Non negotiables of jan lokpal bill


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Prepared for Arvind Kejriwal & IAC team

Date: April, 2011


To establish non-negotiables from the Jan Lokpal Bill and facilitate awareness and consensus building amongst the public on key points.

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Non negotiables of jan lokpal bill

  1. 1. Date: April, 2011Presented to Arvind Kejriwal and IAC team Non-negotiables of the Jan Lokpal BillObjectiveTo establish non-negotiables from the Jan Lokpal Bill and facilitate awareness andconsensus building amongst the public on key points.Key non-negotiables: 1. Public servant (Section 2{11}) to include the Prime Minister and judges of High Court and Supreme Court: Nobody is above the law and all public servants are accountable for their actions, including those in positions of power such as the Prime Minister and judges of the Supreme Court and High Court. In case of a complaint against the Prime Minister, the decision to initiate investigation or prosecution shall be taken by a full bench of the Lokpal. Any complaint against a judge will be screened for prima facie evidence of an offence; approved for further investigation by a full bench of the Lokpal comprising a majority of legal members; investigated by a special team headed by an officer not below the rank of a Superintendent of Police. 2. Power to issue search warrants as per the Criminal Procedure Code, 1974 (Section 9) A search warrant issued by the Lokpal shall be deemed to be a search warrant issued by a court. This will give the Lokpal powers to search and seize property in accordance with the Code of Criminal Procedure, 1974 whenever they suspect an article to be hidden in a place or on a person. 3. Judicial proceeding as per the Civil Procedure Code, 1908 (Section 10) The power to investigate is hugely bolstered by deeming the proceeding to be a judicial proceeding under the Civil Procedure Code, 1908 thereby enabling the Lokpal to summon and enforce the attendance of any person and examine him on oath; require the discovery and production of any document; receive evidence on affidavits; requisition any public record or copy from any court or office; issue commissions for the examination of witnesses or documents; order payment of compensatory cost in respect of a false or vexatious claim or defense and order cost for causing delay. 4. Deemed police officer (Section 12)
  2. 2. The purpose of making the Lokpal and its officers deemed police officers is to enablethem to take swift action in any local police jurisdiction without the need for a specialauthority to accredit them with the powers that the local police ordinarily have.5. Powers of Lokpal in case of non-compliance of orders (Section 13)Where an order is passed by the Lokpal and is to be carried out by any official, non-compliance may result in imposition of a fine and may also be deemed to be acontempt of court as per the Contempt of Courts Act, 1971 (Central Act 70 of 1971).6. Power to recommend Special Judges under section 4 of Prevention of Corruption Act, 1988 (Section 13A)To enable trials to be completed within a year, the Lokpal has been given theauthority to recommend as many numbers of judges in the desired area as needed asper an assessment made on an annual basis. These judges shall be appointed by thegovernment in consultation with the Lokpal.7. Scope of investigation by the Lokpal (Section 14)The Lokpal may investigate any action which is taken by or with the general orspecific approval of a public servant where a complaint involving a grievance or anallegation is made in respect of such action.8. Independence of Lokpal (Section 14{3D}) Lokpal shall be completely independent of the government in all mattersadministrative, financial and functional. All policy level decisions includingformulation of regulations, development of internal systems for the functioning ofLokpal, assigning functions to various officials in Lokpal, delegation of powers tovarious functionaries in Lokpal etc shall be taken by the Chairperson and themembers collectively as a body. The Lokpal shall be competent to make rules,prescribe work norms, prescribe procedures for swift and effective punishmentagainst inefficient and corrupt employees and take any other step as they deem fit.9. Suo motu powers (Section 14{6})to investigate and prosecuteSuo motu powers enable the Lokpal to initiate prosecution against public servants aswell as private entities which are parties to the corrupt act, recommend imposition ofappropriate penalties under the relevant Conduct Rules and order cancellation ormodification of a license or lease or permission or contract or agreement, which wasthe subject matter of investigation, based purely on the knowledge obtained through asource and without the need of a formal complaint or a recommendation by thegovernment.
  3. 3. 10. Power to order a public servant to discontinue from his responsibilities of a post (Section 18 {viii})Any allegation against a public servant other than a Minister, Member of Parliamentor judge, if substantiated after investigation by the Lokpal shall enable the Lokpal toorder the discontinuance of a public servant from a post. This gives the Lokpal thepower to take stringent administrative action against a public servant engaging inmisconduct or corruption in accordance with the prescribed rules.11. Power to attach the movable and immovable assets of all the accused (Section 18{5})The Lokpal, either during the course of investigations - if it is satisfied thatprosecution is likely to be initiated in that case, or at the end of the investigations atthe time of initiating prosecution, shall make a list of moveable and immoveableassets of all the accused in that case and shall notify the same n its registry. Notransfer of property shall be permitted after such notification.12. Transparency of Lokpal (Section 18{xi}, Section 21B and section 30A)All records and information of Lokpal shall be public and shall be accessible underRight to Information Act, even at the stage of investigation or enquiry, unless therelease of such information would adversely affect the process of enquiry orinvestigation. Lokpal shall make every effort to put information on its website.Lokpal shall conduct annual integrity audits of each department as per guidelines tobe made in this behalf from time to time to ensure that funds are not misused.13. Punishment for offences (Section 19A)In case of violation by a public servant of the Prevention of Corruption Act, 1988Chapter IX of the Indian Penal Code, 1860 or obtaining of property by corrupt means,punishment shall not be less than one year of rigorous imprisonment and may extendup to life imprisonment.The punishment shall be more severe if the accused is higher in rank and where thebeneficiary is a business entity. In addition to other punishments mentioned in thisAct and under the Prevention of Corruption Act, 1988 a fine amounting to five timesthe loss caused to the public shall be recovered from the accused business entity andthe recovery may be done from the assets of the business entity and also from thepersonal assets of all its Directors, if the assets of the accused are inadequate.14. Protection of the whistleblower (Section 20)
  4. 4. A whistleblower may seek the protection of the Lokpal if he has been subjected to orthreatened with, professional or physical victimization. The Lokpal shall passappropriate orders, depending on the nature of the threat or harm within a specifiedtimeframe, directing appropriate authorities, including police, to take such steps asdirected by the Lokpal to provide adequate security to that person, to register criminalcases and also to take all such steps necessary to mitigate circumstances leading tothreats or physical assault.If a whistleblower alleges that police or any other authority has registered or initiatedany case against the complainant or any other person on account of making acomplaint under this Act or for using RTI Act, the Lokpal may, on the basis ofenquiries, issue orders to appropriate authorities, to withdraw such case.Lokpal may delegate the responsibility of providing protection to whistleblowers upto the level of Vigilance Officers and in such case, such officers shall have the powersto direct the appropriate authorities, including local police, to take such steps as arenecessary to ensure protection of that whistleblower.15. Citizens charter (Section 21)Each public authority shall be responsible for ensuring the preparation andimplementation of a Citizens Charter, within a reasonable time, and not exceedingone year from the coming into force of this Act. Every Citizens Charter shallenumerate the commitments of the respective public authority to the citizens, officerresponsible for meeting each such commitment and the time limit within which thecommitment shall be met. Each public authority shall designate an official calledPublic Grievance Redressal Officer, to whom a complainant should approach for anyviolation of the Citizens Charter.If a citizen fails to receive satisfactory redressal to his grievance within a month ofmaking a complaint to Public Grievance Redressal Officer, he can make a complaintto Appellate Grievance Officer (also known as Vigilance Officer).16. Independence of Vigilance Officers (Section 22)Lokpal shall rotate the personnel in existing vigilance wings of each department insuch a way that no personnel from one department gets posted for vigilance functionsin the same department.17. Appointment of Staff members (Section 23)
  5. 5. Lokpal shall have the powers to choose its own officials. The number and categoriesof officers and employees shall be decided by the Lokpal. The officers and otheremployees shall be under the administrative and disciplinary control of the Lokpal.So as to attract honest and efficient people to work in the Lokpal, the staff andofficers shall be entitled to such pay scales and other allowances, which may bedifferent and more than the ordinary pay scales in the Central Government, as aredecided by the Lokpal from time to time in consultation with the Prime Minister.Lokpal shall be competent to increase or decrease its staff at various levels, within itsoverall budgetary constraints.18. Control of Lokpal over vigilance administration (Section 24)The Central Vigilance Commission Act shall stand repealed. The Secretary and otherOfficers and Employees of the Central Vigilance Commission will be appointed asthe Secretary and other officers and employees of the Lokpal. All vigilanceadministration under the control of all Departments of Central Government,Ministries of the Central Government, corporations established by or under anyCentral Act, Government companies, societies and local authorities owned orcontrolled by the Central Government shall stand transferred, along with itspersonnel, assets and liabilities to the Lokpal for all purposes. That Department fromwhere any personnel have been transferred to Lokpal shall cease to have any controlover the administration and functions of transferred personnel.19. Transfer of personnel of the Central Bureau of Investigation (Section 25)That part of Central Bureau of Investigation, in so far as it relates to investigation andprosecution of offences alleged to have been committed under the Prevention ofCorruption Act, 1988, shall stand transferred, along with its employees, assets andliabilities to the Lokpal for all purposes. The Central Government shall cease to haveany control over the transferred part and its personnel. As a result, the anti-corruptionunit of the CBI will no longer be subject to government intervention and will operatewith independence.20. Prosecution wing (Section 25A)The prosecution wing is central to the effective functioning of the Lokpal. A well-oiled machinery with the investigation and prosecution wings working together as ateam is a must for building solid foundations to successfully pursue a case.21. Bar on proceedings (Section 27)
  6. 6. While no proceedings or decision of the Lokpal shall be liable to be challenged,reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction, apublic servant shall continue to have recourse to the High Court and Supreme Courtunder Article 226 and Article 32 of the Constitution.22. Compulsory submission of property statements by public servants (Section 28) and deeming of properties to have been obtained by corrupt means (Section 28A)All public servants shall have to declare their own assets and liabilities as well asthose of their family members in accordance with the format provided in the Actwithin three months of commencement of the Act. Non-declaration shall result in theproperty being deemed to have been obtained through corrupt means. The publicservant shall get a hearing and a failure to satisfactorily defend his position will leadto confiscation of the property. Lokpal shall intimate such information to the IncomeTax Department for appropriate action. Appeal against the orders of the Lokpal shalllie in High Court of appropriate jurisdiction, which shall decide the matter withinthree months of filing of the appeal. All properties confiscated under this section shallbe auctioned to highest bidder.23. Due diligence of property statements of election candidates (Section 28B)Within three months after the conclusion of any elections to the Parliament, theLokpal shall compare the property statements filed by the candidates for the ElectionCommission of India with their sources of income available with Income TaxDepartment. In such cases where assets are found to be more than known sources ofincome, it shall initiate appropriate proceedings.24. Power to take preventive measures (Section 8{4} and Section 31A)Lokpal shall, at regular intervals, either study itself or cause to be studied thefunctioning of all public authorities falling within its jurisdiction and in consultationwith respective public authority, issue such directions as it deems to appropriateauthorities so as to make such changes in their work practices, administration or othersystems so as to reduce the scope and possibility for corruption, misconduct, publicgrievances and whistleblower victimization.