Explained: The four versions of the ombudsman bill

In parliament August 25, Indian Prime Minister Manmohan Singh said there should be  effective ways and means of discussing the Jan Lokpal Bill along with the government version of the bill along with Aruna Roy’s bill, along with the ideas in the paper that Dr  Jayaprakash Narayan has submitted.’

Importantly, all the four formulations have a common feature that addresses a major obstacle to anticorruption legislation. The Prevention of Corruption Act requires that a superior officer has to provide sanction for prosecuting any government employee; all four bills remove this restriction if the Lokpal
wishes to initiate a case in a court.

The four Lokpal versions differ on several aspects. Here’s how. We refer to the four bills as the government bill, the JLP (Anna Hazare’s version), the NCPRI bill (activist Aruna Roy’s), and the FDR bill (Lok Satta party leader Dr Jayaprakash Narayan’s bill).

The NCPRI (National Campaign for Peoples’ Right to Information) has suggested a bouquet of bills. They suggest that the Lokpal’s jurisdiction be limited to the prime minister, ministers, members of parliament, and senior government officers.

They suggest a second bill to amend the Central Vigilance Commission Act in order to make the CVC more independent and powerful; they also suggest that all middle and junior level officers be covered by the CVC.

The third change is to strengthen the Judicial Accountability and Standards Bill so that the oversight body has greater independence, and there is a simpler mechanism for people to file complaints.

The fourth change is to amend the Public Interest Disclosure Bill to increase protection to whistleblowers.

Finally, they suggest a new bill to create a mechanism to redress public grievances. The JLP Bill (Hazare’s bill) has all the five functions within the same legislation.


JURISDICTION

There are divergent opinions on the persons who will be covered by the Lokpal.

Prime minister: The government bill includes the PM after he demits office, the JLP includes him under all cases, while the NCPRI suggests certain safeguards, and the FDR gives two possible approaches.

The JLP states that a seven-member bench of the Lokpal has to give permission before initiating an investigation. The NCPRI states that the investigation into the PM’s action will require the full bench of the Lokpal referring the case to the Chief Justice of India, who will constitute a full bench of the supreme court. Only if this bench recommends an investigation will the Lokpal take up the matter further. In cases of national security, the PM will have to brief the CJI in confidence, who will then decide whether to refer the issue further.

The FDR suggest two possible approaches. One approach is to recognize that it is important to exclude the PM as his inclusion could have adverse implications for national security and political stability; democratic processes and the Lok Sabha can maintain accountability. The other approach is to include the PM with some safeguards such as a reference to a high level committee by two-thirds majority of Lokpal members. The committee will have the vice president, speaker and leader of opposition in Lok Sabha, and will decide whether to sanction an inquiry. Actions related to national security, foreign policy and public order will be exempt.

Members of parliament: The JLP and the FDR versions cover the MPs while the government bill exempts their vote and speech in parliament (protected under Article 105(2) of the Indian constitution). The NCPRI suggests that their vote and speech be protected as long as it is on the floor of the House or in parliamentary committees.

Judiciary: The JLP includes judiciary; the government bill excludes them. The government has already introduced the Judicial Accountability and Standards Bill, which is being examined by the standing committee on law and justice (at presstime, the same committee is also examining the Lokpal Bill and has given its report on the whistleblower bill). The NCPRI has suggested amendments to that bill in order to create an independent oversight mechanism over the higher judiciary, while maintaining its independence. The FDR has suggested the formation of a National Judicial Commission, which will have powers to
recommend both the appointment and removal of judges.

Government employees: The JLP includes all government employees. The government bill includes only Group A officers (and equivalent). The NCPRI and the FDR suggest that all other government employees be covered by the CVC, and the CVC be made
independent. The FDR adds that all members of CVC be exofficio members of the Lokpal. Non-governmental organizations: The government bill includes all NGOs, if they receive government funds or funds from the public. The JLP excludes NGOs. The NCPRI includes them if they receive government funds. The FDR includes them above a certain threshold.

LOKPAL APPOINTMENT

The government bill sets up a selection committee consisting of the prime minister, Lok Sabha speaker, one cabinet minister, the leaders of the opposition in the Lok Sabha and Rajya Sabha, a supreme court judge, a high court chief justice, and an eminent jurist and an eminent person in public life to be nominated by the government. This selection committee may form a search committee to assist it.

The FDR agrees with the government bill, with one modification: The jurist and eminent person should be decided by all the other seven members.

The JLP creates a search committee of 10 members: Five will be former CJIs, central election commissioners and comptroller and auditor generals; they will appoint the other five from civil society. They will shortlist names, which will go the selection committee comprising the prime minister, the leader of opposition in the Lok Sabha, two supreme court judges, two high court chief justices, the CEC, the CAG, and all former Lokpal chairpersons. The NCPRI has a similar process of a shortlist by a search committee followed by a selection committee. The selection committee has three members: The prime minister, the leader of opposition in the Lok Sabha, and a supreme court judge.

LOKPAL REMOVAL
In the government bill, the process starts with a reference to the supreme court made by the president: (a) on his own; (b) on a complaint by 100 MPs, or; (c) on a complaint by a citizen if the president is satisfied that it must be referred. The president has to then act on the Supreme Court’s findings.

The FDR agrees with this process. The JLP suggests that any person may make a complaint directly to the supreme court, which will then hold an inquiry and decide whether the Lokpal should be removed. The NCPRI has a similar procedure.

REDRESSING GRIEVANCES

The government bill does not address this issue. The JLP includes redressing grievance as a part of the Lokpal’s functions.
Both the NCPRI and FDR state that this function should not be part of the Lokpal, but a separate authority should be created.

STATE LOKAYUKTAS

The government bill provides only for a Lokpal at the federal level. All the other three versions assert the need for
Lokayuktas to be appointed in states. The Lokayuktas will have powers and functions at the state level similar to that
of the Lokpal at the federal level.