Government Lokpal Bill Vs Jan Lokpal Bill: Comparative Chart

Rather than gunning for the corrupt and corruption, government’s Lokpal seems to be gunning for those who complain against corruption.

How will Government’s Lokpal work?

Suppose some citizen files a complaint to Lokpal against some corrupt government servant. Before the investigations actually start, the government servant can file a cross complaint against the citizen straight to the special court, without any preliminary enquiry by any agency, that the complaint is false or frivolous. The government will provide free advocate to the government servant to file this case. The citizen will have to defend himself on his own!

Then there is stiffer punishment for the complainant than the corrupt government servant. If the Special Court concludes that the complaint is frivolous or false, the citizen faces a minimum of two years of punishment. But if the corruption charges against government servant are proved, there is a minimum of six months of punishment for the corrupt government servant!
Government’s Lokpal will have jurisdiction over all NGOs in the country but it will have jurisdiction over less then o.5% of all government employees.

Government argued that the Lokpal would get overwhelmed with too many cases if all public servants were brought under its ambit. So, government has restricted its jurisdiction only to 65,000 Group A officers. Also, state employees will not be covered by Lokpal. There are 4 million central government employees and 8 million state government employees.

In sharp contrast, all NGOs are covered under government’s Lokpal, small or big, whether in state or centre. Even unregistered groups of people in remote villages are covered under the ambit of Lokpal. So, in a remote village, if a group of youngsters detect corruption in panchayat works using RTI, the youngsters can be hauled up by Lokpal but Lokpal would not have jurisdiction over Sarpanch, BDO or their corruption.

Whereas Lokpal would not have jurisdiction over Delhi government officials, it would have jurisdiction over all RWAs in Delhi. All small neighborhood groups who raise donations to do Ramlila or Durga Puja would be under Lokpal’s scanner.

Lokpal could haul up activists from any of the farmers, labour, anti-corruption, land, tribal or any other movements. All the movements – whether registered or not, are under the jurisdiction of Lokpal.

There are 4.3 lakh registered NGOs. But there would be several million unregistered groups across the country. Lokpal would have jurisdiction over all of them.

No one can dispute the fact that corruption in NGOs needs to be addressed. But how can you leave most public servants out of Lokpal’s purview but bring NGOs upto village level within its purview ?

Issue	Our view	Government’s view	Comments
Prime Minister	Lokpal should have power to investigate allegations of corruption against PM. Special safeguards provided against frivolous and mischievous complaints	PM kept out of Lokpal’s purview.	As of today, corruption by PM can be investigated under Prevention of Corruption Act. Government wants investigations to be done by CBI, which comes directly under him, rather than independent Lokpal
Judiciary	Lokpal should have powers to investigate allegation of corruption against judiciary. Special safeguards provided against frivolous and mischievous complaints	Judiciary kept out of Lokpal purview.	Government wants this to be included in Judicial Accountability Bill (JAB). Under JAB, permission to enquire against a judge will be given by a three member committee (two judges from the same court and retd Chief justice of the same court). There are many such flaws in JAB. We have no objections to judiciary being included in JAB if a strong and effective JAB were considered and it were enacted simultaneously.
MPs	Lokpal should be able to investigate allegations that any MP had taken bribe to vote or speak in Parliament.	Government has excluded this from Lokpal’s purview.	Taking bribe to vote or speak in Parliament strikes at the foundations of our democracy. Government’s refusal to bring it under Lokpal scrutiny virtually gives a license to MPs to take bribes with impunity.
Grievance redressal	Violation of citizen’s charter (if an officer does not do a citizen’s work in prescribed time) by an officer should be penalized and should be deemed to be corruption.	No penalties proposed. So, this will remain only on paper.	Government had agreed to our demand in the Joint committee meeting on 23rd May. It is unfortunate they have gone back on this decision.
CBI	Anti-corruption branch of CBI should be merged into Lokpal.	Government wants to retain its hold over CBI.	CBI is misused by governments. Recently, govt has taken CBI out of RTI, thus further increasing the scope for corruption in CBI. CBI will remain corrupt till it remains under government’s control
Selection of Lokpal members	1. Broad based selection committee with 2 politicians, four judges and two independent constitutional authorities. 2. An independent search committee consisting of retd constitutional authorities to prepare first list. 3. A detailed transparent and participatory selection process.	1. With five out of ten members from ruling establishment and six politicians in selection committee, government has ensured that only weak, dishonest and pliable people would be selected. 2. Search committee to be selected by selection committee, thus making them a pawn of selection committee 3. No selection process provided. It will completely depend on selection committee	Government’s proposal ensures that the government will be able to appoint its own people as Lokpal members and Chairperson. Interestingly, they had agreed to the selection committee proposed by us in the meeting held on 7th May. There was also a broad consensus on selection process. However, there was a disagreement on composition of search committee. We are surprised that they have gone back on the decision.
Who will Lokpal be accountable to?	To the people. A citizen can make a complaint to Supreme Court and seek removal.	To the Government. Only government can seek removal of Lokpal	With selection and removal of Lokpal in government’s control, it would virtually be a puppet in government’s hands, against whose seniormost functionaries it is supposed to investigate, thus causing serious conflict of interest.
Integrity of Lokpal staff	Complaint against Lokpal staff will be heard by an independent authority	Lokpal itself will investigate complaints against its own staff, thus creating serious conflicts of interest	Government’s proposal creates a Lokpal, which is accountable either to itself or to the government. We have suggested giving these controls in the hands of the citizens.
Method of enquiry	Method would be the same as provided in CrPC like in any other criminal case. After preliminary enquiry, an FIR will be registered. After investigations, case will be presented before a court, where the trial will take place	CrPC being amended. Special protection being provided to the accused. After preliminary enquiry, all evidence will be provided to the accused and he shall be heard as to why an FIR should not be regd against him. After completion of investigations, again all evidence will be provided to him and he will be given a hearing to explain why a case should not be filed against him in the court. During investigations, if investigations are to be started against any new persons, they would also be presented with all evidence against them and heard.	Investigation process provided by the government would severely compromise all investigations. If evidence were made available to the accused at various stages of investigations, in addition to compromising the investigations, it would also reveal the identity of whistleblowers thus compromising their security. Such a process is unheard of in criminal jurisprudence anywhere in the world. Such process would kill almost every case.
Lower bureaucracy	All those defined as public servants in Prevention of Corruption Act would be covered. This includes lower bureaucracy.	Only Group A officers will be covered.	One fails to understand government’s stiff resistance against bringing lower bureaucracy under Lokpal’s ambit. This appears to be an excuse to retain control over CBI because if all public servants are brought under Lokpal’s jurisdiction, government would have no excuse to keep CBI.
Lokayukta	The same bill should provide for Lokpal at centre and Lokayuktas in states	Only Lokpal at the centre would be created through this Bill.	According to Mr Pranab Mukherjee, some of the CMs have objected to providing Lokayuktas through the same Bill. He was reminded that state Information Commissions were also set up under RTI Act through one Act only.
Whistleblower protection	Lokpal will be required to provide protection to whistleblowers, witnesses and victims of corruption	No mention in this law.	According to govt, protection for whistleblowers is being provided through a separate law. But that law is so bad that it has been badly trashed by standing committee of Parliament last month. The committee was headed by Ms Jayanthi Natrajan. In the Jt committee meeting held on 23rd May, it was agreed that Lokpal would be given the duty of providing protection to whistleblowers under the other law and that law would also be discussed and improved in joint committee only. However, it did not happen.
Special benches in HC	High Courts will set up special benches to hear appeals in corruption cases to fast track them	No such provision.	One study shows that it takes 25 years at appellate stage in corruption cases. This ought to be addressed.
CrPC	On the basis of past experience on why anti-corruption cases take a long time in courts and why do our agencies lose them, some amendments to CrPC have been suggested to prevent frequent stay orders.	Not included
Dismissal of corrupt government servant	After completion of investigations, in addition to filing a case in a court for prosecution, a bench of Lokpal will hold open hearings and decide whether to remove the government servant from job.	The minister will decide whether to remove a corrupt officer or not. Often, they are beneficiaries of corruption, especially when senior officer are involved. Experience shows that rather than removing corrupt people, ministers have rewarded them.	Power of removing corrupt people from jobs should be given to independent Lokpal rather than this being decided by the minister in the same department.
Punishment for corruption	1. Maximum punishment is ten years 2. Higher punishment if rank of accused is higher 3. Higher fines if accused are business entities 4. If successfully convicted, a business entity should be blacklisted from future contracts.	None of these accepted. Only maximum punishment raised to 10 years.
Financial independence	Lokpal 11 members collectively will decide how much budget do they need	Finance ministry will decide the quantum of budget	This seriously compromises with the financial independence of Lokpal
Prevent further loss	Lokpal will have a duty to take steps to prevent corruption in any ongoing activity, if brought to his notice. If need be, Lokpal will obtain orders from High Court.	No such duties and powers of Lokpal	2G is believed to have come to knowledge while the process was going on. Shouldn’t some agency have a duty to take steps to stop further corruption rather than just punish people later?
Tap phones	Lokpal bench will grant permission to do so	Home Secretary would grant permission.	Home Secretary is under the control of precisely those who would be under scanner. It would kill investigations.
Delegation of powers	Lokpal members will only hear cases against senior officers and politicians or cases involving huge amounts. Rest of the work will be done by officers working under Lokpal	All work will be done by 11 members of Lokpal. Practically no delegation.	This is a sure way to kill Lokpal. The members will not be able to handle all cases. Within no time, they would be overwhelmed.
NGOs	Only government funded NGOs covered	All NGOs, big or small, are covered.	A method to arm twist NGOs
False, Frivolous and vexatious complaints	No imprisonment. Only fines on complainants. Lokpal would decide whether a complaint is frivolous or vexatious or false.	Two to five years of imprisonment and fine. The accused can file complaint against complainant in a court. Interestingly, prosecutor and all expenses of this case will be provided by the government to the accused. The complainant will also have to pay a compensation to the accused.	This will give a handle to every accused to browbeat complainants. Often corrupt people are rich. They will file cases against complainants and no one will dare file any complaint. Interestingly, minimum punishment for corruption is six months but for filing false complaint is two years.

Updates from the meeting of 15th June of the joint committee

       

        The government’s intentions became very clear today. It wants to kill Lokpal before it is born. They want to create a Lokpal without any administrative or investigative machinery – an emaciated and disempowered Lokpal.

         Government says that it would be an eleven member body. Benches of these eleven members would take all decisions. Government says that Lokpal would have powers to receive public grievances from ordinary people. So, if an income tax officer demanded a bribe to give an income tax refund in Bangalore, the citizen will have to make a complaint to the eleven member body in Delhi and come to Delhi for hearings. “There would be thousands of complaints from across the country. How will these eleven members deal with it?” asked civil society members. The government did not reply. They just announced their decision. This is a sure way of killing Lokpal before it was born. We wanted a Lokpal with officers working under it at district level, who would have powers to deal with cases at local level. Government refuses to accept that model.

          It was clear today that the government had already made up its mind. The talks were just a formality. Inside the committee, the civil society members keep arguing strenuously on each point and the government ministers simply announce their decisions, even if they do not have arguments.

          In the end, the government nominees suggested that we bring our version of Lokpal Bill in the next meeting, they would bring their version of Lokpal Bill. In the next meeting, they would see whether there could be consensus on any more issues. Finally two Bills will be sent to the Cabinet.

         We demanded copies of audio tapes of the proceedings so far. They refused. We said that we were committee members and should have a right to take copies of audio tapes of the proceedings. They said they could consider it after all the meetings were over. We said – “do you promise to give us copies of all tapes in the last meeting?” Again they were non-committal. It is really surprising why is the government hesitating in making the discussions public? Perhaps the world would come to know that the government has vetoed on practically all points without having any valid arguments.

Updates from the meeting of 30th May of the joint committee

    

       Today’s meeting was quite disastrous. It started with Anna demanding more frequent meetings as the progress had been quite slow till now. Anna also said that the government had been postponing discussions on even simple issues so far. At this rate, the meetings would continue indefinitely.

Broadly, the government disagreed on almost everything:

1. Government said – “Prime Minister should not be covered under Lokpal.” We were shocked to hear that because in the draft bill prepared by the government in January this year, PM was covered, though with some exceptions. Today, they wanted PM to be completely out of Lokpal’s investigations. This was shocking for us. They said that if any enquiry starts against the PM, the PM would lose all authority to govern and take decisions. Prashant Bhushan reminded that in Bofors case also, the then PM was under scanner. But that did not deter him from taking decisions. Mr Chidambaram said that the PM’s position would be weakened if there were allegations against him every other day. He was reminded that an unsubstantiated complaint would not be entertained. A seven member bench of Lokpal would first hear that complaint and decide whether there was an adequate prima facie evidence against the PM. If there were none, the complaint would be dismissed. However, government did not agree.
   
   
2. Government said – “Judiciary would be out of Lokpal.” We reminded them that all that we were asking for was power to a seven member bench of Lokpal to decide whether an FIR should be registered against a judge or not. Today, only Chief Justice of India has the power to give that permission. And despite so much evidence against so many judges in public domain, permission had been given only in one case in the last 20 years. In the meeting held on 7^th May, Prashant Bhushan had even told Mr Chidambaram how Mr Chidambaram himself had sought permission to register FIR against Justice Sen Gupta of Kolkatta High Court. Permission was sought from the then Chief Justice of India, Justice Venkatachaliah, who is very well known for his integrity. However, even Justice Venkatachaliah did not give permission. Was the evidence against Justice Sen Gupta strong enough? The strength of the evidence can be gauged from the fact that Justice Sen Gupta was raided and arrested soon after he retired because after retirement, permission of CJI was not required.
   
   
3. However, the government did not agree saying it would compromise the independence of judiciary. We said that the independence of judiciary was compromised under the present system which was encouraging corruption. Government said that judiciary should be dealt under Judicial Standards and Accountability Bill, which was pending in Parliament. We told them that the said Bill was very bad and would end up protecting corrupt judges rather than punishing them. Also, interestingly, the said Bill does not even talk of punishing and prosecuting “corruption” of judges. It only talks of enquiring against their “Misbehaviour”. The government said that they would include corruption also in the said bill. Then we said, if you want to include judiciary’s corruption in that bill, let this committee decide on drafting that Bill also. To that they refused. They said – you give your suggestions and we will recommend them to the Standing committee. This means that the government wants to include judiciary in a weak and ineffective Bill and does not want their corruption to be dealt through a strong and effective mechanism.
   
   
4. MPs bribery inside Parliament will not be covered – If a MP takes bribe to vote or ask questions in Parliament, which would not be covered under Lokpal. Only his conduct outside will be covered. What does an MP do outside Parliament? Just recommend projects out of his Constituency fund. There too, he merely recommends and the project is executed by the officers. Therefore, effectively, all MPs would be outside the purview of Lokpal. Purchase and sale of MPs is endangering the very foundations of our democracy. They may be purchased not just by other parties but could be purchased by other countries or corporates. Therefore, in order to save our democracy, it is extremely important that this is covered under Lokpal. However, the Government said that the Parliament should be allowed to do “self regulation”. We told them that this self regulation had not worked and their corruption should be investigated by some independent body. They simply refused.
   
   
5. All officers will not be covered under Lokpal : Only Joint Secretary and above will be covered. Who will deal with corruption at levels below that? They said that the existing system would continue. But the existing system was not working. They had no answers. We said that the common man wants an answer to corruption in his day to day life – bad roads, corruption in PDS etc. Who will deal with it? We said that the whole country had risen against corruption to seek solutions to corruption at all levels.
   
   
6. CBI, CVC and departmental vigilance will not be merged in Lokpal: Government said that let all these agencies continue. Let Lokpal have its own machinery. But why does the government want to keep a CBI under its own control? It appears that the Prime Minister does not want to be investigated by an independent body but will get himself investigated by CBI, which is directly under his own control. Also, CBI has been misused by every successive government to arm twist politically inconvenient opponents. Government perhaps wants to continue doing that.
   
   
7. Public Grievances: Government agreed to the concept of citizens charter and that violation of citizens charter would be deemed to be corruption at some stage of upscaling of a grievance.

         

         Justice Santosh Hegde asked the government – “Then who is covered under Lokpal? And what is the purpose of creating such a Lokpal?”

        Effectively, the Lokpal would have jurisdiction only on Joint Secretary and above officers but not on the PM. There would be around 2000 such odd officers in Government of India. Are we creating Lokpal for investigating corruption of such a few officers? Was this the purpose of such a big anti-corruption movement in India?

      
     Definitely government’s intentions are suspect. Please prepare yourself for the next huge movement in the country. We will go to the next few meetings. We will try our best, till the last moment, to persuade the government to agree to a strong and effective Lokpal Bill. But if the government disagrees, we should be ready to take to the streets.

Updates from the meeting of 23rd May of the joint committee

Updates from the 23rd may meeting of the joint committee.

ISSUE	Government’s response/decision
Powers of contempt to get its orders implemented and power to summon	Government agreed
It shall have the powers to recommend, on an annual basis, the number of special courts required under section 4 of Prevention of Corruption Act, to ensure that the trial in any case is completed in less than a year. The recommendations shall be binding on the government.	Government agreed that Lokpal may recommend but recommendation should lack of infrastructure. We said that we could examine how to overcome these issues but we would not agree to making it advisory. not be binding. We asked them why it could not be made binding? We were told that it was due to three reasons: because Parliament may or may not agree to sanction expenditure, High Courts may not appoint judges and there could be
Notify list of moveable and immoveable assets of accused, if during or at the time of conclusion of investigations, Lokpal believes that prosecution is likely to be initiated. These assets cannot be transferred after such notification. Loss to exchequer quantified at the time of conviction, could be recovered from sale of these assets.	Government agreed. But at what point should notification be issued, this would be decided after studying Bihar Special Courts Act. Also, some principles may be laid down on how the loss would be assessed by the court.
Recommend stay of any activity, if during investigations, Lokpal is satisfied that the allegations against such activity are likely to be sustained. If Government does not accept it within 30 days, Lokpal may get a stay order from HC against that activity.	In principle, government agreed. However, this needs to be appropriately formulated.
Direct transfer of any official, if his continuance is likely to adversely affect investigations.	Government agreed to make this power advisory. However, we are in favor of making it binding.
Powers to issue appropriate directions to prevent destruction of records during investigations, or to prevent the public servant from secreting the assets allegedly acquired by him through corrupt means.	Agreed
If the allegations against any minister are substantiated after any enquiry or investigations, then for non-criminal misconduct, Lokpal would submit its report to the President with its recommendations.	Agreed
Lokpal shall have powers to delegate any of its powers and functions barring those which are specifically to be performed by the benches of Lokpal.	There was a long discussion on this issue. Government’s vision of Lokpal is an 11 member body, which will have quasi judicial powers and that body will pass all orders. That is very different from our vision. Such a model would create problems as that would overburden Lokpal with immense workload and make Lokpal unwieldy. Our vision of Lokpal – an institution headed by 11 member body. This body would have quasi judicial powers but primarily be a supervisory body. There will be many officers under that body, who would be designated authorities under this Act and would themselves also have quasi judicial powers under this Act. Government would examine it and revert.
Every complaint shall have to be compulsorily disposed by Lokpal. No case is closed, all records related thereto shall be made public. complaint could be disposed without giving an opportunity of being hear to the complainant. If any	Agreed
There shall be complete transparency during investigations also. However, such records, which could impede the process of investigations, would not be disclosed. But after the completion of any investigation or enquiry, all records related to a case, shall be made public.	Agreed
Lokpal shall publish, every month on its website, the status of cases, received, disposed, closed, reasons for closure and list of cases pending.	Agreed
Any complaint against a staff of Lokpal shall be enquired into within a month of its receipt and if found correct, the staff shall be summarily dismissed from the job. If any criminal case is made out, the same shall be pursued.	Agreed.
The minimum punishment shall be raised to one year of rigorous imprisonment and maximum should be raised to life imprisonment.	No agreement on life imprisonment
Punishment shall be higher if the status or rank of accused is higher.	No agreement
Lokpal shall be responsible for providing protection against professional or physical threat or victimization to whistleblowers, victims of corruption and witnesses whether within or outside the government.	Agreed in principle that Lokpal should be nodal agency. However, it would be examined at what stage is the pending whistleblower Bill of the government. It would be examined whether whistleblower protection should be provided in this Act or in the other Act. If it is provided in the other Act, that Act would also be discussed and finalized by this committee only.
If any asset is subsequently found to be owned by a public servant, which was not declared, it would be deemed to have been obtained through corrupt means unless he proves otherwise.	Agreed
If any asset is subsequently found to be in possession of any public servant, it shall be deemed to be owned by him/her unless he proves otherwise.	Agreed
After each elections, the Lokpal shall verify the assets declared by each candidate with his declared sources of income in his tax returns. Those undeclared shall be investigated against.	Only elected representatives and not all candidates. Agreed.
No rules shall be made without the approval of Lokpal. Lokpal shall have power to make rules and regulations with respect to its own functioning.	Agreed
All records of Lokpal shall be open barring the following: 1. Such portions of any records which if released during any ongoing investigations, could impede the process of investigations. However, after completion of investigations, they would be disclosed. 2. Such records which could affect national security or 3. Such records which would disclose the identity of a whistleblower and could compromise his/her security.	Agreed
If anyone makes a complaint which lacks any evidence or basis and is held by Lokpal to be meant only to harass someone, the complainant shall be fined. However, merely closure of a case due to lack of evidence shall not be held against a complainant.	Agreed

On the rest of the points, brief discussions took place, and the issue were postponed for further examination.

Should judiciary be brought under the purview of the Jan Lokpal Bill ?

        This appears to be a common question among those who are following the Lokpal bill related discussions. Let us first understand what exactly is being proposed in the Jan Lokpal Bill, what its critics are concerned about and our response to these criticisms. The intent of this write up is to get the facts straight so people can draw their own conclusions.

What is the problem?

      Today, if there is an allegation of corruption against any Supreme Court (SC) or High Court (HC) judge, an FIR cannot be registered and investigations cannot be started into those allegations without the permission of the Chief Justice of India (CJI). Experience shows that Chief Justices have hesitated in giving permissions, despite overwhelming evidence of corruption being presented against any judge.

         Historically, even those Chief Justices, who have been well known for their honesty, have not granted these permissions. For instance, Mr. P Chidambaram sought permission to register an FIR against Justice Sen Gupta of Kolkatta High Court. Permission was sought from the then Chief Justice of India, Justice Venkatachaliah, who is very well known for his integrity. However, Justice Venkatachaliah did not grant permission. Was the evidence against Justice Sen Gupta strong enough? The strength of the evidence can be gauged from the fact that Justice Sen Gupta was raided and arrested soon after he retired because after retirement, permission of CJI was not required!

There are many more instances when permission for registration of FIR has been denied. Some such cases are mentioned below:

• Despite overwhelming evidence, request of the Campaign on Judicial Accountability (represented by Shanti Bhushan, Prashant bhushan, Ram jethmalani, Justice Rajender Sachhar, Indira jaisingh, Arvind Nigam etc) seeking permission to register an FIR against Justice Bhalla of Allahabad High Court is pending before the Chief Justice of India since 2006.
• Similarly, the request of Campaign for Judicial Accountability and Judicial Reforms seeking to register FIR against Justice F I Rebello is pending since September 2010.

Therefore, the present system of seeking permission from the CJI to register an FIR against a judge of SC or HC appears to have protected the corrupt and encouraged corruption in higher judiciary.

Proposal:

       
      A perception that the judiciary is being brought under the control of Jan Lokpal has unfortunately been created. This is a myth that is being falsely propagated and it is completely incorrect.

      What is being proposed is that the permission to register FIR against corruption of any judge should be granted by a seven member bench of Jan Lokpal (the bench may have majority of judicial members) rather than the Chief Justice of India. That is the only real difference in the system proposed in Jan Lokpal Bill and the existing system.

      Post registration of an FIR, the police or CBI investigates and prosecutes (if a case is made out) under the existing system. Since we are proposing that the anti corruption branch of CBI would be merged into Jan Lokpal and would form the investigation and prosecution wing of Jan Lokpal, therefore, obviously the investigations and prosecution after registration of FIR is proposed to be done by the new investigation and prosecution wing of Lokpal.

     Therefore, effectively, there is just one change being proposed from the existing system – that rather than CJI giving permission to register FIR, a seven member bench of Lokpal should grant such permission.

Critique of our proposal	Our response
This would affect the independence of judiciary.	How will it affect the independence of judiciary? We have greatest respect for our judiciary and we strongly stand for its independence. Most of the judges in higher judiciary are honest. However, a few of them bring bad name to the whole judiciary due to their wrongdoings. They ought to be identified and acted against. A system which effectively does that would strengthen the independence of judiciary and increase its credibility in the eyes of the public. Present system tends to protect the corrupt and encourages corruption. Therefore, the present system tends to lower the prestige and credibility of judiciary in the minds of the people and compromises its independence.  Jan Lokpal Bill seeks to create a system, which is independent of judiciary, to grant permission to register an FIR and initiate investigations against a judge.
This would tremendously increase the workload of Lokpal	There are less than 1000 SC and HC judges in our country. Justice S P Bharucha had once commented that less than 20% of higher judiciary is corrupt. Obviously, complaints will not come against all of them at the same time. But even if all complaints came together, there will be less than 200 complaints. That is a very small number and would not increase the workload of Lokpal in any manner.
Judicial matters are very technical. Therefore, Only people from judiciary should deal with complaints against judges.	Jan Lokpal Bill does not empower Lokpal to go into or question the judicial procedures or decisions of judiciary. It does not empower Lokpal to interfere with the professional (mis)conduct of judges. It only empowers them to grant permission to register an FIR against a judge against whom there are allegations of bribery. Giving and accepting bribe is a criminal offence. There is no technicality involved in that.  If that logic were accepted, then the income tax people would also say that income tax is a very complex subject and only people with income tax backgrounds should deal with allegations of corruption against income tax officers. There would be similar demands from politicians, customs officers and other sections of bureaucracy.
But the proceedings for impeachment of judges  is already provided in the Constitution. Are you suggesting an amendment to the Constitution?	We are not seeking any amendment to the constitution. We are not even touching the provisions relating to impeachment of judges as provided in the constitution. We are not even talking of impeachment. All that we are saying is that the power to grant permission to register FIR against a judge should be given to a seven member bench of Lokpal rather than the CJI.
What will happen to the Judicial Accountability Bill presented by the Government?	Judicial Accountability Bill does not talk of bribery by the judges. It only talks of professional misconduct. Jan Lokpal talks of criminal misconduct. Therefore, the two bills complement each other. The National Judicial Commission sought to be created through Judicial Accountability Bill will not have the police and investigative powers and machinery to deal with criminal complaints of bribery. It could be done only by Lokpal.
Complaints against Lokpal members will go to Supreme Court and those against Supreme Court judges will go to Lokpal. Would that not create some kind of circularity?	Such circularity is a part of internal checks and balances at top levels in any democracy. For instance, Supreme Court keeps a check on legislature and Executive and the Legislature has powers to legislate on judicial matters.  If there is a complaint against a Supreme Court judge and a Lokpal member at the same time, then obviously, the accused judge or the accused member will recuse himself from the benches. If ever such an eventuality happens, the transparency of proceedings in the two institutions will keep a check on the possibility of any misuse. The hearings at the two places will be open for the public and media.
Won’t we need to amend the constitution to allow a seven member bench of Lokpal to give permission rather than the CJI under the existing system?	No, we won’t need any amendment. There is no provision either in the constitution or in any law which empowers the CJI to give permission before registration of an FIR against any judge. Such a system was created by the Supreme Court through an order in Veeraswamy case, in which the SC made it mandatory that permission would need to be sought before registration of an FIR against any judge. Interestingly, no frivolous FIR had ever been filed against any judge before that judgement and such a judgement was completely uncalled for

Should all existing anti-corruption agencies be merged into Lokpal / Lokayukta ?

The problem:

   There are multiplicity of anti-corruption agencies at the level of central government and state government. However, governments have left critical loopholes in the functioning of each of these agencies to make them ineffective. That is the reason why no honest investigation and prosecution takes place in any corruption case and the corrupt go scot free.

The following four deficiencies stand out in our anti-corruption system. For details on deficiencies in our anti-corruption systems, please read Annexure 1.

1. Most of our agencies like CBI, state vigilance departments, internal vigilance wings of various departments, Anti-corruption Branch of state police etc are not independent. In many cases, they have to report to the same people who are either themselves accused or are likely to be influenced by the accused. For instance,

• The Chief Minister of Punjab is the Minister in charge of Vigilance Department of Punjab. Interestingly, the same vigilance department is also investigating charges of corruption against himself and his family and is prosecuting them. Can we expect the vigilance department to do any honest investigations or prosecution?
• Please read detailed report in Annexure 2 to see how despite huge unaccounted cash being recovered from the house of a top NHAI officer, Kamal Nath denies permission to register a case of corruption against him. Coal Ministry just sat on CBI’s repeated requests to prosecute the officer who was to become the CMD. Railways just sat on CBI’s request to prosecute one of its top employees involved in railway recruitment scam.

2. Some bodies like CVC or Lokayuktas are independent, but they do not have any powers. They have been made advisory bodies. They give two kinds of advise to the governments – to either impose departmental penalties on any officer or to prosecute him in court. Experience shows that whenever any minister or a senior officer is involved, their advice is rarely followed.

3. Governments have deliberately created plethora of anti-corruption agencies and given them fractured mandates. This is one of the main reasons to render them ineffective. For instance,

• At central government level, in the same case of corruption, CVC is supposed to look into the vigilance angle of senior bureaucrats and departmental vigilance is supposed to look into the role of junior bureaucrats. As if junior and senior bureaucrats indulge in corruption separately.
• Again in the same case, whereas these two agencies enquire into the matter from vigilance angle, CBI investigates into the same matter from criminal angle i.e corruption angle. Now, the vigilance and corruption angles are almost the same. The two agencies broadly do the same enquiries and investigations.
• According to the Lokpal model proposed by Government of India, CVC will enquire into the role of bureaucrats and Lokpal will look into the role of politicians, as if politicians and bureaucrats indulge in corruption separately.

Firstly, this kind of fractured mandate creates confusion. Secondly, enquiries and investigations into any case go on and on for years. For instance, in street lighting case of Common Wealth case, first an enquiry was done by CVC, then CBI investigated into the same case and then it was again enquired into by Shunglu committee. Thirdly, if two agencies arrive at conflicting conclusions on the same case, it only weakens the case against corrupt people. The final beneficiaries of this confusing system are the corrupt people who never get punished.

4. In addition, there is the problem of internal transparency and accountability of these anti-corruption agencies. Presently, there isn’t any separate and effective mechanism to check if the staff of these anti-corruption agencies turns corrupt.

      That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has become a high profit zero risk business. There is absolutely no deterrence against corruption.

The Proposal:

     Jan Lokpal Bill proposes that at the level of Central Government, an institution called Jan Lokpal should be set up. Likewise, in each state, Jan Lokayukta should be set up. Jan Lokpal will accept corruption complaints against Central government departments and Jan Lokayukta will accept complaints against departments of respective state government.

Independence of Jan Lokpal and Jan Lokayukta:

Jan Lokpal and Jan Lokayukta would be completely independent of the governments. Their independence would be ensured through the following measures:

• Administrative independence: They will be independent agencies like Central Election Commission, Comptroller and Auditor general of India and Supreme Court. Therefore, no politician or a bureaucrat will be able to interfere with its functioning.
• Financial independence: Their expenses will be charged to the Consolidated Fund of India/State. They will be provided whatever expenses they require.
• Manpower: They will have powers to assess their manpower requirements and employ them either from existing government servants (who can come on deputation basis) or directly from the market.

Single anti-corruption agency:

Anti-corruption branch of CBI, CVC and departmental vigilance wings will be merged into Lokpal. Anti-Corruption Branch of Police, state vigilance departments would be merged into Jan Lokayuktas. In 1986, when Karnataka Lokayukta was created, all existing anti-corruption and vigilance agencies in the state were merged into Lokayukta.

Presently, we have institutions of Lokayuktas in 18 states. They are merely advisory bodies. They neither have resources nor powers. They will be replaced with Jan Lokayuktas through Jan Lokpal Bills.

No more advisory bodies:

Jan Lokpal and Jan Lokayukta will not be advisory bodies. They will have powers to start investigation or prosecution in any case. For that, they will not need permission from any government agency.

Jan Lokpal and Jan Lokayukta will also have powers to impose departmental penalties on bureaucrats.

Critique of our proposal	Our response
Rather than merging them into Lokpal, why don’t you improve the functioning of these agencies and let them function separately?	Firstly, how do you improve their functioning in their present positions? Departmental vigilance and CBI lack independence. Should we make them independent? CVC is an advisory body and does not have teeth. Should we make the recommendations of CVC binding? If that be so, this is exactly what we are effectively doing by merging them into Lokpal– making them independent and making their advice binding. Next question is “why merge?” Because the present system of fractured mandate – one agency enquiring into the vigilance role of junior bureaucrat, another agency enquiring into the vigilance role of senior bureaucrat and another agency investigating their criminal roles – all in the same case, is a sure recipe for killing a case. Any case of corruption should be handled holistically by the same agency.
Some people say that CBI should not be merged into Lokpal. “After all, CBI is not that bad.” Some people say that CVC should not be merged into Lokpal. “If you want to investigate any case holistically, why don’t you create separate cadre for Lokpal but don’t merge existing agencies into Lokpal.”	Do we agree that the present agencies are ineffective? Rather than punish corrupt, they end up protecting them? Then why should we waste so much money and manpower on these agencies and create more posts for Lokpal? Why can’t we redeploy them and use them in Lokpal?

For additional information on this issue please click here to download the Annexure.

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.