As the Union government gives in to Anna Hazare's demands for redrafting the legislation for pursuing corruption cases against public servants, we explain current and imminent provisions in the law
In the light of the agitation led by Anna Hazare, what steps has the government taken to draft the Lokpal Bill?
The government has notified a Joint Drafting Committee on April 8, 2011, to drafttheLokpalBillbyJune30,2011.The Committee will include five nominees from the government and five nominees of Hazare.
What are the current laws relating to corruption cases against public servants?
Currently , public servants (such as MPs, government employees, judges, armed forces and police personnel) can be prosecuted for acts of corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. This includes offences such as bribery , embezzlement, abuse of official position and unlawful purchase of property .
What is the procedure for investigating and prosecuting public servants who are alleged to be guilty of corruption?
Investigation: Corruption cases under the Prevention of Corruption Act and the Indian Penal Code can be investigated either by the Central Bureau of Investigation(CBI)ortheAnti-CorruptionBureau (ACB) in each state. The CBI can investigate all corruption cases related to all the departments under the central governmentandintheunionterritories.
It can also investigate cases referred to it bystategovernments.ThestateACBsinvestigate corruption cases within the states. The investigating agencies can initiate the prosecution process only aftertheyhavegotthepriorsanctionof the central or state governments.
The Central Vigilance Commission (CVC) is an independent body that monitors corruption in government departments. It supervises the functioning of the CBI. The CVC refers cases (under the Prevention of Corruption Act) for investigation either to the CBI or to the Chief Vigilance Officer (CVO) in each department of the central government.
Based on the inquiry report, the CVC or the CVO recommends the action to be taken against a public servant. The decision to take any disciplinary action against a civil servant rests with the department authority .
Prosecution: The Code of Criminal Procedure and the Prevention of Corruption Act require the investigating agency (such as CBI) to get a prior sanctionfromthecentralorstategovernment before it can initiate the prosecution process in a court. Prosecution of cases investigatedbytheCBIorthestate ACBs is undertaken by prosecutors appointed by the government.
Adjudication: All cases under the Prevention of Corruption Act are tried by special judges who are appointed by the central or state government. A person can be appointed as a special judge onlyif heisorwasasessionsjudge,anadditional sessions judge or an assistant sessions judge.
What is the procedure laid down for the investigation of Supreme Court and High Court judges?
The Constitution provides that judges of the High Courts and Supreme Court can be removed only by Parliament by a two-third majority in each House. The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is specified in the Judges (Inquiry) Act, 1968.
What is the purpose of a Lokpal and what gap does it propose to fill in the present system of tackling corruption?
The proposed office of the Lokpal is an independent authority appointed to inquire into complaints made by citizens against public officials. Under the existing system, a citizen can either move the court or seek other remedies such as petitioning his MP . However, these remedies may be too cumbersome or specific grievances may not be addressed. Also, thelawsthatpenalisecorruptofficialsdo not have provisions to redress specific complaints of citizens.
In how many cases has the government not given a response to requests for sanction to prosecute?
As of end-2010, the central government had not provided responses to 236 requests from the CBI. Of these, 155 requests (66%) were pending for over three months. State governments had not responded to 84 requests, of which 13 (15%) were pending for more than three months.
How many public servants have been penalised for cases related to corruption?
According to official data, between 2005 and 2009, penalties were imposed on 13,061 cases based on the CVC's advice.
Out of the 13,061 cases, sanction was granted for criminal prosecution in 846 cases.Majorpenaltiessuchasdismissal, reduction to lower rank and cut in pension were imposed in 4,895 cases. Minor penalties such as censure were imposed in 5,356 cases and administrative action was taken in 1,964 cases.
What about earlier attempts to introduce the Lokpal Bill?
The Lokpal Bill was introduced for the first time in 1968 but it lapsed with the dissolution of the Lok Sabha. It was introduced seven more times in Parliament, the last time in 2001. However, the Billlapsedeachtimeexceptin1985when it was withdrawn.
What are the recommendations made by expert committees and commissions that have examined the issue of the Lokpal? A number of commissions have made various recommendations about the office of the Lokpal. The commissions, that have dealt with the Lokpal include the First Administrative Reforms Commission (ARC) of 1966, the National Commission to Review the Working of the Constitution (NCRWC) of 2002 and theSecondARCof 2007.TheLokpalBills that were introduced were referred to various Parliamentary committees; the last three Bills were referred to the Standing Committee on Home Affairs.
The First ARC of 1966 recommended that there should be two independent authoritiestoredressgrievances:(1)the Lokpal, to deal with complaints against the administrative acts of ministers or secretariesof governmentattheCentre and the state; and (2) the Lokayukta in each state and at the Centre, which would deal with complaints against the administrative acts of other officials.
The Lokpal should be independent of the executive, legislature and judiciary .
It may either act on the complaints made by an affected citizen or on her own cognition. After inquiry, if she finds that injustice has been done, she shall suggest remedial action to the department. If the department does not act on it, she can report to the PM or CM, who shall report back within two months. If she is not satisfied, then she may bring it to the notice of the Parliament or the legislature.
The NCRWC recommended that the Lokpal should be a Constitutional authoritybuttheofficeof thePMshouldbe kept out of its purview to maintain the autonomy and privilege of the office. It suggests that an MP can be prosecuted after the investigating agency receives prior sanction from a committee constituted by the President.
The second ARC was in favour of including ministers, CMs and MPs. However,itwantedtokeepthePMoutsidethe Lokpal's ambit. The ARC also recommended that a reasonable time limit for investigation of different types of cases should be fixed. It made detailed recommendations about composition and manner of appointment of the Lokpal. Have the state governments been more successful in setting up bodies to redress public grievances against administrative acts?
Sofar,18stategovernmentshaveenacted legislation to set up the office of Lokayukta and Uplokayukta (deputy Lokayukta). The 18 states are Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Gujarat, Jharkhand, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Uttarakhand and Uttar Pradesh.
Which other countries have the office of the Ombudsman for addressing grievances?
At present, about 140 countries have the officeof theOmbudsman.Theseinclude Sweden, Finland, Denmark, the Netherlands, Austria, New Zealand, Burkina Faso and the UK.
Whatarethemaincontentiousissues related to the office of the Lokpal?
The main issues are related to the jurisdiction of the Lokpal, the composition and manner of appointment and the powers vested in the body . Some experts contendthatallpublicofficialsshouldbe accountablewhileothersfeelthattheautonomy and privilege of Parliament require the PM, ministers, and MPs to be accountableonlytoParliament.Opinion on inclusion of judges is also divided. Incidentally , the Judges Standards and Accountability Bill, 2010, that is pending in Parliamentprovidesforamechanismfor citizens to lodge complaints against the judiciary . The power to initiate prosecution without prior sanction of the government has been a contentious issue.
This provision was designed to protect honest officials from harassment but it has been misused to delay responses to requests for sanction.
Nowthatthejointdraftingcommittee is set up, what are the next steps?
After a Lokpal Bill is drafted, it shall be sent for comments to all the concerned ministries. The law ministry will vet it for any legal inconsistencies. Finally , the Bill will need the approval of the Union Cabinet before it can be tabled in Parliament. The Bill may be referred to the concerned standing committee.
After the committee submits its report, the Bill may be taken up for consideration and passing.