Everything we should know about the Lokpal

While the whole nation is desperately waiting for the Lokpal bill, do we actually know what the Lokpal is all about? Will the Lokpal really bring change against corruption in India? How will it change? What are the basic mechanisms? Why is the Government objecting to certain clauses? Why is the AAP objecting to the present bill introduced in the Parliament? What is in the bill…?

I have compiled information from various sources (which are given below with links), then I interpreted them and I came out with answers in easy language. So everything that we should know about the Lokpal – it is here!

1) What is Lokpal?

Lokpal is a Hindi translation for what is known internationally as “Citizen’s Ombudsman”. In Hindi, it literally means the caretaker of people. What does an ombudsman actually do? Generally speaking, the role of an ombudsman is to look into the cases of corruption and to oversee the inquiries made against corruption charges against government officers.

If somebody believes that any government officer is misusing his powers for corrupt practices, then the Lokpal is meant to see to it. For example, if a government officer is not sanctioning a highway project and is asking for bribe, or if a tax officer is unnecessarily harassing you, or if a government company is unethically favouring only one party in their services, you can go to the Lokpal. The ombudsman has the duty to initiate inquiry into the matter.

The Lokpal shall have 8 members. The Chairman shall be a former Chief Justice of India. 4 of these members will be from judicial background, while the other 4 shall be senior persons who have more than 25 years of experience in dealing with corruption related issues. 

2) What difference will the Lokpal bring when we already have the CBI?

Now this is the most important question we need to ask. We already have the Central Bureau of Investigation in India. Does it make sense to come up with another body called the Lokpal? What difference will the Lokpal bring?

Now understand that the basic problem with the CBI is that it is not independent. Many people have criticised that the CBI is a “caged parrot”. I have discussed in detail as to why the CBI is so called (see question 4 later). For now, let me begin by saying that the biggest difference that is being brought about by the Lokpal is that it will be independent.

What is the meaning of independence? Remember that independence is something which is governed by some basic factors like – who has the power to appoint or remove the Lokpal? What approvals does the Lokpal need to take before initiating any inquiry? The answers to these questions follow. I hope you shall understand the concept of independence in detail after reading the next two-three questions.

3) Who has the power to appoint or remove the members of Lokpal?

Let us first talk about appointment. The President of India will appoint the members of Lokpal. However, the President shall appoint the members only after recommendation from the Selection Committee. Therefore, effectively, the appointment is in the hands of the Selection Committee. Now who is in the selection committee? It has the Prime Minister, Speaker of the Lok Sabha, Leader of Opposition, Chief Justice of India and one eminent jurist.

Now consider this. The government does not have any role in the appointment of the members of Lokpal. So the first important test for independence is fulfilled. Now we shall talk about removal of the members of Lokpal. As regards removal, the bill says that –

The President shall have the power to remove the members of Lokpal. However, removal shall be ordered only after Supreme Court reports that the member is fit to be removed after conducting an inquiry. This inquiry can be done in three cases. The whole provision is summarised below (Users viewing on mobile can click on the image to enlarge it)

So we realise that the removal of members of Lokpal is also not very easy and is certainly not in the hands of the government since there is a Supreme Court monitored enquiry that is necessary before the removal is ordered. Therefore, it appears that the Lokpal is an independent body.

Now we move on to find out the other procedures that the Lokpal can do and check whether those provisions are based upon the principle of independence.

3) What power does Lokpal have over the CBI?

As per the Lokpal Bill, the Lokpal shall establish an inquiry wing for itself. However, apart from that the Lokpal can also order the CBI to investigate any matter. Practically speaking, a totally new inquiry wing for the Lokpal is definitely not possible. Therefore, let us settle for the fact that the Lokpal shall use the resources of CBI to conduct an enquiry.

Now suppose that any issue of corruption is brought to the notice of Lokpal. How does the Lokpal go ahead and investigate the matter? Simply speaking, the Lokpal shall order the CBI that an investigation should be conducted.

Point to be noted: The CBI is only an investigating agency. The CBI cannot conduct any investigation without obtaining approval of the Central Government. However, if an investigation is ordered by the Lokpal, then such approval is not required.

Present Scenario Suppose we find that any government officer is corrupt. Now, before the CBI can conduct any investigation, it had to seek approval from the Government only. Further, the CBI was supposed to report to the government. Isn’t that strange? Why would the government order an investigation against its own officer? Even if it does, it used to closely monitor the case.

After the Lokpal comes Suppose we think that any government officer is corrupt, the Lokpal can directly make a reference to the CBI. The CBI does not need any approval from the government. Also, the CBI does not have to report to the government. Therefore, the CBI can independently go ahead and conduct investigation against the Government, because it is monitored by the Lokpal, not the government.

4) Does that mean that the CBI is also independent?

Consider this – we now know that the Lokpal is independent. Also, the Lokpal can order the CBI to conduct any inquiry against the government officers, without requiring any approval from the government. So far, all is well. But who appoints or removes the CBI officers? Is the CBI really independent?

  

Present Scenario The CBI director is appointed by the Central Government, after recommendation by the Central Vigilance Officer, Home Ministry and Secretary to the Government. Other CBI officers are also appointed by the Central Government after recommendation by the above mentioned committee.

After the Lokpal comes The CBI director will be appointed by the Central Government, after recommendation by the Prime Minister, Leader of Opposition and Chief Justice of India. However, other CBI officers are still appointed by the Central Government after recommendation by the Central Vigilance Officer, Home Ministry and Secretary to the Government, after recommendation of the CBI Director

To a certain extent, the CBI director will be less afraid now since his appointment and removal is not completely in the hands of the government. But what about other CBI officers?

5) What is AAP talking about? What is the confusion between Anna Hazare and AAP?

The original Jan Lokpal bill for which Anna Hazare was fighting – insisted that the appointment and removal of CBI officers should be under the control of Lokpal. Originally, the demand was that the CBI should completely merge with the Lokpal. In that way, there would be a complete autonomy of CBI and the Government will have no powers to interrupt in the investigations against corruption.

However, the bill as passed by the Lok Sabha and which is pending in the Rajya Sabha says that the appointment of other CBI officers is still in the hands of the government (except the director). Therefore, the appointment of CBI is within the control of the government but the services of CBI will be used independently by the Lokpal.

It is like Lokpal telling the CBI – go ahead and freely conduct an inquiry against the government. However, if the government removes you, we cannot do anything to protect you. Because your appointment, removal and promotion is still in their hands!

6) Can the Lokpal initiate proceedings against all officers?

The provision of the Lokpal bill is as follows –

Prime Minister

The Lokpal can conduct any inquiry against the Prime Minister (present or past). However, the conditions are –

1) It cannot conduct any inquiry in matters related to international relations, defence, atomic energy and space.
2) It cannot conduct any inquiry (in other matters also) unless at-least 2/3^rd of the Lokpal members agree that such an inquiry must be made.
3) Inquiry should be made in camera.

Other ministers and Members of Parliament

The Lokpal can conduct any investigation against any other minister and any Member of Parliament without any conditions.

Group A and Group B Officers

These include officers like (random examples) the Commissioner of Income tax, Magistrates, Vice Chancellor of government universities etc. The Lokpal can monitor the cases against any of these senior officers.

Group C and Group D Officers

These are more junior level officers. For example, Central Excise Inspectors, Tax Assistants, Telephone Company operators down to the junior level of clerks and peons. However, the Lokpal does not have direct control over the cases against these officers. See the next question for details.

7) What is the procedure for conducting an investigation?

The whole process (clause 20 of the Lokpal bill) is summarised diagrammatically as below (Users viewing on mobile phones can click on the image to enlarge it) – 

After the preliminary enquiry, the Lokpal can decide whether to proceed with further inquiry or whether to drop the case. Before doing this, Lokpal shall give the concerned person an opportunity to explain his stand.

If the Lokpal decides that it wants to proceed with further inquiry – it shall refer the matter to the CBI and order the CBI to conduct a further inquiry. CBI should investigate the matter within 6 months. During this time, the CBI shall give reports to the Lokpal regarding how the case is progressing.

If the alleged corruption is found to be true, then the Lokpal can order the CBI to initiate the proceedings against the person in any Special Court of CBI for this matter. Thereafter, the court will decide whether the alleged act of corruption is true or not. And then, the court will give relevant punishment to the concerned person.

Key Points to be noted

1) The Jan Lokpal bill wanted that the CBI and CVC should merge with the Lokpal. In that case, the unnecessary time taken in transferring the cases from one place to another will be saved. Also, more transfers means lose hold. This is a major point.

2) Secondly, as I already pointed out, the appointment of CBI officers (other than the CBI Director) is still in the hands of the government only. This might mean that the officers will not be very much independent to conduct any inquiry against the government.

3) The CVC and CBI shall report to the Lokpal. However, for lower level officers, the Lokpal will not have a direct control. Therefore, this can be one loophole. In our day to day affairs, we need to interact with these junior level officers only, such as tax inspectors, over whom the Lokpal does not directly have a control.

Conclusion

All the important provisions of the Lokpal bill have been summarised above. Upon reading the same, we all have the right to decide whether the Lokpal bill presented in the Parliament, passed by the Lok Sabha and pending before the Rajya Sabha – whether it will help to curb the corruption cases in the country.

I am not here to give my opinion. I am only here to give the facts. I hope this was helpful. For verifying everything that I have written over here, I am also disclosing below the source of information for all these provisions.

Best regards,

CA. Palkesh Asawa

Sources of Information

1) The Lokpal Bill as passed by the Lok Sabha-

 http://www.prsindia.org/uploads/media/Lok%20Pal%20Bill%202011/Lokpal%20and%20Lokayuktas%20Bill%20as%20passed%20by%20LS.pdf

2) The Delhi Special Police Establishment Act (the law which governs CBI)

http://cbi.nic.in/aboutus/dspe.php