Lokpal Update May 07, 2011

      The third meeting of Joint Drafting Committee (JDC) held on Sat May 7, 2011 was a cordial meeting.

      At the second meeting held on 2^nd May, a document containing basic principles of Jan Lokpal Bill were presented to the government. The first few of these were discussed in Saturday’s meeting.

      Mr. Chidambaram took the lead to express the government’s views. Listed below are some of the points discussed at the meeting:

Proposal	Discussion/ Decision
Independence of Lokpal:
The institution of Lokpal should be financially, functionally and administratively independent of the government	Agreed in principal
Their expenses shall be charged to the Consolidated Fund of India/state. They shall not need administrative or financial sanctions from any government agency for making expenditure.	Agreed
The quantum of expenses should be decided in an annual meeting between the Prime Minister and the Chairperson of Lokpal.	The government representatives pointed out that in a coalition government it is possible that the PM and the Finance Minister might be from different parties. So what might be acceptable to the PM may not be acceptable to the Finance Minister. The JC agreed to study the CAG, the Supreme Court and other models for financial autonomy.
Control over their employees: Lokpal should have the freedom to decide the number of employees required. They will have the power to select and recruit people either from outside or on deputation or on contract basis or through any arrangement as they deem fit.	Agreed in principle. Government agreed to give SC kind of autonomy to Lokpal. It was agreed to study all available models to find best model suited for Lokpal.
The Chairperson and members shall not be eligible for appointment to any position in any organization, which is directly or indirectly funded by any government.	Agreed
The Chairperson shall also not be eligible to contest any elections.	Would it be possible through statute or a constitutional amendment would be required – this needs to be examined
The total tenure of any member or Chairperson or together as member and Chairperson shall not exceed five years.	Agreed
Selection of members and Chairperson of Lokpal:
The process should be completely transparent and participatory. Selection committee should consist of Prime Minister, Leader of opposition, two youngest judges of SC, two youngest Chief Justices of High Courts, CAG and CEC	Agreed but may suggest some more inclusions for selection committee after further examination
Since selection committee members would be very busy, they should be assisted by a search committee.	Agreed
Search committee should consist of retired constitutional authorities like CAG and CEC (CJI may not agree to work under a selection committee). However, those who have had substantive allegations of corruption, or have had affiliations to any political party or are still in any government employment after retirement should not be eligible for being members of search committee.	Government wants complete freedom to be given to selection committee to appoint anyone to search committee. However, civil society reps felt that this could compromise the independence of search committee. This matter would be discussed further.
Selection committee should restrict its choices to the names suggested by search committee	This needs further discussions
Removal of Lokpal:
If prima facie case is made out in a complaint made to the Supreme Court by a citizen against any member or Chairperson, Supreme Court shall institute a time bound enquiry and advise the President on the basis of such enquiry. A member or Chairperson of Lokpal may be removed by the President on the basis of such advice.	Government suggested that Supreme Court should be allowed to dismiss complaints in liminae. Government further suggested that Article 317 which provides for removal of members of UPSC may be borrowed here with the exception that in the case of UPSC members, SC can act only on the basis of reference from the government whereas in the case of Lokpal, SC should be required to act on citizen’s complaints also. What should be grounds of removal? All these issues would need further examination.
Jurisdiction of Lokpal:
Lokpal should have jurisdiction the following jurisdiction:  To receive complaints of corruption under Prevention of Corruption Act against Prime Minister, all ministers, all members of both houses of Parliament, all bureaucrats and judges of Supreme Court and High Court; to investigate these complaints and to file prosecution in appropriate trial courts for prosecution and award of punishment. To receive complaints of misconduct against bureaucrats and recommend appropriate penalties under conduct rules. However, the recommendation shall be binding on the government. For complaints against any politician for his/her conduct inside Parliament, Lokpal shall only investigate the matter on receipt of a reference from Chairperson of either House. After investigation, the Lokpal shall submit its report to Chairperson, who shall present it in the House for decision on the same.	Broadly government agreed to jurisdiction over elected representatives including ministers. However, the issue of Prime Minister needs further discussion. On the issue of bureaucracy, it needs to be discussed whether Lokpal should have jurisdiction over all categories of employees. On the issue of judiciary, government said that there were strong opinions on this issue, especially two former Chief Justices had opposed jurisdiction over judiciary. There was a lot of discussion on this issue. Please see below for the same. All these issues need further examination.
Lokpal shall not need to seek permission from any other agency for initiating investigation, enquiry or prosecution. Appropriate amendments would need to be made in Prevention of Corruption Act and Delhi Police Establishment Act for this purpose.	Agreed
The Lokpal Bill should provide for both – Lokpal at centre and Lokayuktas in states	Agreed

Presently, if there is an allegation of corruption against a High Court or Supreme Court Judge, permission has to be taken from the Chief Justice of India to register an FIR. Experience shows that despite strong evidence against some judges, permission was denied by the Chief Justices. During the meeting, Prashant Bhushan reminded Mr Chidambaram, how Mr Chidambaram had sought permission to register an FIR against a judge of Kolkatta High Court but the permission was denied by the then Chief Justice of India. Subsequently when the said judge of Kolkatta High Court retired, he was raided and arrested the very next day, which means that the evidence against that judge was very strong. This shows that the present system of seeking permission from the Chief Justice of India has not worked and has ended up protecting the corrupt judges.
In Jan Lokpal Bill, it has been suggested that the permission should be granted by a seven member bench of Lokpal rather than the Chief Justice of India.