Date: June 22, 2011
This law will have jurisdiction
over 65,000 central government employees, 4.5 lakh registered NGOs, lakhs of
movements (and unregistered NGOs) and no companies.
It applies to only Group A
officers of central government, but does not apply to other central government
employees. It does not apply to any state government employee. However, it
applies to all state and central NGOs – whether registered or not.
Minimum punishment against a
corrupt person is six months. Minimum punishment against false complainant is
two years.
Government will provide the
lawyer and expenses to the corrupt officer to file a case against his
complainant.
Issue
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Our view
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Government’s view
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Comments
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Prime Minister
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Lokpal should have power to investigate allegations of corruption
against PM. Special safeguards provided against frivolous and mischievous
complaints
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PM kept out of Lokpal’s purview.
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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
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Juduciary
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Lokpal should have powers to investigate allegation of corruption
against judiciary. Special safeguards provided against frivolous and
mischievous complaints
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Judiciary kept out of Lokpal purview.
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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.
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MPs
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Lokpal should be able to investigate allegations that any MP had
taken bribe to vote or speak in Parliament.
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Government has excluded this from Lokpal’s purview.
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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.
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Grievance redressal
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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.
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No penalties proposed. So, this will remain only on paper.
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Government had agreed to our demand in the Joint committee meeting on
23rd May. It is unfortunate they have gone back on this decision.
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CBI
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Anti-corruption branch of CBI should be merged into Lokpal.
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Government wants to retain its hold over CBI.
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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
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Selection of Lokpal members
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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.
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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
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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.
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Who will Lokpal be accountable to?
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To the people. A citizen can make a complaint to Supreme Court and
seek removal.
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To the Government. Only government can seek removal of Lokpal
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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.
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Integrity of Lokpal staff
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Complaint against Lokpal staff will be heard by an independent
authority
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Lokpal itself will investigate complaints against its own staff, thus
creating serious conflicts of interest
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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.
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Method of enquiry
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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
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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.
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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.
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Lower bureaucracy
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All those defined as public servants in Prevention of Corruption Act
would be covered. This includes lower bureaucracy.
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Only Group A officers will be covered.
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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.
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Lokayukta
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The same bill should provide for Lokpal at centre and Lokayuktas in
states
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Only Lokpal at the centre would be created through this Bill.
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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.
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Whistleblower protection
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Lokpal will be required to provide protection to whistleblowers,
witnesses and victims of corruption
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No mention in this law.
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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.
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Special benches in HC
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High Courts will set up special benches to hear appeals in corruption
cases to fast track them
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No such provision.
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One study shows that it takes 25 years at appellate stage in
corruption cases. This ought to be addressed.
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CrPC
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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.
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Not included
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Dismissal of corrupt government servant
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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.
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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.
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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.
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Punishment for corruption
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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.
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None of these accepted. Only maximum punishment raised to 10 years.
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Financial independence
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Lokpal 11 members collectively will decide how much budget do they
need
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Finance ministry will decide the quantum of budget
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This seriously compromises with the financial independence of Lokpal
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Prevent further loss
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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.
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No such duties and powers of Lokpal
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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?
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Tap phones
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Lokpal bench will grant permission to do so
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Home Secretary would grant permission.
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Home Secretary is under the control of precisely those who would be
under scanner. It would kill investigations.
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Delegation of powers
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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
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All work will be done by 11 members of Lokpal. Practically no
delegation.
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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.
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NGOs
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Only government funded NGOs covered
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All NGOs, big or small, are covered.
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A method to arm twist NGOs
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False, Frivolous and vexatious complaints
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No imprisonment. Only fines on complainants. Lokpal would decide
whether a complaint is frivolous or vexatious or false.
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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.
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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.
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