The Lokpal and Lokayuktas Act, 2013

• The Lokpal and Lokayuktas Act, 2013, commonly known as The Lokpal Act, is an anti-corruption Act of Indian Parliament in India which "seeks to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connecting them.
• The bill was tabled in the Lok Sabha on 22 December 2011 and was passed by the house on 27 December 2011 as The Lokpal and Lokayuktas Bill, 2011. The bill was subsequently tabled in the Rajya Sabha on 29 December 2011. After a marathon debate that stretched until midnight of the following day, the vote failed to take place for lack of time.On 21 May 2012, the bill was referred to a Select Committee of the Rajya Sabha for consideration. The bill was passed in the Rajya Sabha on 17 December 2013 after making certain amendments to the earlier Bill and in the Lok Sabha on 18 December 2013. The Bill received assent from President Pranab Mukherjee on 1 January 2014 and came into force from 16 January 2014.
• The term Lokpal was coined in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate aboutgrievance mechanisms. The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted an interim report on "Problems of Redressal of Citizen's Grievances" in 1966. In this report, ARC recommended the creation of two special authorities designated as 'Lokpal' and 'Lokayukta' for redress of citizens' grievances. The word was derived from the Sanskrit words "Lok" (people) and "Pala" (protector/caretaker), meaning 'Caretaker of People'.

• Maharashtra was the first state to introduce Lokayukta through The Maharashtra Lokayukta and Upa-Lokayuktas Act in 1971.
•  Presently, there are no Lokayuktas in the states of Andhra Pradesh, Arunachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tamil Nadu, Tripura and West Bengal.

Issues	Draft Lokpal Bill, 2011 (government representatives)	Draft Jan Lokpal Bill, 2011 (nominees of Anna Hazare)
Composition	Chairperson and 10 members (at least 4 judicial members)	Chairperson and 10 members (at least 4 members with legal background). The Chairperson to have extensive knowledge of law.
Tenure	Five years or till he is 70 years	Five years or till he is 70 years
Manner of appointment	Presidential appointment on the recommendation of the selection committee.	Presidential appointment on the recommendation of the selection committee.
Committee membership	Prime Minister, speaker, Leader of the House of which PM is not member, Minister of Home Affairs, Leader of the Opposition in both Houses, judge of Supreme Court, Chief Justice of a High Court, President of National Academy of Science, Cabinet Secretary (secretary of committee).	Prime Minister, Leader of the Opposition in the Lok Sabha, 2 judges of the Supreme Court, 2 chief justices of a high court, the Chief Election Commission, the CAG, and all previous chairpersons of the Lokpal. The members shall be selected from a list prepared by the Search Committee (10 members including civil society representatives).
Qualification	Impeccable integrity with at least 25 years of experience in public affairs, academics, commerce, finance etc. Once appointed, cannot be an MP, MLA or be connected with a political party, business or practice a profession. A judicial member has to be either a Chief Justice of the High Court or a judge of the Supreme Court.	A judicial member should have held judicial office for at least 10 years or been an advocate of the High Court or Supreme Court for at least 15 years. All members should be of impeccable integrity with record of public service especially in the field of corruption. Must be a citizen of India at least 45 years old. Must have no case involving moral turpitude framed against him by a court. Cannot have been a government servant within the last 2 years.
Removal	Complaint against members are made to the President who may refer it to the Supreme Court who will conduct an inquiry. The President may remove the member, on the opinion of the Chief Justice, on grounds of bias, corruption, insolvency, paid employment or infirmity.	The President removes members on the recommendation of the Supreme Court made within 3 months of a complaint. Grounds for removal: misbehavior, infirmity, insolvency, paid employment outside the office. An Independent Complaints Authority at the state level inquires into complaints against Lokpal staff.
Jurisdiction	All corruption cases under the Prevention of Corruption Act, 1988. It covers MPs, Ministers, 'Group A' officers, 'Group A' officers in a company or body owned by the government, any officer of a government-financed society or trust or funded by Foreign Contribution (Regulation) Act, 1976 or that gets funds from the public. Excludes PM, judiciary and any action of an MP in the Parliament or Committee.	Offences by a public servant, including government employees, judges, MPs, Ministers, and the Prime Minister under the Indian Penal Code and the 1988 Corruption Act. Any offence committed by an MP in respect of a speech or vote in the House; wilfully giving or taking benefit from a person. Victimizing a whistleblower or witness.
Investigation	Lokpal must conduct a preliminary inquiry within 30 days. If there is no prima facie case, the matter is closed. Given a prima facie case, Lokpal investigates after providing a suitable forum to the accused. The investigation must be completed within six months with an optional six-month extension after giving reasons in writing. No sanction shall be required by the Lokpal to investigate any complaint against a public servant.	When investigating corruption cases, the CBI works under the Lokpal. Investigation of the Prime Minister, Ministers, MPs and judges of the Supreme Court or High Courts require the permission of a 7-member bench of the Lokpal. Investigations can last 6 to 18 months. Investigation of whistleblower complaints who are in danger of victimisation, must be completed within 3 months.
Prosecution	The Lokpal may constitute a prosecution wing headed by a director who files cases in the Special Court (to be constituted by the central government on recommendation of the Lokpal). Trials must complete within one year, which may be extended to two years for reasons given in writing. No sanction is required to file a case against a public servant. The Lokpal files cases in the Special Court and sends a copy of the report to the competent authority. Procedure for persons other than MPs and ministers: The competent authority is the Minister for officers of government bodies and the society head for officers of societies. The Lokpal recommends disciplinary proceedings to the competent authority and provides a copy of the report to the accused. The competent authority must take action within 30 days and inform the Lokpal within 6 months of initiating disciplinary proceedings. Procedure for MPs and ministers: The competent authority is the PM for Ministers and the Lok Sabha or Rajya Sabha for MPs. The Speaker/Chairman tables the report in Parliament. The House reports to the Lokpal on any action taken within 90 days.	The CBI's prosecution wing moves under Lokpal. After an investigation is completed, the Lokpal may either initiate prosecution against the accused or impose penalty or both. The Lokpal can initiate prosecution in the Special Court formed under the Prevention of Corruption Act, 1988. The Lokpal shall appoint retired judges or retired civil servants as judicial officers. A bench of judicial officers can impose a penalty on a public servant after conducting an inquiry. The decision shall be subject to approval from a higher authority to be prescribed. Prosecution can be initiated against the Prime Minister, Ministers, MPs and judge of the Supreme Court or High Courts only with permission of a 7-member bench of the Lokpal. If the Lokpal grants permission to investigate or initiate prosecution, no sanction is required from any other authority.
Penalty	Any person making false and frivolous or vexatious complaints shall be penalised with 2 to 5 years of jail and fine of Rs 25,000 to Rs 200,000.	For any act of corruption, the penalty shall be from six months to life imprisonment. If the beneficiary for an offence is a business entity, a fine of up to five times the loss caused to the public shall be recovered. If a company director is convicted, the company shall be blacklisted from any government contract. Convicted public servants are removed from office. Persons making a false complaint, are fined up to Rs 100,000. False complaints against a member of the Lokpal may result in 3 months imprisonment.
Funding	Paid by Consolidated Fund of India.	Paid by Consolidated Fund of India. The budget of the Lokpal should not be less than 0.25 percent of total government revenue. No sanction required from government to incur expenditure. The CAG audits Lokpal and a Parliamentary Committee evaluates Lokpal operations.
Other powers	The Lokpal can search and seize documents, attach property for 90 days, file for confirming the attachment within 30 days, and recommend suspension of the accused.	The Lokpal can receive complaints from whistle-blowers, issue search warrants, attach property, recommend cancellation/modification of a lease or license or blacklist a company. If recommendation of Lokpal is not accepted it can approach the High Court. A bench of the Lokpal can approve interception and monitoring of messages transmitted through telephone or internet.

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. Judicial Member 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 Non-Judicial Member 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. 

1. Secretary to Lokpal
2.  Director of Inquiry 
3. 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. 

Prosecution Wing

 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 

Lokpal Benches

 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:

1.  In case of Group A and B officers, it would make a report and submit it to Lokpal
2.  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.

 Special Courts

 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.

 Lokayukta 

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: 

1. Full bench of the Lokpal consisting of its Chairperson and all Members considers the initiation of inquiry 
2. 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.