Lokpal and Lokayukta Act, 2013
The Lokpal and Lokayukta Act, 2013 seeks to provide for the establishment of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries and for related matters. The act extends to whole of India, including Jammu & Kashmir and is applicable to “public servants” within and outside India.
The act mandates for creation of
- Lokpal for Union
- Lokayukta for states
- Composition of Lokpal
- Who can become the Chairperson?
- Who can become a member?
- Who cannot become the chairperson?
- Appointment of Chairperson and members
- Term of Office:
- Post retirement jobs:
- Officials of Lokpal
- Inquiry Wing of Lokpal
- Prosecution Wing
- Jurisdiction of Lokpal
- Lokpal Benches
- Powers of Lokpal
- Special Courts
- Complaints against the Lokpal
- Other Important Notes
- What is not there in our Lokpal act?
- Additional Notes: Prime Minister under Lokpal
Composition of Lokpal
The institution of Lokpal is a statutory body without any constitutional backing. Lokpal is a multimember body, made up of one chairperson and maximum of 8 members.
Who can become the Chairperson?
The person who is to be appointed as the chairperson of the Lokpal should be either of the following:
- Either the former Chief Justice of India
- Or the former Judge of Supreme Court
- Or an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
Who can become a member?
Out of the maximum eight members, half will be judicial members. Minimum fifty per cent of the Members will be from SC / ST / OBC / Minorities and women.
The judicial member of the Lokpal should be__
- either a former Judge of the Supreme Court
- or a former Chief Justice of a High Court
The non-judicial member should be an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
Who cannot become the chairperson?
The following persons cannot become chairperson of Lokpal:
- MPs and MLAs
- Persons convicted of any offense involving moral turpitude
- Less than 45 years of age
- Members of Panchayats or Municipality
- A person who was removed or dismissed from the public service
- A person who holds any office of trust / profit; if so, he would need to resign from Lokpal
- A person who is affiliated to a political party
- Carries on some business / profession; if so, he would need to quit some business
Appointment of Chairperson and members
The members are to be appointed by President on the recommendations of a selection committee. This selection committee is made up of_:
- Prime Minister—Chairperson;
- Speaker of Lok Sabha
- Leader of Opposition in Lok Sabha
- Chief Justice of India or a Judge nominated by him / her
- One eminent jurist
Term of Office:
- The term of office for Lokpal Chairman and Members is 5 years or till attaining age of 70 years.
- The salary, allowances and other conditions of service of chairperson are equivalent to Chief Justice of India and members is equivalent to Judge of Supreme Court.
- If the person is already getting the pension (for being a former judge), the equivalent pension amount will be deducted from the salary.
- The source of salary for Lokpal and Members is Consolidated Fund of India.
- If the chairperson dies in office or has resigned from the post, President can authorise the senior-most Member to act as the Chairperson until new chairperson is appointed. If chairperson is not available for certain functions due to leave, his job will be done by senior most member.
Post retirement jobs:
Once a Lokpal chairperson / member has ceased to be so, he cannot take up the following jobs:
- He cannot be reappointed as chairperson / member of Lokpal
- Cannot take any diplomatic assignment
- Cannot be appointed as administrator to a Union Territory
- Any constitutional / statutory post in which appointment is made by President
- Any other office under the government of India
- He cannot contest any of the elections such as President / Vice President / MLA / MLC/ Local bodies for 5 years after relinquishing the post.
Officials of Lokpal
There are three important officers of Lokpal. They are appointed by Lokpal Chairperson.
- Secretary to Lokpal
- Director of Inquiry
- Director of Prosecution
There is one secretary appointed by the chairperson from a panel of names sent by central government.
The Director of Inquiry and Director of Prosecution cannot be below the rank of Additional Secretary to the Government of India. These officials will also be appointed by chairperson.
Inquiry Wing of Lokpal
According to the act, the Lokpal would constitute an Inquiry Wing, which is to be headed by Director of Inquiry. Its function is to conduct the preliminary inquiry into any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988.
According to the act, the Lokpal by notification would constitute a Prosecution Wing. This wing will be headed by the Director of Prosecution for the purpose of prosecution of public servants.
Jurisdiction of Lokpal
The following come under the jurisdiction of Lokpal:
- Prime Minister of India, under certain conditions as stipulated in the adjacent box.
- All ministers of the Union
- Members of Parliament except for matters related to article 105 of constitution. (that is anything said or a vote given by him in Parliament)
- Group ‘A’ or Group ‘B’ officers
- Group ‘C’ or Group ‘D’ officials
- Any person who is or has been in-charge (director / manager/ secretary) of anybody / society set up by central act or any other body financed / controlled by central government.
- Any other person involved in act of abetting, bribe giving or bribe taking
A Lokpal Bench will be constituted by the Chairperson with two or more members. Every Lokpal Bench has to have at least half members as judicial members. If bench consists of Chairperson, it will be headed by him. If the bench does not consist of chairperson, it will be headed by a judicial member only. The Lokpal benches will sit in New Delhi or any other places as decided by Lokpal. The benches can be constituted and reconstituted by Chairperson time to time.
How Lokpal works?
Here is a simple account of how Lokpal works. Lokpal first of all receives a complaint. On receiving the complaint, it needs to decide if it would proceed further. Once it decides to proceed further, it would order a preliminary inquiry by either its own Inquiry Wing or other agency such as Delhi Special Police Establishment (CBI).
The Preliminary enquiry has to be done within ninety (90) days of receiving complaint. It can be increased to further 90 days for reasons recorded in writing. Thus, preliminary enquiry has to be done in 6 months.
The preliminary inquiry would ascertain if there is prima facie a case to proceed further. Now, here is a loop. If the complaint is related to Group A to Group D officers, Lokpal would refer the complaint to CVC. CVC will inquire and do as follows:
- In case of Group A and B officers, it would make a report and submit it to Lokpal
- In case of Group C and D Officers, it would itself proceed as per CVC act 2003.
The Inquiry Wing or CBI can do the search and seizure operations etc. They would make a report and this report will be taken up by a Lokpal bench of minimum 3 members. This bench will give an opportunity to the allegedly corrupt officer to be heard of. After this, the following three alternatives will be there to proceed for:
- If the officer is guilty, Lokpal will grant sanction to its Prosecution Wing or CBI to file charge sheet against him. It can also direct initiation of departmental proceedings.
- If the officer is found innocent, Lokpal would direct the closure of report before the Special Court against the public servant and now would proceed against the complainant for making false complaints.
Powers of Lokpal
The Lokpal has following powers:
- It has powers to superintendence over, and to give direction to CBI.
- If it has referred a case to CBI, the investigating officer in such case cannot be transferred without approval of Lokpal.
- Powers to authorize CBI for search and seizure operations connected to such case.
- The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
- Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances
- Lokpal has powers to recommend transfer or suspension of public servant connected with allegation of corruption.
- Lokpal has power to give directions to prevent destruction of records during preliminary inquiry.
On the recommendation of the Lokpal, the Central Government shall constitute Special Courts to hear and decide the cases arising out of the Prevention of Corruption Act, 1988 or under Lokpal Act. Such courts are required to finish each trial within a period of one year from the date of filing of the case in the Court. This one year period may be extended for 3 months by recording in writing.
Complaints against the Lokpal
According to section 37 of the act, the Lokpal shall not inquire into any complaint made against the Chairperson or any Member of its own institution. The chairperson or member can be removed from his office by President on grounds of misbehaviour after a Presidential reference to Supreme Court on a petition signed by 100 MPs.
However, President can also remove the chairperson / members under exceptional circumstances such as if they are adjudged insolvent; or take a paid job or is / are unfit because if infirm mind or body in the opinion of president.
Other Important Notes
- Lokpal will prepare its budget and forward it to central government. All charges related to expenses of Chairperson / members/ Director of Inquiry / Director of Prosecution will be charged on Consolidated Fund of India.
- The accounts of Lokpal will be audited by CAG.
- Each member / officer of Lokpal will need to declare his assets on taking up Lokpal Offices.
- Lokpal will prepare an annual report which it would submit to President who in turn will get the report laid to each House of Parliament.
- Lokpal is to function as appellate authority for appeals arising out of any other law for the time being in force.
- Public officials have been given immunity against anything which is done in good faith or intended to be done in the discharge of his official functions or in exercise of his powers.
- Chairperson, Members, officers and other employees of the Lokpal are deemed to be public servants.
- Lokpal will not entertain any complaint, if the complaint is related to an offense that dates as back as 7 years or more.
- Civil Courts have been barred in respect jurisdiction of any matter under Lokpal.
- Every State shall establish a Lokayukta by an state act, if it has not done so as of now.
What is not there in our Lokpal act?
The Lokpal and Lokayuktas Act is perhaps the only legislation in the history of independent India, which has been so widely discussed, both inside and outside Parliament and has, thus generated so much awareness in the public mind about the need to have an effective institution of Lokpal to tackle corruption. However, the act passed hitherto is verbose, full of negatives and has numerous cross references. Still, here are a few things which are absent from this law:
- No protection to whistleblowers: This was one of the main demands in the Janlokpal Bill. The recently passed act has not at all provisions for whistleblower protection. We have to have a separate law for that.
- There is only one section on Lokayukta in the act which says that within one year, the states shall enact the Lokayukta act. However, there is nothing regarding their composition, powers etc. In fact, states are free to define how their own Lokayuktas would be appointed, how they would work and under what circumstances they would serve.
- The Lokpal act brings the PM under its jurisdiction, yet the Judiciary has been left. Judiciary is NOT subject to Lokpal jurisdiction.
- The provisions of the act have become anomalous because of Lokpal’s relations with the CBI. Under the provisions of the act, Lokpal has been vested with all powers related to only tose cases which it refers to CBI. Instead, there was a long demand that CBI should be merged with Lokpal. The current provisions are open to misuse.
- There are no provisions related to Citizen’s charter.
- There are no adequate provisions to appeal against the Lokpal. Lokpal cannot conduct inquiry against itself.
Additional Notes: Prime Minister under Lokpal
According to the Lokpal and Lokayukta Act 2013, the PM comes within the jurisdiction of Lokpal but Lokpal will not inquire the PM if the allegation of corruption is related to international relations, external and internal security, public order, atomic energy and space. Further, allegation against Prime Minister can be taken up for inquiry only when the two conditions as follows are satisfied:
- Full bench of the Lokpal consisting of its Chairperson and all Members considers the initiation of inquiry
- At least two-thirds of its members approves of such inquiry
Such inquiry against the Prime Minister will be done in camera. If the Lokpal concludes that the allegation is false and the inquiry should be dismissed, the records of the inquiry shall not be published or made available to anyone.