Delhi Janlokpal Bill 2015 – Critique & Recommendations

The National Campaign for Peoples’ Right to Information has maintained that a Lokpal/Lokayukta should be:

a) Adequately independent of the government and others whom it is mandated to scrutinise, so that it can function without interference, pressure, and conflict of interest;
b) Adequately empowered to detect, investigate and prosecute cases of corruption;
c) With appropriate jurisdiction;
d) Adequately accountable to the people;
e) And, yet, practical and realistically workable.

The current Bill, introduced in the Delhi Assembly, does not pass this test for the reasons detailed in this note.

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The NCPRI has consistently advocated that separate institutions with requisite jurisdiction and powers be set up to investigate and prosecute corruption of elected officials and bureaucracy; of the judiciary; and separately to redress grievances of citizens. We welcome the fact that the Delhi Janlokpal Bill 2015 focuses on offences related to corruption and does not include provisions to redress grievances of citizens, though unfortunately it seems to propose that the Dehi Janlokpal would also have jurisdiction over judges of the Delhi High Court and of the Supreme Court for complaints of offences allegedly committed in the Union Territory of Delhi.

Apart from this, it has various other weaknesses and deficiencies, which are described below:

Is it adequately Independent?

  1. Composition of the Selection Committee

Current provision in the bill:
Section 3(1)(a)-
“(a) the Chairperson and members of the Jan lokpal shall be appointed on the basis of the recommendation of a Selection Committee consisting of-
(i) The Chief Justice of the High Court – Chairperson.
(ii) The Chief Minister of Delhi – member.
(iii) The Leader of the Opposition in the Legislative Assembly and if there is no such leader, a person selected in this behalf by the Members of the Opposition in that House in such manner as the Speaker may direct – member.
(iv) The Speaker of the Legislative Assembly – member”

NCPRI recommendation
The bill envisages a selection committee for appointing the Lokpal that is biased in favour of the ruling party, with two of the four members being from the government and the ruling party (the CM and the Speaker). This militates against the independence of the Lokpal as the selection of its chairperson and members is done by a committee biased in favour of the ruling party. Further, the bill envisages an even numbered selection committee without providing for a solution to an impasse within the committee.

We recommend that the selection committee should not have a preponderance of members of the government and the ruling party. The composition of the committee could be the Chief Minster, Leader of the Opposition, and the Chief Justice of the High Court, who would chair it. Ideally, the committee should have an odd number of members. In case of an even numbered committee, the bill must provide for a casting vote to the chairperson of the committee (the Chief Justice of the High Court) in case of a tie.

  1. Complaints against chairperson & members of Lokpal & their removal

Current provision in the bill:
“6(1) The Chairperson or a Member of the Janlokpal shall not be removed from his office except by an order of the Lieutenant Governor passed after an address by the Legislative Assembly supported by a majority of the total membership of the legislative Assembly and by a majority not less than two thirds of the members thereof present and voting has been presented to the Lieutenant Governor in the same session for such removal on the ground of proved misbehavior or incapacity.

(2) The procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of the Chairperson or a Member of the Janlokpal under sub-section (1) shall be as prescribed in the Rules.”

NCPRI recommendation
The Lokpal is supposed to inquire into, investigate and prosecute cases of corruption filed against public servants, including the MLAs of the Delhi Legislative Assembly. A pre- requisite to ensure independence is that the Lokpal must be insulated from those over whom it has jurisdiction. By empowering the MLAs of Delhi to remove the members of Lokpal, the Bill of the Delhi government leaves the JanLokpal at the mercy of the ruling party, thereby compromising its independence.

Consequently, it is essential that the legislative assembly in no way be involved in this process and complaints against the members of the Lokpal be received directly by the Chief Justice of the High Court or the Supreme Court, who should deal with them appropriately with powers to have the complaints investigated and, if so warranted, recommend their removal to the Lt. Governor, who would be bound by the recommendation.

  1. Staff of the Janlokpal

Current provision in the Bill
 “20 The Government shall in consultation with the Janlokpal, provide officers and other employees to assist the Janlokpal in the discharge of their functions under this Act.”

NCPRI recommendation
This is undesirable as it renders the Janlokpal dependent on the government of the day, thereby severely compromising its autonomy. It also invariably results in the staff so deputed to be more loyal to the government, who control their future, than to the Lokpal. For safeguarding the effectivity and independence of the Lokpal, it is critical that it be enabled, and provided a budget, to select and appoint its own staff.

  1. Budget of the Lokpal

Current Provision in the Bill
The bill does not specify how the expenses of the Lokpal will be met.

NCPRI recommendation
In the absence of a provision specifying whether the Lokpal will have an independent budget, it is presumed that the relevant line department will, in its own budget, make provision for the expenses of the Lokpal. This is undesirable and will impact the autonomy and independence of the Lokpal as governments can constrain the functioning of institutions by squeezing their budgets. In order to ensure independence and autonomy of the Lokpal, the bill must provide for the budget of the Lokpal to be directly voted on by the Legislative Assembly, or the Parliament. The administrative expenses of the Lokpal, including all salaries, allowances and pensions payable to, or in respect of persons serving in that office, should be charged on the Consolidated Fund of the National Capital Territory of Delhi or the Consolidated Fund of India, respectively.

Is it adequately Empowered?

  1. Investigating agency

Current provision in the bill:
“10. (1) The Janlokpal may appoint or, with the consent of the Government, designate officers or agencies as Investigation Officers, authorized to investigate offences under this Act (hereinafter “Janlokpal Investigating Officer”)…
(5) Notwithstanding anything in this provision, the Janlokpal may, for the purpose of conducting any inquiry or investigation, utilise the services of any officer or organisation or investigation agency of the Central Government or the Government or any other government of any state or Union Territory, as the case may be. Provided however that if any law requires any prior consent or approval to be obtained for securing the assistance of any investigating agency or specialized investigating agency, the Janlokpal shall ensure all requisite compliances.
(6) For the purpose of inquiry or investigating into any matter, any officer or organisation or agency whose services are utilised under sub-section (5), may subject to the superintendence and direction of the Janlokpal exercise the powers of a civil court to ensure, –
(a)summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document;
(c)and requisition any public record or copy thereof from any office.”

NCPRI recommendation
The bill does not provide for a dedicated investigative agency/wing that would be available to conduct enquiries and investigations for the Lokpal. While the Lokpal has been given powers to appoint its investigative officers, in cases where it designates or utilizes services of any officer or organisation or investigation agency of any government, the Lokpal has only been given powers of superintendence and direction over such officer, or organisation, or agency. Powers of superintendence and direction are meaningless without administrative control, at least in terms of the appointments, transfers and removals, and in terms of writing the annual confidential reports. Therefore, it is essential that the appointments, transfers and removal of officers whose services are being utilised by the Janlokpal, while they are attached to the Lokpal, be done only with the concurrence of the Lokpal, and that the Chairperson or the concerned member of the Lokpal be the accepting authority for the annual confidential reports/APAR of such officers, during any year that they have been so attached.

 

Does it have appropriate Jurisdiction?

  1. Jurisdiction over public servants

Current provisions in the bill:

“7. Matter which may be inquired into by Janlokpal- Subject to the provisions of this Act, on receiving complaints from the Government or from members of the public or suo motu, the Janlokpal may proceed to inquire or investigate into the allegation of ‘corruption’ occurring in the National Capital Territory of Delhi.”
“2(c) “corruption” includes anything made punishable under Chapter IX of the Indian Penal Code, 1860 or under the Prevention of Corruption Act, 1988;”
“23 – Property statements of Public servants- (1) Every public servant as defined under Sub- section (c) of section 2 of the Prevention of Corruption Act, 1988 (Act 49 of 1988), working for the Government or its statutory authority(ies) or corporations (MCDs) or Delhi Development Authority (DDA) or Delhi Police shall within three months after the commencement of this Act and thereafter by 31st January of every year submit to his employer or the authority to which his services stand deputed, an annual statement of his assets and liabilities and those of the dependent Members of his family in such manner and in such format as may be prescribed by the Janlokpal.”

NCPRI recommendation
There appears to be ambiguity about the categories of public servants covered under the jurisdiction of the Lokpal. Whereas section 7 read with section 2(c) suggests that the Lokpal is competent to exercise jurisdiction over all the public servants covered under the PCA/ IPC (chapter IX) in so far as the offence occurs in the territory of the NCT of Delhi, the provision related to asset disclosures only covers public servants as defined under the PCA only if they are working for the Delhi government/authorities/corporations/DDA/Delhi Police.

Not submitting details of assets or concealing facts while disclosing assets, is considered an offence under the Act and attracts penalties. As the Act recognises corruption and non- compliance with provisions of asset disclosures, as offences under the Act, it is unclear why the jurisdiction of the Lokpal with respect to these provisions differs in terms of the categories of public servants covered under the Act.

Further, as section 7 allows for the Lokpal to exercise territorial jurisdiction in terms of any act of corruption occurring in the territory of NCT of Delhi, it is unclear how a legislation enacted by the Delhi Assembly will cover central government employees working for the central government and its authorities, judges, military personnel, chairpersons and members of Commissions/bodies set up under Central legislations passed by Parliament, who are covered under the (national) Lokpal & Lokayuktas Act 2014, the IPC and PCA or other central legislations. Inclusion of such persons under the Delhi Janlokpal Bill will raise questions over the jurisdiction, competence and powers of the Delhi Assembly to pass such legislations and will potentially get caught up in legal tussles between the Delhi government and Central government. The bill must unambiguously clarify its jurisdiction over categories of public servants and the categories of public servants should be uniform for all offences covered under the bill, and must be such that the Delhi Assembly is empowered and competent to cover through legislation.

 

  1. Provisions amending Central legislations

Current provision in the Bill

“17(2) Notwithstanding anything contained in the Prevention of Corruption Act, 1988 (49 of 1988), where any person is convicted for any act of corruption defined and investigated under this Act – or under the Prevention of Corruption Act, 1988 he shall be punished with rigorous imprisonment for a term which shall not be less than six months and may extend up to ten years and may, and in rarest of rare cases, extend up to imprisonment for life for special reasons to be recorded in writing and with fine.
Provided that the Special Court may, for reasons to be recorded in writing, award imprisonment for a term of less than six months.
(3) While awarding punishment, the Special Court may take into consideration the rank of the public servant while awarding him punishment and the Special Court may award higher punishment to a public servant holding higher rank.”

NCPRI recommendation
According to article 239AA of the Constitution where there is conflict/ inconsistency between an act passed by the Delhi Assembly and the national parliament, the national act will prevail, unless the Delhi act has the approval of the President (read “Central Government”). Therefore, it would be advisable to not include in this Bill any clauses that might conflict with/be repugnant to any Central Act, but, if necessary, introduce them later as supplementary legislation or as amendments, after approval of the Central Government, otherwise the Janlokpal Bill might be inordinately delayed, or even rejected.

 

Is the Janlokpal adequately Accountable?

  1. Provisions related to accountability of the Lokpal

Current provision in the bill:

“19. It shall be the duty of the Janlokpal to present annually to the Government a report on the work done by Janlokpal and on receipt of such report, the Government shall cause a copy thereof together with an explanatory memorandum to be laid before the Legislative Assembly.”

NCPRI recommendation
The Lokpal should be made accountable to the legislature for the maintenance of ethical standards within the institutions, specifically maintaining impartiality in functioning, especially the absence of political, caste, class, gender and religious bias, the prevention of victimization, and the avoidance of conflict of interests. Therefore, the bill must require the Lokpal to present a report to the Delhi Legislative Assembly, each year. The details required to be reported must be prescribed. In addition, the Speaker of the Legislative Assembly should constitute a multi-party Select/Deliberative Committee which would have the responsibility of examining the functioning of the Lokpal regarding those parameters of ethical functioning that might be prescribed and could include the maintenance of impartiality in functioning, especially the absence of political, caste, class, gender and religious bias, the prevention of victimization, and the avoidance of conflict of interests.

  1. Provisions related to complaints against staff of the Lokpal

Current provision in the bill:
Currently there are no provisions in the bill defining the mechanism for receiving and inquiring into complaints against the staff of the Lokpal.

NCPRI recommendation
In the absence of any provisions specifying the mechanism to receive and inquire into complaints against the staff of the Lokpal, it appears that the Lokpal itself will deal with complaints against its own staff. In keeping with the philosophy behind the independent Lokpal that no institution should be solely or primarily responsible for investigating and prosecuting its own officers in matters related to corruption, we think that it is only appropriate if the Lokpal does not deal with corruption complaints against its own officers. Therefore, an alternate system should be provided for in the Bill, perhaps providing for an Ombudsman empowered to receive and inquire into complaints against the staff of the Lokpal.

  1. Provisions related to closure of complaints made to the Lokpal

Current provision in the bill:
7. Subject to the provisions of this Act, on receiving complaints from the Government or from members of the public or suo motu, the Janlokpal may proceed to inquire or investigate into the allegation of ‘corruption’ occurring in the National Capital Territory of Delhi.
17.(1) After completion of investigation in any case against a public servant, the Janlokpal may either drop a complaint or initiate prosecution against such public servant and/or recommend initiation of disciplinary proceedings against any such public servant.

NCPRI recommendation
Section 7 of the bill states, “the Janlokpal may proceed to inquire or investigate into the allegation” (emphasis added). This clause unilaterally empowers the Lokpal to not pursue any complaint, if it so wishes, without stating the reasons why a complaint has been closed/rejected/dismissed. Such discretionary powers would be open to misuse. Further, Section 17 similarly empowers the Lokpal to “drop a complaint” after investigation, without proving any safeguards in terms of recording the reasons for ‘dropping’ a complaint. At the very minimum, the bill must specify the grounds on which a complaint could be closed/rejected/dismissed/ not inquired into. Further, the Lokpal must record, in writing, the reasons for closure/rejection/dropping of a complaint and be required to inform the complainant about the reasons for dropping/closing a complaint.

 

Is the Janlokpal Workable?

  1. Provisions related to coverage of categories of public servants

Current provision in the bill:

“7. Matter which may be inquired into by Janlokpal- Subject to the provisions of this Act, on receiving complaints from the Government or from members of the public or suo motu, the Janlokpal may proceed to inquire or investigate into the allegation of ‘corruption’ occurring in the National Capital Territory of Delhi.”

“2(c) “corruption” includes anything made punishable under Chapter IX of the Indian Penal Code, 1860 or under the Prevention of Corruption Act, 1988;”

NCPRI recommendation
It is unclear how a three-member Lokpal will exercise jurisdiction over lakhs of public servants the bill covers. The Bill envisages that the Lokpal will receive and inquire into complaints not just of public servants working for the Delhi government or central government employees working primarily for the Government of NCT of Delhi, but will also deal with complaints for all categories of public servants covered under the PCA and IPC in so far as the offence of corruption occurred in the territory of Delhi. Having such a large jurisdiction, the workability and effectiveness of the Lokpal would be undermined, especially as the proposed bill is silent about the existence of appropriate machinery/infrastructure to deal with a large quantum of complaints. The Bill ought to clarify its jurisdiction in terms of the categories and number of public servants it seeks to cover and also the envisaged process of dealing with the related quantum of complaints.

Miscellaneous Weaknesses and Deficiencies

  1. Provisions related to penalty for false complaints

Current provision in the bill:

9.(2) Every person who willfully or maliciously makes any false complaint under this Act, shall, on conviction, be punished with rigorous imprisonment which may extend to one year or with fine which may extend to one lakh rupees or with both.

NCPRI recommendation
The provision of punishment with rigorous imprisonment for false complaints is extremely regressive and undesirable and will discourage even genuine complainants.

The bill should only provide for a monetary fine, and must provide safeguards so that this provision does not get used either for punishing or discouraging genuine complainants whose complaints might not stand up to legal scrutiny, even though made in good faith.

 

  1. Process of selecting members and chairperson of the Lokpal

Current provision in the bill:

“3(1)(c) The Selection Committee shall regulate its own procedure for selecting the Members of the Janlokpal.”

NCPRI recommendation
The experience has been that high powered selection committees which are composed of Chief Minister, Leader of Opposition etc. ordinarily do not have the time to search out appropriate candidates. Therefore, the final selection is invariable decided by the dealing department which often puts before the selection committee an inadequate and/or inappropriate or truncated set of choices. Often, in the absence of proper provisions and safeguards, appointments are made in an arbitrary and non-transparent manner thereby raising questions on the credibility of appointments to important institutions. Therefore, the bill must provide for a mandatory search committee which should be tasked with searching and short-listing candidates, based on a rational criteria, for consideration by the selection committee.

Further, the bill must contain provisions to ensure transparency during the process of selection. The names of all candidates and relevant details must be proactively disclosed to the public and sufficient time (not less than a month) should be given for the public to send in their views, if any, pertinent to the candidature of any one or more of these candidates, along with relevant supporting material.

After the selection has been made, any adverse comments received about any of the selected candidates, along with reasons why they were not considered a disqualification, must be put into the public domain within a month of the completion of the selection process.

The bill must ensure transparency in the process of appointment by disclosing the process and criteria for short-listing and selecting candidates, disclosing records of all deliberations of the search and selection committee, and the names of short-listed candidates along with details of their qualification and background, and the reasons why the selected candidates were finally chosen over the others.

 

  1. Time frame for Conducting Trials

Current provision in the bill:

“18(2) The Court(s) or the Special Court(s) constituted under sub-section (1) shall ensure completion of each trial within a period of six months from the date of filing of the case in the Court.

Provided that in case the trial cannot be completed within a period of six months, the Court or Special Court(s) shall record reasons therefore and complete the trial within a further period of not more than three months or such further periods not exceeding three months each, for reasons to be recorded in writing before the end of each such three month period, but not exceeding a total period of one year.”

NCPRI recommendation
Whereas there must be a time frame for the completion of trial of cases, it is unclear what will happen, if the trial is not completed in the stipulated time-frame. The law must clarify that the delay should not be allowed to become the basis for the case being closed.

NCPRI

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