisions for Lokayuktas in the

States to deal with public servants of the State will

have to be incorporated in the bill)

The footnote to Jan Lokpal Bill on IAC website says

that Jan Lokpal is only for central public servants.

So we must ignore the inclusion of “state

legislature” in Section 2(k) -- the pivotal

definition of “public authority”.

1 LONG TITLE

A Bill to provide for the establishment of the

institution of Lokpal to inquire into allegations of

corruption against certain public functionaries and

for matters connected therewith

or incidental thereto.

A Bill to establish an independent authority to

investigate offences under the Prevention of Corruption

Act, 1988 to detect corruption by expeditious

investigation and to prosecute offenders and to ensure

timely redressal of certain types of public grievances

and to provide protection to whistleblowers.

1. Govt. Lokpal is intended to be an institution to:

• Enquire into allegations of corruption

against SOME public functionaries

• if prima facie case is made out, to present

a case before a special court

• to recommend disciplinary action by the

Competent Authority

2. Jan Lokpal is NOT intended to recommend

disciplinary action by the Govt department. It is

intended to:

� motivate and protect whistleblowers

� hear public grievances against ALL public

authorities at the Centre and in States

� investigate complaints of corruption

� wield powers of detection, search &

seizure

� hold trials (not just hearings)

� award punishments (not just recommend

Page 2: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

2

punishment)

� proactively take steps to prevent

corruption before it happens

2 PREAMBLE

WHEREAS the Constitution of India established a

democratic Republic to ensure justice

for all; AND WHEREAS the country's commitment

to clean and responsive governance has to

be reflected in an effective institution to

independently inquire into and prosecute acts of

corruption; NOW, THEREFORE, it is expedient to

establish a strong and effective institution to

contain corruption. BE it enacted by Parliament in

the Sixty-second Year of the Republic of India as

follows:—

No Preamble

1. Govt Lokpal Bill preamble states that it will

establish a strong and effective institution

to contain corruption. It will aim to create

clean and responsive governance.

2. Jan Lokpal Bill has no preamble.

Chapter I Preliminary

3 SHORT TITLE & COMMENCEMENT

(1) This Act may be called the Lokpal Act, 2011.

(2) It extends to the whole of India and also applies

to public servants outside India.

(3) It shall come into force on such date as the

Central Government may, by notification

in the Official Gazette, appoint; and different dates

may be appointed for different provisions

of this Act and any reference in any provision to the

commencement of this Act shall be construed as a

reference to the coming into force of that provision.

1. (1) This Act may be called the Jan Lokpal Act, 2011.

(2) It shall come into force on 120th day of its securing

assent from the President of India.

1. Govt Lokpal Bill will come into force from

its date of being published in the Gazette.

No deadline is imposed for its

implementation, even after date of

President’s assent.

2. Jan Lokpal Bill has a 4-month deadline. It

shall come into force four months after

assent.

Page 3: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

3

4 DEFINITIONS

(1) In this Act, unless the context otherwise

requires,—

In this Act, unless the context otherwise requires:-

5 (a) “Bench” means a Bench of the Lokpal;

(b) “Chairperson” means the Chairperson of the

Lokpal;

BENCH, CHAIRPERSON, BOARD & LOKPAL

2(a) “Board” means the Chairman and the other

members of the Lokpal Collectively.

2(c) “Lokpal” means and includes,

(i) Benches constituted under this Act and performing

functions under this Act;

(ii) Any officer or employee performing under this

(iii) The Board in rest of the cases;

2(d) “Lokpal Bench” means a Bench of 2 or more

members of the Lokpal acting together in respect of

any matter in accordance with the regulations. Each

bench shall have a member with legal background.

2(f) “Full bench” means a bench with seven members

with or without the Chairperson

1. Govt Lokpal Bill:

• Does not define “Lokpal”

• defines “Bench” in a sketchy way

2. Jan Lokpal Bill has a detailed approach to

decision-making process:

� It defines “Lokpal” as meaning its

Benches, its employees and officers

performing functions under this Act, and

the Board taking decisions.

� It relates different bench strengths to the

importance of the decision being made.

� It specifies that “Full Bench” means seven

of its total strength of eleven, with or

without Chairperson.

6 COMPETENT AUTHORITY

(c) “competent authority”, in relation to—

(i) a member of the Council of Ministers, means the

Prime Minister;

(ii) a member of Parliament, other than a Minister,

means—

No Equivalent Provisions

1. Govt. Lokpal has a detailed definition of

“competent authority” in relation to different

public servants, including Union ministers, MPs,

chairpersons of autonomous bodies constituted by

the Central Govt. (Although not specified here, the

Competent Authority is generally the authority

empowered by law to hold a particular public

servant answerable e.g. in case of govt. employees,

the head of department empowered to call for

Page 4: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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(A) in the case of a member of the Council of States,

the Chairman of that Council; and

(B) in the case of a member of the House of the

People, the Speaker of that House;

(iii) an officer in the Ministry or Department of the

Central Government, means the Minister in charge

of the Ministry or Department under which such

officer is serving;

(iv) a chairperson or members of any body, or Board

or corporation or authority or company or society or

autonomous body (by whatever name called)

established or constituted by an Act of Parliament

or wholly or partly financed by the Central

Government or controlled by it, means the Minister

in charge of the administrative Ministry of such

body, or Board or corporation or authority or

company or society or autonomous body;

(v) an officer of any body or Board or corporation or

authority or company or society or autonomous

body (by whatever name called) established or

constituted by an Act of Parliament or wholly or

partly financed by the Central Government or

controlled by it, means the head of such body or

Board or corporation or authority or company or

society or autonomous body;

(vi) any other case not falling under sub-clauses (i)

to (v) above, means the Central Government:

Provided that if any person referred to in sub-clause

Departmental Enquiry and order Disciplinary

Action.)

2. Jan Lokpal ignores the key concept of Competent

Authority. Jan Lokpal aims to effectively disable

Departmental Vigilance, Enquiry and Disciplinary

Action and take over those functions.

REASONS, JUSTIFICATIONS AND IMPLICATIONS:

� Jan Lokpal aims to centralize such powers

with the Lokpal.

� Currently, such powers -- wielded in every

department and PSU – have no

standardization. Vigilance, departmental

enquiries and internal investigations in

various departments are done with

varying degrees of strictness or laxity.

Subjective elements and internal politics

play a large part in all of them.

� Punishments meted out as disciplinary

action are usually mild e.g. letter of

reprimand and warning, withholding

promotions and increments etc. Unlike

the proposed Jan Lokpal punishments,

prosecution and imprisonment are

usually not sought against corrupt public

servants.

� On the flip side, as this function is

dispersed throughout the system,

Departmental Enquiry and disciplinary

Action happens reasonably promptly i.e.

in some months or a couple of years. This

is unlike centralized court procedures

with their long pendencies.

Page 5: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

5

(iv) or sub-clause (v) is also a Member of Parliament,

then the competent authority shall be—

(A) in case such member is a Member of the Council

of States, the Chairman of that House; and

(B) in case such member is a Member of the House

of the People, the Speaker of that House;

� Jan Lokpal Bill will end the autonomy of

each and every central government

department by taking over vigilance and

departmental enquiry functions. (This is

detailed in the provisions and

explanations that follow.)

7

No Equivalent Provisions

PUBLIC AUTHORITY

2(k) “Public authority” means any authority or body or

institution of self-governance established or

constituted –

i) by or under the Constitution; or

ii) by or under any other law made by the Parliament,

or a state legislature

iii) by notification issued or order made by the

Government, and includes any body owned, controlled

or substantially financed by the Government;

1. Govt Lokpal Bill does not define public authority;

it does not have to because it clearly defines the

jurisdiction of the Lokpal, and thereby restricts it.

2. Jan Lokpal Bill does not clearly spell out Lokpal’s

jurisdiction, but assumes jurisdiction over all

“public authorities” at Central govt level. The

definition of “Public Authority” is the same as in

Right to Information Act.

8 (d) “complaint” means a complaint, made in such

form as may be prescribed, alleging that a public

servant has committed an offence punishable under

the Prevention of Corruption Act, 1988;

COMPLAINT

2(b) “Complaint” means an allegation of corruption or

a request by whistleblower for protection and

appropriate action.

2(e) “Act of corruption” includes :

i) anything made punishable under Chapter IX of the

Indian Penal Code or under the Prevention of

Corruption Act, 1988; which would also include any

offence committed by an elected member of a house

of legislature even in respect of his speech or vote

inside the house.

ii) willfully giving any undue benefit to any person or

1. Govt Lokpal takes the Prevention of Corruption

Act 1988 as the single reference point for its

definition of corruption. Complaints would have to

be made with reference to various provisions of

this Act.

2. Jan Lokpal Bill’s definition of “Complaint” is very

wide, and creates new dimensions by inclusion of

whistleblowers’ plea. Besides offences defined

under Prevention of Corruption Act, a complaint

can include offences defined in Chapter IX of Indian

Penal Code (Offences by or relating to public

servants). It newly defines corruption over and

above these legislations, and breaks new legal

Page 6: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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obtaining any benefit from any public servant in

violation of any laws or rules,

iii) victimization of a whistleblower or a witness.

iv) repeated violation of citizen’s charter by any public

servant.

ground by mandating prosecution and

punishments for offenses for which no legislation

currently exists, viz:

� Offence committed by MPs speech or vote

inside the house. MPs are currently

protected by Parliamentary privilege and

immunity in respect of all their actions in

Parliament.

� Victimization of whistleblower or witness,

although whistleblower-protection has not

been legislated in India yet.

� Violation of citizen’s charter by public

servant i.e. subtle corruption such as

delays, negligence and non-performance of

duties. The reference point for this legal

provision would be the Citizen’s Charter,

which is to be published by each

department detailing the functions it will

render to citizens. Citizen’s charter is made

mandatory by Jan Lokpal Bill.

9

No Equivalent Provisions

GRIEVANCE REDRESSAL & CITIZEN’S CHARTER

2(h) “Grievance” means a claim by a person that he

could not get satisfactory redressal according to a

citizens’ charter despite approaching a Grievance

Redressal Officer of that Department;

25. (1) Each public authority shall prepare a specific

charter within a reasonable time not exceeding one

year from the coming into force of this Act.

(2) Every citizens’ charter shall enumerate the public

Grievance Redressal is an enormous separate

exercise envisaged in Jan Lokpal Bill. (There is no

equivalent provisiojn in the Govt Lokpal Bill.) The

reference point for “grievances” is citizen’s charter

made mandatory for each public authority.

Citizen’s Charter is elaborated under the heading of

“Grievance Redressal System” in Section 25.

SALIENT FEATURES:

� This section mandates that each public

authority will prepare a specific citizen’s

charter within one year of passing of

Lokpal Bill.

Page 7: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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No Equivalent Provisions

authority’s commitments to the citizens which are

capable of being met within a specific time limit and

shall designate the officer whose duty would be to

fulfill the commitment of the public authority.

(3) If any public authority does not prepare its citizen’s

charter within a year, Lokpal shall notify the citizen’s

charter on its own after consulting the public authority

and the same shall be binding on that authority.

(4) Each public authority shall make an assessment of

the resources required to implement the citizen’s

charter and the government shall provide such

resources.

(5) Each public authority shall designate an official

called Public Grievance Redressal Officer in each

station where the public authority has an office, to

whom a complaint could be made for any violation of

the citizens’ charter.

(6) The Senior most officer of that public authority in

that office will be designated as the Public Grievance

Redressal Officer.

(7) It shall be the duty of the Grievance Redressal

Officer to get the grievance redressed within a period

of 30 days from the receipt of the complaint.

(8) In the event of even the Grievance Redressal Officer

not getting the grievance redressed within the specific

period of 30 days a complaint could be made to the

Lokpal.

� If the public authority fails to do so, Lokpal

will notify the charter on its own after

consulting the public authority.

� This charter will spell out the public

authority’s various deliverables to the

citizens, with specific time limits.

� The onus for timely and proper service

delivery will be placed on the shoulders of

the head of the public authority, who will

be designated as the Grievance Redressal

Officer.

� Grievance Redressal Officer must get

grievances redressed within 30 days.

Otherwise the aggrieved person can file a

complaint before Lokpal.

� Lokpal, after hearing the Grievance

Redressal Officer, will (if the complaint is

found to be justified) impose penalty of Rs

500 per day for each day’s delay, upto a

maximum of Rs 50,000. This will be

recovered from the officer’s salary.

� Lokpal may also recommend departmental

punishment e.g. demotion, increment cut

etc.

� Lokpal may issue appropriate directions for

corrective measures to the public

authority.

� The citizen’s charter will be reviewed every

year by the public authority, in

consultation with the public.

� In every district, one officer of Lokpal will

be designated as Appellate Grievance

Officer to receive grievances. A social

Page 8: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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No Equivalent Provisions

(9) The Lokpal after hearing the Grievance Redressal

Officer would impose suitable penalty not exceeding

Rs. 500/- for each day’s delay but not exceeding Rs.

50,000/- to be recovered from the salaries of the

Grievance Redressal Officer.

(10) Apart from levying the penalty on the Grievance

Redressal Officer, the Lokpal may also in suitable cases

recommend to the appropriate authority to have

departmental punishment imposed on the Grievance

Redressal Officer.

(11) The Lokpal will also issue a direction to an

appropriate authority to get such grievances redressed

within the time to be fixed by the Lokpal.

(12) Every public authority shall review and revise its

Citizens Charter at least once every year through a

process of public consultation to be held in the

presence of a representative of Lokpal.

(13) Lokpal may direct any public authority to make

such changes in their citizens’ charter as are mentioned

in that order and that public authority shall make such

changes within a month of the receipt of such order.

Provided that such changes shall have to be approved

by at least a three member bench of Lokpal.

(14) There shall be at least one officer of the Lokpal in

each district to receive grievances who shall be called

an Appellate Grievance Officer. However, in such

places where there is more concentration of central

audit of his performance will happen

every six months.

� No case will be closed unless the Appellate

Grievance officer rejects the grievance, or

the grievance is redressed.

Page 9: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

9

government offices, there shall be more Appellate

Grievance Officers as may be required.

(15) A social audit of each Appellate Grievance Officer

shall take place every six months, in which he shall

present himself before the public, present the data

related to his functioning, respond to public queries

and incorporate suggestions from public in his

functioning. The public hearing shall be attended by a

senior officer from Lokpal.

(16) No case can be closed by Appellate Grievance

Officer till the citizen’s grievance is redressed or the

case is rejected by the Appellate Grievance Officer.

10

No Equivalent Provisions

WHISTLE BLOWERS

2(m) “Whistleblower” means any person, who provides

information about corruption in a public authority or is

a witness or victim in that case or who faces the threat

of

(i) professional harm, including but not

limited to illegitimate transfer, denial of

promotion, denial of appropriate

perquisites, departmental proceedings,

discrimination or

(ii) physical harm, or

(iii) is actually subjected to any harm;

because of either making a complaint to the Lokpal

under this Act, or for filing an application under the

Right to Information Act, 2005 or by any other legal

action aimed at preventing or exposing corruption or

mal-governance.

Jan Lokpal Bill brings RTI applicants and

complainants under all forums under the authority

of the Jan Lokpal, if they are threatened or actually

harmed. (There is no equivalent provision in Govt.

Lokpal Bill.)

SALIENT FEATURES & AREAS OF CONCERN:

� Those affected by departmental

proceedings may also get protection of

Lokpal. Thus, departmental proceedings

become open to scrutiny by Jan Lokpal if a

public servant affected by it approaches

Jan Lokpal and establishes prima facie that

he was targeted for acting against

corruption. In this case, the people

holding departmental inquiries anywhere

are themselves liable to become the

target of a simultaneous inquiry.

� Public officials and others are encouraged

Page 10: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

10

No Equivalent Provisions

21. (1) Any public official or any other person having

information of any corruption in any public authority

would be encouraged to send the information

confidentially to the Lokpal; and it shall be the duty of

the Lokpal to get an inquiry made into such

information and if necessary get an investigation made

under the Prevention of Corruption Act.

(2). It shall be the duty of the Lokpal to provide full

protection to whistle blowers from any physical harm

or administrative harassment. Identity of such whistle

blowers shall also be protected if the whistle blower so

desires.

(3). For achieving this objective it shall be competent

for the Lokpal to give suitable direction to any security

agencies for providing security as well as to any other

authority to ensure that no harassment is caused to

such whistle blower.

(4). Orders under this section shall be passed

expeditiously and in any case within a month of receipt

of complaint. Immediate action will be taken in cases

involving a threat of physical victimization.

(5) The investigations in complaints by whistleblowers

facing physical or professional victimization shall be

fast tracked and completed within three months of

receipt of the same.

to send information of corruption

confidentially to Lokpal, who will initiate

suo moto enquiry and investigation.

� Lokpal will provide full protection to

whistle-blowers, and protect him from

physical harm and administrative

harassment. Lokpal will be able to give

suitable direction to ANY SECURITY

AGENCIES, clearly cutting across all

jurisdictional boundaries. It is not clearly

spelled out anywhere what mechanisms

and criteria Lokpal will have to

differentiate genuine cases from persons

suffering from persecution complex.

� Orders will be passed expeditiously, and

maximum within one month. Immediate

action will be taken in case of physical

victimization. Again, mechanisms for

taking “immediate action” are not clear.

� Investigations in complaints by

whistleblowers facing physical or

professional victimization will be

completed in 3 months. This suggests that

action will happen first, and investigation

will follow later.

Page 11: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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11

No Equivalent Provisions

PROVISIONS TO PREVENT CORRUPTION

31. (1) No government official shall be eligible to take

up jobs, assignments, consultancies, etc. with any

person, company, or organisation that he had dealt

with in his official capacity.

(2) All contracts, public-private partnerships, transfer

by way of sale, lease, and any form of largesse by any

public authority shall be done with complete

transparency and by calling for public

tender/auction/bids unless it is an emergency measure

or where it is not possible to do so for reasons to be

recorded in writing. Any violation of this shall make the

contract/largesse void. The details of all such

transactions would be put up by the public authority

on a public website.

(3) All contracts, agreements or MOUs known by any

name related to transfer of natural resources, including

land and mines to any private entity by any method

like public-private partnerships, sale, lease or any form

of largesse by any public authority shall be put on the

website within a week of being signed.

Jan Lokpal issues suo moto directions binding on

government officials and public authorities

entering into dealings with private parties. These

are in fact new laws in their own right:

� Govt officials are barred from taking up

jobs, consultancies etc. with private

parties with whom they deal in an official

capacity.

� All contracts, sale, lease and public

largesse must be done with complete

transparency, after calling for public

tenders etc. Violations of this law would

make these transactions void ab initio.

� All contracts for transfer of natural

resources by any method like sale, PPP

etc. must be put on a website by the

public authority within a week of being

signed.

12

No Equivalent Provisions

POWER TO CREATE DIFFERENT WINGS

18 (2) In particular and without prejudice to the

generality of the power contained in sub-section (1)

any such regulations may provide for all or any of the

following matters, namely:-

a) the creation of different wings in the Lokpal to deal

This Section of Jan Lokpal must be looked at with

caution, as it gives Lokpal the sweeping power to

EXPAND & DIVERSIFY LIMITLESSLY by creating

different wings. (Govt Lokpal Bill has no equivalent

provision.)

Page 12: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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with different subjects like investigation, prosecution

and grievances;

13 (e) “inquiry” means an inquiry conducted under this

Act by the Lokpal;

(f) “Judicial Member” means a Judicial Member of

the Lokpal appointed as such;

INQUIRY, JUDICIAL MEMBER & JUDICIAL OFFICER

22(3) A bench of judicial officers will conduct an inquiry

against such government servant for imposition of

penalty in which full opportunity to show cause would

be given to such government servant. After conclusion

of the inquiry the bench shall also determine the

penalty, if any, to be awarded to that public servant.

The decision of the bench will be subject to approval by

a higher authority prescribed by the Lokpal by through

regulations.

2(d) “Lokpal Bench” means a Bench of 2 or more

members of the Lokpal acting together in respect of

any matter in accordance with the regulations. Each

bench shall have a member with legal background.

2(i) “Judicial officer” means the officer appointed

under section 22 of this Act.

22(1) After the completion of an investigation against

any government servant the Lokpal may either initiate

prosecution against such public servant or may initiate

proceedings for imposition of penalty or both.

22(2) Lokpal shall appoint such officers, who may be

retired judges or retired civil servants or such others as

may be provided, to act as judicial officers for the

purpose of this section, at such terms and conditions as

may be provided in regulations.

1. Govt Lokpal Bill specifies Judicial member of

Lokpal. Judicial members are a necessary part of

Lokpal bench, who will hold inquiry into cases after

investigation. The purpose of this inquiry is to

understand whether a case is made out for filing

chargesheet and handing over the case to Lokpal’s

Prosecution Wing. Prosecution Wing will then take

file a case before Special Judges appointed by

central government. More details in Section 23 of

Govt. Lokpal Bill.

2. Jan Lokpal Bill specifies a member with legal

background in each bench. These are not to be

confused with judicial officers, who will be directly

appointed by Jan Lokpal. The qualifications of

judicial officers are quite different from Govt

Lokpal Bill.

KEY POINTS:

� Judicial officers may be retired judges,

retired civil servants, or “others” i.e. not

necessarily people with judicial or legal

background.

� A bench of judicial officers will conduct an

“inquiry”. This bench will determine the

penalty to be awarded.

� The decision of the bench will be reviewed

and approved by a “higher authority”

(please note, not a court) prescribed by the

Lokpal through regulations. It is possible

that this higher authority may be a Lokpal

Page 13: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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22(3) A bench of judicial officers will conduct an inquiry

against such government servant for imposition of

penalty in which full opportunity to show cause would

be given to such government servant. After conclusion

of the inquiry the bench shall also determine the

penalty, if any, to be awarded to that public servant.

The decision of the

bench will be subject to approval by a higher authority

prescribed by the Lokpal by through regulations.

22(4) The recommendations so approved shall be

binding on the appointing authority.

bench constituted by Lokpal members , as

opposed to judicial officers.

� Once this is done, the recommendations

shall be binding on the appointing authority

i.e. the appointing authority will carry out

the punishment. Punishment means

dismissal, removal or reduction in rank etc.

In short, Jan Lokpal will not recommend

departmental enquiry and disciplinary action. It will

itself conduct the equivalent of a departmental

enquiry, get the decision ratified by a higher

authority that Lokpal itself appointed, and then the

decision of that inquiry will be binding on the

appointing authority.

SOME QUESTIONS:

1) Can such a legislation – widely affecting

public servants and the self-regulatory

powers of thousands of government

departments at centre and in various

states -- be made so easily without

consulting them? Does it not cut across

many lines of jurisdiction, and effectively

change dozens of laws, rules and

regulations?

2) Does this legislation honour the time-

tested principles of natural justice and

checks-and-balances? If one arm of Lokpal

carries out the investigation, another arm

of Lokpal conducts the enquiry and

awards punishment, and a third arm of

Lokpal ratifies this award, where are the

checks and balances needed for

administering justice?

Page 14: Section wise Analysis of Govt Lokpal and Jan Lokpal Bill

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14 LOKPAL & MEMBER

(g) “Lokpal” means the institution established under

section 3;

(h) “Member” means a Member of the Lokpal;

Not defined

15 MINISTER

(i) “Minister” means a Union Minister but does not

include the Prime Minister;

Not defined

Govt Lokpal Bill keeps the present PM outside its

ambit at the definitions stage itself. More about

this later.

16 NOTIFICATION & PRESCRIBED

(j) “notification” means notification published in the

Official Gazette and the expression “notify” shall be

construed accordingly;

(k) “prescribed” means prescribed by rules made

under this Act;

Not defined

17 PUBLIC SERVANT & GOVERNMENT SERVANT

(l) “public servant” means a person referred to in

clauses (a) to (g) of subsection (1) of section 17;

2(l) “Public servant” shall have the same meaning as

defined in section 2(c) of Prevention of Corruption Act

1988.

2(g) “Government Servant” means a public servant,

who is not an elected representative or a judicial

officer.

1. Govt Lokpal Bill defines “Public Servant” more

fully in Section 17, where it erects jurisdictional

barriers. As per Govt. Lokpal Bill, public servants

who can be investigated by Lokpal include:

• Prime Minister, after he has demitted office

• Current or former Union Minister

• Current or former Member of Parliament of

Rajya Sabha or Lok Sabha

• Group “A” officer or equivalent or above,

from amongst the public servants – those

serving in connection with the affairs of the

Union

• Chairperson or member or officer equivalent

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to Group “A” officer in any board,

corporation or autonomous body etc.

established by Act of Parliament or wholly or

partly financed by the Central Govt or

controlled by it. (If they are currently

working in connection with any State Govt,

then consent of the concerned State Govt

will be sought.)

• Current or former director, manager,

secretary or other officer of every other

society or association of persons or trust

(whether registered under any law or not)

wholly or partly financed or aided by the

Government, or receiving public donations,

with annual income exceeding a certain

amount specified by Central Government by

notification.

PLEASE NOTE: This definition brings any civil

society under Lokpal’s ambit if they collect

donations from the public. However, a

minimum amount of donations collected will

provide the cutoff point; presumably, it will

be a reasonably high figure e.g. Rs 1 lakh, so

that the authority is not swamped with

cases.

2. As per Jan Lokpal Bill, “Public Servant” includes

all of the above (except civil society). It also

includes:

� All Central Govt employees

� Temporary staff

� Contractors and contract labour engaged

by govt in various public works.

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� It includes current as well as past Prime

Minister, Ministers and MPs.

Jan Lokpal Bill does not define minister, it only

defines “Public Servant” and “Government

Servant”. Judicial officers and elected

representatives are Public Servants but not

Government Servants. However, most of the time,

Jan Lokpal Bill uses the two terms interchangeably.

(More about this in discussion of Section 17 of

Govt Lokpal Bill)

18 REGULATIONS, RULES & SCHEDULE

(m) “regulations” means regulations made under

this Act;

(n) “rules” means rules made under this Act;

(o) “Schedule” means a Schedule to this Act;

Not defined

Some mundane but important items are not

defined or specified in the Jan Lokpal Bill.

19 SPECIAL COURT

(p) “Special Court” means the court of a Special

Judge appointed under subsection (1) of section 3 of

the Prevention of Corruption Act, 1988.

6. The Lokpal shall have the following functions and

powers:

e) to initiate prosecution before a Special Court

established under the Prevention of Corruption Act,

1988

f) to ensure the proper prosecution of cases before a

Special Court established under the Prevention of

Corruption Act, 1988.

1. Govt Lokpal defines Special Court in terms of

Section 3(1) of Prevention of Corruption Act 1988.

This section says: “(1) The Central Government or

the State Government may, by notification in the.

Official Gazette, appoint as many special Judges as

may be necessary for such area or areas or for such

case or group of cases as may be specified in the

notification to try the following offences, namely: -

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to

commit or any abetment of any of the offences

specified in clause (a).

(2) A person shall not be qualified for appointment

as a special Judge under this Act unless he is or has

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been a Sessions Judge or an Additional Sessions

Judge or an Assistant Sessions Judge under the

Code of Criminal Procedure, 1973.”

2. Jan Lokpal Bill does not define Special Courts,

but refers to the same under functions and powers

of Lokpal to prosecute.

KEY POINTS:

� Can the Central Government appoint

Special Judges who will fall under the

jurisdiction of High Courts in each State?

Isn’t it the job of State Govts?

� As special judges will be direct appointees

of the government, it will be the

government’s prerogative to pick and

choose. Lokpal seeks to prosecute

ministers and bureaucrats before such

judges. Isn’t there a fatal conflict of

interest being ignored by both Govt

Lokpal and Jan Lokpal Bill, and Prevention

of Corruption Act itself?

20

No Equivalent Provisions

PENALTY & PUNISHMENTS

2(j) “Penalty” under this Act means punishment of

dismissal, removal or reduction in rank

PUNISHMENTS:

23. (1) For any act of corruption, the punishment shall

not be less than six months of rigorous imprisonment

and may extend up to imprisonment for life.

(2) The Special Court may take into consideration the

1. Govt Lokpal Bill derives the Penalties and

Punishments from existing laws such as Prevention

of Corruption Act 1988, Central Civil Services Rules

1965 etc. and applies it to different offenses.

Therefore, it does not find the need to issue fresh

definitions or fresh directions in this category.

2. Jan Lokpal Bill creates a brand new set of

punishments:

� Minimum punishment for “acts of

corruption” is six months of rigourous

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higher rank of an accused person to inflict a more

severe punishment.

(3) If the beneficiary of an offense is a business entity,

in addition to the other punishments provided for

under this Act and under the Prevention of Corruption

Act, a fine of up to five times the loss caused to the

public shall be recovered from the accused and the

recovery may be made from the assets of the business

entity and from the personal assets of its Managing

Directors, if the assets of the accused person are

inadequate.

(4) If any company or any of its officer or Director is

convicted for any offence under Prevention of

Corruption Act, that company and all companies

promoted by any of that company’s promoters shall be

blacklisted and be ineligible for undertaking any

government work or contract in future.

(5) If a public servant is convicted under the Prevention

of Corruption Act, such public servant shall stand

removed from his office.

24. Wherever Lokpal directs imposition of financial

penalty on any officer under this Act to be deducted

from his salary, it shall be the duty of the Drawing and

Disbursing Officer of that Department to implement

such order, failing which the said Drawing and

Disbursing Officer shall make himself liable for similar

penalty.

imprisonment.

� Maximum punishment for corruption is

life imprisonment.

� Public servant convicted of corruption will

lose his job.

� If the beneficiary of an offense is a

business entity, then in addition to all the

other punishments under this Act and

Prevention of Corruption Act, a fine of

upto five times the loss to public will be

recovered from the assets of the business

entity, and from the personal assets of its

managing directors if the assets of the

directly accused person are inadequate.

� If a company or any of its officers or

directors are convicted of corruption, then

that company and all other companies will

be blacklisted for undertaking any govt

work or contract.

� If the Drawing and Disbursing Officer fails

to deduct Lokpal’s fines from his salary,

then he will himself become liable for a

similar penalty.

QUESTION: Is it so easy to invent stern

punishments without consulting all those who

would be affected by the rule-making? Are all of

these in keeping with principles of natural justice?

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21 (2) Words and expressions used herein and not

defined in this Act but defined in the Prevention of

Corruption Act, 1988, shall have the meanings

respectively assigned to them in that Act.

(3) Any reference in this Act to any other Act or

provision thereof which is not in force in any area to

which this Act applies shall be construed to have a

reference to the corresponding Act or provision

thereof in force in such area.

CONFLICTS WITH OTHER ACTS & LAWS

3. Notwithstanding anything in any other Act or Law

the provisions of this Act shall prevail and to the extent

that the provisions of this Act are repugnant to any

other provision in any other Act or law, the provisions

in other Acts or laws shall stand amended to the extent

of such repugnancy.

1. Govt Lokpal depends on Prevention of

Corruption Act 1988 for its definitions. It takes the

support of existing legal framework.

2. Jan Lokpal Bill assumes the power to override

any existing legislation that contradicts it. In the

ecosystem of India’s legislations and various

authorities, it assumes that the highest place can

be given to Lokpal without a debate.

Chapter 2 Establishment of Lokpal

22 3. (1) As from the commencement of this Act, there

shall be established, for the purpose 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 the Supreme Court; and

(b) such number of Members, not exceeding eight

out of whom fifty per cent shall be Judicial

Members.

(3) A person shall be eligible to be appointed,—

(a) as a Judicial Member if he is or has been a Judge

of the Supreme Court or a Chief Justice of a High

Court;

(b) as a Member other than a Judicial Member, if he

is a person of impeccable integrity, outstanding

ESTABLISHMENT OF LOKPAL

4. (1) Immediately after the commencement of this

Act, the Central Government by a Notification shall

establish an institution known as Lokpal, who would

have administrative, financial and functional

independence from the government.

(2) The Lokpal shall consist of a Chairperson and 10

other members and various officers under them at

different levels to perform such functions as are

assigned to them under this Act.

(3) The Chairperson and the 10 members of the Lokpal

shall be appointed by the President on the

recommendation of a Selection Committee.

(4) The following shall not be eligible to become

1. Govt Lokpal Bill stresses that the Chairperson of

Lokpal will be at least a Supreme Court judge, and

half the remaining eight members shall be judicial

members. These judicial members will be judges of

Supreme Court of Chief Justices of High Court.

Other members shall be persons of impeccable

integrity, and special knowledge of at least 25

years in anti-corruption policy, administration,

vigilance, banking law, management etc. They shall

not be MLAs, and cannot continue to hold business

interests or practise any other profession.

2. Jan Lokpal Bill sets the professional bar

considerably lower for qualification as a candidate:

� Any citizen of India above 45 years can

qualify if he has never been charged with

moral turpitude, and if he wasn’t in

government service in the past two years.

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ability and standing having special knowledge and

expertise of not less than twenty-five years in the

matters relating to anti-corruption policy, public

administration, vigilance, finance including

insurance and banking, law, and management.

(4) The Chairperson or a Member shall not be a

member of Parliament or a member of the

Legislature of any State or Union territory and shall

not hold any office of trust or profit (other than the

office as the Chairperson or a Member) or be

connected with any political party or carry on any

business or practise any profession and accordingly,

before he enters upon his office, a person appointed

as the Chairperson or a Member, as the case may

be,

shall, if –

(a) he holds any office of trust or profit, resign from

such office; or

(b) he is carrying on any business, sever his

connection with the conduct and management of

such business; or

(c) he is practising any profession, cease to practise

such profession.

(5) The Chairperson and every Member shall, before

entering upon his office, make and subscribe before

the President an oath or affirmation in the form set

out in the First Schedule.

Chairperson or Member of Lokpal:

(a) Any person, who is not a citizen of India, or

(b) Any person, against whom charges were ever

framed by any court of law for any offence involving

moral turpitude, or

(c) Any person, who is less than 45 years in age, or

(d) Any person, who was in the service of any

government and has remitted office within the last two

years, either by way of resignation or retirement.

4(5) At least four members of Lokpal shall have a legal

background.

Explanation: “Legal Background” means that the

person should have held a judicial office in the territory

of India for at least ten years or should have been an

advocate in a High Court or the Supreme Court for at

least fifteen years.

4(17) The Selection Committee shall, after considering

all relevant information about the short listed

candidates, select the required number of persons

preferably through consensus. However, a person shall

not be selected if 3 members of the Selection

Committee disapprove such names.

4(18) The Selection Committee after selecting the

persons to be appointed as members or Chairperson of

the Lokpal shall ascertain their willingness to serve as

members or Chairperson, as the case may be, before

recommending the names to the President.

4(21) The Chairperson or members of Lokpal shall not

be serving member of either the Parliament or the

� Of the 11 Jan Lokpals (Chairperson plus 10

members), at least four should have legal

background i.e. have held judicial office

for at least 10 years, or should have been

an advocate in High Court or Supreme

Court for at least 15 years.

� Conversely, this means that six out of ten

Jan Lokpal members WITHOUT such

qualifications will wield the Lokpal’s

sweeping powers. Their only qualification

will be not having been charged with

moral turpitude – and that means 99.9

percent of us.

However, a person cannot be appointed if three

members of the selection committee disapprove of

him.

Also, if the selection committee feels that his

earlier associations with any persons or activity will

continue to hinder his functioning as Lokpal, then

he will not be appointed as Lokpal.

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Legislature of any State and shall not hold any office of

profit (other than the office as Chairperson or member)

or carry on any business or practice any profession and

accordingly, before he enters upon his office, a person

appointed as the Chairperson or member of Lokpal

shall-

(i) if he holds any office or profit, resign from such

office; or

(ii) if he is carrying on any business, sever his

connection with the conduct and management of such

business; or

(iii) if he is practicing any profession, suspend practice

of such profession, or

(iv) if he is associated directly or indirectly with any

other activity, which is likely to cause conflict of

interest in the performance of his duties in Lokpal, he

should suspend his association with that activity.

Provided that if even after the suspension, the earlier

association of that person with such activity is likely to

adversely affect his performance at Lokpal, that person

shall not be appointed as a member or Chairperson of

Lokpal.

23 APPOINTMENT OF SELECTION COMMITTEE

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 Minister — chairperson;

(b) the Speaker of the House of the People —

member;

4(6) The Selection Committee shall consist of the

following:-

(i) The Prime Minister of India, who will be the

Chairperson of the Selection Committee.

(ii) The Leader of the Opposition in the Lok Sabha

(iii) Two judges of Supreme Court of India and two

permanent Chief Justices of the High Courts selected

by collegium of all Supreme Court judges

(v) The Chief Election Commissioner of India

1. Govt Lokpal will be selected by a committee

comprising PM, Speaker, Leaders of Opposition in

Lok Sabha and Rajya Sabha, a Union cabinet

minister, one sitting judge each of of SC and HC,

one eminent jurist and one person of eminence in

public life.

2. Jan Lokpal shall be selected by PM, Leader of

Opposition in Lok Sabha, two judges each of

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(c) the Leader of Opposition in the House of the

People—member;

(d) the Leader of Opposition in the Council of States

– member;

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

Prime Minister —member;

(f) one sitting Judge of the Supreme Court to be

nominated by the Chief Justice of India—member;

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

nominated by the Chief Justice of India—member;

(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

Government – member.

(2) No appointment of a Chairperson or a Member

shall be invalid merely by reason of any vacancy in

the Selection Committee.

(vi) The Comptroller & Auditor General of India

(vii) All previous Chairpersons of Lokpal.

Supreme Court and High Courts, CEC, CAG and all

previous Chairpersons of Lokpal.

24 SELECTION PROCEDURE

(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

4(7) The Selection Committee shall select the

Chairperson and the other members of the Lokpal from

out of a short list prepared by the Search Committee.

The Chairperson shall be a person with extensive

knowledge of law.

(8) A Search Committee shall consist of 10 members. 5

of its members shall be selected by the Selection

Committee from amongst the retired Chief Justices of

India, the retired Chief Election Commissioners and the

retired Comptroller and Auditor Generals with

1. Govt Lokpal Bill makes it optional for the

Selection Committee to constitute a Search

Committee to prepare a panel of suitable

candidates. The Selection Committee will regulate

its own selection procedure – no transparent

procedure is specified. The composition of the

Search Committee is also not specified.

2. Jan Lokpal Bill specifies an extremely rigorous

and open pre-selection procedure. It stipulates

that:

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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.

(4) The Selection Committee shall regulate its own

procedure for selecting the Chairperson and

Members of the Lokpal which shall be transparent.

(5) The term of the Search Committee referred to in

sub-section (3), the fee and allowances payable to

its members and the manner of selection of panel of

names shall be such as may be prescribed.

impeccable reputation of integrity, who have not

joined any political party after retirement and who are

not holding any office under any government. The 5

members so selected shall, through consensus, co-opt

another 5 members from the Civil Society in the search

committee.

(9) The Search Committee before preparing the short

list will invite nominations from such eminent

individuals or such class of people, whom they deem

fit, for the position of Chairperson or the members of

the Lokpal.

(10) Only persons with impeccable integrity and record

of public service particularly in the field of fighting

corruption shall be eligible for being considered for

nomination.

(11) The recommendations about nominees should,

interalia, contain details of any allegations faced by

that candidate under any law, details of his work

against corruption in the past, reasons why that person

is suitable for the job and any other material that the

search committee may decide.

(12) The search committee, using any other means,

shall collect as much information about the

background and past achievements of these

candidates.

(13) Such nominations as are received shall be put on a

web site for inviting comments from the people with

regard to the suitability or otherwise of the nominees.

� Lokpal Chairperson and 10 members

MUST be selected from the panel of

names given by the Search Committee.

� Who will constitute the Search Committee

is clearly specified

� Transparent procedure of selection, by

inviting nominations of eminent persons

with suitable criteria

� The details of the recommendations must

include the nominees’ background.

� The efforts that must be made by the

Selection committee to verify the

eligibility of the candidates/nominees

� Inviting comments from the public

concerning suitability or otherwise of each

nominee

� Consideration to be given to inputs from

the public before preparing shortlist

� Further inputs from the public are to be

solicited on the shortlisted candidates

before it goes before the Selection

committee.

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(14) The Search Committee after taking into

consideration the comments/information received

from the public shall prepare, preferably through

consensus, the short list of 3 times the number of

persons to be appointed as members of the Lokpal.

(15) Any nominations to which objections are raised by

any 3 members of the Search Committee shall not be

included in the short list.

(16) Before sending the short list to the Selection

Committee, the Search Committee will get the names

of the short listed persons put on a public web site to

enable people to send any relevant

information/comments about the shortlisted persons.

25 FILLING UP OF VACANCIES

5. The President shall take or cause to be taken all

necessary steps for the appointment of a new

Chairperson and Members at least three months

before the expiry of the term of such Chairperson or

Member, as the case may be, in accordance with the

procedure laid down in this Act.

4(19) The Government shall fill up a vacancy of the

Chairperson or a member 3 months before the

member or the Chairperson is due to retire. If the

vacancy arises due to unforeseen reasons, it shall be

filled within three months of such vacancy arising.

1. Govt Lokpal Bill puts the onus on President to

ensure that necessary steps are taken for

appointment of new Chairperson and members

three months before the old one retires.

2. Jan Lokpal Bill puts the onus on “the

government”. Presumably, that means the PMO

will be held responsible.

A CONTRADICTION ARISES HERE: Whichever

authority is responsible for filling up vacancies

becomes the appointing authority or Competent

Authority of the Lokpal. Can Lokpal have the

constitutional powers to investigate and prosecute

its own Competent Authority?

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26 TERM OF OFFICE

6. The Chairperson and every Member shall, on the

recommendations of the Selection Committee, be

appointed by the President by warrant under his

hand and seal and hold office as such for a term not

exceeding five years from the date on which he

enters upon his office or until he attains the age of

seventy years, whichever is earlier:

Provided that he may—

(a) by writing under his hand addressed to the

President, resign his office; or

(b) be removed from his office in the manner

provided in section 8.

4(22) A person appointed as the Chairperson or

member of Lokpal shall hold office for a term of five

years from the date on which he enters upon his office

or upto the age of 70 years, whichever is earlier;

Provided that ,-

(a) the Chairperson or member of Lokpal may, by

writing under his hand addressed to the President,

resign from his office;

(b) the Chairperson or member may be removed from

office in the manner provided in this Act.

1. Govt Lokpal Bill specifies that Chairperson or

member shall be appointed by President of India,

and have a five year term, or retire upon reaching

the age of 70.

2. Jan Lokpal Bill is almost identical in this respect.

27 SALARY, ALLOWANCES & CONDITIONS OF SERVICE

7. The salary, allowances and other conditions of

service of—

(i) the Chairperson shall be the same as those of the

Chief Justice of India;

(ii) other Members shall be the same as those of a

Judge of the Supreme Court:

Provided that if the Chairperson or a Member is, at

the time of his appointment, in receipt of pension

(other than disability pension) in respect of any

previous service under the Government of India or

under the Government of a State, his salary in

respect of service as the Chairperson or, as the case

may be, as a Member, be reduced—

4(23) There shall be paid to the Chairperson and each

member a salary equal to that of the Chief Justice of

India and that of the judge of the Supreme Court

respectively;

4(24) The allowances and pension payable to and other

conditions of service of the Chairperson or a member

shall be such as may be prescribed by the government;

Provided that the allowances and pension payable to

and other conditions of service of the Chairperson or a

member shall not be varied to his disadvantage after

his appointment.

1. Govt Lokpal Bill specifies that Chairperson will

enjoy the salary, allowance and other conditions

equivalent to Chief Justice of India, and other

members will enjoy those of Supreme Court

judges. It also stipulates the conditions of the

pension.

2. Jan Lokpal Bill is almost identical in this respect.

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(a) by the amount of that pension; and

(b) if he has, before such appointment, received, in

lieu of a portion of the pension due to him in

respect of such previous service, the commuted

value thereof, by the amount of that portion of the

pension:

Provided further that the salary, allowances and

pension payable to, and other conditions of service

of, the Chairperson or a Member shall not be varied

to his disadvantage after his appointment.

28 REMOVAL & SUSPENSION

8. (1) Subject to the provisions of sub-section (3),

the Chairperson or any Member shall be removed

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 is

satisfied that the petition should be referred, has,

on an inquiry held in accordance with the procedure

prescribed in that behalf, reported that the

Chairperson or such Member, as the case may be,

ought to be removed on such ground.

11. (1). The Chairperson or any other member of the

Lokpal shall only be removed from his office by the

President, on the recommendation of the Supreme

Court on any of the following grounds after the

Supreme Court, on the complaint of any person, held

an inquiry and found that he could on such ground be

removed :

(a) that he has been guilty of misbehavior; or

(b) that he is unfit to continue in his office by reason of

infirmity of mind or body; or

(c) is adjudged an insolvent; or

(d) engages during his term of office in any paid

employment outside the duties of his office.

(2) In any such proceeding the Supreme Court may also

direct the suspension of such Chairman or member.

1. Govt Lokpal Bill states that President may

suspend or remove Chairperson or member from

office based on charges of corruption,

misbehaviour, engaging in any business while in

office, infirmity etc. President will refer this to

Supreme Court for its opinion.

2. In addition to the above, Jan Lokpal Bill

recommends that Supreme Court must give its

opinion within three months. It specifies a fine and

imprisonment of upto one year if the complaint is

found to be frivolous or in bad faith.

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(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 has passed

orders on receipt of the report of the Supreme

Court on such reference.

(3) Notwithstanding anything contained in sub-

section (1), the President may, by order, remove

from the office the Chairperson or any Member if

the Chairperson or such Member, as the case may

be,—

(a) is adjudged an insolvent; or

(b) engages, during his term of office, in any paid

employment outside the duties of his office; or

(c) is, in the opinion of the President, unfit to

continue in office by reason of infirmity of mind or

body.

(4) If the Chairperson or any Member is, or

becomes, in any way concerned or interested in any

contract or agreement made by or on behalf of the

Government of India or the Government of a State

or participates in any way in the profit thereof or in

any benefit or emolument arising therefrom

otherwise than as a member and in common with

the other members of an incorporated company, he

shall, for the purposes of sub-section (1), be

deemed to be guilty of misbehaviour.

(3) On receipt of recommendation from the Supreme

Court, the President shall forthwith remove the

Chairperson or the member, as the case may be.

(4) Supreme Court shall, as far as possible, make its

recommendations within 3 months of receipt of

complaint under this section.

(5) If the complaint is frivolous or has been made with

malafide intentions, Supreme Court may impose a fine

or an imprisonment upto one year or both on the

complainant.

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29 RESTRICTION ON EMPLOYMENT

9. (1) On ceasing to hold office, the Chairperson and

every Member shall be ineligible for—

(i) reappointment as the Chairperson or a Member

of the Lokpal;

(ii) any diplomatic assignment, appointment as

administrator of a Union territory and such other

assignment or appointment which is required by law

to be made by the President by warrant under his

hand and seal;

(iii) further employment to any other office of profit

under the Government of India or the Government

of a State;

(iv) contesting any election of President or Vice

President or Member of either House of Parliament

or Member of either House of a State Legislature or

Municipality or Panchayat within a period of five

years from the date of cessation of holding the

office of the Chairperson or Member.

(2) Notwithstanding anything contained in sub-

section (1), a Member shall be eligible to be

appointed as a Chairperson, if his total tenure as

Member and Chairperson does not exceed five

years.

4(25) The Chairperson and members of Lokpal shall not

be eligible for appointment to any position in the

Government of India or the government of any State or

any such body which is funded by any of the

Governments or for contesting elections to Parliament,

State Legislature or local bodies.

1. Govt Lokpal Bill stipulates that after having

served as Chairperson or member of Lokpal, he

cannot take up diplomatic assignments or

government positions at either Centre or State

government, nor can he stand for elections of

parliament, State Legislature, or local bodies. It

also states that a Member can be made

Chairperson, but his total tenure will be five years.

2. Jan Lokpal Bill is almost identical in this respect,

except that it is silent on the elevation of Member

to the position of Chairperson.

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30 MEMBER TO ACT AS CHAIRPERSON IN CERTAIN

CIRCUMSTANCES

10. (1) In the event of occurrence of any vacancy in

the office of the Chairperson by reason of his death,

resignation or otherwise, the President may, by

notification, authorise the senior-most Member to

act as the Chairperson until the appointment of a

new Chairperson to fill such vacancy.

(2) When the Chairperson is unable to discharge his

functions owing to absence on leave or otherwise,

the senior-most Member available, as the President

may, by notification, authorise in this behalf, shall

discharge the functions of the Chairperson until the

date on which the Chairperson resumes his duties.

4(19) The Government shall fill up a vacancy of the

Chairperson or a member 3 months before the

member or the Chairperson is due to retire. If the

vacancy arises due to unforeseen reasons, it shall be

filled within three months of such vacancy arising.

1. Govt Lokpal Bill says that in the event of the

Chairperson’s office falling vacant due to

unforeseen circumstances, or becomes unable to

discharge his duties for some time, the President

may issue a notification authorizing the senior-

most member to act as Chairperson until the

appointment of a new Chairperson.

2. Jan Lokpal Bill is silent on what happens if the

office of Chairperson falls vacant.

31 SECRETARY & OTHER OFFICERS

11. (1) The appointment of secretary and other

officers and staff of the Lokpal shall be made by the

Chairperson or such Member or officer of Lokpal as

the Chairperson may direct:

Provided that the President may by rule require that

the appointment in respect of any post or posts as

may be specified in the rule, shall be made after

consultation with the Union Public Service

Commission.

5. The Lokpal shall select and appoint a Secretary to

the Lokpal who will have the rank of Secretary to the

Government of India. He shall be competent to

authenticate all orders passed by the Lokpal.

(20) The Officers in the Lokpal shall be appointed by

the Board or any other authority designated by the

Regulations whether on a permanent basis or on a

temporary basis.

1. Govt Lokpal Bill stipulates that Chairperson or

member or even other officers of Lokpal may

appoint secretary and other officers. Such

appointments must be made after consultation

with UPSC.

2. Jan Lokpal Bill is silent about UPSC. However, it

stipulates that the Secretary will have the rank of a

Secretary of Union Govt. He will be competent to

authenticate all the orders of Lokpal.

32 SALARIES, ALLOWANCES & CONDITIONS OF

SERVICE

(2) Subject to the provisions of any law made by

6. The Lokpal shall have the following functions and

powers:

g) to provide by rules for the terms and conditions of

service including the allowances and pension payable

1. Govt Lokpal Bill says that all regulations made

regarding conditions of service of secretary,

officers and staff of Lokpal are subject to (a)

provisions of law made by Parliament and (b)

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Parliament, the conditions of service of secretary

and other officers and staff of the Lokpal shall be

such as may be specified by regulations made by the

Lokpal for the purpose:

Provided that the regulations made under this sub-

section shall, so far as they relate to salaries,

allowances, leave or pensions, require the approval

of the President.

to the officers and staff of the Lokpal.

approval of the President.

2. Jan Lokpal Bill is silent on this seeking approval

for salaries and allowances. It is uncertain whether

this is an omission in drafting, or a deliberate

assertion of Lokpal’s independence.

However, Sec 18(3) states that for regulations

framed for creation of different wings in the

Lokpal, conferment of authority on officers, their

work norms etc, Jan Lokpal will seek approval from

Parliament.

Chapter 3 Investigation Wing

33 INVESTIGATION WING

12. (1) Notwithstanding anything contained in any

law for the time being in force, the Lokpal shall

constitute an Investigation Wing for the purpose of

conducting investigation of any offence alleged to

have been committed by a public servant

punishable under the Prevention of Corruption Act,

1988:

Provided that till such time the Investigation Wing is

constituted by the Lokpal, the Central Government

shall make available such number of investigation

officers and other staff from such of its Ministries or

Departments, as may be required by the Lokpal, for

carrying out investigation under this Act.

(2) The Central Government may, after obtaining

18. (1) The Lokpal may by notification make regulations

consistent with this Act to carry out the provisions of

this Act.

(2) In particular and without prejudice to the generality

of the power contained in sub-section (1) any such

regulations may provide for all or any of the following

matters, namely:-

a) the creation of different wings in the Lokpal to deal

with different subjects like investigation, prosecution

and grievances;

b) the conferment of authority on officers at different

levels to exercise powers under the Act and to lay

down the procedure for any inquiries including those

relating to complaints against its officers or members

of staff ;

c) periods within which the investigations and inquiries

have to be completed

1. Govt Lokpal Bill states that Lokpal shall

constitute an Investigation Wing to investigate

offences punishable under Prevention of

Corruption Act, for which officers and staff will be

made available by the Central Govt. – evidently

from the police force. After getting the consent of

the State Govt, it may extend the jurisdiction of the

Investigation Wing to the State Govt offices, as if

they were members of the police force of that

state.

2. Jan Lokpal Bill is sketchy in this area. It states

that investigation wing and others will be created.

AREA OF CONCERN: It does not say where it will

derive its staff requirements from, and whether

they will be from the police force or from civil

society. It says that work norms and time limits for

completion of the work will be stipulated by the

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consent of the concerned State Government, by

notification, extend the powers and jurisdiction of

officers of the Investigation Wing of the Lokpal in

that State and the provisions of sub-sections (2) and

(3) of section 5 of the Delhi Special Police

Establishment Act, 1946, shall apply as if the

members of the Investigation Wing were members

of the police force of that State.

d) To provide for the taking of certain decisions by

appropriate benches of the Lokpal by circulation only.

(e) Work norms for each category of officers and staff

of Lokpal.

regulations and procedures framed by the Lokpal.

34 INVESTIGATION OFFICER TO HAVE POWERS OF

POLICE

13. (1) No investigation shall be made by an

investigation officer of the Investigation Wing below

the rank of a Deputy Superintendent of Police or by

any other officer of equivalent rank.

(2) The investigation officers of the Investigation

Wing shall have, in relation to the investigation of

such offences referred to in sub-section (1) of

section 12, all the powers, duties, privileges and

liabilities which police officers have in connection

with the investigation of such offences under the

Prevention of Corruption Act, 1988.

(4) A complaint by any person may be made in the

form of a First Information Report as provided under

the Code of Criminal Procedure which will not require

any payment of fee or affidavit and could be sent to

any office of the Lokpal and shall not be rejected

merely on the basis of motive or intention of the

complainant.

1. Govt Lokpal specifies that all investigations will

be done by an officer of the rank of DSP. The

parameters of the investigation will be as per the

offences under Prevention of Corruption Act 1988.

2. Jan Lokpal Bill states that complaint will be in the

form of an FIR as defined in CrPC.

35 INVESTIGATION OFFICER TO INQUIRE ON

DIRECTION OF LOKPAL

14. (1) The Lokpal may, before holding any inquiry

under this Act, by an order, require the investigation

officer of its Investigation Wing to make, or cause to

be made, a preliminary investigation in such manner

as it may direct and submit a report to the Lokpal,

(5) The investigation in any case shall not be closed by

the investigating officer without recording reasons for

such closure.

1. Govt. Lokpal Bill says that before a full-scale

investigation is to be conducted, a preliminary

investigation must be conducted to discover

whether Lokpal should go further with this case.

The time limit is to be specified by Lokpal.

2. Jan Lokpal Bill does not specify any procedure to

verify whether or not the FIR is warranted.

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within such time as may be specified by the Lokpal,

to enable it to satisfy itself as to whether or not the

matter requires to be inquired into by the Lokpal.

(2) The investigation officer on receipt of an order

under sub-section (1) shall complete the

investigation and submit his report within the time

specified under that sub-section.

However, it specifies that the investigating officer

must necessarily record reasons if any case is to be

closed.

Chapter 4 Prosecution Wing & Appointment of

Director of Prosecution

36 PROSECUTION WING

15. (1) The Lokpal may, by notification, constitute a

prosecution wing and appoint a Director of

prosecution and such other officers and employees

to assist the Director of Prosecution for the purpose

of prosecution of public servants in relation to any

complaint by the Lokpal under this Act.

(2) The Director of prosecution shall, after having

been so directed by the Lokpal, file a complaint

before the Special Court, and take all necessary

steps in respect of the prosecution of public

servants in relation to any offence punishable under

the Prevention of Corruption Act, 1988.

18. (1) The Lokpal may by notification make regulations

consistent with this Act to carry out the provisions of

this Act.

(2) In particular and without prejudice to the generality

of the power contained in sub-section (1) any such

regulations may provide for all or any of the following

matters, namely:-

a) the creation of different wings in the Lokpal to deal

with different subjects like investigation, prosecution

and grievances;

b) the conferment of authority on officers at different

levels to exercise powers under the Act and to lay

down the procedure for any inquiries including those

relating to complaints against its officers or members

of staff ;

c) periods within which the investigations and inquiries

have to be completed

d) To provide for the taking of certain decisions by

appropriate benches of the Lokpal by circulation only.

1. Govt Lokpal Bill specifies that prosecution wing

will take steps to prosecute public servants under

Prevention of Corruption Act 1988.

2. Jan Lokpal Bill is sketchy on this count. It has a

wider ambit, but the limits of its powers are not

specified.

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(e) Work norms for each category of officers and staff

of Lokpal.

Chapter 5 Expenses on the Institution of the Lokpal

37 EXPENSES OF THE LOKPAL

16. The expenses of the Lokpal, including all salaries,

allowances and pensions payable to or in respect of

the Chairperson, Members or secretary or other

officers or staff of the Lokpal, shall be charged on

the Consolidated Fund of India and any fees or other

moneys taken by the Lokpal shall form part of that

Fund.

26. (1) All expenses of the Lokpal shall be charged to

the Consolidated fund of India.

(2) The Board shall finalise the Lokpal’s budget in such

a manner that it is less than ¼ % of the total revenues

of the Government of India.

(3) Lokpal shall not need any administrative or financial

sanction from any government agency to incur

expenditure.

1. Govt. Lokpal Bill does not specify any ceiling to

the budget of Lokpal.

2. Jan Lokpal Bill specifies limit of one-fourth

percent of Consolidated Fund of India. However, it

specifies that it will not need administrative or

financial sanction from government. This is to

ensure working conditions similar to independence

of Judiciary.

How much is one-fourth percent of Govt

Revenues? Budget 2010-11 states that total

receipts in Consolidated Fund (revenue plus capital

receipts) are Rs. 46,62,263 crore. One-fourth

percent of that amount is Rs. 11,656 crore. Just to

give you an idea of how much money this is, this is

more than 10% of Indian Railways gross earnings

for the year. Visualize the ticket fare of one in ten

passengers and freight of one in ten good trains

going directly to Lokpal!

Chapter 6 Jurisdiction in Respect of Inquiry

38 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

INVESTIGATION AND PROSECUTION AGAINST HIGH

FUNCTIONARIES

1. Govt Lokpal specifies that:

• Jurisdiction is restricted to Union of

Ministers (except PM), current and past

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34

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;

(b) any other person who is or has been a Minister

of the Union;

(c) any person who is or has been a Member of

either House of Parliament;

(d) any Group “A” officer or equivalent or above,

from amongst the public servants defined in sub-

clauses (i) and (ii) of clause (c) of section 2 of the

Prevention of Corruptions Act, 1988 when serving or

who has served, in connection with the affairs of the

Union;

(e) any person who is or has been a chairperson or

member or officer equivalent to Group “A” officer

referred to in clause (d) or equivalent or above in

any body or Board or corporation or authority or

company or society or trust or autonomous body

(by whatever name called) established by an Act of

Parliament or wholly or partly financed by the

Central Government or controlled by it:

Provided that in respect of such officers referred to

in clause (d) who have served in connection with the

affairs of the Union or in any body or Board or

corporation or authority or company or society or

trust or autonomous body referred to in this clause

17. (1) No investigation or prosecution shall be initiated

without obtaining permission from a 7-Member Bench

of the Lokpal against any of the following persons:-

i) The Prime Minister and any other member of the

Council of Ministers

ii) Any judge of the Supreme Court or any High Court

iii) Any Member of the Parliament

MPs of Lok Sabha and Rajya Sabha, and

officers of Group A, equivalent rank or

above in government or its boards, PSUs

etc.

• If such officers are serving State Govt.,

then State Govt’s permission will be

sought.

• Prime Minister will fall under its ambit

after he demits office.

• MPs conduct in the Parliament --

statements, questions asked, voting etc.

will not be investigated.

• The jurisdiction includes trustees,

directors, officers etc. of every other

society, association, trust etc. – whether

registered or otherwise – if the funds

collected by it exceed a limit specified by

Central Govt. by notification. While

bodies formed for a religious purpose are

spared, other civil-society bodies –even

unregistered bodies are not.

• Lokpal cannot appoint a separate Enquiry

Commission for dealing with complaints

made to it.

• Lokpal can enquire into any person who

falls within the ambit of Prevention of

Corruption Act 1988 (such as those acting

on behalf of government, deputised by

govt etc.)

• It will only deal with complaints that

allege wrongdoing by a public servant (as

defined by Prevention of Corruption Act)

DURING HIS TENURE in that capacity –

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but are working in connection with the affairs of the

State or in any body or Board or corporation or

authority or company or society or trust or

autonomous body (by whatever name called)

established by an Act of the State Legislature or

wholly or partly financed by the State Government

or controlled by it, the Lokpal and the officers of its

Investigation Wing or prosecution Wing shall have

jurisdiction under this Act in respect of such officers

only after obtaining the consent of the concerned

State Government;

(f) 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) wholly or partly financed or aided by the

Government and the annual income of which

exceeds such amount as the Central Government

may by notification specify;

(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

and the 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:

not before or after that tenure.

2. Jan Lokpal does not accept limits on its

jurisdiction. However, it specifies that it

will seek clearance from a 7-member

bench before investigating or prosecuting

Prime Minister, any member of Council of

Ministers, any judge of Supreme Court or

High Court, or any MP.

• Jan Lokpal is not designed to address the

issue of corruption by civil society

organizations such as NGOs and Trusts. It

only recognizes corruption by Public

Authorities.

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36

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, 1988 and 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.

(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 of corruption 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.

(3) The Lokpal may inquire into any act or conduct

of any person other than those referred to in sub-

section (1), if such person is associated with the

allegation of corruption under the Prevention of

Corruption Act, 1988:

Provided that, no action under this section shall be

taken in case of a person serving in connection with

the affairs of a State, without the consent of the

State Government.

(4) No matter in respect of which a complaint has

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been made to the Lokpal under this Act, shall be

referred for inquiry under the Commissions of

Inquiry Act, 1952.

Explanation.—For the removal of doubts, it is

hereby declared that a complaint under this Act

shall only relate to a period during which the public

servant was holding or serving in that capacity.

39 MATTERS PENDING BEFORE ANY COURT OR

COMMITTEE

18. In case any matter or proceeding related to

allegation of corruption under the Prevention of

Corruption Act, 1988 has been pending before any

court or committee of either House of Parliament or

before any other authority prior to commencement

of this Act or prior to commencement of any inquiry

after the commencement of this Act, such matter or

proceeding shall be continued before such court,

committee or authority.

Explanation.—For the removal of doubts, it is herby

declared that continuance of such matter or

proceeding before any court or committee of either

House of Parliament or before any other authority,

except for such matters as are protected under

clause (2) of article 105 of the Constitution or are

pending before a court, shall not affect the power of

the Lokpal to inquire into such matter under this

Act.

No Equivalent Provisions

1. Govt Lokpal specifies that matters pending

before any court or committee of Lok Sabha or

Rajya Sabha will not be taken up as fresh cases by

Lokpal. However, Lokpal has powers to inquire into

such matters also.

2. Jan Lokpal is silent on this front.

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40 CONSTITUTION OF BENCHES OF LOKPAL

19. (1) Subject to the provisions of this Act, —

(a) the jurisdiction of the Lokpal may be exercised

by Benches thereof;

(b) a Bench may be constituted by the Chairperson

with two or more Members as the Chairperson may

deem fit;

(c) every Bench shall ordinarily consist of at least

one Judicial Member;

(d) where a Bench consists of the Chairperson, such

Bench shall be presided over by the Chairperson;

(e) where a Bench consists of a Judicial Member,

and a non-Judicial Member, not being the

Chairperson, such bench shall be presided over by

the Judicial Member;

(f) the Benches of the Lokpal shall ordinarily sit at

New Delhi and at such other places as the Lokpal

may, by regulations, specify.

(2) The Lokpal shall notify the areas in relation to

which each Bench of the Lokpal may exercise

jurisdiction.

(3) Notwithstanding anything contained in sub-

section (2), the Chairperson shall have the power to

constitute or reconstitute Benches from time to

time.

(4) If at any stage of the hearing of any case or

matter it appears to the Chairperson or a Member

that the case or matter is of such nature that it

10. (1) The Lokpal may regulate the procedure for the

transaction of its business or that of its officers as also

allocation of its business amongst the different

benches of Lokpal.

1. Govt Lokpal specifies that:

• Benches may exercise the jurisdiction of

the Lokpal.

• Two-person benches may be formed,

consisting of at least one judicial member,

and the bench shall be presided by the

judicial member.

• The benches shall ordinarily sit at New

Delhi, but some benches may sit at other

places also.

• The jurisdiction may be divided between

different benches.

• Chairman may reconstitute benches.

• Cases may be transferred to another

bench of three or more members.

2. Jan Lokpal says is very sketchy about how it will

constitute benches, and how it will actually handle

the workload put before it.

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39

ought to be heard by a Bench consisting of three or

more Members, the case or matter may be

transferred by the Chairperson or, as the case may

be, referred to him for transfer, to such Bench as

the Chairperson may deem fit.

41 DISTRIBUTION OF BUSINESS

20. Where Benches are constituted, the Chairperson

may, from time to time, by notification, make

provisions as to the distribution of the business of

the Lokpal amongst the Benches and also provide

for the matters which may be dealt with by each

Bench.

No Equivalent Provisions

Govt. Lokpal specifies that distribution of business

among benches can periodically change at the

discretion of the Chairperson.

42 POWER OF CHAIRPERSON TO TRANSFER 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.

No Equivalent Provisions

Govt Lokpal specifies that if complainant or public

servant requests for transfer of the case to another

bench, it may be transferred to another bench.

43 DECISION TO BE BY MAJORITY

22. If the Members of a Bench consisting of two

Members differ in opinion on any point, they shall

state the point or points on which they differ, and

make a reference to the Chairperson who shall

either hear the point or points himself or refer the

case for hearing on such point or points by one or

more of the other Members of the Lokpal and such

No Equivalent Provisions

If the members of a two-member bench differ on a

point or points, then the Chairperson or other

members of Lokpal can be brought in to decide

those points based on a majority opinion.

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40

point or points shall be decided according to the

opinion of the majority of the Members of the

Lokpal who have heard the case, including those

who first heard it.

Chapter 7 Procedure in respect of Inquiry and

Investigation

44 PROCEDURE IN RESPECT OF INQUIRY &

INVESTIGATION

23. (1) The Lokpal, on receipt of a complaint, may

either make a preliminary inquiry or direct its

Investigation Wing, to make a preliminary

investigation to ascertain whether there

exists a prima facie case for proceeding in the

matter.

(2) Every preliminary inquiry or preliminary

investigation referred to in sub-section (1) shall

ordinarily be completed within a period of thirty

days and for reasons to be recorded in writing,

within a further period of three months from the

date of receipt of the complaint.

(3) Upon completion of the preliminary

investigation, the investigating authority shall

submit its report to the Lokpal.

(4) Before the Lokpal comes to the conclusion in the

course of a preliminary inquiry and after submission

of a report referred to in sub-section (3) that a

20. (1) Every investigating officer shall endeavour to

complete the investigation of an offence within a

period of 6 months but when necessary he may obtain

extension of time from a Bench of the Lokpal. In any

case the period of investigation shall not extend 18

months.

22. (1) After the completion of an investigation against

any government servant the Lokpal may either initiate

prosecution against such public servant or may initiate

proceedings for imposition of penalty or both.

(3) A bench of judicial officers will conduct an inquiry

against such government servant for imposition of

penalty in which full opportunity to show cause would

be given to such government servant. After conclusion

of the inquiry the bench shall also determine the

penalty, if any, to be awarded to that public servant.

The decision of the

bench will be subject to approval by a higher authority

prescribed by the Lokpal by through regulations.

(4) The recommendations so approved shall be binding

on the appointing authority.

1. Govt Lokpal Bill says that:

• Upon receiving a complaint, it may either

itself make a preliminary enquiry, or direct

its Investigation Wing to do so. The

purpose is to ensure that the complaint is

worth entertaining – that it is not

baseless.

• Preliminary investigation is ordinarily to

be completed with 30 days. It can take a

maximum of three months, but reasons

for the delay must be recorded.

• Then the public servant should be given

an opportunity to be heard.

• Then the Lokpal will come to the

conclusion whether there exists sufficient

reason to make out a case against the

public servant.

• If the report of the preliminary

investigation reveals that the complaint is

baseless, then the complaint will be

closed, and the decision will be

communicated to complainant and public

servant.

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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.

(5) Where the Lokpal, after receiving the report of

the investigating authority pursuant to a preliminary

investigation or conclusion of the preliminary

inquiries as referred to in subsection (1) is satisfied

that no prima facie case is made out for proceeding

further in the matter, the complaint shall be closed

and the decision thereon be communicated to the

complainant and the public servant.

(6) Where the Lokpal is of the opinion that prima

facie case is made out and refers the matter for

investigation, upon completion of such investigation

and before filing the chargesheet, the public servant

against whom such investigation is being conducted

shall be given an opportunity of being heard.

(7) Every inquiry conducted by the Lokpal, upon

being satisfied that a prima facie case is made out,

shall be open to the public provided that in

exceptional circumstances and for reasons to be

recorded in writing by the Lokpal, such inquiry may

be conducted in camera.

(8) In case the Lokpal proceeds to inquire into the

complaint under sub-section (7) it shall hold such

inquiry as expeditiously as possible and complete

the inquiry within a period of six months from the

date of receipt of the complaint which, for reasons

to be recorded in writing, may be extended by a

(6) The hearings in any proceedings before the Lokpal

shall be held in public except in exceptional

circumstance where it is not in public interest to do so

and the reasons for the same shall be recorded in

writing before those proceedings are held in camera.

The hearings held in public shall be video recorded and

shall be made available to the public on payment of

copying cost.

• If preliminary investigation reveals that

there is enough substance in the

complaint to merit a full-scale

investigation, then investigation will be

taken up. After a thorough investigation is

complete, and before a chargesheet is

filed against the public servant, he will

again be given an opportunity to be heard.

• Wherever Lokpal is satisfied that the

complaint is not baseless, this enquiry will

be carried out in a way that is open to the

public. If this is not done in exceptional

cases, the reasons will be recorded in

writing.

• After preliminary enquiry, the full-scale

enquiry into complaint will be completed

within six months. If necessary, this period

can again be extended by six months, for

which reasons must be recorded in

writing.

• If the Chairperson sees fit, the Lokpal can

directly refer the matter for full-scale

Investigation without any preliminary

enquiry. However, at the end of this

investigation, the public servant will be

given an opportunity to be heard.

• If a complaint is admitted, the Lokpal may,

at any stage, pass appropriate orders for

safekeeping of the records and

documents, and also give a copy to the

public servant so that he can prepare his

own defense.

• The Lokpal website shall keep the public

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42

further period of six months.

(9) The public servant against whom an inquiry is

being conducted under sub-section (8) shall be given

an opportunity of being heard.

(10) Where in a case the Lokpal is of the opinion and

for reason to be recorded in writing that it is not in

the interest of justice to either hold a preliminary

inquiry or preliminary investigation, it may refer the

matter for investigation.

(11) Upon completion of such investigation but

before filing a charge sheet, the investigating

authority shall place the records in its possession

along with its prima facie conclusion before the

Lokpal who shall before directing that a charge

sheet be filed afford the public servant concerned

an opportunity of being heard.

(12) If the Lokpal proposes to inquire into a

complaint, it may, at any stage,—

(a) pass appropriate orders for safe custody of the

documents relevant to the inquiry as it deems fit;

and

(b) forward a copy of the complaint to the public

servant concerned along with all relevant material

relied upon and afford him an opportunity to

represent his case.

(13) The website of the Lokpal shall, from time to

time and in such manner as may be specified by

regulations, display to the public, the status of

informed about the disposal status of

various complaints.

• The Lokpal may withhold records and

evidence from the public if it feels that the

progress of the case may be impeded by

publishing it.

• Other than this, the procedure for carrying

out enquiry or investigations will be as per

the regulations.

2. Jan Lokpal Bill specifies that:

� Every investigating officer will complete

investigations within six months. He may

get extensions for this, but 18 months is

the maximum period.

� Special Courts trying cases under

Prevention of Corruption Act will

complete the trial within 12 months.

� Towards speedy trials, Lokpal will assess

the backlogs before such courts, and make

recommendations to the government to

appoint more special courts. Such

recommendations will be binding on the

government.

� Chief Justices of High Courts will

constitute sufficient numbers of special

benches at the high court to hear the

appeals of these cases without causing

pendencies. Such judges and benches will

hear only these cases, and not other

cases.

� After completing investigations against

any public servant, the Lokpal may initiate

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43

number of complaints pending before it or disposed

of by it.

(14) The Lokpal may withhold the records and

evidence which are likely to impede the process of

inquiry or conduct of a case by it or by the Special

Court.

(15) Save as otherwise provided, the manner and

procedure of conducting an inquiry or investigation

under this Act, shall be such as may be specified by

regulations.

either prosecution, or proceedings for

imposition of penalty (e.g. demotion), or

both.

� A bench of judicial officers will conduct

proceedings for departmental penalty.

The order of this bench will be subject to

review by a “higher authority”. The

nature of this “higher authority” has not

been specified by Jan Lokpal Bill.

� The hearings will generally be held in open

court, except in exceptional

circumstances.

� Public hearings shall be video recorded,

and shall be made available to the public.

45 INSPECTION OF DOCUMENTS & FURNISHING OF

COPIES

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.

No Equivalent Provisions

1. Govt Lokpal Bill explicitly and repeatedly

specifies that every person under investigation

shall be entitled to inspect any record being used in

prosecuting him, and take extracts as necessary for

defending his case.

2. Jan Lokpal Bill makes no mention of this right.

46 PERSONS LIKELY TO BE PREJUDICIALLY AFFECTED

TO BE HEARD

25. If, at any stage of the proceeding, the Lokpal—

(a) considers it necessary to inquire into the conduct

of any person other than the prospective accused;

No Equivalent Provisions

1. Govt Lokpal Bill states that if it considers it

necessary to enquire into the conduct of any

person other than the one being tried, it will give

him an opportunity to be heard so that he can

protect his own reputation.

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44

or

(b) is of opinion that the reputation of any person

other than an accused is likely to be prejudicially

affected by the inquiry,

the Lokpal shall give to that person a reasonable

opportunity of being heard in the inquiry and to

produce evidence in his defence, consistent with the

principles of natural justice:

Provided that nothing in this section shall apply

where the credibility of a witness is being

questioned.

2. Jan Lokpal Bill is silent on this right. The element

of Natural Justice is weak in Jan Lokpal Bill.

LOKPAL MAY REQUIRE ANY PUBLIC SERVANT OR

ANY OTHER PERSON TO FURNISH INFORMATION,

ETC.

26. Subject to the provisions of this Act, for the

purpose of any inquiry or investigation, the Lokpal

or the investigating authority, as the case may be,

may require any public servant or any other person

who, in its opinion, is able to furnish information or

produce documents relevant to such inquiry or

investigation, to furnish any such information or

produce any such document.

No Equivalent Provisions

This provision of Govt Lokpal Bill is fully fleshed out

in its Section 31.

47 PREVIOUS SANCTION NOT NECESSARY FOR

INVETSIGATION AND INITIATING PROSECUTION

27. (1) No sanction or approval shall be required by

the Lokpal or its Investigation Wing under section

197 of the Code of Criminal Procedure, 1973 or

section 19 of the Prevention of Corruption Act, 1988

for the purpose of making inquiry by the Lokpal or

29. (1) Section 19(1) and 19(2) of the Prevention of

Corruption Act shall be deleted.

(2) Section 6A of the Delhi Special Police Establishment

Act shall not be applicable to the proceedings under

this Act.

(3) Section 197 of Cr. PC shall not applicable to any

proceedings under this Act.

1. This is a very important provision of Govt Lokpal

Bill. It removes the difficulties faced by civil society

for prosecuting public servants. Section 197 of

CrPC and Section 19 of PCA 1988 require prior

sanction from the higher-ups of the official before

prosecuting them. But it does not apply to the

Lokpal and its Investigation Wing.

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45

investigation by its Investigation Wing into any

complaint against any public servant or for filing of

any complaint in respect thereof before the Special

Court under this Act.

(2) A Special Court may, notwithstanding anything

contained in section 197 of the Code of Criminal

Procedure, 1973 or section 19 of the Prevention of

Corruption Act, 1988, on a complaint filed by the

Lokpal or any officer authorised by it in this behalf,

take cognizance of offence committed by any public

servant.

(3) Nothing contained in sub-sections (1) and (2)

shall apply in respect of the persons holding the

office in pursuance of the provisions of the

Constitution and in respect of which a procedure for

removal of such person has been specified therein.

(4) The provisions contained in sub-sections (1), (2)

and (3) shall be without prejudice to the generality

of the provisions contained in article 311 and sub-

clause (c) of clause (3) of Article 320 of the

Constitution.

2. Jan Lokpal Bill goes even further. It states that:

� Sub-sections 19(1) and 19(2) of Prevention

of Corruption Act shall be deleted.

� Section 6A of Delhi Special Police

Establishment Act and also Section 197 of

CrPC, which have similar implications,

shall not be applicable to any proceedings

of Lokpal.

48 ACTION AGAINST PUBLIC SERVANTS NOT BEING

MINISTERS OR MPS

28. (1) Where, after the conclusion of the inquiry or

investigation, the findings of the Lokpal disclose the

commission of an offence under the Prevention of

Corruption Act, 1988 by a public servant referred to

in clause (c) or clause (d) of sub-section (1) of

section 17, the Lokpal may—

(a) file a case in the Special Court and send a copy of

the report together with its findings to the

22. (1) After the completion of an investigation against

any government servant the Lokpal may either initiate

prosecution against such public servant or may initiate

proceedings for imposition of penalty or both.

(3) A bench of judicial officers will conduct an inquiry

against such government servant for imposition of

penalty in which full opportunity to show cause would

be given to such government servant. After conclusion

of the inquiry the bench shall also determine the

penalty, if any, to be awarded to that public servant.

1. Govt Lokpal says that after conclusion of inquiry

or investigation, the findings of the Lokpal can be

used for:

• Filing a case in a Special Court, OR

• For recommending disciplinary

proceedings by the competent authority,

who is supposed to commence

proceedings within 30 days.

2. Jan Lokpal Bill differs in the second option.

Instead of recommending disciplinary action by the

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competent authority;

(b) recommend to the competent authority the

initiation of disciplinary proceedings under the rules

of disciplinary proceedings applicable to such public

servant;

(c) provide a copy of the report to the public servant

or his representative.

(2) The competent authority shall, within a period of

thirty days of the receipt of recommendation under

clause (b) of sub-section (1), initiate disciplinary

proceedings against the delinquent public servant

accused of committing offence under the

Prevention of Corruption Act, 1988 and forward its

comments on the report, including the action taken

or proposed to be taken thereon, to the Lokpal

ordinarily within six months of initiation of such

disciplinary proceedings.

The decision of the

bench will be subject to approval by a higher authority

prescribed by the Lokpal by through regulations.

competent authority, it will initiate penalty

proceedings before a bench of judicial officers of

Lokpal.

49 ACTION AGAINST PUBLIC SERVANTS WHO ARE

MINISTERS AND MPS

29. (1) Where, after the conclusion of the inquiry or

investigation, the findings of the Lokpal disclose the

commission of an offence under the Prevention of

Corruption Act, 1988 by a public servant referred to

in clause (a) or clause (b) of sub-section (1) of

section 17, the Lokpal may file a case in the Special

Court and shall send a copy of the report together

with its findings to the competent authority.

(2) The Prime Minister, in the case of the Minister,

the Speaker in the case of a Member of the House

No Equivalent Provisions

1. Govt Lokpal Bill says that a report of Lokpal’s

investigation findings will be sent to competent

authority as follows:

• If report is against a Minister it will be sent

to the Prime Minister in his capacity as the

competent authority

• If report is against a Member of Lok

Sabha, it will be sent to the Speaker

• If report is against a Member of Rajya

Sabha, it will be sent to the Chairman of

Rajya Sabha.

They will cause the report to be laid before the Lok

Sabha or Rajya Sabha at the earliest as per the

timelines given. The competent authority will

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of the People, and the Chairman of the Council of

States, in the case of a Member of that Council shall,

as soon as may be, after the receipt of report under

sub-section (1), cause the same to be laid before the

House of the People or the Council of States, as the

case may be, while it is in session, and if the House

of the People or the Council of States, as the case

may be, is not in session, within a period of one

week from the reassembly of the said House or the

Council, as the case may be.

(3) The competent authority shall examine the

report forwarded to it under sub-section (1) and

communicate to the Lokpal, within a period of

ninety days from the date of receipt of the report,

the action taken or proposed to be taken on the

basis of the report.

Explanation.— In computing the period of ninety

days referred to in this sub-section, any period

during which Parliament or, as the case may be,

either House of Parliament, is not in session, shall be

excluded.

examine the report and communicate to the Lokpal

within 90 days the action taken or proposed.

2. Jan Lokpal Bill does not have an equivalent

provision.

50

No Equivalent Provisions

APPEALS AGAINST THE ORDERS OF LOKPAL

12. Any orders passed by any bench of the Lokpal or

any officer of the Lokpal shall be subject to the writ

jurisdiction of the High Court under Article 226 of the

Constitution of India. Ordinarily, a High Court shall not

stay the order. However, if it does, it will have to

decide the case within two months, else the stay would

be deemed to have been vacated after two months

and no further stay in that case could be granted.

Jan Lokpal Bill seeks to close a major loophole in

the law, which is currently enabling wrongdoers to

nullify even good orders of various tribunals,

commissions etc. by simply bringing a stay order.

To counter this, Jan Lokpal Bill specifies that while

it is possible to appeal against the orders of the

Lokpal bench, High Courts must not Stay the

order. In case they do, then the stay will be

automatically assumed to be vacated at the end

of two months.

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QUESTION: Can such a major legislation --

effectively limiting the power of higher judiciary --

be framed so easily without referring it to Supreme

Court for considerations?

Chapter 8 Powers Of Lokpal

51 SEARCH AND SEIZURE

30. (1) If the Lokpal has reason to believe that any

document which, in its opinion, shall be useful for,

or relevant to, any investigation or inquiry under

this Act, are secreted in any place, it may authorise

any officer of the Investigation Wing, to search for

and to seize such documents.

(2) If the Lokpal is satisfied that any document

seized under sub-section (1) would be evidence for

the purpose of any investigation or inquiry under

this Act and that it would be necessary to retain the

document in its custody or in the custody of such

officer as may be authorised, it may so retain or

direct such officer authorised to retain such

document till the completion of such investigation

or inquiry:

Provided that where any document is required to be

returned, the Lokpal or the authorised officer may

return the same after retaining copies of such

document duly authenticated.

(3) The provisions of the Code of Criminal

Procedure, 1973 relating to searches shall,

Issue of search warrants:

9. (1) Where, in consequence of information in his

possession, the Lokpal

(a) has reason to believe that any person –

(i) to whom a summon or notice under this Act, has,

been or might be issued, will not or would not produce

or cause to be produced any property, document or

thing which will be necessary or useful for or relevant

to any inquiry or other proceedings to be conducted by

him;

It may by a search warrant authorize any officer not

below the rank of an Inspector of Police to conduct a

search or carry out an inspection in accordance

therewith and in particular to, enter and search any

building or place where he has reason to suspect that

such property, or document, is kept;

(2) The provisions of the Code of Criminal Procedure,

1973, relating to search and seizure shall apply, so far

as may be, to searches and seizures under sub-section

(1).

(3) A warrant issued under sub-section (1) shall for all

purposes, be deemed to be a warrant issued by a court

1. Govt Lokpal Bil gives Lokpal powers to authorize

search and seizure of documents, and to retain it in

safe custody. If the documents are to be returned,

it will do so after retaining duly authenticated

copies.

2. Jan Lokpal Bill also gives Lokpal powers of Civil

Court, Criminal Court and also Police. It specifies:

� Lokpal has powers to issue search warrant

if it feels that the relevant documents will

not be produced otherwise.

� Members and officers of Lokpal have

powers of a search and seizure as per

Criminal Procedure Code.

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49

so far as may be, apply to searches under this

section subject to the modification that subsection

(5) of section 165 of the said Code shall have effect

as if for the word “Magistrate”, wherever it occurs

therein, the words “Lokpal or any officer authorised

by it” were substituted.

under section 93 of the Code of Criminal Procedure,

1973.

52 LOKPAL TO HAVE POWERS OF CIVIL COURT

31. (1) Subject to the provisions of this section, for

the purpose of any inquiry, the Lokpal shall have all

the powers of a civil court, under the Code of Civil

Procedure, 1908, while trying a suit in respect of the

following matters, namely:—

(i) summoning and enforcing the attendance of any

person and examining him on oath;

(ii) requiring the discovery and production of any

document;

(iii) receiving evidence on affidavits;

(iv) requisitioning any public record or copy thereof

from any court or office;

(v) issuing commissions for the examination of

witnesses or documents:

Provided that such commission, in case of a witness,

shall be issued only where the witness, in the

opinion of the Lokpal, is not in a position to attend

the proceeding before the Lokpal; and

(vi) such other matters as may be prescribed.

(2) Any proceeding before the Lokpal shall be

deemed to be a judicial proceeding within the

meaning of section 193 of the Indian Penal Code.

7. (1) The Investigating Officers of Lokpal authorized to

investigate offences under the Prevention of

Corruption Act 1988 shall have all the powers which

are vested in a Police Officer while investigating

offences under the Code of Criminal Procedure, as well

as the powers conferred on the director of

enforcement under the Foreign Exchange Management

Act, 1999 as well as under the Prevention of Money

Laundering Act, 2002.

(2) The members of Lokpal or any officer under the

Lokpal while exercising any powers under the Act shall

have the powers of a civil court trying a suit under the

Code of Civil Procedure, 1908, and in particular, in

respect of the following matters :

(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

1. Govt Lokpal Bill specifies that Lokpal shall have

powers of a civil court under Code of Civil

Procedure 1908, such as:

• Power to summon the attendance of any

person and examine him under oath

• Requisition public records

• Receive evidence on affidavit

2. Jan Lokpal Bill seeks to give Lokpal, in addition to

the above, further powers under the Code of

Criminal Procedure Code. It specifies:

� Lokpal has powers of the Civil Court, to

summon and enforce the attendance of a

person from any part of India and

examining him under oath, require him to

produce any document, give evidence

under affidavit etc.

� Investigating officer and higher ups can

requisition any public record or copy

thereof from any court or office

� The officers under Lokpal also have all the

powers of a police officer, as well as

powers of director of enforcement under

FEMA 1999 and Money Laundering Act

2002.

� If during an investigation, the Lokpal feels

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50

(f) any other matter which may be prescribed

(3) All members of the Lokpal and all officers of the

Lokpal superior in rank to an Investigating Officer may

exercise the same powers as may be exercised by such

Investigating Officer.

(4) A Lokpal bench may punish a public servant with

imprisonment up to 6 months or with fine or both, if he

fails to comply with its order for ensuring their

compliance.

(6) The Lokpal may, at any stage of investigation under

this Act, direct by an interim order, appropriate

authorities to take such action as is necessary, to

prevent the public servant from secreting the assets

allegedly acquired by him by corrupt means;

(7) While investigating any offence under Prevention of

Corruption Act 1988, Lokpal shall be competent to

investigate any offence under any other law in the

same case.

(8) If during any investigation under this act, the Lokpal

is satisfied that any preventive action is necessary in

public interest to prevent the ongoing incidence of

corruption, it may make any recommendation to the

public authority concerned to stay the implementation

or enforcement of any decision or take any such action

as is recommended by the Lokpal. The public authority

shall either comply with the recommendation of the

Lokpal or reject the same within 15 days of the

recommendation thereof. In the event of rejection of

that a government servant is in a position

to destroy or tamper with evidence, he

can issue directions for his transfer.

� At any stage of investigation, the Lokpal

may issue interim orders to appropriate

authorities to prevent the public servant

from secreting the assets that he has

acquired through corrupt means.

� While investigating any offence under

Prevention of Corruption Act 1988, he

may also investigate any offence under

any other law in the same case.

� Lokpal may issue directions to a public

authority for action to prevent the

ongoing incidence of corruption. Such

directions may involve staying the

implementation or enforcement of any

decision, or it may involve other actions. If

the public authority does not comply

within 15 days, the Lokpal may approach

the appropriate High Court for seeking

appropriate directions to the Public

Authority.

� Lokpal may award imprisonment to any

public servant for failing to comply with its

orders.

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51

its recommendation, the Lokpal may approach the

appropriate High Court for seeking appropriate

directions to be given to the public authority.

53

No Equivalent Provisions

No Equivalent Provisions

POWER TO TAP PHONES, HACK INTO EMAIL &

MONITOR ELECTRONIC DATA TRANSMISSION

8. For the purposes of investigation of offences related

to acts of corruption, the appropriate Bench of the

Lokpal shall be deemed to be designated authority

under Section 5 of the Indian Telegraph Act

empowered to approve interception and monitoring of

messages of data or voice transmitted through

telephones, internet or any other medium as covered

under the Indian Telegraph Act read with Information

and Technology Act 2000 and as per rules and

regulations made under the Indian Telegraph Act 1885.

Jan Lokpal Bill seeks to give Lokpal the authority to

intercept messages or tap messages made by

phone, internet or any other medium. It evidently

gets this power by citing the provisions of Indian

Telegraph Act 1885, and its rules and regulations,

read with Information and Technology Act 2000.

QUESTION: Given the sweeping powers of the

Lokpal from the Prime Minister to the lowest

municipal sweeper, and cutting across many lines

of jurisdiction – government, judiciary, legislatures

etc. – is this safe? Given that the proposed Lokpal’s

answerability to even President, Parliament, Prime

Minister and Supreme Court is doubtful, isn’t this

power too much for one authority to wield?

54 POWER OF LOKPAL TO UTILISE SERVICES OF OTHER

OFFICERS

32. (1) The Lokpal may, for the purpose of

conducting any inquiry, utilise the services of any

officer or investigation agency of the Central

Government or any State Government, as the case

may be.

(2) For the purpose of investigating into any matter

pertaining to the inquiry, any officer or agency

whose services are utilised under sub-section (2)

may, subject to the direction and control of the

Lokpal,—

No Equivalent Provisions

1. Govt Lokpal Bill enables Lokpal to use the

services of any officer or investigation agency of

the Central or State Govt. for investigating,

summoning the attendance of a person for

examining, requiring a document to be produced

etc.

2. Jan Lokpal Bill does not have such a provision.

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52

(a) summon and enforce the attendance of any

person and examine him;

(b) require the discovery and production of any

document; and

(c) requisition any public record or copy thereof

from any office.

(3) The officer or agency whose services are utilised

under sub-section (2) shall investigate into any

matter pertaining to the inquiry and submit a report

thereon to the Lokpal within such period as may be

specified by the Lokpal in this behalf.

55 PROVISIONAL ATTACHMENT OF ASSETS

33. (1) Where the Lokpal or any investigation officer

authorised by it in this behalf, has reason to believe,

the reason for such belief to be recorded in writing,

on the basis of material in its or his possession,

that—

(a) any person is in possession of any proceeds of

corruption;

(b) such person is accused of having committed an

offence relating to corruption; and

(c) such proceeds of offence are likely to be

concealed, transferred or dealt with in any manner

which may result in frustrating any proceedings

relating to confiscation of such proceeds of offence,

the Lokpal or such investigation officer may, by

order in writing, provisionally attach such

property for a period not exceeding ninety days

from the date of the order, in the manner provided

in the Second Schedule to the Income-tax Act, 1961

(4) During the course of investigation if the

Investigating Officer finds any property or asset which

appears to have been acquired by the corrupt acts of

an accused person who is being investigated, it shall

make an order of attachment of those assets so that

they are available for confiscation at the time of the

conviction of such accused persons. In case the

accused person is ultimately acquitted, these attached

assets and properties will be restored to him.

n) to attach property and assets acquired by corrupt

means and to confiscate them in certain cases as

provided under this Act.

1. Govt Lokpal Bill provides for attaching proceeds

of corruption. If Lokpal has reason to believe that a

person possessing the proceeds of corruption may

conceal or transfer them, frustrating any

proceedings leading to confiscation, then it may

provisionally attach such property for a period not

exceeding 90 days, as per the second schedule of

Income Tax Act 1961. This attachment order will be

sent to the Special Court in a sealed envelope. The

Special Court may extend the period of attachment

as it sees fit. Those interested in the immovable

property that has been attached can continue to

enjoy the property.

2. Jan Lokpal Bill too has provisions concerning

attachment to enable confiscation if the accused is

found to be guilty. However, the provisions are less

detailed and with less emphasis on due process of

law.

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53

and the Lokpal or such investigation officer, as the

case may be, shall be deemed to be an officer under

sub-rule (e) of rule 1 of that Schedule.

(2) The Lokpal shall, immediately after attachment

under sub-section (1), forward a copy of the order,

along with the material in his possession, referred to

in that sub-section, to the Special Court, in a sealed

envelope, in the manner as may be prescribed and

such Court may extend the order of attachment and

keep such material for such period as the Court may

deem fit.

(3) Every order of attachment made under sub-

section (1) shall cease to have effect after the expiry

of the period specified in that sub-section or after

the expiry of the period as directed by the Special

Court under sub-section (2).

(4) Nothing in this section shall prevent the person

interested in the enjoyment of the immovable

property attached under sub-section (1) or sub-

section (2), from such enjoyment.

Explanation.— For the purposes of this sub-section,

“person interested”, in relation to any immovable

property, includes all persons claiming or entitled to

claim any interest in the property.

56 CONFIRMATION OF ATTACHMENT OF ASSETS

34. (1) The Lokpal, when it provisionally attaches

any property under sub-section (1) of section 33

shall, within a period of thirty days of such

(4) During the course of investigation if the

Investigating Officer finds any property or asset which

appears to have been acquired by the corrupt acts of

an accused person who is being investigated, it shall

make an order of attachment of those assets so that

1. Govt Lokpal Bill says that when Lokpal

provisionally attaches any property, it shall direct

its prosecution wing to make a prayer before the

special court within a month for confirmation of

the attachment till completion of proceedings in

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54

attachment, direct its prosecution wing to file an

application stating the facts of such attachment

before the Special Court and make a prayer for

confirmation of attachment of the property till

completion of the proceedings against the public

servant in the Special Court.

(2) The Special Court may, if it is of the opinion that

the property provisionally attached had been

acquired through corrupt means, make an order for

confirmation of attachment of such property till the

completion of the proceedings against the public

servant in the Special Court.

(3) If the public servant is subsequently acquitted of

the charges framed against him, the property,

subject to the orders of the Special Court, shall be

restored to the concerned public servant along with

benefits from such property as might have accrued

during the period of attachment.

(4) If the public servant is subsequently convicted of

the charges of corruption, the proceeds relatable to

the offence under the Prevention of Corruption Act,

1988 shall be confiscated and vest in the Central

Government free from any encumbrance or

leasehold interest excluding any debt due to any

bank or financial institution.

Explanation.— For the purposes of this sub-section,

the expression, “bank”, “debt” and “financial

institution” shall have the meanings respectively

assigned to them in clauses (d), (g) and (h) of section

they are available for confiscation at the time of the

conviction of such accused persons. In case the

accused person is ultimately acquitted, these attached

assets and properties will be restored to him.

n) to attach property and assets acquired by corrupt

means and to confiscate them in certain cases as

provided under this Act.

that court. The special court, if convinced that the

property was acquired through corrupt means,

shall make an order for confirmation of

attachment. Please note the independence of the

judiciary inherent in this provision. It also

recognizes the existence of other potential

stakeholders in that property, such as banks and

financial institutions.

2. Jan Lokpal Bill provisions in this respect is not

detailed. It does not describe a due process

involving sanction of the court. It assumes that

Lokpal’s power to attach property of undertrials

will not be challenged in court on Constitutional

grounds, by the owner or by an interested party,

such a bank or financial institution. This is a legal

loophole.

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2 of the Recovery of Debts Due to Banks and

Financial Institutions Act, 1993.

57 POWER OF LOKPAL TO RECOMMEND TRANSFER OR

SUSPENSION

35. (1) Where the Lokpal, while making an inquiry

into allegations of corruption, is prima facie

satisfied, on the basis of evidence available, that—

(a) the continuance of the public servant referred to

in clause (c) or clause (d) of sub-section (1) of

section 17 in his post while conducting the inquiry is

likely to affect such inquiry adversely; or

(b) the public servant referred to in clause (a) is

likely to destroy or in any way tamper with the

evidence or influence witnesses, then, the Lokpal

may recommend to the Central Government for

transfer or suspension of such public servant from

the post held by him till such period as may be

specified in the order.

(2) The Central Government shall ordinarily accept

the recommendation of the Lokpal made under sub-

section (1), except for the reasons to be recorded in

writing in a case where it is not feasible for

administrative reasons.

(5) If during the course of investigation into a

complaint, the Lokpal feels that continuance of a

government servant in that position could adversely

affect the course of investigations or that the said

government servant is likely to destroy or tamper with

the evidence or influence the witnesses or is likely to

continue with corruption, the Lokpal may issue

appropriate directions including transfer of that

government servant from that position.

1. Govt Lokpal Bill specifies that when Lokpal has

reason to believe that the public servant’s

continuation in a certain post is likely to adversely

affect its inquiry, or that the he is likely to destroy

or tamper with evidence, influence witnesses etc.,

then it may recommend to the government for his

suspension or transfer for a certain period. Govt

will accept the order, unless there are exceptional

reasons, which are to be recorded in writing.

2. Jan Lokpal also has such provisions, but they are

not very elaborate.

58 POWER OF LOKPAL TO GIVE DIRECTIONS

36. The Lokpal may, in discharge of its functions

under this Act, issue appropriate directions to a

public servant entrusted with the preparation or

custody of any document or record—

(4) A Lokpal bench may punish a public servant with

imprisonment up to 6 months or with fine or both, if he

fails to comply with its order for ensuring their

compliance.

(6) The Lokpal may, at any stage of investigation under

1. Govt Lokpal Bill specifies that it may give

directions to public servants (other than the

accused) to protect certain documents and

records, and to prevent the accused from

alienating (transferring) assets acquired by him

through corrupt means.

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(a) to protect such document or record from

destruction or damage; or

(b) to prevent the public servant from altering or

secreting such document or record; or

(c) to prevent the public servant from transferring or

alienating any assets allegedly acquired by him

through corrupt means.

this Act, direct by an interim order, appropriate

authorities to take such action as is necessary, to

prevent the public servant from secreting the assets

allegedly acquired by him by corrupt means;

(8) If during any investigation under this act, the Lokpal

is satisfied that any preventive action is necessary in

public interest to prevent the ongoing incidence of

corruption, it may make any recommendation to the

public authority concerned to stay the implementation

or enforcement of any decision or take any such action

as is recommended by the Lokpal. The public authority

shall either comply with the recommendation of the

Lokpal or reject the same within 15 days of the

recommendation thereof. In the event of rejection of

its recommendation, the Lokpal may approach the

appropriate High Court for seeking appropriate

directions to be given to the public authority.

2. Jan Lokpal Bill specifies not only wider powers to

give such directions, but also the powers to punish

with imprisonment or fine a public servant who

does not comply with such directions.

59 POWER TO DELEGATE

37. The Lokpal may, by general or special order in

writing, and subject to such conditions and

limitations as may be specified therein, direct that

any administrative or financial power conferred on

it may also be exercised or discharged by such of its

Members or officers or employees as may be

specified in the order.

No Equivalent Provisions

60

MERGER OF ANTI-CORRUPTION BRANCH OF CBI INTO

LOKPAL

32. (1) The part of the Delhi Special Police

Vide Sec 32, Jan Lokpal Bill proposes to take over

Central Bureau of Investigation (CBI), which derives

its power to investigate from the Delhi Special

Force Establishment Act. CBI will cease to be under

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No Equivalent Provisions

Establishment, dealing with investigation and

prosecution of offences under the Prevention of

Corruption Act, 1988, shall stand transferred, along

with its employees, assets and liabilities to the Lokpal.

The Central Government shall cease to have any

control over the transferred part and its personnel.

(2) Such part of Delhi Special Police Establishment,

which has been transferred above, shall form part of

the Investigation Wing of Lokpal.

(3) The salaries, allowances and other terms and

conditions of services of the personnel transferred

above shall be the same as they were immediately

before the commencement of this Act.

(4) All cases which were being dealt by that part of

Delhi Special Police Establishment, which has been

transferred, shall stand transferred to Lokpal.

the control of Central Government, and become

part of Lokpal’s Investigative Wing. The whole of

CBI, its employees, assets and liabilities would

stand transferred to Jan Lokpal.

61

No Equivalent Provisions

IMMUNITY TO BRIBE GIVER IN CERTAIN CASES

33. Any bribe giver may be granted immunity from

prosecution by the special court if he voluntarily and

gives timely information to the Lokpal about the giving

of bribe by him with entire evidence for the purpose of

getting the concerned bribe taker/public servant

caught and convicted, provided he also relinquishes all

the illegitimate benefits which he had received by the

giving of that bribe. If the information provided by such

bribe giver is subsequently found to be false, the

immunity could be withdrawn by the special court.

Section 33 of Jan Lokpal Bill enables the giver of

bribes to turn into an approver, informant or

prosecution witness. This clause requires him to

not only come clean, but also relinquish the

illegitimate benefits that he received by giving the

bribe.

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62

No Equivalent Provisions

No Equivalent Provisions

(OTHER) POWERS AND FUNCTIONS OF THE LOKPAL

AND ITS OFFICERS

6. The Lokpal shall have the following functions and

powers

a) to exercise superintendence over the investigation

of offences involving any act of corruption.

b) to give directions to the investigating officers for the

purpose of proper investigation of such offences.

c) after completion of investigation in any case

involving an allegation of an act of corruption, to

impose punishment of dismissal, removal or reduction

in rank against government servants after giving them

reasonable opportunities of being heard.

d) to ensure that the public grievances covered by this

Act are redressed in a time bound manner

h) to authorize a Bench of the Lokpal to issue letters-

rogatory in relation to any case pending investigation

under this Act.

i) to receive complaints from whistle blowers.

j) to receive complaints against any officer or staff of

Lokpal.

k) to recruit investigating officers and other officers

and staff and get them trained in modern methods of

scientific investigation.

(l) to appoint judicial officers, prosecutors and senior

counsels.

(m) to acquire modern equipment necessary for proper

investigation.

(o) to recommend cancellation or modification of a

lease, license, permission, contract or agreement, if it

was obtained by corrupt means and to recommend

blacklisting of a firm, company, contractor or any other

Section 6 of Jan Lokpal Bill is a mixed-bag of

unrestricted powers such as to:

� Intervene in the working of other public

authorities, supervise their working, issue

directions and ensure compliance

� Get contracts and leases cancelled, get

contractors blacklisted, etc. etc.

� Investigate into the asset declarations of

all legislators

� Investigate and inquire into almost any

action of government and administration

� Offer monetary rewards to whistleblowers

� Recruit and train staff in “modern

methods of scientific investigation”

(including techniques and gadgets used by

intelligence agencies perhaps?)

� Acquire modern equipment necessary for

proper investigation (such as secret

cameras, bugs, wire-taps, recording

devices?)

� Appoint judicial officers, prosecutors and

senior counsels

� Impose penalties of govt officials

disobeying Lokpal orders

� Impose punishments on its own staff and

officers to maintain discipline

Anytime the Jan Lokpal feels that he lacks the

power to do something, he has to reach into this

bag and improvise.

QUESTION: Can this possibly be legal?

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No Equivalent Provisions

person, involved in an act of corruption. The public

authority shall either comply with the recommendation

or reject the same within a month of receipt of

recommendation. In the event of rejection of its

recommendation, the Lokpal may approach

appropriate High Court for seeking appropriate

directions to be given to the public authority.

p) to ensure due compliance of its orders by imposing

penalties on persons failing to comply with its orders as

provided under this Act.

q) to initiate suo moto appropriate action under the

Act on receipt of any information from any source

about any corruption.

r) to make recommendations to public authorities, in

consultation with them, to make changes in their work

practices to reduce the scope for corruption and

whistleblower victimization. The concerned authority

shall send its compliance report to Lokpal within two

months specifying detailed reasons, wherever they

choose to reject any of the recommendations.

s) to prepare a sentencing policy for the offences under

Prevention of Corruption Act and revising it from time

to time.

t) to ensure that the time limits mentioned in this Act

are strictly adhered to.

u) to ensure the integrity of its functionaries and

impose punishments of dismissal, removal and

reduction in rank against.

v) to require any public authority to render any specific

help required by the Lokpal.

w) to prepare an appropriate reward scheme to

encourage complaints from within and outside the

government to report acts and evidence of corruption.

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Provided that the total value of such reward shall not

exceed 10% of the value of the loss recovered or loss

prevented.

(x) to inquire into the assets declaration statements

filed by all successful candidates after any election to

any seat in any House of the Parliament.

(y) Such other functions as may be necessary for the

proper implementation of this Act.

63

No Equivalent Provisions

PROTECTION AGAINST TECHNICAL DEFICIENCIES

10 (2). No act or proceeding of the Lokpal shall be

invalid merely by reason of :

(a) any vacancy in, or any defect in the constitution of

Lokpal ;

(b) any defect in the appointment of a person acting as

a member of Lokpal ; or

(c) any irregularity not affecting the merits of the case

Jan Lokpal Bill’s Section 10(2) gives it protection

against technical errors. Its verdicts are supposed

to be legally valid even if there are defects in the

appointment of the person making the decisions,

or even the process or procedure by which the

decision is arrived at.

QUESTION: Can this be legal?

Chapter 9 Special Courts

64 SPECIAL COURTS TO BE NOTIFIED BY CENTRAL

GOVERNMENT

38. (1) The Central Government shall constitute such

number of Special Courts, as recommended by the

Lokpal, to hear and decide the cases arising out of

the Prevention of Corruption Act, 1988 or under this

Act.

(2) The Special Courts constituted under sub-section

(1) shall ensure completion of each trial within a

20(2). Every effort will be made by the special courts

trying an offence under the Prevention of Corruption

Act to complete the trial within a maximum period of

12 months.

(3) To achieve the objective of a speedy trial the

Lokpal shall make an annual assessment of the number

of special courts required for this purpose and shall

make a recommendation to the Government for

creating a specific number of special courts which

recommendations shall be binding on the Government.

1. Govt. Lokpal Bill specifies timeline of one year

for completion of trial, plus maximum four

extensions of 3 months each, until a total period of

two years is reached.

2. Jan Lokpal Bill also stipulates a maximum period

of 12 months, with no extensions. To save special

courts from being swamped with pendencies, it

mandates that the government will create

numerous special courts in response to Lokpal’s

assessment and recommendation.

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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.

(4) The Chief Justices of High Courts will constitute such

number of special benches in respective High Courts to

hear cases under this Act, to ensure that an appeal in

any case is decided as expeditiously as possible and not

later than six months.

(5) The judges of Special Courts and the appellate

benches set up by High Courts to hear cases under this

Act will deal only with cases under this Act.

Also, Jan Lokpal imposes special requirements on

High Courts to hear the appeals arising from Jan

Lokpal proceedings. It says that High Courts must

constitute special benches exclusively for hearing

Jan Lokpal cases. It says that appeal of such cases

should be decided expeditiously, and not later than

six months.

CHOKING POINTS:

A) If the government wishes to prevent the

proper functioning of Jan Lokpal, it will

avoid creating necessary numbers of

special courts.

B) Since judges of higher judiciary are also

under the jurisdiction of Jan Lokpal, they

may also have an interest in preventing

the proper functioning of Jan Lokpal by

deliberately failing to constitute special

benches. As it is, there is great shortage

of judges and pendencies are mounting

alarmingly; so what are the realistic

chances of such special benches actually

getting created at different High Courts?

65 LETTER OF REQUEST TO A CONTRACTING STATE IN

CERTAIN CASES

39. (1) Notwithstanding anything contained in this

Act or the Code of Criminal Procedure, 1973 if, in

the course of an inquiry or investigation into an

offence or other proceeding under this Act, an

application is made to a Special Court by the

Investigation Officer of the Lokpal that any evidence

is required in connection with the inquiry or

No Equivalent Provisions

Govt Lokpal Bill outlines a formal mechanism

whereby Investigation Officer and Special Court

can work together to overcome barriers of

jurisdiction, and gain access to documentary

evidence lying with State governments.

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62

investigation into an offence or proceeding under

this Act and he is of the opinion that such evidence

may be available in any place in a contracting State,

and the Special Court, on being satisfied that such

evidence is required in connection with the inquiry

or investigation into an offence or proceeding under

this Act, may issue a letter of request to a court or

an authority in the contracting State competent to

deal with such request to—

(i) examine the facts and circumstances of the case;

(ii) take such steps as the Special Court may specify

in such letter of request; and

(iii) forward all the evidence so taken or collected to

the Special Court issuing such letter of request.

(2) The letter of request shall be transmitted in such

manner as the Central Government may prescribe in

this behalf.

(3) Every statement recorded or document or thing

received under sub-section (1) shall be deemed to

be evidence collected during the course of the

inquiry or investigation.

Chapter 10 Complaints against Chairperson and

Members of the Lokpal

66 COMPLAINTS AGAINST CHAIRPERSON OR

MEMBERS NOT TO BE INQUIRED INTO BY THE

LOKPAL

40. (1) The Lokpal shall not inquire into any

11. (1). The Chairperson or any other member of the

Lokpal shall only be removed from his office by the President, on the recommendation of the Supreme

Court on any of the following grounds after the

Supreme Court, on the complaint of any person, held

1. Govt Lokpal Bill specifies that a complaint of bias

or corruption against the Chairperson or member

of Lokpal shall be made to the President of India. If

President feels there is merit in this complaint, he

will refer it to Chief Justice of India to inquire into

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complaint made against the Chairperson or any

Member.

(2) Any complaint against the Chairperson or

Member shall be made by an application by the

party aggrieved, to the President.

(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.

(4) The President shall decide the action against the

Chairperson or Member on the basis of the opinion

of the Chief Justice of India and in case the President

is satisfied, on the basis of the said opinion that the

Chairperson or the Member is biased or has

indulged in corruption, the President shall,

notwithstanding anything contained in sub-section

(1) of section 8, remove such Chairperson or

Member and also order for initiation of prosecution

in case of allegation of corruption.

an inquiry and found that he could on such ground be

removed :

(a) that he has been guilty of misbehavior; or

(b) that he is unfit to continue in his office by reason of

infirmity of mind or body; or

(c) is adjudged an insolvent; or

(d) engages during his term of office in any paid

employment outside the duties of his office.

(2) In any such proceeding the Supreme Court may also

direct the suspension of such Chairman or member.

(3) On receipt of recommendation from the Supreme

Court, the President shall forthwith remove the

Chairperson or the member, as the case may be.

(4) Supreme Court shall, as far as possible, make its

recommendations within 3 months of receipt of

complaint under this section.

(5) If the complaint is frivolous or has been made with

malafide intentions, Supreme Court may impose a fine

or an imprisonment upto one year or both on the

complainant.

the complaint. Based on the Chief Justice’s opinion,

President may take steps to remove the

Chairperson or member, and also order for

prosecution to be initiated in case of corruption.

2. Jan Lokpal does not explicitly explain the process

of removal of Lokpal Chairperson or Member but

the provisions are similar. But Jan Lokpal

discourages complaints against the Jan Lokpal. It

specifies that if the complaint is frivolous or made

with malafide intentions, Supreme Court may

impose a fine and/or imprisonment upto one year

on the complainant. This is a great deterrent

against complaints.

Also, please note that Jan Lokpal does not specify

‘corruption’ as one of the grounds for initiating

action against its Chairman and members.

67 COMPLAINTS AGAINST OFFICIAL OF THE LOKPAL

41. (1) Every complaint of allegation or wrongdoing

made against any officer or employee or

15. (1) In each State, one or more complaints authority

would be established by the Lokpal to entertain any

complaints against any officer or staff of the Lokpal.

1. Govt Lokpal Bill states that offences by every

officer or employee of Lokpal or its investigation

agency, or associated with Lokpal, shall be tried

and punished by Lokpal itself. The offences and

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64

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.

(3) While making an inquiry into the complaint

against any officer or employee of the Lokpal or

agency engaged or associated with the Lokpal, if the

Lokpal is prima facie satisfied on the basis of

evidence available, that—

(a) continuance of such officer or employee of the

Lokpal in his post or agency engaged or associated

while conducting the inquiry is likely to affect such

inquiry adversely; or

(b) an officer or employee of the Lokpal or agency

engaged or associated is likely to destroy or in any

way tamper with the evidence or influence

witnesses, then, the Lokpal may, by order, suspend

such officer or employee of the Lokpal or divest

such agency engaged or associated with the Lokpal

of all powers and responsibilities hereto before

exercised by it .

(4) On the completion of the inquiry, if the Lokpal is

satisfied that there is prima facie evidence of the

commission of an offence under the Prevention of

Corruption Act, 1988 or of any wrongdoing, it shall,

(2) Such complaints authority shall consist of 5

members to be selected and nominated by a

Committee of 3 persons consisting of:

i) The Chief Justice of the High Court of the State;

ii) The Chairman of the State Lok Ayukata

iii) The Chairman of the State Human Rights

Commission

(3) The Complaints Authority shall be chaired by a

retired High Court judge and shall have two retired civil

servants and two members of civil society.

(4) The complaints received against any officer or staff

of the Lokpal shall be inquired into by the Complaints

Authority in a public hearing and shall be decided

within 2 months of the receipt of the complaint. The

officer or staff of the Lokpal shall be given proper

opportunity to tender his defence. If the officer or

member is found guilty of misbehavior or dishonest

investigation or corruption, the authority may order his

dismissal, removal or reduction in rank.

(5) The final orders passed by the Complaints Authority

will be subject to the writ jurisdiction of the High Court

under Article 226 of the Constitution.

(6) In suitable cases it would also be open to the

complaints authority to direct suspension of the officer

or staff of the Lokpal.

(7) Lokpal shall provide for the expenses related to the

functioning of complaints authority.

punishments will be as per Prevention of

Corruption Act. Complaint against its officers and

employees is to be treated on priority basis, and

enquiry is to be completed within 30 days. If Lokpal

is satisfied that there is enough prima facie

evidence of corruption, then it can order

disciplinary proceedings, suspend the employee,

divest him of his powers, or it can order his

prosecution.

2. Jan Lokpal Bill has distinctive features. It

specifies that complaints against Lokpal officers

and employees will not be heard by Lokpal, but by

a separate impartial Complaints Authority. Salient

features:

• An elaborate state-level mechanism to

hear such complaints, paid for by Lokpal

• Complaints authorities appointed by

Lokpal, will consist of 5 members . It will

be chaired by a retired High Court judge,

two retired civil servants and two

members of civil society.

• These will be nominated by Chief Justice

of High Court of the State, Chairman of

the State Lok Ayukta and Chairman of the

State Human Rights Commission.

• Complaints Authority will work in benches

as per the rules and regulations made by

Lokpal.

• The accused officer will be given an

opportunity to defend himself.

• The Complaints Authority can direct

suspension, reduction of rank, dismissal

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65

within a period of fifteen days of the completion of

such inquiry, order to prosecute such officer or

employee of the Lokpal or such officer or employee

of agency engaged or associated with the Lokpal

and initiate disciplinary proceedings against the

official concerned:

Provided that no such order shall be passed without

giving such officer or employee of the Lokpal or

officer or employee of agency engaged or

associated, a reasonable opportunity of being

heard.

(8) Complaints authority shall work in benches in

accordance with regulations made under this Act.

etc. if the accused is found guilty.

• However, please note that there is no

mention of prosecution, imprisonment

etc. as per provisions of Prevention of

Corruption Act.

Chapter 11 Assessment of Loss and Recovery

Thereof by Special Court

68 ASSESSMENT OF LOSS AND RECOVERY THEREOF BY

SPECIAL COURT

42. If any public servant is convicted of an offence

under the Prevention of Corruption Act, 1988 by the

Special Court, notwithstanding and without

prejudice to any law for the time being in force, it

may make an assessment of loss, if any, caused to

the public exchequer on account of the actions or

decisions of such public servant not taken in good

faith and for which he stands convicted, and may

order recovery of such loss, if possible or

quantifiable, from such public servant so convicted:

Provided that if the Special Court, for reasons to be

recorded in writing, comes to the conclusion that

the loss caused was pursuant to a conspiracy with

Seizure and confiscation of property and recovery of

compensation from corrupt government servants

27. (1) After a public servant has been found guilty by

the Special Court of having committed an offence

under the Prevention of Corruption Act, the Court

would also determine the assets and properties which

have been acquired by such accused person by his

corrupt acts.

(2) The Special Court will pass an order for the

confiscation of all the assets and properties which it

has found to have been acquired by the corrupt acts of

the convicted public servants as well as the subsequent

accruals on these assets.

1. Govt Lokpal Bill says:

• If the Special Court convicts a public

servant of an offence under Prevention of

Corruption Act, it will assess the loss to

the public exchequer caused by his

corrupt actions if the losses are

quantifiable.

• If possible, it will order recovery of such

loss from him.

• If the court finds that he was acting in

conspiracy with the beneficiaries of his

actions, then loss will also be recovered

from the beneficiaries proportionately.

2. Jan Lokpal Bill does not mention recovery of

losses from BENEFICIARIES of the public servant’s

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66

the beneficiary or beneficiaries of actions or

decisions of the public servant so convicted, then

such loss may, if assessed and quantifiable under

this section, also be recovered from such beneficiary

or beneficiaries proportionately.

(3) The Special Court would also determine whether

apart from the above the accused person by his

corrupt acts has also caused any loss to the exchequer

or any other person and determine the amount of loss

so caused. The Court shall make an order levying a fine

on the accused persons so convicted for the recovery

of the entire loss which his corrupt acts have caused

and shall also apportion this amount among the

various convicted accused persons to be recovered

from them as fines.

actions. However, it specifically mentions:

• Confiscation of the assets of the convicted

public servant, as well as the accruals on

those assets.

• The special court shall order a fine on the

convicted persons for recovery of the

entire loss.

• Special court will apportion the amount to

be recovered from various convicted

persons.

Chapter 12 Finance, Accounts and Audit

69 BUDGET

43. The Lokpal shall prepare, in such form and at

such time in each financial year as may be

prescribed, its budget for the next financial year,

showing the estimated receipts and expenditure of

the Lokpal and forward the same to the Central

Government for information.

26. (1) All expenses of the Lokpal shall be charged to

the Consolidated fund of India.

(2) The Board shall finalise the Lokpal’s budget in such

a manner that it is less than ¼ % of the total revenues

of the Government of India.

(3) Lokpal shall not need any administrative or financial

sanction from any government agency to incur

expenditure.

1. Govt Lokpal Bill says that Lokpal will prepare the

budget for the next financial year and forward it to

the Central Government. Budget will be cleared by

Central Govt.

2. Jan Lokpal Bill says that the Lokpal will finalize its

own budget and charge it directly to Consolidated

Fund of India. It shall be less than one-fourth

percent of the total revenues of the Govt of India.

It does not need administrative or financial

sanction from any government agency.

However, as no amount can be withdrawn from

the Consolidated Fund without Parliament’s

approval, Lokpal budget will be subject to scrutiny

by a Parliamentary Committee, the two Houses of

Parliament and also by Comptroller & Auditor

General.

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67

70 GRANTS BY CENTRAL GOVERNMENT

44. Without prejudice to the provisions of section

16, the Central Government may, after due

appropriation made by Parliament by law in this

behalf, make to the Lokpal grants of such sums of

money as are required to be paid for the salaries

and allowances payable to the Chairperson and

Members and the administrative expenses,

including the salaries and allowances and pension

payable to or in respect of officers and other

employees of the Lokpal.

No Equivalent Provisions

71 ANNUAL STATEMENT OF ACCOUNTS

45. (1) The Lokpal shall maintain proper accounts

and other relevant records and prepare an annual

statement of accounts in such form as may be

prescribed by the Central Government in

consultation with the Comptroller and Auditor-

General of India.

(2) The accounts of the Lokpal shall be audited by

the Comptroller and Auditor- General of India at

such intervals as may be specified by him.

(3) The Comptroller and Auditor-General of India or

any person appointed by him in connection with the

audit of the accounts of the Lokpal under this Act

shall have the same rights, privileges and authority

in connection with such audit, as the Comptroller

and Auditor-General of India generally has, in

Audit of Lokpal

13. (1) The CAG shall conduct an annual financial and

performance audit of the Lokpal.

(2) A Parliamentary Committee shall do an annual

appraisal of the functioning of Lokpal. The Lokpal shall

submit a compliance report, mentioning detailed

reasons where it does not accept the

recommendations of this committee, to the

Parliament. It shall be placed on the table of the two

Houses of Parliament.

1. The Govt Lokpal Bill states that:

• Lokpal shall maintain proper accounts in

the form prescribed by CAG.

• Accounts of the Lokpal will be audited by

CAG at intervals specified by CAG.

• CAG will have full rights and privileges to

demand the production of books,

accounts, vouchers etc. and to inspect any

office of the Lokpal.

• Accounts, duly certified by CAG, will be

forwarded to the Central Govt, along with

CAG’s audit report.

2. Jan Lokpal Bill states that:

� CAG shall conduct annual financial and

performance audit.

� Parliamentary Committee shall do annual

appraisal.

� Lokpal will submit compliance report.

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connection with the audit of the Government

accounts and, in particular, shall have the right to

demand the production of books, accounts,

connected vouchers and other documents and

papers and to inspect any of the offices of the

Lokpal.

(4) The accounts of the Lokpal, as certified by

Comptroller and Auditor-General of India or any

other person appointed by him in this behalf,

together with the audit report thereon, shall be

forwarded annually to the Central Government and

the Central Government shall cause the same to be

laid before each House of Parliament.

� However, Lokpal is free to not accept all

the recommendations of the

Parliamentary Committee. If it does not

accept any, it will give detailed reasons in

the compliance report, and this shall be

placed before both Houses of Parliament.

72 FURNISHING OF RETURNS ETC. TO CENTRAL

GOVERNMENT

46. (1) The Lokpal shall furnish to the Central

Government, at such time and in such form and

manner as may be prescribed or as the Central

Government may request, such returns and

statements and such particulars in regard to any

matter under the jurisdiction of the Lokpal, as the

Central Government may, from time to time,

require.

(2) The Lokpal shall prepare, once every year, in

such form and at such time as may be prescribed, an

annual report, giving a summary of its activities

during the previous year and copies of the report

shall be forwarded to the Central Government.

(3) A copy of the report received under sub-section

Reports of Lokpal

14. (1) The Chairperson of Lokpal shall present annually

a consolidated report in the prescribed format on its

performance to the President

(2) On receipt of the annual report, the President shall

cause a copy thereof together with an explanatory

memorandum to be laid before each House of the

Parliament.

(3) The Lokpal shall publish every month on its website

the list of cases received during the previous month,

list of cases disposed with brief details of each such

case, outcome and action taken or proposed to be

taken in that case, list of cases which are pending and

minutes and records of Board meetings.

1. The Govt Lokpal Bill says that the Lokpal shall

furnish whatever reports, statements and returns

the Central Govt. may request or prescribe from

time to time, including annual report. It is open-

ended as to what Central Govt will demand.

2. The Jan Lokpal Bill is closed-ended. It says:

� Lokpal will present directly to the

President of India the consolidated annual

report in the prescribed format.

� The President may add his own

explanatory memorandum and lay it

before both Houses of Parliament.

� Lokpal will publish every month on its

website the list of cases disposed during

the previous month, along with the

outcome of each case, actions to be taken,

list of pending cases, and records of Board

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(2) shall be laid by the Central Government, as soon

as may be after it is received, before each House of

Parliament.

16. The Lokpal shall maintain complete transparency in

its functioning and shall ensure that full records of any

investigation or inquiry conducted under this Act after

its conclusion is made public by being put on a public

web site.

meetings.

� Lokpal will maintain transparency directly

before the citizens of India through

website and direct access to documents.

� In other words, it will be answerable

directly to people of India, but not

controlled by Government and

Parliament.

Chapter 13 Declaration of Assets

73 DECLARATION OF ASSETS

47. (1) Every public servant shall make a declaration

of his assets and liabilities in the manner as

provided by or under this Act.

(2) Every public servant shall, within a period of

thirty days from the date on which he makes and

subscribes an oath or affirmation to enter upon his

office, furnish to the competent authority the

information relating to—

(a) the assets of which he, his spouse and his

dependent children are, jointly or severally, owners

or beneficiaries;

(b) his liabilities and that of his spouse and his

dependent children.

(3) Every public servant holding his office as such, at

the time of the commencement of this Act, shall

furnish information relating to such assets and

liabilities, as referred to in sub-section (2) to the

Public servants property statements

28. (1) Every public servant shall within 3 months after

the commencement of this Act and thereafter before

the 30th June of every year submit to the Head of that

public authority in which the said public servant is

functioning or to such other authority as may be

prescribed, a statement of his assets and liabilities and

those of the members of his family which shall include

their sources of income, in the format prescribed by

the Lokpal.

Explanation : In this Section family of a public servant

means the spouse and such children and parents of the

public servant and such other people as are dependent

on him.

(2) The Head of each public authority shall ensure that

all such statements are put on the website by 31st of

August of that year.

1. Govt Lokpal Bill says that

• Every public servant, within 30 days of his

taking oath or affirmation, and within 30

days of the coming into force of this Act,

he will furnish to the Competent Authority

a statement of his assets and liabilities,

and those of his spouse and dependent

children.

• He will thereafter file annual returns of

the same as on 31st

March.

• The competent authority will publish this

on its website by 31st

August.

2. Jan Lokpal Bill gives 3 months from the

commencement of this Act to file such returns.

� Besides spouse and children, it also

includes among the dependents the

parents and “such other people”.

� It puts the onus on the head of each

public authority to ensure that such

returns are filed before 30th

of June, and

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70

competent authority within thirty days of the

coming into force of this Act.

(4) Every public servant shall file with the competent

authority, on or before the 31st July of every year,

an annual return of such assets and liabilities, as

referred to in sub-section (2), as on the 31st March

of that year.

(5) The information under sub-section (2) or sub-

section (3) and annual return under sub-section (4)

shall be furnished to the competent authority in

such form and in such manner as may be prescribed.

(6) The competent authority in respect of each

office or Department shall ensure that all such

statements are published on the website of such

office or Department by 31st August of that year.

Explanation.— For the purposes of this section,

“dependent children” means sons and daughters

who have no separate means of earning and are

wholly dependent on the public servant for their

livelihood.

that this information is up on the website

by 31st

August the same year.

74 PRESUMPTION AS TO ACQUISITION OF ASSETS

48. If any public servant wilfully or for reasons which

are not justifiable, —

(a) fails to declare his assets; or

(b) gives misleading information in respect of such

assets and is found to be in possession of assets not

disclosed or in respect of which misleading

information was furnished, then such assets shall,

unless otherwise proved, be presumed to belong to

28 (3) If it is found that the public servant owns some

property which was not disclosed in his statement of

assets, that property would be liable to be confiscated

by the Lokpal.

(4). If the public servant is found to be in possession or

enjoyment of any property which is not shown in his

statement of assets, it shall be presumed that it was

owned by him unless he proves to the contrary.

1. Govt Lokpal Bill says:

• If public servant fails to declare assets or

gives misleading information, then such

assets shall be automatically presumed to

be acquired by corrupt means.

• The public servant will be given

opportunity to present his defence.

• Competent authority may condone or

exempt public servant from furnishing

information below a certain minimum

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the public servant and shall be presumed to be

assets acquired by corrupt means:

Provided that the competent authority may

condone or exempt the public servant from

furnishing information in respect of assets not

exceeding such minimum value as may be

prescribed.

value that is prescribed.

2. Jan Lokpal Bill says:

� If it is found that the public servant owns

some property that was not disclosed in

the returns, it is liable to be confiscated

by Lokpal.

� If the public servant is found to be in

possession of, or enjoyment of, some

property that was not declared, it shall be

presumed to be owned by him unless he

proves to the contrary.

Chapter 14 Offences and Penalties

75 PROSECUTION FOR FALSE COMPLAINT

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.

(2) No Court, except a Special Court, shall take

cognizance of an offence under sub-section (1).

(3) No Special Court shall take cognizance of an

offence under sub-section (1) except on a complaint

made by a person against whom the false, frivolous

or vexatious complaint was made.

(4) The prosecution in relation to an offence under

Punishments for false complaints:

30. (1) Notwithstanding anything contained in this Act,

if someone makes any complaint under this Act, which

lacks any basis or evidence and is held by Lokpal to be

meant only to harass certain authorities, Lokpal may

impose such fines on that complainant as it deems fit,

but the total fine in any one case shall not exceed Rs

one lakh.

Provided that no fine can be imposed without giving a

reasonable opportunity of being heard to the

complainant.

Provided further that merely because a case could not

be proved under this Act after investigation shall not

be held against a complainant for the purposes of this

section.

Provided that if such complaint is against the staff or

1. Govt Lokpal Bill specifies:

• Whoever makes a false or vexatious

complaint under this Act shall be punished

for two to five years of imprisonment, and

fine of Rs 25000 to Rs 2 lakhs.

• This will be heard by a special court, and

not any other court.

• It will be taken up by the special court if

and only if the victim of the false

complaint files a complaint.

• Expenses of this prosecution will be borne

by Central Govt. i.e. The aggrieved public

servant will not have to bear the cost.

• The person, association, society etc.

convicted of false complaint will be

required to pay compensation to the

aggrieved public servant, and also legal

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sub-section (1) shall be conducted by the public

prosecutor and all expenses connected with such

prosecution shall be borne by the Central

Government.

(5) In case of conviction of a person [being an

individual or society or association of persons or

trust (whether registered or not)], for having made a

false complaint under this Act, such person shall be

liable to pay compensation to the public servant

against whom he made the false complaint in

addition to the legal expenses for contesting the

case by such public servant, as the Special Court

may determine.

officers of Lokpal, Lokpal may sentence the

complainant to three months of simple imprisonment

in addition to fine.

(2) Such fines shall be recoverable as dues under Land

Revenue Act.

(3) A complaint or allegation once made under this Act

shall not be allowed to be withdrawn.

expenses. The amount will be determined

by the special court.

2. Compared to Govt Lokpal Bill, Jan Lokpal Bill

specifies lighter penalties for the offences of false

allegations etc. offences committed by civil society:

� Those who make complaints which are

not on the basis of evidence, only for

harassing the authorities, will be fined

upto Rs 1 lakh.

� If the complaint is against staff or officers

of Lokpal, Lokpal may sentence him to

three months of simple imprisonment, in

addition to fine.

� Complainant will not be punished only

because a complaint against a public

servant could not be proved after

investigation.

� If such fines are not paid, his properties

may be attached to pay the fines.

� A complaint once made cannot be

withdrawn.

� Jan Lokpal Bill does not say anything about

groups of people filing false or vexatious

complaints.

76 FALSE COMPLAINT MADE BY COMPANY OR

ASSOCIATION

50. (1) Where any offence under section 49 has

been committed by any society or association of

persons or trust (whether registered or not), every

person who, at the time the offence was committed,

No Equivalent Provisions

1. Govt Lokpal Bill says:

• If false and vexatious compliant was filed

by a society, association or any other

group of persons – registered or

otherwise – then all the person who are

responsible for the conduct of its activities

will be deemed to be guilty.

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73

was directly in charge of, and was responsible to,

the society or association of persons or trust, for the

conduct of the business or affairs or activities of the

society or association of persons or trust as well as

such society or association of persons or trust shall

be deemed to be guilty of the offence and shall be

liable to be proceeded against and punished

accordingly:

Provided that nothing contained in this sub-section

shall render any such person liable to any

punishment provided in this Act, if he proves that

the offence was committed without his knowledge

or that he had exercised all due diligence to prevent

the commission of such offence.

(2) Notwithstanding anything contained in sub-

section (1), where an offence under this Act has

been committed by a society or association of

persons or trust (whether registered or not) and it is

proved that the offence has been committed with

the consent or connivance of, or is attributable to

any neglect on the part of, any director, manager,

secretary or other officer of such society or

association of persons or trust, such director,

manager, secretary or other officer shall also be

deemed to be guilty of that offence and shall be

liable to be proceeded against and punished

accordingly.

No Equivalent Provisions

• Directors, Secretary, manager etc. will be

held guilty, even if it happened because of

their neglect.

• The onus will be on them to prove that

they were not party to this action, or that

they had exercised due diligence to

prevent such an offence.

2. Jan Lokpal Bill is silent on this aspect. It fails to

consider false complaints filed by groups of people.

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Chapter 15 Miscellaneous

77 PROTECTION FOR ACTION IN GOOD FAITH BY

PUBLIC SERVANT AND OTHERS

51. No suit, prosecution or other legal proceedings

under this Act shall lie against any public servant, in

respect of anything which is done in good faith or

intended to be done in the discharge of his official

functions or in exercise of his powers.

52. No suit, prosecution or other legal proceedings

shall lie against the Lokpal or against any officer,

employee, agency or any person, in respect of

anything which is done in good faith or intended to

be done under this Act or the rules or the

regulations made thereunder.

No Equivalent Provisions

These are standard legal clauses present in every

Act of this nature. The Jan Lokpal Bill, having been

drafted by civil society, does not have a few such

clauses.

78 MEMBERS AND EMPLOYEES TO BE PUBLIC

SERVANTS

53. The Chairperson, Members, officers and other

employees of the Lokpal shall be deemed, when

acting or purporting to act in pursuance of any of

the provisions of this Act, to be public servants

within the meaning of section 21 of the Indian Penal

Code.

These are standard legal clauses present in every

Act of this nature. The Jan Lokpal Bill, having been

drafted by civil society, does not have a few such

clauses.

79 LIMITATION IN CERTAIN CASES

54. 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

1. Govt. Lokpal Bill has this “Statute of Limitations”

clause. It says that Lokpal will not entertain

complaints about incidents of corruption that are

over seven years old. Conversely, this important

clause means that Lokpal will consider complaints

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75

alleged to have been committed. about incidents of corruption that are even a few

weeks short of seven years, if backed up with

sufficient evidence.

2. Jan Lokpal does not have this important clause.

This could mean that it may be willing to entertain

complaints about very old incidents of corruption,

if backed up with proper evidence.

80 BAR OF JURISDICTION

55. No civil court shall have jurisdiction in respect of

any matter which the Lokpal is empowered by or

under this Act to determine.

1. Govt. Lokpal Bill has this good technical point, to

avoid confusion about overlapping jurisdiction of

civil courts. This is a typical Bar-of-Jurisdiction

clause.

81 LEGAL ASSISTANCE

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.

1. Govt Lokpal Bill has this clause to give assistance

to those who are financially not able to defend

themselves.

82 ACT TO HAVE OVERRIDING EFFECT

57. The provisions of this Act shall have effect

notwithstanding anything inconsistent therewith

contained in any enactment other than this Act or in

any instrument having effect by virtue of any

enactment other than this Act.

1. A necessary technical clause to avoid conflict

with other older legislations.

83 ACT IN ADDITION TO EXISTING LAWS

58. The provisions of this Act shall be in addition to,

and not in derogation of, any other law for the time

being in force.

1. A necessary technical clause to avoid conflict

with other older legislations.

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84 AMENDMENT OF CERTAIN ENACTMENTS

59. The enactments specified in the Second

Schedule shall be amended in the manner specified

therein.

85 2ND

SCHEDULE

AMENDMENT TO CERTAIN ENACTMENTS

PART I

AMENDMENT TO THE COMMISSIONS OF INQUIRY

ACT, 1952

(60 OF 1952)

In section 3, in sub-section (1), for the words “The

appropriate Government may”, the words and

figures “Save as otherwise provided in the Lokpal

Act, 2011, the appropriate Government may” shall

be substituted.

PART II

AMENDMENTS TO THE PREVENTION OF

CORRUPTION ACT, 1988 (49 OF 1988)

1. In section 13, in sub-section (2), for the words

“seven years”, the words “ten years” shall be

substituted.

2. In section 14, for the words “seven years”, the

words “ten years” shall be substituted.

3. In section 19, in sub-section (1), after the words

“except with the previous sanction”, the words and

figures “save as otherwise provided in the Lokpal

Act, 2011” shall be inserted.

PART III

AMENDMENT TO THE CODE OF CRIMINAL

PROCEDURE, 1973 (2 OF 1974)

APPLICABILITY AND MODIFICATIONS OF THE

PROVISIONS OF CERTAIN OTHER ACTS

29. (1) Section 19(1) and 19(2) of the Prevention of

Corruption Act shall be deleted.

(2) Section 6A of the Delhi Special Police Establishment

Act shall not be applicable to the proceedings under

this Act.

(3) Section 197 of Cr. PC shall not applicable to any

proceedings under this Act.

(4) The provisions of sections 105C to 105I of CrPC shall

apply to offences under the Prevention of Corruption

Act whether or not they are transnational in nature.

(5) Section 389(3) of CrPC shall not apply to offences

under Prevention of Corruption Act.

(6) The right to file appeals under section 377 or 378 of

CrPC shall be exercised by Lokpal.

(7) Under section 372 of CrPC, the power to file an

appeal shall be with the complainant as well.

(8) Notwithstanding anything contained in Section 397

of CrPC, no court shall ordinarily call for records in

cases related to trial of offences in Prevention of

1. Govt Lokpal Bill says:

• No case where a complaint has been

made to the Lokpal shall be referred for

inquiry under the Commissions of Inquiry

Act, 1952. Amendment to Commission of

Inquiry Act will make this effective.

• Amendments to Prevention of Corruption

Act 1988 raises the maximum jail term for

habitually corrupt people from seven

years to 10 years.

• Amendment to CrPC removes the need for

seeking sanction of higher-ups for

prosecuting a public servant, if the

complaint is made to Lokpal.

2. Jan Lokpal Bill says:

� The sections of Prevention of Corruption

Act requiring previous sanction of the

higher-ups of a public servant stand

deleted.

� The provisions of Delhi Special Police

Establishment Act, and of CrPC (Section

197) that require prior sanction before

prosecution of public servants also stand

nullified in the context of Lokpal.

� Section 389(3) of CrPC, which grants a

convicted person suspension of

imprisonment while he is on bail for

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In section 197, after the words “except with the

previous sanction”, the words and figures “save as

otherwise provided in the Lokpal Act, 2011” shall be

inserted.

Corruption Act during any trial by a special court.

Provided that if the court calls for records, the same

shall be returned within a month.

(9) Any permission which is required under any law for

initiating investigation or initiating prosecution under

any Act shall be deemed to have been granted once

the Lokpal has granted permission to initiate

investigation or prosecution for any offences under the

Prevention of Corruption Act.

(10) The power of the Lokpal to investigate offences

under the Prevention of Corruption Act shall be with

the Lokpal notwithstanding any provision in the Money

Laundering Act, 2002.

(11) The jurisdiction of the special courts under the

Prevention of Corruption Act, 1988 to try offences

under such act shall be with the Special Court

notwithstanding any provision in the Money

Laundering Act, 2002.

(12) The appropriate Bench of the Lokpal shall be

deemed to be the designated authority under Section 5

of the Indian Telegraph Act empowered to approve

interception and monitoring of messages or data or

voice transmitted through telephones, internet or any

other medium as covered under the Indian Telegraph

Act read with Information and Technology Act 2000

and as per rules and regulations made under the Indian

Telegraph Act 1885.

(13) Section 4 (4) of Prevention of Corruption Act shall

appealing the sentence, will not apply to

Prevention of Corruption Act. i.e. Those

convicted will go straight to jail, and will

have to fight their appeal from jail.

� Section 397 of CrPC will not apply to

ongoing trial of corruption case by a

special court. If a High Court calls for the

records being examined by a Special

Court, they shall have to be returned

within a month. This is intended to

prevent undertrials from delaying their

conviction by manipulating to get their

records held up in High Courts – a

favourite tactic of many lawyers.

� No law requiring permission for

investigation or prosecution will be

applicable once Lokpal decides to

investigate and prosecute.

� Even cases being investigated by

Enforcement Directorate as per Money

Laundering Act 2002 will not be barred

from the jurisdiction of the Lokpal for

investigation and prosecution. Nor will the

Special Court be barred from trying such

cases.

� Lokpal will have powers to intercept and

monitor all forms of messages through

physical or electronic media. He can read

sealed letters, tap telephones, hack

internet and emails, SMSes etc. In short, if

a person is under investigation, none of

his communications will be private.

� Section 4(4) of Prevention of Corruption

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be amended as – “Notwithstanding anything contained

in the Code of Criminal Procedure, 1973 a Special Judge

shall hold the trial of an offence on day-to-day basis,

and shall not grant adjournment for any purpose

unless such adjournment is, in its opinion, necessary in

the interests of justice and for reasons to be recorded

in writing”

Act states that “as far as practicable,” the

Special Court shall hold trials on a day-to-

day basis. Jan Lokpal Bill amends this by

deleting “as far as practicable” and makes

it an absolute mandate to hold daily trials.

It further adds that it shall not grant

adjournments for any purpose, barring

exceptional circumstances to be recorded

in writing.

86 POWER TO MAKE RULES

60. (1) The Central Government may, by notification

make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the

generality of the foregoing power, such rules may

provide for all or any of the following matters,

namely:—

(a) the form of complaint referred to in clause (d) of

sub-section (1) of section 2;

(b) the term of the Search Committee, the fee and

allowances payable to its members and the manner

of selection of panel of names under sub-section (5)

of section 4;

(c) the procedure of inquiry into misbehaviour for

removal of the Chairperson or any Member under

sub-section (1) of section 8;

(d) the post or posts in respect of which the

appointment shall be made after consultation with

the Union Public Service Commission under the

proviso to subsection (1) of section 11;

(e) other matters for which the Lokpal shall have the

6. The Lokpal shall have the following functions and

powers

g) to provide by rules for the terms and conditions of

service including the allowances and pension payable

to the officers and staff of the Lokpal.

1. Govt Lokpal relies on Central Govt. to

make rules to carry out the provisions of

this Act. It lays down a clear list of areas

for which rules must be framed. It

acknowledges rule-making as a specialized

government function.

2. Jan Lokpal takes rule-making as a power of

Lokpal. It does not leave it to the

government.

Pros & Cons:

a) Rule-making is a neglected function.

Government often fails to lay down rules

in a timely manner.

b) Lokpal itself may be better equipped to

make effective rules, as it would be in

touch with the ground realities.

c) However, Lokpal may subjectively make

rules to maximise its own authority. It may

fail to bear in mind the larger context of

the administration and constraints posed

the rules of other organizations.

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powers of a civil court under clause (vi) of sub-

section (1) of section 31;

(f) the manner of sending the order of attachment

along with the material to the Special Court under

sub-section (2) of section 33;

(g) the manner of transmitting the letter of request

under sub-section (2) of section 39;

(h) the manner of making reference to the Chief

Justice of India under subsection (3) of section 40;

(i) the form and the time for preparing in each

financial year the budget for the next financial year,

showing the estimated receipts and expenditure of

the Lokpal under section 43;

(j) the form for maintaining the accounts and other

relevant records and the form of annual statement

of accounts under sub-section (1) of section 45;

(k) the form and manner and the time for preparing

the returns and statements along with particulars

under sub-section (1) of section 46;

(l) the form and the time for preparing an annual

report giving a summary of its activities during the

previous year under sub-section (2) of section 46;

(m) the form of annual return to be filed by a public

servant under sub-section (5) of section 47;

(n) the minimum value for which the competent

authority may condone or exempt a public servant

from furnishing information in respect of assets

under the proviso to section 48;

(o) any other matter which is to be or may be

prescribed.

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87 POWER OF LOKPAL TO MAKE REGULATIONS

61. (1) Subject to the provisions of this Act and the

rules made thereunder, the Lokpal may, by

notification make regulations to carry out the

provisions of this Act.

(2) In particular, and without prejudice to the

generality of the foregoing power, such regulations

may provide for all or any of the following matters,

namely:—

(a) the conditions of service of the secretary and

other officers and staff of the Lokpal and the

matters which in so far as they relate to salaries,

allowances, leave or pensions, require the approval

of the President under sub-section (2) of section 11;

(b) the place of sittings of Benches of the Lokpal

under clause (f) of sub-section (1) of section 19;

(c) the manner for displaying on the website of the

Lokpal, the status of all complaints pending or

disposed of along with records and evidence with

reference thereto under sub-section (13) of section

23;

(d) the manner and procedure of conducting an

inquiry or investigation under sub-section (15) of

section 23;

(e) any other matter which is required to be, or may

be, specified under this Act.

18. (1) The Lokpal may by notification make regulations

consistent with this Act to carry out the provisions of

this Act.

(2) In particular and without prejudice to the generality

of the power contained in sub-section (1) any such

regulations may provide for all or any of the following

matters, namely:-

a) the creation of different wings in the Lokpal to deal

with different subjects like investigation, prosecution

and grievances;

b) the conferment of authority on officers at different

levels to exercise powers under the Act and to lay

down the procedure for any inquiries including those

relating to complaints against its officers or members

of staff ;

c) periods within which the investigations and inquiries

have to be completed

d) To provide for the taking of certain decisions by

appropriate benches of the Lokpal by circulation only.

(e) Work norms for each category of officers and staff

of Lokpal.

10(3) All policy level decisions including formulation of

regulations, assignment and delegation of functions

and powers shall be taken by the Board in accordance

with regulations.

1. Govt. Lokpal Bill says that Lokpal may make

regulations to provide for:

• conditions of service

• the places where different benches will

sit

• the way to display status of complaints on

the website

• The procedure for conducting enquiry and

investigation

• Other matters

2. Jan Lokpal Bill says more-or-less the same thing

in different words.

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81

88 LAYING OF RULES AND REGULATIONS

62. Every rule and every regulation made under this

Act shall be laid, as soon as may be after it is made,

before each House of Parliament, while it is in

session, for a total period of thirty days which may

be comprised in one session or in two or more

successive sessions, and if, before the expiry of the

session immediately following the session or the

successive sessions aforesaid, both Houses agree in

making any modification in the rule or regulation,

or both Houses agree that the rule or regulation

should not be made, the rule or regulation shall

thereafter have effect only in such modified form or

be of no effect, as the case may be; so, however,

that any such modification or annulment shall be

without prejudice to the validity of anything

previously done under that rule or regulation.

18 (3) The regulations framed by the Lokpal under this

Section shall be laid, as soon as may be after they are

issued or made, before each House of Parliament.

1. Govt Lokpal Bill acknowledges the power of the

Parliament to make modifications in the rule or

regulations proposed by Lokpal.

2. Jan Lokpal Bill says that the regulations under

section 18 will be laid before Parliament at the

earliest AFTER they are issued or made. It says

nothing about modification by Parliament. This

could imply that it expects the Parliament to be a

rubber stamp. It appears that Jan Lokpal will not be

accountable to Parliament, and it will have

jurisdiction over Central Govt, MPs, Judges,

Ministers and Prime Minister.

89 POWER TO REMOVE DIFFICULTIES

63. (1) If any difficulty arises in giving effect to the

provisions of this Act, the Central Government may,

by order, published in the Official Gazette, make

such provisions not inconsistent with the provisions

of this Act, as may appear to be necessary for

removing the difficulty:

Provided that no such order shall be made under

this section after the expiry of a period of two years

from the commencement of this Act.

(2) Every order made under this section shall be laid,

as soon as may be after it is made, before each

House of Parliament.

19. (1) If any difficulty arises in giving effect to the

provisions of this Act, the Central Government may, on

the recommendation of the Lokpal, by order, not

inconsistent with the provisions of this Act, remove the

difficulty provided that no such order shall be made

after the expiry of a period of 2 years from the date of

commencement of this Act.

(2) Every order made under this section shall be laid

before each house of Parliament.

Removal of difficulties is a standard clause in

almost every new legislation.

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82

90 1st

Schedule – OATH OF OFFICE

I, A.B……………………………, having been appointed

Chairperson (or a Member) of the Lokpal, do swear

in the name of God/solemnly affirm that I will bear

true faith and allegiance to the Constitution of India

as by law established, that I will duly and faithfully

and to the best of my ability, knowledge and

judgment perform the duties of my office without

fear or favour, affection or ill-will.

No Equivalent Provisions

Dear friends,

I have tried to make this an unbiased assessment. The aim was to facilitate thinking on both the proposed versions of

Lokpal that are before the Standing Committee. Please revert to me with your reasoned views if you feel that I have come

to faulty conclusions or made undeserved remarks against either version.

A visual idea of the two proposed Lokpals can be seen here: http://tinyurl.com/Flowchart-JanLokpal-GovtLokpal

Warm Regards,

Krishnaraj Rao

Mumbai

98215 88114

[email protected]


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