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Lokpal Bills A Comparative Picture Lokpal Bill Jan Lokpal Bill Govt version Bill no 39 of 2011 IACs Version

on 2.3 Row nos.


(Sections in the same order as in the proposed Bill i.e. in serial order) (Sections in this column more-or-less correspond to govt version. They are NOT IN SERIAL ORDER. Some sections, which are comparable to more than one section of the Govt Lokpal Bill, are REPEATED.) (This draft provides only for the Lokpal for central public servants. Similar provisions for Lokayuktas in the States to deal with public servants of the State will have to be incorporated in the bill)

Comparison, Main Points & Observations


The footnote to Jan Lokpal Bill on IAC website says that Jan Lokpal is only for central public servants. So we must ignore the inclusion of state legislature in Section 2(k) -- the pivotal definition of public authority. 1. Govt. Lokpal is intended to be an institution to: Enquire into allegations of corruption against SOME public functionaries if prima facie case is made out, to present a case before a special court to recommend disciplinary action by the Competent Authority 2. Jan Lokpal is NOT intended to recommend disciplinary action by the Govt department. It is intended to: motivate and protect whistleblowers hear public grievances against ALL public authorities at the Centre and in States investigate complaints of corruption wield powers of detection, search & seizure hold trials (not just hearings) award punishments (not just recommend

LONG TITLE A Bill to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

A Bill to establish an independent authority to investigate offences under the Prevention of Corruption Act, 1988 to detect corruption by expeditious investigation and to prosecute offenders and to ensure timely redressal of certain types of public grievances and to provide protection to whistleblowers.

punishment) proactively take steps to prevent corruption before it happens

PREAMBLE WHEREAS the Constitution of India established a democratic Republic to ensure justice for all; AND WHEREAS the country's commitment to clean and responsive governance has to be reflected in an effective institution to independently inquire into and prosecute acts of corruption; NOW, THEREFORE, it is expedient to establish a strong and effective institution to contain corruption. BE it enacted by Parliament in the Sixty-second Year of the Republic of India as follows:

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Govt Lokpal Bill preamble states that it will establish a strong and effective institution to contain corruption. It will aim to create clean and responsive governance. Jan Lokpal Bill has no preamble.

2.

No Preamble

Chapter I Preliminary

SHORT TITLE & COMMENCEMENT (1) This Act may be called the Lokpal Act, 2011. (2) It extends to the whole of India and also applies to public servants outside India.

1. (1) This Act may be called the Jan Lokpal Act, 2011. (2) It shall come into force on 120th day of its securing assent from the President of India.

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Govt Lokpal Bill will come into force from its date of being published in the Gazette. No deadline is imposed for its implementation, even after date of Presidents assent. Jan Lokpal Bill has a 4-month deadline. It shall come into force four months after assent.

2. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

DEFINITIONS (1) In this Act, unless the context otherwise requires,

In this Act, unless the context otherwise requires:-

(a) Bench means a Bench of the Lokpal; (b) Chairperson means the Chairperson of the Lokpal;

BENCH, CHAIRPERSON, BOARD & LOKPAL 2(a) Board means the Chairman and the other members of the Lokpal Collectively. 2(c) Lokpal means and includes, (i) Benches constituted under this Act and performing functions under this Act; (ii) Any officer or employee performing under this (iii) The Board in rest of the cases; 2(d) Lokpal Bench means a Bench of 2 or more members of the Lokpal acting together in respect of any matter in accordance with the regulations. Each bench shall have a member with legal background. 2(f) Full bench means a bench with seven members with or without the Chairperson

1. Govt Lokpal Bill: Does not define Lokpal defines Bench in a sketchy way 2. Jan Lokpal Bill has a detailed approach to decision-making process: It defines Lokpal as meaning its Benches, its employees and officers performing functions under this Act, and the Board taking decisions. It relates different bench strengths to the importance of the decision being made. It specifies that Full Bench means seven of its total strength of eleven, with or without Chairperson.

COMPETENT AUTHORITY (c) competent authority, in relation to (i) a member of the Council of Ministers, means the Prime Minister; (ii) a member of Parliament, other than a Minister, means

No Equivalent Provisions

1. Govt. Lokpal has a detailed definition of competent authority in relation to different public servants, including Union ministers, MPs, chairpersons of autonomous bodies constituted by the Central Govt. (Although not specified here, the Competent Authority is generally the authority empowered by law to hold a particular public servant answerable e.g. in case of govt. employees, the head of department empowered to call for

(A) in the case of a member of the Council of States, the Chairman of that Council; and (B) in the case of a member of the House of the People, the Speaker of that House; (iii) an officer in the Ministry or Department of the Central Government, means the Minister in charge of the Ministry or Department under which such officer is serving; (iv) a chairperson or members of any body, or Board or corporation or authority or company or society or autonomous body (by whatever name called) established or constituted by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it, means the Minister in charge of the administrative Ministry of such body, or Board or corporation or authority or company or society or autonomous body; (v) an officer of any body or Board or corporation or authority or company or society or autonomous body (by whatever name called) established or constituted by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it, means the head of such body or Board or corporation or authority or company or society or autonomous body; (vi) any other case not falling under sub-clauses (i) to (v) above, means the Central Government: Provided that if any person referred to in sub-clause

Departmental Enquiry and order Disciplinary Action.) 2. Jan Lokpal ignores the key concept of Competent Authority. Jan Lokpal aims to effectively disable Departmental Vigilance, Enquiry and Disciplinary Action and take over those functions. REASONS, JUSTIFICATIONS AND IMPLICATIONS: Jan Lokpal aims to centralize such powers with the Lokpal. Currently, such powers -- wielded in every department and PSU have no standardization. Vigilance, departmental enquiries and internal investigations in various departments are done with varying degrees of strictness or laxity. Subjective elements and internal politics play a large part in all of them. Punishments meted out as disciplinary action are usually mild e.g. letter of reprimand and warning, withholding promotions and increments etc. Unlike the proposed Jan Lokpal punishments, prosecution and imprisonment are usually not sought against corrupt public servants. On the flip side, as this function is dispersed throughout the system, Departmental Enquiry and disciplinary Action happens reasonably promptly i.e. in some months or a couple of years. This is unlike centralized court procedures with their long pendencies.

(iv) or sub-clause (v) is also a Member of Parliament, then the competent authority shall be (A) in case such member is a Member of the Council of States, the Chairman of that House; and (B) in case such member is a Member of the House of the People, the Speaker of that House;

Jan Lokpal Bill will end the autonomy of each and every central government department by taking over vigilance and departmental enquiry functions. (This is detailed in the provisions and explanations that follow.) PUBLIC AUTHORITY 1. Govt Lokpal Bill does not define public authority; it does not have to because it clearly defines the jurisdiction of the Lokpal, and thereby restricts it. 2. Jan Lokpal Bill does not clearly spell out Lokpals jurisdiction, but assumes jurisdiction over all public authorities at Central govt level. The definition of Public Authority is the same as in Right to Information Act.

No Equivalent Provisions
2(k) Public authority means any authority or body or institution of self-governance established or constituted i) by or under the Constitution; or ii) by or under any other law made by the Parliament, or a state legislature iii) by notification issued or order made by the Government, and includes any body owned, controlled or substantially financed by the Government;

(d) complaint means a complaint, made in such form as may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act, 1988;

COMPLAINT 2(b) Complaint means an allegation of corruption or a request by whistleblower for protection and appropriate action. 2(e) Act of corruption includes : i) anything made punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act, 1988; which would also include any offence committed by an elected member of a house of legislature even in respect of his speech or vote inside the house. ii) willfully giving any undue benefit to any person or

1. Govt Lokpal takes the Prevention of Corruption Act 1988 as the single reference point for its definition of corruption. Complaints would have to be made with reference to various provisions of this Act. 2. Jan Lokpal Bills definition of Complaint is very wide, and creates new dimensions by inclusion of whistleblowers plea. Besides offences defined under Prevention of Corruption Act, a complaint can include offences defined in Chapter IX of Indian Penal Code (Offences by or relating to public servants). It newly defines corruption over and above these legislations, and breaks new legal

obtaining any benefit from any public servant in violation of any laws or rules, iii) victimization of a whistleblower or a witness. iv) repeated violation of citizens charter by any public servant.

ground by mandating prosecution and punishments for offenses for which no legislation currently exists, viz: Offence committed by MPs speech or vote inside the house. MPs are currently protected by Parliamentary privilege and immunity in respect of all their actions in Parliament. Victimization of whistleblower or witness, although whistleblower-protection has not been legislated in India yet. Violation of citizens charter by public servant i.e. subtle corruption such as delays, negligence and non-performance of duties. The reference point for this legal provision would be the Citizens Charter, which is to be published by each department detailing the functions it will render to citizens. Citizens charter is made mandatory by Jan Lokpal Bill. Grievance Redressal is an enormous separate exercise envisaged in Jan Lokpal Bill. (There is no equivalent provisiojn in the Govt Lokpal Bill.) The reference point for grievances is citizens charter made mandatory for each public authority. Citizens Charter is elaborated under the heading of Grievance Redressal System in Section 25. SALIENT FEATURES: This section mandates that each public authority will prepare a specific citizens charter within one year of passing of Lokpal Bill.

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No Equivalent Provisions

GRIEVANCE REDRESSAL & CITIZENS CHARTER 2(h) Grievance means a claim by a person that he could not get satisfactory redressal according to a citizens charter despite approaching a Grievance Redressal Officer of that Department; 25. (1) Each public authority shall prepare a specific charter within a reasonable time not exceeding one year from the coming into force of this Act. (2) Every citizens charter shall enumerate the public

authoritys commitments to the citizens which are capable of being met within a specific time limit and shall designate the officer whose duty would be to fulfill the commitment of the public authority. (3) If any public authority does not prepare its citizens charter within a year, Lokpal shall notify the citizens charter on its own after consulting the public authority and the same shall be binding on that authority. (4) Each public authority shall make an assessment of the resources required to implement the citizens charter and the government shall provide such resources. (5) Each public authority shall designate an official called Public Grievance Redressal Officer in each station where the public authority has an office, to whom a complaint could be made for any violation of the citizens charter. (6) The Senior most officer of that public authority in that office will be designated as the Public Grievance Redressal Officer. (7) It shall be the duty of the Grievance Redressal Officer to get the grievance redressed within a period of 30 days from the receipt of the complaint. (8) In the event of even the Grievance Redressal Officer not getting the grievance redressed within the specific period of 30 days a complaint could be made to the Lokpal.

No Equivalent Provisions

If the public authority fails to do so, Lokpal will notify the charter on its own after consulting the public authority. This charter will spell out the public authoritys various deliverables to the citizens, with specific time limits. The onus for timely and proper service delivery will be placed on the shoulders of the head of the public authority, who will be designated as the Grievance Redressal Officer. Grievance Redressal Officer must get grievances redressed within 30 days. Otherwise the aggrieved person can file a complaint before Lokpal. Lokpal, after hearing the Grievance Redressal Officer, will (if the complaint is found to be justified) impose penalty of Rs 500 per day for each days delay, upto a maximum of Rs 50,000. This will be recovered from the officers salary. Lokpal may also recommend departmental punishment e.g. demotion, increment cut etc. Lokpal may issue appropriate directions for corrective measures to the public authority. The citizens charter will be reviewed every year by the public authority, in consultation with the public. In every district, one officer of Lokpal will be designated as Appellate Grievance Officer to receive grievances. A social

(9) The Lokpal after hearing the Grievance Redressal Officer would impose suitable penalty not exceeding Rs. 500/- for each days delay but not exceeding Rs. 50,000/- to be recovered from the salaries of the Grievance Redressal Officer. (10) Apart from levying the penalty on the Grievance Redressal Officer, the Lokpal may also in suitable cases recommend to the appropriate authority to have departmental punishment imposed on the Grievance Redressal Officer. (11) The Lokpal will also issue a direction to an appropriate authority to get such grievances redressed within the time to be fixed by the Lokpal. (12) Every public authority shall review and revise its Citizens Charter at least once every year through a process of public consultation to be held in the presence of a representative of Lokpal. (13) Lokpal may direct any public authority to make such changes in their citizens charter as are mentioned in that order and that public authority shall make such changes within a month of the receipt of such order. Provided that such changes shall have to be approved by at least a three member bench of Lokpal. (14) There shall be at least one officer of the Lokpal in each district to receive grievances who shall be called an Appellate Grievance Officer. However, in such places where there is more concentration of central

audit of his performance will happen every six months. No case will be closed unless the Appellate Grievance officer rejects the grievance, or the grievance is redressed.

No Equivalent Provisions

government offices, there shall be more Appellate Grievance Officers as may be required. (15) A social audit of each Appellate Grievance Officer shall take place every six months, in which he shall present himself before the public, present the data related to his functioning, respond to public queries and incorporate suggestions from public in his functioning. The public hearing shall be attended by a senior officer from Lokpal. (16) No case can be closed by Appellate Grievance Officer till the citizens grievance is redressed or the case is rejected by the Appellate Grievance Officer.

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WHISTLE BLOWERS 2(m) Whistleblower means any person, who provides information about corruption in a public authority or is a witness or victim in that case or who faces the threat of (i) professional harm, including but not limited to illegitimate transfer, denial of promotion, denial of appropriate perquisites, departmental proceedings, discrimination or (ii) physical harm, or (iii) is actually subjected to any harm; because of either making a complaint to the Lokpal under this Act, or for filing an application under the Right to Information Act, 2005 or by any other legal action aimed at preventing or exposing corruption or mal-governance.

No Equivalent Provisions

Jan Lokpal Bill brings RTI applicants and complainants under all forums under the authority of the Jan Lokpal, if they are threatened or actually harmed. (There is no equivalent provision in Govt. Lokpal Bill.) SALIENT FEATURES & AREAS OF CONCERN: Those affected by departmental proceedings may also get protection of Lokpal. Thus, departmental proceedings become open to scrutiny by Jan Lokpal if a public servant affected by it approaches Jan Lokpal and establishes prima facie that he was targeted for acting against corruption. In this case, the people holding departmental inquiries anywhere are themselves liable to become the target of a simultaneous inquiry. Public officials and others are encouraged

21. (1) Any public official or any other person having information of any corruption in any public authority would be encouraged to send the information confidentially to the Lokpal; and it shall be the duty of the Lokpal to get an inquiry made into such information and if necessary get an investigation made under the Prevention of Corruption Act. (2). It shall be the duty of the Lokpal to provide full protection to whistle blowers from any physical harm or administrative harassment. Identity of such whistle blowers shall also be protected if the whistle blower so desires.

No Equivalent Provisions

(3). For achieving this objective it shall be competent for the Lokpal to give suitable direction to any security agencies for providing security as well as to any other authority to ensure that no harassment is caused to such whistle blower. (4). Orders under this section shall be passed expeditiously and in any case within a month of receipt of complaint. Immediate action will be taken in cases involving a threat of physical victimization. (5) The investigations in complaints by whistleblowers facing physical or professional victimization shall be fast tracked and completed within three months of receipt of the same.

to send information of corruption confidentially to Lokpal, who will initiate suo moto enquiry and investigation. Lokpal will provide full protection to whistle-blowers, and protect him from physical harm and administrative harassment. Lokpal will be able to give suitable direction to ANY SECURITY AGENCIES, clearly cutting across all jurisdictional boundaries. It is not clearly spelled out anywhere what mechanisms and criteria Lokpal will have to differentiate genuine cases from persons suffering from persecution complex. Orders will be passed expeditiously, and maximum within one month. Immediate action will be taken in case of physical victimization. Again, mechanisms for taking immediate action are not clear. Investigations in complaints by whistleblowers facing physical or professional victimization will be completed in 3 months. This suggests that action will happen first, and investigation will follow later.

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PROVISIONS TO PREVENT CORRUPTION 31. (1) No government official shall be eligible to take up jobs, assignments, consultancies, etc. with any person, company, or organisation that he had dealt with in his official capacity.

No Equivalent Provisions
(2) All contracts, public-private partnerships, transfer by way of sale, lease, and any form of largesse by any public authority shall be done with complete transparency and by calling for public tender/auction/bids unless it is an emergency measure or where it is not possible to do so for reasons to be recorded in writing. Any violation of this shall make the contract/largesse void. The details of all such transactions would be put up by the public authority on a public website. (3) All contracts, agreements or MOUs known by any name related to transfer of natural resources, including land and mines to any private entity by any method like public-private partnerships, sale, lease or any form of largesse by any public authority shall be put on the website within a week of being signed.

Jan Lokpal issues suo moto directions binding on government officials and public authorities entering into dealings with private parties. These are in fact new laws in their own right: Govt officials are barred from taking up jobs, consultancies etc. with private parties with whom they deal in an official capacity. All contracts, sale, lease and public largesse must be done with complete transparency, after calling for public tenders etc. Violations of this law would make these transactions void ab initio. All contracts for transfer of natural resources by any method like sale, PPP etc. must be put on a website by the public authority within a week of being signed.

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No Equivalent Provisions

POWER TO CREATE DIFFERENT WINGS 18 (2) In particular and without prejudice to the generality of the power contained in sub-section (1) any such regulations may provide for all or any of the following matters, namely:a) the creation of different wings in the Lokpal to deal

This Section of Jan Lokpal must be looked at with caution, as it gives Lokpal the sweeping power to EXPAND & DIVERSIFY LIMITLESSLY by creating different wings. (Govt Lokpal Bill has no equivalent provision.)

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with different subjects like investigation, prosecution and grievances;

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(e) inquiry means an inquiry conducted under this Act by the Lokpal; (f) Judicial Member means a Judicial Member of the Lokpal appointed as such;

INQUIRY, JUDICIAL MEMBER & JUDICIAL OFFICER 22(3) A bench of judicial officers will conduct an inquiry against such government servant for imposition of penalty in which full opportunity to show cause would be given to such government servant. After conclusion of the inquiry the bench shall also determine the penalty, if any, to be awarded to that public servant. The decision of the bench will be subject to approval by a higher authority prescribed by the Lokpal by through regulations. 2(d) Lokpal Bench means a Bench of 2 or more members of the Lokpal acting together in respect of any matter in accordance with the regulations. Each bench shall have a member with legal background. 2(i) Judicial officer means the officer appointed under section 22 of this Act. 22(1) After the completion of an investigation against any government servant the Lokpal may either initiate prosecution against such public servant or may initiate proceedings for imposition of penalty or both. 22(2) Lokpal shall appoint such officers, who may be retired judges or retired civil servants or such others as may be provided, to act as judicial officers for the purpose of this section, at such terms and conditions as may be provided in regulations.

1. Govt Lokpal Bill specifies Judicial member of Lokpal. Judicial members are a necessary part of Lokpal bench, who will hold inquiry into cases after investigation. The purpose of this inquiry is to understand whether a case is made out for filing chargesheet and handing over the case to Lokpals Prosecution Wing. Prosecution Wing will then take file a case before Special Judges appointed by central government. More details in Section 23 of Govt. Lokpal Bill. 2. Jan Lokpal Bill specifies a member with legal background in each bench. These are not to be confused with judicial officers, who will be directly appointed by Jan Lokpal. The qualifications of judicial officers are quite different from Govt Lokpal Bill. KEY POINTS: Judicial officers may be retired judges, retired civil servants, or others i.e. not necessarily people with judicial or legal background. A bench of judicial officers will conduct an inquiry. This bench will determine the penalty to be awarded. The decision of the bench will be reviewed and approved by a higher authority (please note, not a court) prescribed by the Lokpal through regulations. It is possible that this higher authority may be a Lokpal

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22(3) A bench of judicial officers will conduct an inquiry against such government servant for imposition of penalty in which full opportunity to show cause would be given to such government servant. After conclusion of the inquiry the bench shall also determine the penalty, if any, to be awarded to that public servant. The decision of the bench will be subject to approval by a higher authority prescribed by the Lokpal by through regulations. 22(4) The recommendations so approved shall be binding on the appointing authority.

bench constituted by Lokpal members , as opposed to judicial officers. Once this is done, the recommendations shall be binding on the appointing authority i.e. the appointing authority will carry out the punishment. Punishment means dismissal, removal or reduction in rank etc. In short, Jan Lokpal will not recommend departmental enquiry and disciplinary action. It will itself conduct the equivalent of a departmental enquiry, get the decision ratified by a higher authority that Lokpal itself appointed, and then the decision of that inquiry will be binding on the appointing authority. SOME QUESTIONS: 1) Can such a legislation widely affecting public servants and the self-regulatory powers of thousands of government departments at centre and in various states -- be made so easily without consulting them? Does it not cut across many lines of jurisdiction, and effectively change dozens of laws, rules and regulations? 2) Does this legislation honour the timetested principles of natural justice and checks-and-balances? If one arm of Lokpal carries out the investigation, another arm of Lokpal conducts the enquiry and awards punishment, and a third arm of Lokpal ratifies this award, where are the checks and balances needed for administering justice?

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LOKPAL & MEMBER (g) Lokpal means the institution established under section 3; (h) Member means a Member of the Lokpal;

Not defined

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MINISTER (i) Minister means a Union Minister but does not include the Prime Minister;

Not defined

Govt Lokpal Bill keeps the present PM outside its ambit at the definitions stage itself. More about this later.

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NOTIFICATION & PRESCRIBED (j) notification means notification published in the Official Gazette and the expression notify shall be construed accordingly; (k) prescribed means prescribed by rules made under this Act;

Not defined

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PUBLIC SERVANT & GOVERNMENT SERVANT (l) public servant means a person referred to in clauses (a) to (g) of subsection (1) of section 17;

2(l) Public servant shall have the same meaning as defined in section 2(c) of Prevention of Corruption Act 1988. 2(g) Government Servant means a public servant, who is not an elected representative or a judicial officer.

1. Govt Lokpal Bill defines Public Servant more fully in Section 17, where it erects jurisdictional barriers. As per Govt. Lokpal Bill, public servants who can be investigated by Lokpal include: Prime Minister, after he has demitted office Current or former Union Minister Current or former Member of Parliament of Rajya Sabha or Lok Sabha Group A officer or equivalent or above, from amongst the public servants those serving in connection with the affairs of the Union Chairperson or member or officer equivalent

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to Group A officer in any board, corporation or autonomous body etc. established by Act of Parliament or wholly or partly financed by the Central Govt or controlled by it. (If they are currently working in connection with any State Govt, then consent of the concerned State Govt will be sought.) Current or former director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law or not) wholly or partly financed or aided by the Government, or receiving public donations, with annual income exceeding a certain amount specified by Central Government by notification. PLEASE NOTE: This definition brings any civil society under Lokpals ambit if they collect donations from the public. However, a minimum amount of donations collected will provide the cutoff point; presumably, it will be a reasonably high figure e.g. Rs 1 lakh, so that the authority is not swamped with cases. 2. As per Jan Lokpal Bill, Public Servant includes all of the above (except civil society). It also includes: All Central Govt employees Temporary staff Contractors and contract labour engaged by govt in various public works.

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It includes current as well as past Prime Minister, Ministers and MPs. Jan Lokpal Bill does not define minister, it only defines Public Servant and Government Servant. Judicial officers and elected representatives are Public Servants but not Government Servants. However, most of the time, Jan Lokpal Bill uses the two terms interchangeably. (More about this in discussion of Section 17 of Govt Lokpal Bill)

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REGULATIONS, RULES & SCHEDULE

Not defined
(m) regulations means regulations made under this Act; (n) rules means rules made under this Act; (o) Schedule means a Schedule to this Act;

Some mundane but important items are not defined or specified in the Jan Lokpal Bill.

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SPECIAL COURT (p) Special Court means the court of a Special Judge appointed under subsection (1) of section 3 of the Prevention of Corruption Act, 1988.

6. The Lokpal shall have the following functions and powers: e) to initiate prosecution before a Special Court established under the Prevention of Corruption Act, 1988 f) to ensure the proper prosecution of cases before a Special Court established under the Prevention of Corruption Act, 1988.

1. Govt Lokpal defines Special Court in terms of Section 3(1) of Prevention of Corruption Act 1988. This section says: (1) The Central Government or the State Government may, by notification in the. Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely: (a) any offence punishable under this Act; and (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). (2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has

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been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973. 2. Jan Lokpal Bill does not define Special Courts, but refers to the same under functions and powers of Lokpal to prosecute. KEY POINTS: Can the Central Government appoint Special Judges who will fall under the jurisdiction of High Courts in each State? Isnt it the job of State Govts? As special judges will be direct appointees of the government, it will be the governments prerogative to pick and choose. Lokpal seeks to prosecute ministers and bureaucrats before such judges. Isnt there a fatal conflict of interest being ignored by both Govt Lokpal and Jan Lokpal Bill, and Prevention of Corruption Act itself?

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No Equivalent Provisions

PENALTY & PUNISHMENTS 2(j) Penalty under this Act means punishment of dismissal, removal or reduction in rank PUNISHMENTS: 23. (1) For any act of corruption, the punishment shall not be less than six months of rigorous imprisonment and may extend up to imprisonment for life. (2) The Special Court may take into consideration the

1. Govt Lokpal Bill derives the Penalties and Punishments from existing laws such as Prevention of Corruption Act 1988, Central Civil Services Rules 1965 etc. and applies it to different offenses. Therefore, it does not find the need to issue fresh definitions or fresh directions in this category. 2. Jan Lokpal Bill creates a brand new set of punishments: Minimum punishment for acts of corruption is six months of rigourous

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higher rank of an accused person to inflict a more severe punishment. (3) If the beneficiary of an offense is a business entity, in addition to the other punishments provided for under this Act and under the Prevention of Corruption Act, a fine of up to five times the loss caused to the public shall be recovered from the accused and the recovery may be made from the assets of the business entity and from the personal assets of its Managing Directors, if the assets of the accused person are inadequate. (4) If any company or any of its officer or Director is convicted for any offence under Prevention of Corruption Act, that company and all companies promoted by any of that companys promoters shall be blacklisted and be ineligible for undertaking any government work or contract in future. (5) If a public servant is convicted under the Prevention of Corruption Act, such public servant shall stand removed from his office. 24. Wherever Lokpal directs imposition of financial penalty on any officer under this Act to be deducted from his salary, it shall be the duty of the Drawing and Disbursing Officer of that Department to implement such order, failing which the said Drawing and Disbursing Officer shall make himself liable for similar penalty.

imprisonment. Maximum punishment for corruption is life imprisonment. Public servant convicted of corruption will lose his job. If the beneficiary of an offense is a business entity, then in addition to all the other punishments under this Act and Prevention of Corruption Act, a fine of upto five times the loss to public will be recovered from the assets of the business entity, and from the personal assets of its managing directors if the assets of the directly accused person are inadequate. If a company or any of its officers or directors are convicted of corruption, then that company and all other companies will be blacklisted for undertaking any govt work or contract. If the Drawing and Disbursing Officer fails to deduct Lokpals fines from his salary, then he will himself become liable for a similar penalty. QUESTION: Is it so easy to invent stern punishments without consulting all those who would be affected by the rule-making? Are all of these in keeping with principles of natural justice?

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(2) Words and expressions used herein and not defined in this Act but defined in the Prevention of Corruption Act, 1988, shall have the meanings respectively assigned to them in that Act. (3) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.

CONFLICTS WITH OTHER ACTS & LAWS 3. Notwithstanding anything in any other Act or Law the provisions of this Act shall prevail and to the extent that the provisions of this Act are repugnant to any other provision in any other Act or law, the provisions in other Acts or laws shall stand amended to the extent of such repugnancy.

1. Govt Lokpal depends on Prevention of Corruption Act 1988 for its definitions. It takes the support of existing legal framework. 2. Jan Lokpal Bill assumes the power to override any existing legislation that contradicts it. In the ecosystem of Indias legislations and various authorities, it assumes that the highest place can be given to Lokpal without a debate.

Chapter 2 Establishment of Lokpal

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3. (1) As from the commencement of this Act, there shall be established, for the purpose of making inquiries in respect of complaints made under this Act, an institution to be called the Lokpal. (2) The Lokpal shall consist of (a) a Chairperson, who is or has been a Chief Justice of India or a Judge of the Supreme Court; and (b) such number of Members, not exceeding eight out of whom fifty per cent shall be Judicial Members. (3) A person shall be eligible to be appointed, (a) as a Judicial Member if he is or has been a Judge of the Supreme Court or a Chief Justice of a High Court; (b) as a Member other than a Judicial Member, if he is a person of impeccable integrity, outstanding

ESTABLISHMENT OF LOKPAL 4. (1) Immediately after the commencement of this Act, the Central Government by a Notification shall establish an institution known as Lokpal, who would have administrative, financial and functional independence from the government. (2) The Lokpal shall consist of a Chairperson and 10 other members and various officers under them at different levels to perform such functions as are assigned to them under this Act. (3) The Chairperson and the 10 members of the Lokpal shall be appointed by the President on the recommendation of a Selection Committee. (4) The following shall not be eligible to become

1. Govt Lokpal Bill stresses that the Chairperson of Lokpal will be at least a Supreme Court judge, and half the remaining eight members shall be judicial members. These judicial members will be judges of Supreme Court of Chief Justices of High Court. Other members shall be persons of impeccable integrity, and special knowledge of at least 25 years in anti-corruption policy, administration, vigilance, banking law, management etc. They shall not be MLAs, and cannot continue to hold business interests or practise any other profession. 2. Jan Lokpal Bill sets the professional bar considerably lower for qualification as a candidate: Any citizen of India above 45 years can qualify if he has never been charged with moral turpitude, and if he wasnt in government service in the past two years.

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ability and standing having special knowledge and expertise of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law, and management. (4) The Chairperson or a Member shall not be a member of Parliament or a member of the Legislature of any State or Union territory and shall not hold any office of trust or profit (other than the office as the Chairperson or a Member) or be connected with any political party or carry on any business or practise any profession and accordingly, before he enters upon his office, a person appointed as the Chairperson or a Member, as the case may be, shall, if (a) he holds any office of trust or profit, resign from such office; or (b) he is carrying on any business, sever his connection with the conduct and management of such business; or (c) he is practising any profession, cease to practise such profession. (5) The Chairperson and every Member shall, before entering upon his office, make and subscribe before the President an oath or affirmation in the form set out in the First Schedule.

Chairperson or Member of Lokpal: (a) Any person, who is not a citizen of India, or (b) Any person, against whom charges were ever framed by any court of law for any offence involving moral turpitude, or (c) Any person, who is less than 45 years in age, or (d) Any person, who was in the service of any government and has remitted office within the last two years, either by way of resignation or retirement. 4(5) At least four members of Lokpal shall have a legal background. Explanation: Legal Background means that the person should have held a judicial office in the territory of India for at least ten years or should have been an advocate in a High Court or the Supreme Court for at least fifteen years. 4(17) The Selection Committee shall, after considering all relevant information about the short listed candidates, select the required number of persons preferably through consensus. However, a person shall not be selected if 3 members of the Selection Committee disapprove such names. 4(18) The Selection Committee after selecting the persons to be appointed as members or Chairperson of the Lokpal shall ascertain their willingness to serve as members or Chairperson, as the case may be, before recommending the names to the President. 4(21) The Chairperson or members of Lokpal shall not be serving member of either the Parliament or the

Of the 11 Jan Lokpals (Chairperson plus 10 members), at least four should have legal background i.e. have held judicial office for at least 10 years, or should have been an advocate in High Court or Supreme Court for at least 15 years. Conversely, this means that six out of ten Jan Lokpal members WITHOUT such qualifications will wield the Lokpals sweeping powers. Their only qualification will be not having been charged with moral turpitude and that means 99.9 percent of us. However, a person cannot be appointed if three members of the selection committee disapprove of him. Also, if the selection committee feels that his earlier associations with any persons or activity will continue to hinder his functioning as Lokpal, then he will not be appointed as Lokpal.

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Legislature of any State and shall not hold any office of profit (other than the office as Chairperson or member) or carry on any business or practice any profession and accordingly, before he enters upon his office, a person appointed as the Chairperson or member of Lokpal shall(i) if he holds any office or profit, resign from such office; or (ii) if he is carrying on any business, sever his connection with the conduct and management of such business; or (iii) if he is practicing any profession, suspend practice of such profession, or (iv) if he is associated directly or indirectly with any other activity, which is likely to cause conflict of interest in the performance of his duties in Lokpal, he should suspend his association with that activity. Provided that if even after the suspension, the earlier association of that person with such activity is likely to adversely affect his performance at Lokpal, that person shall not be appointed as a member or Chairperson of Lokpal.

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APPOINTMENT OF SELECTION COMMITTEE 4. (1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of (a) the Prime Minister chairperson; (b) the Speaker of the House of the People member;

4(6) The Selection Committee shall consist of the following:(i) The Prime Minister of India, who will be the Chairperson of the Selection Committee. (ii) The Leader of the Opposition in the Lok Sabha (iii) Two judges of Supreme Court of India and two permanent Chief Justices of the High Courts selected by collegium of all Supreme Court judges (v) The Chief Election Commissioner of India

1. Govt Lokpal will be selected by a committee comprising PM, Speaker, Leaders of Opposition in Lok Sabha and Rajya Sabha, a Union cabinet minister, one sitting judge each of of SC and HC, one eminent jurist and one person of eminence in public life. 2. Jan Lokpal shall be selected by PM, Leader of Opposition in Lok Sabha, two judges each of

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(c) the Leader of Opposition in the House of the Peoplemember; (d) the Leader of Opposition in the Council of States member; (e) a Union Cabinet Minister to be nominated by the Prime Minister member; (f) one sitting Judge of the Supreme Court to be nominated by the Chief Justice of Indiamember; (g) one sitting Chief Justice of a High Court to be nominated by the Chief Justice of Indiamember; (h) one eminent Jurist to be nominated by the Central Government member; (i) one person of eminence in public life with wide knowledge of and experience in anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law, or management to be nominated by the Central Government member. (2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee.

(vi) The Comptroller & Auditor General of India (vii) All previous Chairpersons of Lokpal.

Supreme Court and High Courts, CEC, CAG and all previous Chairpersons of Lokpal.

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SELECTION PROCEDURE (3) The Selection Committee may, if it considers necessary for the purposes of selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of such persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance

4(7) The Selection Committee shall select the Chairperson and the other members of the Lokpal from out of a short list prepared by the Search Committee. The Chairperson shall be a person with extensive knowledge of law. (8) A Search Committee shall consist of 10 members. 5 of its members shall be selected by the Selection Committee from amongst the retired Chief Justices of India, the retired Chief Election Commissioners and the retired Comptroller and Auditor Generals with

1. Govt Lokpal Bill makes it optional for the Selection Committee to constitute a Search Committee to prepare a panel of suitable candidates. The Selection Committee will regulate its own selection procedure no transparent procedure is specified. The composition of the Search Committee is also not specified. 2. Jan Lokpal Bill specifies an extremely rigorous and open pre-selection procedure. It stipulates that:

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including insurance and banking, law, and management, or in any other matter which, in the opinion of the Selection Committee, may be useful in making selection of the Chairperson and Members of the Lokpal. (4) The Selection Committee shall regulate its own procedure for selecting the Chairperson and Members of the Lokpal which shall be transparent. (5) The term of the Search Committee referred to in sub-section (3), the fee and allowances payable to its members and the manner of selection of panel of names shall be such as may be prescribed.

impeccable reputation of integrity, who have not joined any political party after retirement and who are not holding any office under any government. The 5 members so selected shall, through consensus, co-opt another 5 members from the Civil Society in the search committee. (9) The Search Committee before preparing the short list will invite nominations from such eminent individuals or such class of people, whom they deem fit, for the position of Chairperson or the members of the Lokpal. (10) Only persons with impeccable integrity and record of public service particularly in the field of fighting corruption shall be eligible for being considered for nomination. (11) The recommendations about nominees should, interalia, contain details of any allegations faced by that candidate under any law, details of his work against corruption in the past, reasons why that person is suitable for the job and any other material that the search committee may decide. (12) The search committee, using any other means, shall collect as much information about the background and past achievements of these candidates. (13) Such nominations as are received shall be put on a web site for inviting comments from the people with regard to the suitability or otherwise of the nominees.

Lokpal Chairperson and 10 members MUST be selected from the panel of names given by the Search Committee. Who will constitute the Search Committee is clearly specified Transparent procedure of selection, by inviting nominations of eminent persons with suitable criteria The details of the recommendations must include the nominees background. The efforts that must be made by the Selection committee to verify the eligibility of the candidates/nominees Inviting comments from the public concerning suitability or otherwise of each nominee Consideration to be given to inputs from the public before preparing shortlist Further inputs from the public are to be solicited on the shortlisted candidates before it goes before the Selection committee.

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(14) The Search Committee after taking into consideration the comments/information received from the public shall prepare, preferably through consensus, the short list of 3 times the number of persons to be appointed as members of the Lokpal. (15) Any nominations to which objections are raised by any 3 members of the Search Committee shall not be included in the short list. (16) Before sending the short list to the Selection Committee, the Search Committee will get the names of the short listed persons put on a public web site to enable people to send any relevant information/comments about the shortlisted persons.

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FILLING UP OF VACANCIES 5. The President shall take or cause to be taken all necessary steps for the appointment of a new Chairperson and Members at least three months before the expiry of the term of such Chairperson or Member, as the case may be, in accordance with the procedure laid down in this Act.

4(19) The Government shall fill up a vacancy of the Chairperson or a member 3 months before the member or the Chairperson is due to retire. If the vacancy arises due to unforeseen reasons, it shall be filled within three months of such vacancy arising.

1. Govt Lokpal Bill puts the onus on President to ensure that necessary steps are taken for appointment of new Chairperson and members three months before the old one retires. 2. Jan Lokpal Bill puts the onus on the government. Presumably, that means the PMO will be held responsible. A CONTRADICTION ARISES HERE: Whichever authority is responsible for filling up vacancies becomes the appointing authority or Competent Authority of the Lokpal. Can Lokpal have the constitutional powers to investigate and prosecute its own Competent Authority?

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TERM OF OFFICE 6. The Chairperson and every Member shall, on the recommendations of the Selection Committee, be appointed by the President by warrant under his hand and seal and hold office as such for a term not exceeding five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier: Provided that he may (a) by writing under his hand addressed to the President, resign his office; or (b) be removed from his office in the manner provided in section 8.

4(22) A person appointed as the Chairperson or member of Lokpal shall hold office for a term of five years from the date on which he enters upon his office or upto the age of 70 years, whichever is earlier; Provided that ,(a) the Chairperson or member of Lokpal may, by writing under his hand addressed to the President, resign from his office; (b) the Chairperson or member may be removed from office in the manner provided in this Act.

1. Govt Lokpal Bill specifies that Chairperson or member shall be appointed by President of India, and have a five year term, or retire upon reaching the age of 70. 2. Jan Lokpal Bill is almost identical in this respect.

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SALARY, ALLOWANCES & CONDITIONS OF SERVICE 7. The salary, allowances and other conditions of service of (i) the Chairperson shall be the same as those of the Chief Justice of India; (ii) other Members shall be the same as those of a Judge of the Supreme Court: Provided that if the Chairperson or a Member is, at the time of his appointment, in receipt of pension (other than disability pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of service as the Chairperson or, as the case may be, as a Member, be reduced

4(23) There shall be paid to the Chairperson and each member a salary equal to that of the Chief Justice of India and that of the judge of the Supreme Court respectively; 4(24) The allowances and pension payable to and other conditions of service of the Chairperson or a member shall be such as may be prescribed by the government; Provided that the allowances and pension payable to and other conditions of service of the Chairperson or a member shall not be varied to his disadvantage after his appointment.

1. Govt Lokpal Bill specifies that Chairperson will enjoy the salary, allowance and other conditions equivalent to Chief Justice of India, and other members will enjoy those of Supreme Court judges. It also stipulates the conditions of the pension. 2. Jan Lokpal Bill is almost identical in this respect.

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(a) by the amount of that pension; and (b) if he has, before such appointment, received, in lieu of a portion of the pension due to him in respect of such previous service, the commuted value thereof, by the amount of that portion of the pension: Provided further that the salary, allowances and pension payable to, and other conditions of service of, the Chairperson or a Member shall not be varied to his disadvantage after his appointment.

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REMOVAL & SUSPENSION 8. (1) Subject to the provisions of sub-section (3), the Chairperson or any Member shall be removed from his office by order of the President on the grounds of misbehaviour after the Supreme Court, on a reference being made to it (i) by the President, or (ii) by the President on a petition being signed by at least one hundred Members of Parliament, or (iii) by the President on receipt of a petition made by a citizen of India and where the President is satisfied that the petition should be referred, has, on an inquiry held in accordance with the procedure prescribed in that behalf, reported that the Chairperson or such Member, as the case may be, ought to be removed on such ground.

11. (1). The Chairperson or any other member of the Lokpal shall only be removed from his office by the President, on the recommendation of the Supreme Court on any of the following grounds after the Supreme Court, on the complaint of any person, held an inquiry and found that he could on such ground be removed : (a) that he has been guilty of misbehavior; or (b) that he is unfit to continue in his office by reason of infirmity of mind or body; or (c) is adjudged an insolvent; or (d) engages during his term of office in any paid employment outside the duties of his office. (2) In any such proceeding the Supreme Court may also direct the suspension of such Chairman or member.

1. Govt Lokpal Bill states that President may suspend or remove Chairperson or member from office based on charges of corruption, misbehaviour, engaging in any business while in office, infirmity etc. President will refer this to Supreme Court for its opinion. 2. In addition to the above, Jan Lokpal Bill recommends that Supreme Court must give its opinion within three months. It specifies a fine and imprisonment of upto one year if the complaint is found to be frivolous or in bad faith.

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(2) The President may suspend from office the Chairperson or any Member in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in subsection (1), the President may, by order, remove from the office the Chairperson or any Member if the Chairperson or such Member, as the case may be, (a) is adjudged an insolvent; or (b) engages, during his term of office, in any paid employment outside the duties of his office; or (c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. (4) If the Chairperson or any Member is, or becomes, in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.

(3) On receipt of recommendation from the Supreme Court, the President shall forthwith remove the Chairperson or the member, as the case may be. (4) Supreme Court shall, as far as possible, make its recommendations within 3 months of receipt of complaint under this section. (5) If the complaint is frivolous or has been made with malafide intentions, Supreme Court may impose a fine or an imprisonment upto one year or both on the complainant.

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RESTRICTION ON EMPLOYMENT 9. (1) On ceasing to hold office, the Chairperson and every Member shall be ineligible for (i) reappointment as the Chairperson or a Member of the Lokpal; (ii) any diplomatic assignment, appointment as administrator of a Union territory and such other assignment or appointment which is required by law to be made by the President by warrant under his hand and seal; (iii) further employment to any other office of profit under the Government of India or the Government of a State; (iv) contesting any election of President or Vice President or Member of either House of Parliament or Member of either House of a State Legislature or Municipality or Panchayat within a period of five years from the date of cessation of holding the office of the Chairperson or Member. (2) Notwithstanding anything contained in subsection (1), a Member shall be eligible to be appointed as a Chairperson, if his total tenure as Member and Chairperson does not exceed five years.

4(25) The Chairperson and members of Lokpal shall not be eligible for appointment to any position in the Government of India or the government of any State or any such body which is funded by any of the Governments or for contesting elections to Parliament, State Legislature or local bodies.

1. Govt Lokpal Bill stipulates that after having served as Chairperson or member of Lokpal, he cannot take up diplomatic assignments or government positions at either Centre or State government, nor can he stand for elections of parliament, State Legislature, or local bodies. It also states that a Member can be made Chairperson, but his total tenure will be five years. 2. Jan Lokpal Bill is almost identical in this respect, except that it is silent on the elevation of Member to the position of Chairperson.

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MEMBER TO ACT AS CHAIRPERSON IN CERTAIN CIRCUMSTANCES 10. (1) In the event of occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the President may, by notification, authorise the senior-most Member to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy. (2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, the senior-most Member available, as the President may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

4(19) The Government shall fill up a vacancy of the Chairperson or a member 3 months before the member or the Chairperson is due to retire. If the vacancy arises due to unforeseen reasons, it shall be filled within three months of such vacancy arising.

1. Govt Lokpal Bill says that in the event of the Chairpersons office falling vacant due to unforeseen circumstances, or becomes unable to discharge his duties for some time, the President may issue a notification authorizing the seniormost member to act as Chairperson until the appointment of a new Chairperson. 2. Jan Lokpal Bill is silent on what happens if the office of Chairperson falls vacant.

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SECRETARY & OTHER OFFICERS 11. (1) The appointment of secretary and other officers and staff of the Lokpal shall be made by the Chairperson or such Member or officer of Lokpal as the Chairperson may direct: Provided that the President may by rule require that the appointment in respect of any post or posts as may be specified in the rule, shall be made after consultation with the Union Public Service Commission.

5. The Lokpal shall select and appoint a Secretary to the Lokpal who will have the rank of Secretary to the Government of India. He shall be competent to authenticate all orders passed by the Lokpal. (20) The Officers in the Lokpal shall be appointed by the Board or any other authority designated by the Regulations whether on a permanent basis or on a temporary basis.

1. Govt Lokpal Bill stipulates that Chairperson or member or even other officers of Lokpal may appoint secretary and other officers. Such appointments must be made after consultation with UPSC. 2. Jan Lokpal Bill is silent about UPSC. However, it stipulates that the Secretary will have the rank of a Secretary of Union Govt. He will be competent to authenticate all the orders of Lokpal.

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SALARIES, ALLOWANCES & CONDITIONS OF SERVICE (2) Subject to the provisions of any law made by

6. The Lokpal shall have the following functions and powers: g) to provide by rules for the terms and conditions of service including the allowances and pension payable

1. Govt Lokpal Bill says that all regulations made regarding conditions of service of secretary, officers and staff of Lokpal are subject to (a) provisions of law made by Parliament and (b)

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Parliament, the conditions of service of secretary and other officers and staff of the Lokpal shall be such as may be specified by regulations made by the Lokpal for the purpose: Provided that the regulations made under this subsection shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.

to the officers and staff of the Lokpal.

approval of the President. 2. Jan Lokpal Bill is silent on this seeking approval for salaries and allowances. It is uncertain whether this is an omission in drafting, or a deliberate assertion of Lokpals independence. However, Sec 18(3) states that for regulations framed for creation of different wings in the Lokpal, conferment of authority on officers, their work norms etc, Jan Lokpal will seek approval from Parliament.

Chapter 3

Investigation Wing
18. (1) The Lokpal may by notification make regulations consistent with this Act to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power contained in sub-section (1) any such regulations may provide for all or any of the following matters, namely:a) the creation of different wings in the Lokpal to deal with different subjects like investigation, prosecution and grievances; b) the conferment of authority on officers at different levels to exercise powers under the Act and to lay down the procedure for any inquiries including those relating to complaints against its officers or members of staff ; c) periods within which the investigations and inquiries have to be completed 1. Govt Lokpal Bill states that Lokpal shall constitute an Investigation Wing to investigate offences punishable under Prevention of Corruption Act, for which officers and staff will be made available by the Central Govt. evidently from the police force. After getting the consent of the State Govt, it may extend the jurisdiction of the Investigation Wing to the State Govt offices, as if they were members of the police force of that state. 2. Jan Lokpal Bill is sketchy in this area. It states that investigation wing and others will be created. AREA OF CONCERN: It does not say where it will derive its staff requirements from, and whether they will be from the police force or from civil society. It says that work norms and time limits for completion of the work will be stipulated by the

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INVESTIGATION WING 12. (1) Notwithstanding anything contained in any law for the time being in force, the Lokpal shall constitute an Investigation Wing for the purpose of conducting investigation of any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988: Provided that till such time the Investigation Wing is constituted by the Lokpal, the Central Government shall make available such number of investigation officers and other staff from such of its Ministries or Departments, as may be required by the Lokpal, for carrying out investigation under this Act. (2) The Central Government may, after obtaining

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consent of the concerned State Government, by notification, extend the powers and jurisdiction of officers of the Investigation Wing of the Lokpal in that State and the provisions of sub-sections (2) and (3) of section 5 of the Delhi Special Police Establishment Act, 1946, shall apply as if the members of the Investigation Wing were members of the police force of that State.

d) To provide for the taking of certain decisions by appropriate benches of the Lokpal by circulation only. (e) Work norms for each category of officers and staff of Lokpal.

regulations and procedures framed by the Lokpal.

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INVESTIGATION OFFICER TO HAVE POWERS OF POLICE 13. (1) No investigation shall be made by an investigation officer of the Investigation Wing below the rank of a Deputy Superintendent of Police or by any other officer of equivalent rank. (2) The investigation officers of the Investigation Wing shall have, in relation to the investigation of such offences referred to in sub-section (1) of section 12, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of such offences under the Prevention of Corruption Act, 1988.

(4) A complaint by any person may be made in the form of a First Information Report as provided under the Code of Criminal Procedure which will not require any payment of fee or affidavit and could be sent to any office of the Lokpal and shall not be rejected merely on the basis of motive or intention of the complainant.

1. Govt Lokpal specifies that all investigations will be done by an officer of the rank of DSP. The parameters of the investigation will be as per the offences under Prevention of Corruption Act 1988. 2. Jan Lokpal Bill states that complaint will be in the form of an FIR as defined in CrPC.

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INVESTIGATION OFFICER TO INQUIRE ON DIRECTION OF LOKPAL 14. (1) The Lokpal may, before holding any inquiry under this Act, by an order, require the investigation officer of its Investigation Wing to make, or cause to be made, a preliminary investigation in such manner as it may direct and submit a report to the Lokpal,

(5) The investigation in any case shall not be closed by the investigating officer without recording reasons for such closure.

1. Govt. Lokpal Bill says that before a full-scale investigation is to be conducted, a preliminary investigation must be conducted to discover whether Lokpal should go further with this case. The time limit is to be specified by Lokpal. 2. Jan Lokpal Bill does not specify any procedure to verify whether or not the FIR is warranted.

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within such time as may be specified by the Lokpal, to enable it to satisfy itself as to whether or not the matter requires to be inquired into by the Lokpal. (2) The investigation officer on receipt of an order under sub-section (1) shall complete the investigation and submit his report within the time specified under that sub-section.

However, it specifies that the investigating officer must necessarily record reasons if any case is to be closed.

Chapter 4 Prosecution Wing & Appointment of Director of Prosecution

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PROSECUTION WING 15. (1) The Lokpal may, by notification, constitute a prosecution wing and appoint a Director of prosecution and such other officers and employees to assist the Director of Prosecution for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under this Act. (2) The Director of prosecution shall, after having been so directed by the Lokpal, file a complaint before the Special Court, and take all necessary steps in respect of the prosecution of public servants in relation to any offence punishable under the Prevention of Corruption Act, 1988.

18. (1) The Lokpal may by notification make regulations consistent with this Act to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power contained in sub-section (1) any such regulations may provide for all or any of the following matters, namely:a) the creation of different wings in the Lokpal to deal with different subjects like investigation, prosecution and grievances; b) the conferment of authority on officers at different levels to exercise powers under the Act and to lay down the procedure for any inquiries including those relating to complaints against its officers or members of staff ; c) periods within which the investigations and inquiries have to be completed d) To provide for the taking of certain decisions by appropriate benches of the Lokpal by circulation only.

1. Govt Lokpal Bill specifies that prosecution wing will take steps to prosecute public servants under Prevention of Corruption Act 1988. 2. Jan Lokpal Bill is sketchy on this count. It has a wider ambit, but the limits of its powers are not specified.

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(e) Work norms for each category of officers and staff of Lokpal.

Chapter 5 Expenses on the Institution of the Lokpal

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EXPENSES OF THE LOKPAL 16. The expenses of the Lokpal, including all salaries, allowances and pensions payable to or in respect of the Chairperson, Members or secretary or other officers or staff of the Lokpal, shall be charged on the Consolidated Fund of India and any fees or other moneys taken by the Lokpal shall form part of that Fund.

26. (1) All expenses of the Lokpal shall be charged to the Consolidated fund of India. (2) The Board shall finalise the Lokpals budget in such a manner that it is less than % of the total revenues of the Government of India. (3) Lokpal shall not need any administrative or financial sanction from any government agency to incur expenditure.

1. Govt. Lokpal Bill does not specify any ceiling to the budget of Lokpal. 2. Jan Lokpal Bill specifies limit of one-fourth percent of Consolidated Fund of India. However, it specifies that it will not need administrative or financial sanction from government. This is to ensure working conditions similar to independence of Judiciary. How much is one-fourth percent of Govt Revenues? Budget 2010-11 states that total receipts in Consolidated Fund (revenue plus capital receipts) are Rs. 46,62,263 crore. One-fourth percent of that amount is Rs. 11,656 crore. Just to give you an idea of how much money this is, this is more than 10% of Indian Railways gross earnings for the year. Visualize the ticket fare of one in ten passengers and freight of one in ten good trains going directly to Lokpal!

Chapter 6 Jurisdiction in Respect of Inquiry

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17. (1) Subject to the other provisions of this Act, the Lokpal shall inquire into any matter involved in, or arising from, or connected with, any allegation of

INVESTIGATION AND PROSECUTION AGAINST HIGH FUNCTIONARIES

1. Govt Lokpal specifies that: Jurisdiction is restricted to Union of Ministers (except PM), current and past

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corruption made in a complaint in respect of the following, namely: (a) a Prime Minister, after he has demitted the office of the Prime Minister; (b) any other person who is or has been a Minister of the Union; (c) any person who is or has been a Member of either House of Parliament; (d) any Group A officer or equivalent or above, from amongst the public servants defined in subclauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruptions Act, 1988 when serving or who has served, in connection with the affairs of the Union; (e) any person who is or has been a chairperson or member or officer equivalent to Group A officer referred to in clause (d) or equivalent or above in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it: Provided that in respect of such officers referred to in clause (d) who have served in connection with the affairs of the Union or in any body or Board or corporation or authority or company or society or trust or autonomous body referred to in this clause

17. (1) No investigation or prosecution shall be initiated without obtaining permission from a 7-Member Bench of the Lokpal against any of the following persons:i) The Prime Minister and any other member of the Council of Ministers ii) Any judge of the Supreme Court or any High Court iii) Any Member of the Parliament

MPs of Lok Sabha and Rajya Sabha, and officers of Group A, equivalent rank or above in government or its boards, PSUs etc. If such officers are serving State Govt., then State Govts permission will be sought. Prime Minister will fall under its ambit after he demits office. MPs conduct in the Parliament -statements, questions asked, voting etc. will not be investigated. The jurisdiction includes trustees, directors, officers etc. of every other society, association, trust etc. whether registered or otherwise if the funds collected by it exceed a limit specified by Central Govt. by notification. While bodies formed for a religious purpose are spared, other civil-society bodies even unregistered bodies are not. Lokpal cannot appoint a separate Enquiry Commission for dealing with complaints made to it. Lokpal can enquire into any person who falls within the ambit of Prevention of Corruption Act 1988 (such as those acting on behalf of government, deputised by govt etc.) It will only deal with complaints that allege wrongdoing by a public servant (as defined by Prevention of Corruption Act) DURING HIS TENURE in that capacity

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but are working in connection with the affairs of the State or in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of the State Legislature or wholly or partly financed by the State Government or controlled by it, the Lokpal and the officers of its Investigation Wing or prosecution Wing shall have jurisdiction under this Act in respect of such officers only after obtaining the consent of the concerned State Government; (f) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) wholly or partly financed or aided by the Government and the annual income of which exceeds such amount as the Central Government may by notification specify; (g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public and the annual income of which exceeds such amount as the Central Government may by notification specify: Provided that nothing in this section shall apply in relation to the Prime Minister, in whatever capacity he may be holding an office as a public functionary:

not before or after that tenure. 2. Jan Lokpal does not accept limits on its jurisdiction. However, it specifies that it will seek clearance from a 7-member bench before investigating or prosecuting Prime Minister, any member of Council of Ministers, any judge of Supreme Court or High Court, or any MP. Jan Lokpal is not designed to address the issue of corruption by civil society organizations such as NGOs and Trusts. It only recognizes corruption by Public Authorities.

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Provided further that any person referred to in this clause shall be deemed to be a public servant under clause (c) of section 2 of the Prevention of Corruption Act, 1988 and the provisions of that Act shall apply accordingly: Provided also that nothing in clauses (e) and (f) and this clause shall apply to any society or association of persons or trust constituted for religious purposes. (2) Notwithstanding anything contained in subsection (1), the Lokpal SHALL NOT INQUIRE into any matter involved in, or arising from, or connected with, any such allegation of corruption against any Member of either House of Parliament in respect of anything said or a vote given by him in Parliament or any committee thereof covered under the provisions contained in clause (2) of article 105 of the Constitution. (3) The Lokpal may inquire into any act or conduct of any person other than those referred to in subsection (1), if such person is associated with the allegation of corruption under the Prevention of Corruption Act, 1988: Provided that, no action under this section shall be taken in case of a person serving in connection with the affairs of a State, without the consent of the State Government. (4) No matter in respect of which a complaint has

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been made to the Lokpal under this Act, shall be referred for inquiry under the Commissions of Inquiry Act, 1952. Explanation.For the removal of doubts, it is hereby declared that a complaint under this Act shall only relate to a period during which the public servant was holding or serving in that capacity.

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MATTERS PENDING BEFORE ANY COURT OR COMMITTEE 18. In case any matter or proceeding related to allegation of corruption under the Prevention of Corruption Act, 1988 has been pending before any court or committee of either House of Parliament or before any other authority prior to commencement of this Act or prior to commencement of any inquiry after the commencement of this Act, such matter or proceeding shall be continued before such court, committee or authority. Explanation.For the removal of doubts, it is herby declared that continuance of such matter or proceeding before any court or committee of either House of Parliament or before any other authority, except for such matters as are protected under clause (2) of article 105 of the Constitution or are pending before a court, shall not affect the power of the Lokpal to inquire into such matter under this Act.

1. Govt Lokpal specifies that matters pending before any court or committee of Lok Sabha or Rajya Sabha will not be taken up as fresh cases by Lokpal. However, Lokpal has powers to inquire into such matters also.

No Equivalent Provisions

2. Jan Lokpal is silent on this front.

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CONSTITUTION OF BENCHES OF LOKPAL 19. (1) Subject to the provisions of this Act, (a) the jurisdiction of the Lokpal may be exercised by Benches thereof; (b) a Bench may be constituted by the Chairperson with two or more Members as the Chairperson may deem fit; (c) every Bench shall ordinarily consist of at least one Judicial Member; (d) where a Bench consists of the Chairperson, such Bench shall be presided over by the Chairperson; (e) where a Bench consists of a Judicial Member, and a non-Judicial Member, not being the Chairperson, such bench shall be presided over by the Judicial Member; (f) the Benches of the Lokpal shall ordinarily sit at New Delhi and at such other places as the Lokpal may, by regulations, specify. (2) The Lokpal shall notify the areas in relation to which each Bench of the Lokpal may exercise jurisdiction. (3) Notwithstanding anything contained in subsection (2), the Chairperson shall have the power to constitute or reconstitute Benches from time to time. (4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such nature that it

10. (1) The Lokpal may regulate the procedure for the transaction of its business or that of its officers as also allocation of its business amongst the different benches of Lokpal.

1. Govt Lokpal specifies that: Benches may exercise the jurisdiction of the Lokpal. Two-person benches may be formed, consisting of at least one judicial member, and the bench shall be presided by the judicial member. The benches shall ordinarily sit at New Delhi, but some benches may sit at other places also. The jurisdiction may be divided between different benches. Chairman may reconstitute benches. Cases may be transferred to another bench of three or more members. 2. Jan Lokpal says is very sketchy about how it will constitute benches, and how it will actually handle the workload put before it.

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ought to be heard by a Bench consisting of three or more Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit.

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DISTRIBUTION OF BUSINESS 20. Where Benches are constituted, the Chairperson may, from time to time, by notification, make provisions as to the distribution of the business of the Lokpal amongst the Benches and also provide for the matters which may be dealt with by each Bench.

No Equivalent Provisions

Govt. Lokpal specifies that distribution of business among benches can periodically change at the discretion of the Chairperson.

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POWER OF CHAIRPERSON TO TRANSFER CASES 21. On an application for transfer made by the complainant or the public servant, the Chairperson, after giving an opportunity of being heard to the complainant or the public servant, as the case may be, may transfer any case pending before one Bench for disposal to any other Bench.

No Equivalent Provisions

Govt Lokpal specifies that if complainant or public servant requests for transfer of the case to another bench, it may be transferred to another bench.

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DECISION TO BE BY MAJORITY 22. If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Lokpal and such

No Equivalent Provisions

If the members of a two-member bench differ on a point or points, then the Chairperson or other members of Lokpal can be brought in to decide those points based on a majority opinion.

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point or points shall be decided according to the opinion of the majority of the Members of the Lokpal who have heard the case, including those who first heard it.

Chapter 7 Procedure in respect of Inquiry and Investigation

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PROCEDURE IN RESPECT OF INQUIRY & INVESTIGATION 23. (1) The Lokpal, on receipt of a complaint, may either make a preliminary inquiry or direct its Investigation Wing, to make a preliminary investigation to ascertain whether there exists a prima facie case for proceeding in the matter. (2) Every preliminary inquiry or preliminary investigation referred to in sub-section (1) shall ordinarily be completed within a period of thirty days and for reasons to be recorded in writing, within a further period of three months from the date of receipt of the complaint. (3) Upon completion of the preliminary investigation, the investigating authority shall submit its report to the Lokpal. (4) Before the Lokpal comes to the conclusion in the course of a preliminary inquiry and after submission of a report referred to in sub-section (3) that a

20. (1) Every investigating officer shall endeavour to complete the investigation of an offence within a period of 6 months but when necessary he may obtain extension of time from a Bench of the Lokpal. In any case the period of investigation shall not extend 18 months. 22. (1) After the completion of an investigation against any government servant the Lokpal may either initiate prosecution against such public servant or may initiate proceedings for imposition of penalty or both. (3) A bench of judicial officers will conduct an inquiry against such government servant for imposition of penalty in which full opportunity to show cause would be given to such government servant. After conclusion of the inquiry the bench shall also determine the penalty, if any, to be awarded to that public servant. The decision of the bench will be subject to approval by a higher authority prescribed by the Lokpal by through regulations. (4) The recommendations so approved shall be binding on the appointing authority.

1. Govt Lokpal Bill says that: Upon receiving a complaint, it may either itself make a preliminary enquiry, or direct its Investigation Wing to do so. The purpose is to ensure that the complaint is worth entertaining that it is not baseless. Preliminary investigation is ordinarily to be completed with 30 days. It can take a maximum of three months, but reasons for the delay must be recorded. Then the public servant should be given an opportunity to be heard. Then the Lokpal will come to the conclusion whether there exists sufficient reason to make out a case against the public servant. If the report of the preliminary investigation reveals that the complaint is baseless, then the complaint will be closed, and the decision will be communicated to complainant and public servant.

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prima facie case is made out against the public servant pursuant to such a preliminary inquiry, the Lokpal shall afford the public servant an opportunity of being heard. (5) Where the Lokpal, after receiving the report of the investigating authority pursuant to a preliminary investigation or conclusion of the preliminary inquiries as referred to in subsection (1) is satisfied that no prima facie case is made out for proceeding further in the matter, the complaint shall be closed and the decision thereon be communicated to the complainant and the public servant. (6) Where the Lokpal is of the opinion that prima facie case is made out and refers the matter for investigation, upon completion of such investigation and before filing the chargesheet, the public servant against whom such investigation is being conducted shall be given an opportunity of being heard. (7) Every inquiry conducted by the Lokpal, upon being satisfied that a prima facie case is made out, shall be open to the public provided that in exceptional circumstances and for reasons to be recorded in writing by the Lokpal, such inquiry may be conducted in camera. (8) In case the Lokpal proceeds to inquire into the complaint under sub-section (7) it shall hold such inquiry as expeditiously as possible and complete the inquiry within a period of six months from the date of receipt of the complaint which, for reasons to be recorded in writing, may be extended by a

(6) The hearings in any proceedings before the Lokpal shall be held in public except in exceptional circumstance where it is not in public interest to do so and the reasons for the same shall be recorded in writing before those proceedings are held in camera. The hearings held in public shall be video recorded and shall be made available to the public on payment of copying cost.

If preliminary investigation reveals that there is enough substance in the complaint to merit a full-scale investigation, then investigation will be taken up. After a thorough investigation is complete, and before a chargesheet is filed against the public servant, he will again be given an opportunity to be heard. Wherever Lokpal is satisfied that the complaint is not baseless, this enquiry will be carried out in a way that is open to the public. If this is not done in exceptional cases, the reasons will be recorded in writing. After preliminary enquiry, the full-scale enquiry into complaint will be completed within six months. If necessary, this period can again be extended by six months, for which reasons must be recorded in writing. If the Chairperson sees fit, the Lokpal can directly refer the matter for full-scale Investigation without any preliminary enquiry. However, at the end of this investigation, the public servant will be given an opportunity to be heard. If a complaint is admitted, the Lokpal may, at any stage, pass appropriate orders for safekeeping of the records and documents, and also give a copy to the public servant so that he can prepare his own defense. The Lokpal website shall keep the public

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further period of six months. (9) The public servant against whom an inquiry is being conducted under sub-section (8) shall be given an opportunity of being heard. (10) Where in a case the Lokpal is of the opinion and for reason to be recorded in writing that it is not in the interest of justice to either hold a preliminary inquiry or preliminary investigation, it may refer the matter for investigation. (11) Upon completion of such investigation but before filing a charge sheet, the investigating authority shall place the records in its possession along with its prima facie conclusion before the Lokpal who shall before directing that a charge sheet be filed afford the public servant concerned an opportunity of being heard. (12) If the Lokpal proposes to inquire into a complaint, it may, at any stage, (a) pass appropriate orders for safe custody of the documents relevant to the inquiry as it deems fit; and (b) forward a copy of the complaint to the public servant concerned along with all relevant material relied upon and afford him an opportunity to represent his case. (13) The website of the Lokpal shall, from time to time and in such manner as may be specified by regulations, display to the public, the status of

informed about the disposal status of various complaints. The Lokpal may withhold records and evidence from the public if it feels that the progress of the case may be impeded by publishing it. Other than this, the procedure for carrying out enquiry or investigations will be as per the regulations.

2. Jan Lokpal Bill specifies that: Every investigating officer will complete investigations within six months. He may get extensions for this, but 18 months is the maximum period. Special Courts trying cases under Prevention of Corruption Act will complete the trial within 12 months. Towards speedy trials, Lokpal will assess the backlogs before such courts, and make recommendations to the government to appoint more special courts. Such recommendations will be binding on the government. Chief Justices of High Courts will constitute sufficient numbers of special benches at the high court to hear the appeals of these cases without causing pendencies. Such judges and benches will hear only these cases, and not other cases. After completing investigations against any public servant, the Lokpal may initiate

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number of complaints pending before it or disposed of by it. (14) The Lokpal may withhold the records and evidence which are likely to impede the process of inquiry or conduct of a case by it or by the Special Court. (15) Save as otherwise provided, the manner and procedure of conducting an inquiry or investigation under this Act, shall be such as may be specified by regulations.

either prosecution, or proceedings for imposition of penalty (e.g. demotion), or both. A bench of judicial officers will conduct proceedings for departmental penalty. The order of this bench will be subject to review by a higher authority. The nature of this higher authority has not been specified by Jan Lokpal Bill. The hearings will generally be held in open court, except in exceptional circumstances. Public hearings shall be video recorded, and shall be made available to the public. 1. Govt Lokpal Bill explicitly and repeatedly specifies that every person under investigation shall be entitled to inspect any record being used in prosecuting him, and take extracts as necessary for defending his case. 2. Jan Lokpal Bill makes no mention of this right.

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INSPECTION OF DOCUMENTS & FURNISHING OF COPIES 24. In cases where, an investigation or inquiry into a complaint is proposed to be initiated by the Lokpal, every person against whom such inquiry or investigation is proposed to be conducted, shall be entitled to inspect any record in connection with the commission of any alleged offence and take an extract therefrom, as is considered necessary to defend his case.

No Equivalent Provisions

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PERSONS LIKELY TO BE PREJUDICIALLY AFFECTED TO BE HEARD 25. If, at any stage of the proceeding, the Lokpal (a) considers it necessary to inquire into the conduct of any person other than the prospective accused;

No Equivalent Provisions

1. Govt Lokpal Bill states that if it considers it necessary to enquire into the conduct of any person other than the one being tried, it will give him an opportunity to be heard so that he can protect his own reputation.

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or (b) is of opinion that the reputation of any person other than an accused is likely to be prejudicially affected by the inquiry, the Lokpal shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence, consistent with the principles of natural justice: Provided that nothing in this section shall apply where the credibility of a witness is being questioned. LOKPAL MAY REQUIRE ANY PUBLIC SERVANT OR ANY OTHER PERSON TO FURNISH INFORMATION, ETC. 26. Subject to the provisions of this Act, for the purpose of any inquiry or investigation, the Lokpal or the investigating authority, as the case may be, may require any public servant or any other person who, in its opinion, is able to furnish information or produce documents relevant to such inquiry or investigation, to furnish any such information or produce any such document.

2. Jan Lokpal Bill is silent on this right. The element of Natural Justice is weak in Jan Lokpal Bill.

This provision of Govt Lokpal Bill is fully fleshed out in its Section 31.

No Equivalent Provisions

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PREVIOUS SANCTION NOT NECESSARY FOR INVETSIGATION AND INITIATING PROSECUTION 27. (1) No sanction or approval shall be required by the Lokpal or its Investigation Wing under section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988 for the purpose of making inquiry by the Lokpal or

29. (1) Section 19(1) and 19(2) of the Prevention of Corruption Act shall be deleted. (2) Section 6A of the Delhi Special Police Establishment Act shall not be applicable to the proceedings under this Act. (3) Section 197 of Cr. PC shall not applicable to any proceedings under this Act.

1. This is a very important provision of Govt Lokpal Bill. It removes the difficulties faced by civil society for prosecuting public servants. Section 197 of CrPC and Section 19 of PCA 1988 require prior sanction from the higher-ups of the official before prosecuting them. But it does not apply to the Lokpal and its Investigation Wing.

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investigation by its Investigation Wing into any complaint against any public servant or for filing of any complaint in respect thereof before the Special Court under this Act. (2) A Special Court may, notwithstanding anything contained in section 197 of the Code of Criminal Procedure, 1973 or section 19 of the Prevention of Corruption Act, 1988, on a complaint filed by the Lokpal or any officer authorised by it in this behalf, take cognizance of offence committed by any public servant. (3) Nothing contained in sub-sections (1) and (2) shall apply in respect of the persons holding the office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal of such person has been specified therein. (4) The provisions contained in sub-sections (1), (2) and (3) shall be without prejudice to the generality of the provisions contained in article 311 and subclause (c) of clause (3) of Article 320 of the Constitution.

2. Jan Lokpal Bill goes even further. It states that: Sub-sections 19(1) and 19(2) of Prevention of Corruption Act shall be deleted. Section 6A of Delhi Special Police Establishment Act and also Section 197 of CrPC, which have similar implications, shall not be applicable to any proceedings of Lokpal.

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ACTION AGAINST PUBLIC SERVANTS NOT BEING MINISTERS OR MPS 28. (1) Where, after the conclusion of the inquiry or investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act, 1988 by a public servant referred to in clause (c) or clause (d) of sub-section (1) of section 17, the Lokpal may (a) file a case in the Special Court and send a copy of the report together with its findings to the

22. (1) After the completion of an investigation against any government servant the Lokpal may either initiate prosecution against such public servant or may initiate proceedings for imposition of penalty or both. (3) A bench of judicial officers will conduct an inquiry against such government servant for imposition of penalty in which full opportunity to show cause would be given to such government servant. After conclusion of the inquiry the bench shall also determine the penalty, if any, to be awarded to that public servant.

1. Govt Lokpal says that after conclusion of inquiry or investigation, the findings of the Lokpal can be used for: Filing a case in a Special Court, OR For recommending disciplinary proceedings by the competent authority, who is supposed to commence proceedings within 30 days. 2. Jan Lokpal Bill differs in the second option. Instead of recommending disciplinary action by the

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competent authority; (b) recommend to the competent authority the initiation of disciplinary proceedings under the rules of disciplinary proceedings applicable to such public servant; (c) provide a copy of the report to the public servant or his representative. (2) The competent authority shall, within a period of thirty days of the receipt of recommendation under clause (b) of sub-section (1), initiate disciplinary proceedings against the delinquent public servant accused of committing offence under the Prevention of Corruption Act, 1988 and forward its comments on the report, including the action taken or proposed to be taken thereon, to the Lokpal ordinarily within six months of initiation of such disciplinary proceedings.

The decision of the bench will be subject to approval by a higher authority prescribed by the Lokpal by through regulations.

competent authority, it will initiate penalty proceedings before a bench of judicial officers of Lokpal.

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ACTION AGAINST PUBLIC SERVANTS WHO ARE MINISTERS AND MPS 29. (1) Where, after the conclusion of the inquiry or investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act, 1988 by a public servant referred to in clause (a) or clause (b) of sub-section (1) of section 17, the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority. (2) The Prime Minister, in the case of the Minister, the Speaker in the case of a Member of the House

No Equivalent Provisions

1. Govt Lokpal Bill says that a report of Lokpals investigation findings will be sent to competent authority as follows: If report is against a Minister it will be sent to the Prime Minister in his capacity as the competent authority If report is against a Member of Lok Sabha, it will be sent to the Speaker If report is against a Member of Rajya Sabha, it will be sent to the Chairman of Rajya Sabha. They will cause the report to be laid before the Lok Sabha or Rajya Sabha at the earliest as per the timelines given. The competent authority will

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of the People, and the Chairman of the Council of States, in the case of a Member of that Council shall, as soon as may be, after the receipt of report under sub-section (1), cause the same to be laid before the House of the People or the Council of States, as the case may be, while it is in session, and if the House of the People or the Council of States, as the case may be, is not in session, within a period of one week from the reassembly of the said House or the Council, as the case may be. (3) The competent authority shall examine the report forwarded to it under sub-section (1) and communicate to the Lokpal, within a period of ninety days from the date of receipt of the report, the action taken or proposed to be taken on the basis of the report. Explanation. In computing the period of ninety days referred to in this sub-section, any period during which Parliament or, as the case may be, either House of Parliament, is not in session, shall be excluded.

examine the report and communicate to the Lokpal within 90 days the action taken or proposed. 2. Jan Lokpal Bill does not have an equivalent provision.

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APPEALS AGAINST THE ORDERS OF LOKPAL 12. Any orders passed by any bench of the Lokpal or any officer of the Lokpal shall be subject to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. Ordinarily, a High Court shall not stay the order. However, if it does, it will have to decide the case within two months, else the stay would be deemed to have been vacated after two months and no further stay in that case could be granted.

No Equivalent Provisions

Jan Lokpal Bill seeks to close a major loophole in the law, which is currently enabling wrongdoers to nullify even good orders of various tribunals, commissions etc. by simply bringing a stay order. To counter this, Jan Lokpal Bill specifies that while it is possible to appeal against the orders of the Lokpal bench, High Courts must not Stay the order. In case they do, then the stay will be automatically assumed to be vacated at the end of two months.

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QUESTION: Can such a major legislation -effectively limiting the power of higher judiciary -be framed so easily without referring it to Supreme Court for considerations?

Chapter 8 Powers Of Lokpal

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SEARCH AND SEIZURE 30. (1) If the Lokpal has reason to believe that any document which, in its opinion, shall be useful for, or relevant to, any investigation or inquiry under this Act, are secreted in any place, it may authorise any officer of the Investigation Wing, to search for and to seize such documents. (2) If the Lokpal is satisfied that any document seized under sub-section (1) would be evidence for the purpose of any investigation or inquiry under this Act and that it would be necessary to retain the document in its custody or in the custody of such officer as may be authorised, it may so retain or direct such officer authorised to retain such document till the completion of such investigation or inquiry: Provided that where any document is required to be returned, the Lokpal or the authorised officer may return the same after retaining copies of such document duly authenticated. (3) The provisions of the Code of Criminal Procedure, 1973 relating to searches shall,

Issue of search warrants: 9. (1) Where, in consequence of information in his possession, the Lokpal (a) has reason to believe that any person (i) to whom a summon or notice under this Act, has, been or might be issued, will not or would not produce or cause to be produced any property, document or thing which will be necessary or useful for or relevant to any inquiry or other proceedings to be conducted by him; It may by a search warrant authorize any officer not below the rank of an Inspector of Police to conduct a search or carry out an inspection in accordance therewith and in particular to, enter and search any building or place where he has reason to suspect that such property, or document, is kept; (2) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, so far as may be, to searches and seizures under sub-section (1). (3) A warrant issued under sub-section (1) shall for all purposes, be deemed to be a warrant issued by a court

1. Govt Lokpal Bil gives Lokpal powers to authorize search and seizure of documents, and to retain it in safe custody. If the documents are to be returned, it will do so after retaining duly authenticated copies. 2. Jan Lokpal Bill also gives Lokpal powers of Civil Court, Criminal Court and also Police. It specifies: Lokpal has powers to issue search warrant if it feels that the relevant documents will not be produced otherwise. Members and officers of Lokpal have powers of a search and seizure as per Criminal Procedure Code.

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so far as may be, apply to searches under this section subject to the modification that subsection (5) of section 165 of the said Code shall have effect as if for the word Magistrate, wherever it occurs therein, the words Lokpal or any officer authorised by it were substituted.

under section 93 of the Code of Criminal Procedure, 1973.

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LOKPAL TO HAVE POWERS OF CIVIL COURT 31. (1) Subject to the provisions of this section, for the purpose of any inquiry, the Lokpal shall have all the powers of a civil court, under the Code of Civil Procedure, 1908, while trying a suit in respect of the following matters, namely: (i) summoning and enforcing the attendance of any person and examining him on oath; (ii) requiring the discovery and production of any document; (iii) receiving evidence on affidavits; (iv) requisitioning any public record or copy thereof from any court or office; (v) issuing commissions for the examination of witnesses or documents: Provided that such commission, in case of a witness, shall be issued only where the witness, in the opinion of the Lokpal, is not in a position to attend the proceeding before the Lokpal; and (vi) such other matters as may be prescribed. (2) Any proceeding before the Lokpal shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code.

7. (1) The Investigating Officers of Lokpal authorized to investigate offences under the Prevention of Corruption Act 1988 shall have all the powers which are vested in a Police Officer while investigating offences under the Code of Criminal Procedure, as well as the powers conferred on the director of enforcement under the Foreign Exchange Management Act, 1999 as well as under the Prevention of Money Laundering Act, 2002. (2) The members of Lokpal or any officer under the Lokpal while exercising any powers under the Act shall have the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular, in respect of the following matters : (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or other documents; and

1. Govt Lokpal Bill specifies that Lokpal shall have powers of a civil court under Code of Civil Procedure 1908, such as: Power to summon the attendance of any person and examine him under oath Requisition public records Receive evidence on affidavit 2. Jan Lokpal Bill seeks to give Lokpal, in addition to the above, further powers under the Code of Criminal Procedure Code. It specifies: Lokpal has powers of the Civil Court, to summon and enforce the attendance of a person from any part of India and examining him under oath, require him to produce any document, give evidence under affidavit etc. Investigating officer and higher ups can requisition any public record or copy thereof from any court or office The officers under Lokpal also have all the powers of a police officer, as well as powers of director of enforcement under FEMA 1999 and Money Laundering Act 2002. If during an investigation, the Lokpal feels

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(f) any other matter which may be prescribed (3) All members of the Lokpal and all officers of the Lokpal superior in rank to an Investigating Officer may exercise the same powers as may be exercised by such Investigating Officer. (4) A Lokpal bench may punish a public servant with imprisonment up to 6 months or with fine or both, if he fails to comply with its order for ensuring their compliance. (6) The Lokpal may, at any stage of investigation under this Act, direct by an interim order, appropriate authorities to take such action as is necessary, to prevent the public servant from secreting the assets allegedly acquired by him by corrupt means; (7) While investigating any offence under Prevention of Corruption Act 1988, Lokpal shall be competent to investigate any offence under any other law in the same case. (8) If during any investigation under this act, the Lokpal is satisfied that any preventive action is necessary in public interest to prevent the ongoing incidence of corruption, it may make any recommendation to the public authority concerned to stay the implementation or enforcement of any decision or take any such action as is recommended by the Lokpal. The public authority shall either comply with the recommendation of the Lokpal or reject the same within 15 days of the recommendation thereof. In the event of rejection of

that a government servant is in a position to destroy or tamper with evidence, he can issue directions for his transfer. At any stage of investigation, the Lokpal may issue interim orders to appropriate authorities to prevent the public servant from secreting the assets that he has acquired through corrupt means. While investigating any offence under Prevention of Corruption Act 1988, he may also investigate any offence under any other law in the same case. Lokpal may issue directions to a public authority for action to prevent the ongoing incidence of corruption. Such directions may involve staying the implementation or enforcement of any decision, or it may involve other actions. If the public authority does not comply within 15 days, the Lokpal may approach the appropriate High Court for seeking appropriate directions to the Public Authority. Lokpal may award imprisonment to any public servant for failing to comply with its orders.

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its recommendation, the Lokpal may approach the appropriate High Court for seeking appropriate directions to be given to the public authority.

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No Equivalent Provisions

POWER TO TAP PHONES, HACK INTO EMAIL & MONITOR ELECTRONIC DATA TRANSMISSION 8. For the purposes of investigation of offences related to acts of corruption, the appropriate Bench of the Lokpal shall be deemed to be designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885.

No Equivalent Provisions

Jan Lokpal Bill seeks to give Lokpal the authority to intercept messages or tap messages made by phone, internet or any other medium. It evidently gets this power by citing the provisions of Indian Telegraph Act 1885, and its rules and regulations, read with Information and Technology Act 2000. QUESTION: Given the sweeping powers of the Lokpal from the Prime Minister to the lowest municipal sweeper, and cutting across many lines of jurisdiction government, judiciary, legislatures etc. is this safe? Given that the proposed Lokpals answerability to even President, Parliament, Prime Minister and Supreme Court is doubtful, isnt this power too much for one authority to wield? 1. Govt Lokpal Bill enables Lokpal to use the services of any officer or investigation agency of the Central or State Govt. for investigating, summoning the attendance of a person for examining, requiring a document to be produced etc. 2. Jan Lokpal Bill does not have such a provision.

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POWER OF LOKPAL TO UTILISE SERVICES OF OTHER OFFICERS 32. (1) The Lokpal may, for the purpose of conducting any inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government, as the case may be. (2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (2) may, subject to the direction and control of the Lokpal,

No Equivalent Provisions

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(a) summon and enforce the attendance of any person and examine him; (b) require the discovery and production of any document; and (c) requisition any public record or copy thereof from any office. (3) The officer or agency whose services are utilised under sub-section (2) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Lokpal within such period as may be specified by the Lokpal in this behalf.

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PROVISIONAL ATTACHMENT OF ASSETS 33. (1) Where the Lokpal or any investigation officer authorised by it in this behalf, has reason to believe, the reason for such belief to be recorded in writing, on the basis of material in its or his possession, that (a) any person is in possession of any proceeds of corruption; (b) such person is accused of having committed an offence relating to corruption; and (c) such proceeds of offence are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of offence, the Lokpal or such investigation officer may, by order in writing, provisionally attach such property for a period not exceeding ninety days from the date of the order, in the manner provided in the Second Schedule to the Income-tax Act, 1961

(4) During the course of investigation if the Investigating Officer finds any property or asset which appears to have been acquired by the corrupt acts of an accused person who is being investigated, it shall make an order of attachment of those assets so that they are available for confiscation at the time of the conviction of such accused persons. In case the accused person is ultimately acquitted, these attached assets and properties will be restored to him. n) to attach property and assets acquired by corrupt means and to confiscate them in certain cases as provided under this Act.

1. Govt Lokpal Bill provides for attaching proceeds of corruption. If Lokpal has reason to believe that a person possessing the proceeds of corruption may conceal or transfer them, frustrating any proceedings leading to confiscation, then it may provisionally attach such property for a period not exceeding 90 days, as per the second schedule of Income Tax Act 1961. This attachment order will be sent to the Special Court in a sealed envelope. The Special Court may extend the period of attachment as it sees fit. Those interested in the immovable property that has been attached can continue to enjoy the property. 2. Jan Lokpal Bill too has provisions concerning attachment to enable confiscation if the accused is found to be guilty. However, the provisions are less detailed and with less emphasis on due process of law.

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and the Lokpal or such investigation officer, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule. (2) The Lokpal shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Special Court, in a sealed envelope, in the manner as may be prescribed and such Court may extend the order of attachment and keep such material for such period as the Court may deem fit. (3) Every order of attachment made under subsection (1) shall cease to have effect after the expiry of the period specified in that sub-section or after the expiry of the period as directed by the Special Court under sub-section (2). (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) or subsection (2), from such enjoyment. Explanation. For the purposes of this sub-section, person interested, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.

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CONFIRMATION OF ATTACHMENT OF ASSETS 34. (1) The Lokpal, when it provisionally attaches any property under sub-section (1) of section 33 shall, within a period of thirty days of such

(4) During the course of investigation if the Investigating Officer finds any property or asset which appears to have been acquired by the corrupt acts of an accused person who is being investigated, it shall make an order of attachment of those assets so that

1. Govt Lokpal Bill says that when Lokpal provisionally attaches any property, it shall direct its prosecution wing to make a prayer before the special court within a month for confirmation of the attachment till completion of proceedings in

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attachment, direct its prosecution wing to file an application stating the facts of such attachment before the Special Court and make a prayer for confirmation of attachment of the property till completion of the proceedings against the public servant in the Special Court. (2) The Special Court may, if it is of the opinion that the property provisionally attached had been acquired through corrupt means, make an order for confirmation of attachment of such property till the completion of the proceedings against the public servant in the Special Court. (3) If the public servant is subsequently acquitted of the charges framed against him, the property, subject to the orders of the Special Court, shall be restored to the concerned public servant along with benefits from such property as might have accrued during the period of attachment. (4) If the public servant is subsequently convicted of the charges of corruption, the proceeds relatable to the offence under the Prevention of Corruption Act, 1988 shall be confiscated and vest in the Central Government free from any encumbrance or leasehold interest excluding any debt due to any bank or financial institution. Explanation. For the purposes of this sub-section, the expression, bank, debt and financial institution shall have the meanings respectively assigned to them in clauses (d), (g) and (h) of section

they are available for confiscation at the time of the conviction of such accused persons. In case the accused person is ultimately acquitted, these attached assets and properties will be restored to him. n) to attach property and assets acquired by corrupt means and to confiscate them in certain cases as provided under this Act.

that court. The special court, if convinced that the property was acquired through corrupt means, shall make an order for confirmation of attachment. Please note the independence of the judiciary inherent in this provision. It also recognizes the existence of other potential stakeholders in that property, such as banks and financial institutions. 2. Jan Lokpal Bill provisions in this respect is not detailed. It does not describe a due process involving sanction of the court. It assumes that Lokpals power to attach property of undertrials will not be challenged in court on Constitutional grounds, by the owner or by an interested party, such a bank or financial institution. This is a legal loophole.

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2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

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POWER OF LOKPAL TO RECOMMEND TRANSFER OR SUSPENSION 35. (1) Where the Lokpal, while making an inquiry into allegations of corruption, is prima facie satisfied, on the basis of evidence available, that (a) the continuance of the public servant referred to in clause (c) or clause (d) of sub-section (1) of section 17 in his post while conducting the inquiry is likely to affect such inquiry adversely; or (b) the public servant referred to in clause (a) is likely to destroy or in any way tamper with the evidence or influence witnesses, then, the Lokpal may recommend to the Central Government for transfer or suspension of such public servant from the post held by him till such period as may be specified in the order. (2) The Central Government shall ordinarily accept the recommendation of the Lokpal made under subsection (1), except for the reasons to be recorded in writing in a case where it is not feasible for administrative reasons.

(5) If during the course of investigation into a complaint, the Lokpal feels that continuance of a government servant in that position could adversely affect the course of investigations or that the said government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption, the Lokpal may issue appropriate directions including transfer of that government servant from that position.

1. Govt Lokpal Bill specifies that when Lokpal has reason to believe that the public servants continuation in a certain post is likely to adversely affect its inquiry, or that the he is likely to destroy or tamper with evidence, influence witnesses etc., then it may recommend to the government for his suspension or transfer for a certain period. Govt will accept the order, unless there are exceptional reasons, which are to be recorded in writing. 2. Jan Lokpal also has such provisions, but they are not very elaborate.

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POWER OF LOKPAL TO GIVE DIRECTIONS 36. The Lokpal may, in discharge of its functions under this Act, issue appropriate directions to a public servant entrusted with the preparation or custody of any document or record

(4) A Lokpal bench may punish a public servant with imprisonment up to 6 months or with fine or both, if he fails to comply with its order for ensuring their compliance. (6) The Lokpal may, at any stage of investigation under

1. Govt Lokpal Bill specifies that it may give directions to public servants (other than the accused) to protect certain documents and records, and to prevent the accused from alienating (transferring) assets acquired by him through corrupt means.

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(a) to protect such document or record from destruction or damage; or (b) to prevent the public servant from altering or secreting such document or record; or (c) to prevent the public servant from transferring or alienating any assets allegedly acquired by him through corrupt means.

this Act, direct by an interim order, appropriate authorities to take such action as is necessary, to prevent the public servant from secreting the assets allegedly acquired by him by corrupt means; (8) If during any investigation under this act, the Lokpal is satisfied that any preventive action is necessary in public interest to prevent the ongoing incidence of corruption, it may make any recommendation to the public authority concerned to stay the implementation or enforcement of any decision or take any such action as is recommended by the Lokpal. The public authority shall either comply with the recommendation of the Lokpal or reject the same within 15 days of the recommendation thereof. In the event of rejection of its recommendation, the Lokpal may approach the appropriate High Court for seeking appropriate directions to be given to the public authority.

2. Jan Lokpal Bill specifies not only wider powers to give such directions, but also the powers to punish with imprisonment or fine a public servant who does not comply with such directions.

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POWER TO DELEGATE 37. The Lokpal may, by general or special order in writing, and subject to such conditions and limitations as may be specified therein, direct that any administrative or financial power conferred on it may also be exercised or discharged by such of its Members or officers or employees as may be specified in the order.

No Equivalent Provisions

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MERGER OF ANTI-CORRUPTION BRANCH OF CBI INTO LOKPAL 32. (1) The part of the Delhi Special Police

Vide Sec 32, Jan Lokpal Bill proposes to take over Central Bureau of Investigation (CBI), which derives its power to investigate from the Delhi Special Force Establishment Act. CBI will cease to be under

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No Equivalent Provisions

Establishment, dealing with investigation and prosecution of offences under the Prevention of Corruption Act, 1988, shall stand transferred, along with its employees, assets and liabilities to the Lokpal. The Central Government shall cease to have any control over the transferred part and its personnel. (2) Such part of Delhi Special Police Establishment, which has been transferred above, shall form part of the Investigation Wing of Lokpal. (3) The salaries, allowances and other terms and conditions of services of the personnel transferred above shall be the same as they were immediately before the commencement of this Act. (4) All cases which were being dealt by that part of Delhi Special Police Establishment, which has been transferred, shall stand transferred to Lokpal.

the control of Central Government, and become part of Lokpals Investigative Wing. The whole of CBI, its employees, assets and liabilities would stand transferred to Jan Lokpal.

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IMMUNITY TO BRIBE GIVER IN CERTAIN CASES 33. Any bribe giver may be granted immunity from prosecution by the special court if he voluntarily and gives timely information to the Lokpal about the giving of bribe by him with entire evidence for the purpose of getting the concerned bribe taker/public servant caught and convicted, provided he also relinquishes all the illegitimate benefits which he had received by the giving of that bribe. If the information provided by such bribe giver is subsequently found to be false, the immunity could be withdrawn by the special court.

No Equivalent Provisions

Section 33 of Jan Lokpal Bill enables the giver of bribes to turn into an approver, informant or prosecution witness. This clause requires him to not only come clean, but also relinquish the illegitimate benefits that he received by giving the bribe.

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(OTHER) POWERS AND FUNCTIONS OF THE LOKPAL AND ITS OFFICERS 6. The Lokpal shall have the following functions and powers a) to exercise superintendence over the investigation of offences involving any act of corruption. b) to give directions to the investigating officers for the purpose of proper investigation of such offences. c) after completion of investigation in any case involving an allegation of an act of corruption, to impose punishment of dismissal, removal or reduction in rank against government servants after giving them reasonable opportunities of being heard. d) to ensure that the public grievances covered by this Act are redressed in a time bound manner h) to authorize a Bench of the Lokpal to issue lettersrogatory in relation to any case pending investigation under this Act. i) to receive complaints from whistle blowers. j) to receive complaints against any officer or staff of Lokpal. k) to recruit investigating officers and other officers and staff and get them trained in modern methods of scientific investigation. (l) to appoint judicial officers, prosecutors and senior counsels. (m) to acquire modern equipment necessary for proper investigation. (o) to recommend cancellation or modification of a lease, license, permission, contract or agreement, if it was obtained by corrupt means and to recommend blacklisting of a firm, company, contractor or any other

No Equivalent Provisions

No Equivalent Provisions

Section 6 of Jan Lokpal Bill is a mixed-bag of unrestricted powers such as to: Intervene in the working of other public authorities, supervise their working, issue directions and ensure compliance Get contracts and leases cancelled, get contractors blacklisted, etc. etc. Investigate into the asset declarations of all legislators Investigate and inquire into almost any action of government and administration Offer monetary rewards to whistleblowers Recruit and train staff in modern methods of scientific investigation (including techniques and gadgets used by intelligence agencies perhaps?) Acquire modern equipment necessary for proper investigation (such as secret cameras, bugs, wire-taps, recording devices?) Appoint judicial officers, prosecutors and senior counsels Impose penalties of govt officials disobeying Lokpal orders Impose punishments on its own staff and officers to maintain discipline Anytime the Jan Lokpal feels that he lacks the power to do something, he has to reach into this bag and improvise. QUESTION: Can this possibly be legal?

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No Equivalent Provisions

person, involved in an act of corruption. The public authority shall either comply with the recommendation or reject the same within a month of receipt of recommendation. In the event of rejection of its recommendation, the Lokpal may approach appropriate High Court for seeking appropriate directions to be given to the public authority. p) to ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders as provided under this Act. q) to initiate suo moto appropriate action under the Act on receipt of any information from any source about any corruption. r) to make recommendations to public authorities, in consultation with them, to make changes in their work practices to reduce the scope for corruption and whistleblower victimization. The concerned authority shall send its compliance report to Lokpal within two months specifying detailed reasons, wherever they choose to reject any of the recommendations. s) to prepare a sentencing policy for the offences under Prevention of Corruption Act and revising it from time to time. t) to ensure that the time limits mentioned in this Act are strictly adhered to. u) to ensure the integrity of its functionaries and impose punishments of dismissal, removal and reduction in rank against. v) to require any public authority to render any specific help required by the Lokpal. w) to prepare an appropriate reward scheme to encourage complaints from within and outside the government to report acts and evidence of corruption.

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Provided that the total value of such reward shall not exceed 10% of the value of the loss recovered or loss prevented. (x) to inquire into the assets declaration statements filed by all successful candidates after any election to any seat in any House of the Parliament. (y) Such other functions as may be necessary for the proper implementation of this Act.

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PROTECTION AGAINST TECHNICAL DEFICIENCIES 10 (2). No act or proceeding of the Lokpal shall be invalid merely by reason of : (a) any vacancy in, or any defect in the constitution of Lokpal ; (b) any defect in the appointment of a person acting as a member of Lokpal ; or (c) any irregularity not affecting the merits of the case

No Equivalent Provisions

Jan Lokpal Bills Section 10(2) gives it protection against technical errors. Its verdicts are supposed to be legally valid even if there are defects in the appointment of the person making the decisions, or even the process or procedure by which the decision is arrived at. QUESTION: Can this be legal?

Chapter 9 Special Courts

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SPECIAL COURTS TO BE NOTIFIED BY CENTRAL GOVERNMENT 38. (1) The Central Government shall constitute such number of Special Courts, as recommended by the Lokpal, to hear and decide the cases arising out of the Prevention of Corruption Act, 1988 or under this Act. (2) The Special Courts constituted under sub-section (1) shall ensure completion of each trial within a

20(2). Every effort will be made by the special courts trying an offence under the Prevention of Corruption Act to complete the trial within a maximum period of 12 months. (3) To achieve the objective of a speedy trial the Lokpal shall make an annual assessment of the number of special courts required for this purpose and shall make a recommendation to the Government for creating a specific number of special courts which recommendations shall be binding on the Government.

1. Govt. Lokpal Bill specifies timeline of one year for completion of trial, plus maximum four extensions of 3 months each, until a total period of two years is reached. 2. Jan Lokpal Bill also stipulates a maximum period of 12 months, with no extensions. To save special courts from being swamped with pendencies, it mandates that the government will create numerous special courts in response to Lokpals assessment and recommendation.

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period of one year from the date of filing of the case in the Court: Provided that in case the trial cannot be completed within a period of one year, the Special Court shall record reasons therefor 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 months period, but not exceeding a total period of two years.

(4) The Chief Justices of High Courts will constitute such number of special benches in respective High Courts to hear cases under this Act, to ensure that an appeal in any case is decided as expeditiously as possible and not later than six months. (5) The judges of Special Courts and the appellate benches set up by High Courts to hear cases under this Act will deal only with cases under this Act.

Also, Jan Lokpal imposes special requirements on High Courts to hear the appeals arising from Jan Lokpal proceedings. It says that High Courts must constitute special benches exclusively for hearing Jan Lokpal cases. It says that appeal of such cases should be decided expeditiously, and not later than six months. CHOKING POINTS: A) If the government wishes to prevent the proper functioning of Jan Lokpal, it will avoid creating necessary numbers of special courts. B) Since judges of higher judiciary are also under the jurisdiction of Jan Lokpal, they may also have an interest in preventing the proper functioning of Jan Lokpal by deliberately failing to constitute special benches. As it is, there is great shortage of judges and pendencies are mounting alarmingly; so what are the realistic chances of such special benches actually getting created at different High Courts? Govt Lokpal Bill outlines a formal mechanism whereby Investigation Officer and Special Court can work together to overcome barriers of jurisdiction, and gain access to documentary evidence lying with State governments.

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LETTER OF REQUEST TO A CONTRACTING STATE IN CERTAIN CASES 39. (1) Notwithstanding anything contained in this Act or the Code of Criminal Procedure, 1973 if, in the course of an inquiry or investigation into an offence or other proceeding under this Act, an application is made to a Special Court by the Investigation Officer of the Lokpal that any evidence is required in connection with the inquiry or

No Equivalent Provisions

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investigation into an offence or proceeding under this Act and he is of the opinion that such evidence may be available in any place in a contracting State, and the Special Court, on being satisfied that such evidence is required in connection with the inquiry or investigation into an offence or proceeding under this Act, may issue a letter of request to a court or an authority in the contracting State competent to deal with such request to (i) examine the facts and circumstances of the case; (ii) take such steps as the Special Court may specify in such letter of request; and (iii) forward all the evidence so taken or collected to the Special Court issuing such letter of request. (2) The letter of request shall be transmitted in such manner as the Central Government may prescribe in this behalf. (3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be evidence collected during the course of the inquiry or investigation.

Chapter 10 Complaints against Chairperson and Members of the Lokpal

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COMPLAINTS AGAINST CHAIRPERSON OR MEMBERS NOT TO BE INQUIRED INTO BY THE LOKPAL 40. (1) The Lokpal shall not inquire into any

11. (1). The Chairperson or any other member of the Lokpal shall only be removed from his office by the President, on the recommendation of the Supreme Court on any of the following grounds after the Supreme Court, on the complaint of any person, held

1. Govt Lokpal Bill specifies that a complaint of bias or corruption against the Chairperson or member of Lokpal shall be made to the President of India. If President feels there is merit in this complaint, he will refer it to Chief Justice of India to inquire into

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complaint made against the Chairperson or any Member. (2) Any complaint against the Chairperson or Member shall be made by an application by the party aggrieved, to the President. (3) The President shall, in case there exists a prima facie case for bias or corruption, make a reference to the Chief Justice of India in such manner as may be prescribed for inquiring into the complaint against the Chairperson or Member. (4) The President shall decide the action against the Chairperson or Member on the basis of the opinion of the Chief Justice of India and in case the President is satisfied, on the basis of the said opinion that the Chairperson or the Member is biased or has indulged in corruption, the President shall, notwithstanding anything contained in sub-section (1) of section 8, remove such Chairperson or Member and also order for initiation of prosecution in case of allegation of corruption.

an inquiry and found that he could on such ground be removed : (a) that he has been guilty of misbehavior; or (b) that he is unfit to continue in his office by reason of infirmity of mind or body; or (c) is adjudged an insolvent; or (d) engages during his term of office in any paid employment outside the duties of his office. (2) In any such proceeding the Supreme Court may also direct the suspension of such Chairman or member. (3) On receipt of recommendation from the Supreme Court, the President shall forthwith remove the Chairperson or the member, as the case may be. (4) Supreme Court shall, as far as possible, make its recommendations within 3 months of receipt of complaint under this section. (5) If the complaint is frivolous or has been made with malafide intentions, Supreme Court may impose a fine or an imprisonment upto one year or both on the complainant.

the complaint. Based on the Chief Justices opinion, President may take steps to remove the Chairperson or member, and also order for prosecution to be initiated in case of corruption. 2. Jan Lokpal does not explicitly explain the process of removal of Lokpal Chairperson or Member but the provisions are similar. But Jan Lokpal discourages complaints against the Jan Lokpal. It specifies that if the complaint is frivolous or made with malafide intentions, Supreme Court may impose a fine and/or imprisonment upto one year on the complainant. This is a great deterrent against complaints. Also, please note that Jan Lokpal does not specify corruption as one of the grounds for initiating action against its Chairman and members.

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COMPLAINTS AGAINST OFFICIAL OF THE LOKPAL 41. (1) Every complaint of allegation or wrongdoing made against any officer or employee or

15. (1) In each State, one or more complaints authority would be established by the Lokpal to entertain any complaints against any officer or staff of the Lokpal.

1. Govt Lokpal Bill states that offences by every officer or employee of Lokpal or its investigation agency, or associated with Lokpal, shall be tried and punished by Lokpal itself. The offences and

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investigation agency under or associated with the Lokpal for offence punishable under the Prevention of Corruption Act, 1988 shall be dealt with in accordance with the provisions of this section. (2) The Lokpal shall complete the inquiry into the complaint or allegation made, within a period of thirty days from the date of its receipt. (3) While making an inquiry into the complaint against any officer or employee of the Lokpal or agency engaged or associated with the Lokpal, if the Lokpal is prima facie satisfied on the basis of evidence available, that (a) continuance of such officer or employee of the Lokpal in his post or agency engaged or associated while conducting the inquiry is likely to affect such inquiry adversely; or (b) an officer or employee of the Lokpal or agency engaged or associated is likely to destroy or in any way tamper with the evidence or influence witnesses, then, the Lokpal may, by order, suspend such officer or employee of the Lokpal or divest such agency engaged or associated with the Lokpal of all powers and responsibilities hereto before exercised by it . (4) On the completion of the inquiry, if the Lokpal is satisfied that there is prima facie evidence of the commission of an offence under the Prevention of Corruption Act, 1988 or of any wrongdoing, it shall,

(2) Such complaints authority shall consist of 5 members to be selected and nominated by a Committee of 3 persons consisting of: i) The Chief Justice of the High Court of the State; ii) The Chairman of the State Lok Ayukata iii) The Chairman of the State Human Rights Commission (3) The Complaints Authority shall be chaired by a retired High Court judge and shall have two retired civil servants and two members of civil society. (4) The complaints received against any officer or staff of the Lokpal shall be inquired into by the Complaints Authority in a public hearing and shall be decided within 2 months of the receipt of the complaint. The officer or staff of the Lokpal shall be given proper opportunity to tender his defence. If the officer or member is found guilty of misbehavior or dishonest investigation or corruption, the authority may order his dismissal, removal or reduction in rank. (5) The final orders passed by the Complaints Authority will be subject to the writ jurisdiction of the High Court under Article 226 of the Constitution. (6) In suitable cases it would also be open to the complaints authority to direct suspension of the officer or staff of the Lokpal. (7) Lokpal shall provide for the expenses related to the functioning of complaints authority.

punishments will be as per Prevention of Corruption Act. Complaint against its officers and employees is to be treated on priority basis, and enquiry is to be completed within 30 days. If Lokpal is satisfied that there is enough prima facie evidence of corruption, then it can order disciplinary proceedings, suspend the employee, divest him of his powers, or it can order his prosecution. 2. Jan Lokpal Bill has distinctive features. It specifies that complaints against Lokpal officers and employees will not be heard by Lokpal, but by a separate impartial Complaints Authority. Salient features: An elaborate state-level mechanism to hear such complaints, paid for by Lokpal Complaints authorities appointed by Lokpal, will consist of 5 members . It will be chaired by a retired High Court judge, two retired civil servants and two members of civil society. These will be nominated by Chief Justice of High Court of the State, Chairman of the State Lok Ayukta and Chairman of the State Human Rights Commission. Complaints Authority will work in benches as per the rules and regulations made by Lokpal. The accused officer will be given an opportunity to defend himself. The Complaints Authority can direct suspension, reduction of rank, dismissal

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within a period of fifteen days of the completion of such inquiry, order to prosecute such officer or employee of the Lokpal or such officer or employee of agency engaged or associated with the Lokpal and initiate disciplinary proceedings against the official concerned: Provided that no such order shall be passed without giving such officer or employee of the Lokpal or officer or employee of agency engaged or associated, a reasonable opportunity of being heard.

(8) Complaints authority shall work in benches in accordance with regulations made under this Act.

etc. if the accused is found guilty. However, please note that there is no mention of prosecution, imprisonment etc. as per provisions of Prevention of Corruption Act.

Chapter 11 Assessment of Loss and Recovery Thereof by Special Court

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ASSESSMENT OF LOSS AND RECOVERY THEREOF BY SPECIAL COURT 42. If any public servant is convicted of an offence under the Prevention of Corruption Act, 1988 by the Special Court, notwithstanding and without prejudice to any law for the time being in force, it may make an assessment of loss, if any, caused to the public exchequer on account of the actions or decisions of such public servant not taken in good faith and for which he stands convicted, and may order recovery of such loss, if possible or quantifiable, from such public servant so convicted: Provided that if the Special Court, for reasons to be recorded in writing, comes to the conclusion that the loss caused was pursuant to a conspiracy with

Seizure and confiscation of property and recovery of compensation from corrupt government servants 27. (1) After a public servant has been found guilty by the Special Court of having committed an offence under the Prevention of Corruption Act, the Court would also determine the assets and properties which have been acquired by such accused person by his corrupt acts. (2) The Special Court will pass an order for the confiscation of all the assets and properties which it has found to have been acquired by the corrupt acts of the convicted public servants as well as the subsequent accruals on these assets.

1. Govt Lokpal Bill says: If the Special Court convicts a public servant of an offence under Prevention of Corruption Act, it will assess the loss to the public exchequer caused by his corrupt actions if the losses are quantifiable. If possible, it will order recovery of such loss from him. If the court finds that he was acting in conspiracy with the beneficiaries of his actions, then loss will also be recovered from the beneficiaries proportionately. 2. Jan Lokpal Bill does not mention recovery of losses from BENEFICIARIES of the public servants

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the beneficiary or beneficiaries of actions or decisions of the public servant so convicted, then such loss may, if assessed and quantifiable under this section, also be recovered from such beneficiary or beneficiaries proportionately.

(3) The Special Court would also determine whether apart from the above the accused person by his corrupt acts has also caused any loss to the exchequer or any other person and determine the amount of loss so caused. The Court shall make an order levying a fine on the accused persons so convicted for the recovery of the entire loss which his corrupt acts have caused and shall also apportion this amount among the various convicted accused persons to be recovered from them as fines.

actions. However, it specifically mentions: Confiscation of the assets of the convicted public servant, as well as the accruals on those assets. The special court shall order a fine on the convicted persons for recovery of the entire loss. Special court will apportion the amount to be recovered from various convicted persons.

Chapter 12 Finance, Accounts and Audit

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BUDGET 43. The Lokpal shall prepare, in such form and at such time in each financial year as may be prescribed, its budget for the next financial year, showing the estimated receipts and expenditure of the Lokpal and forward the same to the Central Government for information.

26. (1) All expenses of the Lokpal shall be charged to the Consolidated fund of India. (2) The Board shall finalise the Lokpals budget in such a manner that it is less than % of the total revenues of the Government of India. (3) Lokpal shall not need any administrative or financial sanction from any government agency to incur expenditure.

1. Govt Lokpal Bill says that Lokpal will prepare the budget for the next financial year and forward it to the Central Government. Budget will be cleared by Central Govt. 2. Jan Lokpal Bill says that the Lokpal will finalize its own budget and charge it directly to Consolidated Fund of India. It shall be less than one-fourth percent of the total revenues of the Govt of India. It does not need administrative or financial sanction from any government agency. However, as no amount can be withdrawn from the Consolidated Fund without Parliaments approval, Lokpal budget will be subject to scrutiny by a Parliamentary Committee, the two Houses of Parliament and also by Comptroller & Auditor General.

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GRANTS BY CENTRAL GOVERNMENT 44. Without prejudice to the provisions of section 16, the Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Lokpal grants of such sums of money as are required to be paid for the salaries and allowances payable to the Chairperson and Members and the administrative expenses, including the salaries and allowances and pension payable to or in respect of officers and other employees of the Lokpal.

No Equivalent Provisions

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ANNUAL STATEMENT OF ACCOUNTS 45. (1) The Lokpal shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and AuditorGeneral of India. (2) The accounts of the Lokpal shall be audited by the Comptroller and Auditor- General of India at such intervals as may be specified by him. (3) The Comptroller and Auditor-General of India or any person appointed by him in connection with the audit of the accounts of the Lokpal under this Act shall have the same rights, privileges and authority in connection with such audit, as the Comptroller and Auditor-General of India generally has, in

Audit of Lokpal 13. (1) The CAG shall conduct an annual financial and performance audit of the Lokpal. (2) A Parliamentary Committee shall do an annual appraisal of the functioning of Lokpal. The Lokpal shall submit a compliance report, mentioning detailed reasons where it does not accept the recommendations of this committee, to the Parliament. It shall be placed on the table of the two Houses of Parliament.

1. The Govt Lokpal Bill states that: Lokpal shall maintain proper accounts in the form prescribed by CAG. Accounts of the Lokpal will be audited by CAG at intervals specified by CAG. CAG will have full rights and privileges to demand the production of books, accounts, vouchers etc. and to inspect any office of the Lokpal. Accounts, duly certified by CAG, will be forwarded to the Central Govt, along with CAGs audit report. 2. Jan Lokpal Bill states that: CAG shall conduct annual financial and performance audit. Parliamentary Committee shall do annual appraisal. Lokpal will submit compliance report.

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connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Lokpal. (4) The accounts of the Lokpal, as certified by Comptroller and Auditor-General of India or any other person appointed by him in this behalf, together with the audit report thereon, shall be forwarded annually to the Central Government and the Central Government shall cause the same to be laid before each House of Parliament.

However, Lokpal is free to not accept all the recommendations of the Parliamentary Committee. If it does not accept any, it will give detailed reasons in the compliance report, and this shall be placed before both Houses of Parliament.

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FURNISHING OF RETURNS ETC. TO CENTRAL GOVERNMENT 46. (1) The Lokpal shall furnish to the Central Government, at such time and in such form and manner as may be prescribed or as the Central Government may request, such returns and statements and such particulars in regard to any matter under the jurisdiction of the Lokpal, as the Central Government may, from time to time, require. (2) The Lokpal shall prepare, once every year, in such form and at such time as may be prescribed, an annual report, giving a summary of its activities during the previous year and copies of the report shall be forwarded to the Central Government. (3) A copy of the report received under sub-section

Reports of Lokpal 14. (1) The Chairperson of Lokpal shall present annually a consolidated report in the prescribed format on its performance to the President (2) On receipt of the annual report, the President shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the Parliament. (3) The Lokpal shall publish every month on its website the list of cases received during the previous month, list of cases disposed with brief details of each such case, outcome and action taken or proposed to be taken in that case, list of cases which are pending and minutes and records of Board meetings.

1. The Govt Lokpal Bill says that the Lokpal shall furnish whatever reports, statements and returns the Central Govt. may request or prescribe from time to time, including annual report. It is openended as to what Central Govt will demand. 2. The Jan Lokpal Bill is closed-ended. It says: Lokpal will present directly to the President of India the consolidated annual report in the prescribed format. The President may add his own explanatory memorandum and lay it before both Houses of Parliament. Lokpal will publish every month on its website the list of cases disposed during the previous month, along with the outcome of each case, actions to be taken, list of pending cases, and records of Board

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(2) shall be laid by the Central Government, as soon as may be after it is received, before each House of Parliament.

16. The Lokpal shall maintain complete transparency in its functioning and shall ensure that full records of any investigation or inquiry conducted under this Act after its conclusion is made public by being put on a public web site.

meetings. Lokpal will maintain transparency directly before the citizens of India through website and direct access to documents. In other words, it will be answerable directly to people of India, but not controlled by Government and Parliament.

Chapter 13 Declaration of Assets

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DECLARATION OF ASSETS 47. (1) Every public servant shall make a declaration of his assets and liabilities in the manner as provided by or under this Act. (2) Every public servant shall, within a period of thirty days from the date on which he makes and subscribes an oath or affirmation to enter upon his office, furnish to the competent authority the information relating to (a) the assets of which he, his spouse and his dependent children are, jointly or severally, owners or beneficiaries; (b) his liabilities and that of his spouse and his dependent children. (3) Every public servant holding his office as such, at the time of the commencement of this Act, shall furnish information relating to such assets and liabilities, as referred to in sub-section (2) to the

Public servants property statements 28. (1) Every public servant shall within 3 months after the commencement of this Act and thereafter before the 30th June of every year submit to the Head of that public authority in which the said public servant is functioning or to such other authority as may be prescribed, a statement of his assets and liabilities and those of the members of his family which shall include their sources of income, in the format prescribed by the Lokpal. Explanation : In this Section family of a public servant means the spouse and such children and parents of the public servant and such other people as are dependent on him. (2) The Head of each public authority shall ensure that all such statements are put on the website by 31st of August of that year.

1. Govt Lokpal Bill says that Every public servant, within 30 days of his taking oath or affirmation, and within 30 days of the coming into force of this Act, he will furnish to the Competent Authority a statement of his assets and liabilities, and those of his spouse and dependent children. He will thereafter file annual returns of st the same as on 31 March. The competent authority will publish this st on its website by 31 August. 2. Jan Lokpal Bill gives 3 months from the commencement of this Act to file such returns. Besides spouse and children, it also includes among the dependents the parents and such other people. It puts the onus on the head of each public authority to ensure that such th returns are filed before 30 of June, and

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competent authority within thirty days of the coming into force of this Act. (4) Every public servant shall file with the competent authority, on or before the 31st July of every year, an annual return of such assets and liabilities, as referred to in sub-section (2), as on the 31st March of that year. (5) The information under sub-section (2) or subsection (3) and annual return under sub-section (4) shall be furnished to the competent authority in such form and in such manner as may be prescribed. (6) The competent authority in respect of each office or Department shall ensure that all such statements are published on the website of such office or Department by 31st August of that year. Explanation. For the purposes of this section, dependent children means sons and daughters who have no separate means of earning and are wholly dependent on the public servant for their livelihood. PRESUMPTION AS TO ACQUISITION OF ASSETS 48. If any public servant wilfully or for reasons which are not justifiable, (a) fails to declare his assets; or (b) gives misleading information in respect of such assets and is found to be in possession of assets not disclosed or in respect of which misleading information was furnished, then such assets shall, unless otherwise proved, be presumed to belong to 28 (3) If it is found that the public servant owns some property which was not disclosed in his statement of assets, that property would be liable to be confiscated by the Lokpal. (4). If the public servant is found to be in possession or enjoyment of any property which is not shown in his statement of assets, it shall be presumed that it was owned by him unless he proves to the contrary.

that this information is up on the website st by 31 August the same year.

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1. Govt Lokpal Bill says: If public servant fails to declare assets or gives misleading information, then such assets shall be automatically presumed to be acquired by corrupt means. The public servant will be given opportunity to present his defence. Competent authority may condone or exempt public servant from furnishing information below a certain minimum

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the public servant and shall be presumed to be assets acquired by corrupt means: Provided that the competent authority may condone or exempt the public servant from furnishing information in respect of assets not exceeding such minimum value as may be prescribed.

value that is prescribed. 2. Jan Lokpal Bill says: If it is found that the public servant owns some property that was not disclosed in the returns, it is liable to be confiscated by Lokpal. If the public servant is found to be in possession of, or enjoyment of, some property that was not declared, it shall be presumed to be owned by him unless he proves to the contrary.

Chapter 14 Offences and Penalties

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PROSECUTION FOR FALSE COMPLAINT 49. (1) Notwithstanding anything contained in this Act, whoever makes any false and frivolous or vexatious complaint under this Act shall, on conviction, be punished with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than twenty-five thousand rupees but which may extend to two lakh rupees. (2) No Court, except a Special Court, shall take cognizance of an offence under sub-section (1). (3) No Special Court shall take cognizance of an offence under sub-section (1) except on a complaint made by a person against whom the false, frivolous or vexatious complaint was made. (4) The prosecution in relation to an offence under

Punishments for false complaints: 30. (1) Notwithstanding anything contained in this Act, if someone makes any complaint under this Act, which lacks any basis or evidence and is held by Lokpal to be meant only to harass certain authorities, Lokpal may impose such fines on that complainant as it deems fit, but the total fine in any one case shall not exceed Rs one lakh. Provided that no fine can be imposed without giving a reasonable opportunity of being heard to the complainant. Provided further that merely because a case could not be proved under this Act after investigation shall not be held against a complainant for the purposes of this section. Provided that if such complaint is against the staff or

1. Govt Lokpal Bill specifies: Whoever makes a false or vexatious complaint under this Act shall be punished for two to five years of imprisonment, and fine of Rs 25000 to Rs 2 lakhs. This will be heard by a special court, and not any other court. It will be taken up by the special court if and only if the victim of the false complaint files a complaint. Expenses of this prosecution will be borne by Central Govt. i.e. The aggrieved public servant will not have to bear the cost. The person, association, society etc. convicted of false complaint will be required to pay compensation to the aggrieved public servant, and also legal

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sub-section (1) shall be conducted by the public prosecutor and all expenses connected with such prosecution shall be borne by the Central Government. (5) In case of conviction of a person [being an individual or society or association of persons or trust (whether registered or not)], for having made a false complaint under this Act, such person shall be liable to pay compensation to the public servant against whom he made the false complaint in addition to the legal expenses for contesting the case by such public servant, as the Special Court may determine.

officers of Lokpal, Lokpal may sentence the complainant to three months of simple imprisonment in addition to fine. (2) Such fines shall be recoverable as dues under Land Revenue Act. (3) A complaint or allegation once made under this Act shall not be allowed to be withdrawn.

expenses. The amount will be determined by the special court. 2. Compared to Govt Lokpal Bill, Jan Lokpal Bill specifies lighter penalties for the offences of false allegations etc. offences committed by civil society: Those who make complaints which are not on the basis of evidence, only for harassing the authorities, will be fined upto Rs 1 lakh. If the complaint is against staff or officers of Lokpal, Lokpal may sentence him to three months of simple imprisonment, in addition to fine. Complainant will not be punished only because a complaint against a public servant could not be proved after investigation. If such fines are not paid, his properties may be attached to pay the fines. A complaint once made cannot be withdrawn. Jan Lokpal Bill does not say anything about groups of people filing false or vexatious complaints. 1. Govt Lokpal Bill says: If false and vexatious compliant was filed by a society, association or any other group of persons registered or otherwise then all the person who are responsible for the conduct of its activities will be deemed to be guilty.

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FALSE COMPLAINT MADE BY COMPANY OR ASSOCIATION 50. (1) Where any offence under section 49 has been committed by any society or association of persons or trust (whether registered or not), every person who, at the time the offence was committed,

No Equivalent Provisions

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was directly in charge of, and was responsible to, the society or association of persons or trust, for the conduct of the business or affairs or activities of the society or association of persons or trust as well as such society or association of persons or trust shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a society or association of persons or trust (whether registered or not) and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of such society or association of persons or trust, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Directors, Secretary, manager etc. will be held guilty, even if it happened because of their neglect. The onus will be on them to prove that they were not party to this action, or that they had exercised due diligence to prevent such an offence.

2. Jan Lokpal Bill is silent on this aspect. It fails to consider false complaints filed by groups of people.

No Equivalent Provisions

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Chapter 15 Miscellaneous

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PROTECTION FOR ACTION IN GOOD FAITH BY PUBLIC SERVANT AND OTHERS 51. No suit, prosecution or other legal proceedings under this Act shall lie against any public servant, in respect of 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. 52. No suit, prosecution or other legal proceedings shall lie against the Lokpal or against any officer, employee, agency or any person, in respect of anything which is done in good faith or intended to be done under this Act or the rules or the regulations made thereunder.

No Equivalent Provisions

These are standard legal clauses present in every Act of this nature. The Jan Lokpal Bill, having been drafted by civil society, does not have a few such clauses.

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MEMBERS AND EMPLOYEES TO BE PUBLIC SERVANTS 53. The Chairperson, Members, officers and other employees of the Lokpal shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code. LIMITATION IN CERTAIN CASES 54. The Lokpal shall not inquire or investigate into any complaint, if the complaint is made after the expiry of a period of seven years from the date on which the offence mentioned in such complaint is

These are standard legal clauses present in every Act of this nature. The Jan Lokpal Bill, having been drafted by civil society, does not have a few such clauses.

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1. Govt. Lokpal Bill has this Statute of Limitations clause. It says that Lokpal will not entertain complaints about incidents of corruption that are over seven years old. Conversely, this important clause means that Lokpal will consider complaints

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alleged to have been committed.

about incidents of corruption that are even a few weeks short of seven years, if backed up with sufficient evidence. 2. Jan Lokpal does not have this important clause. This could mean that it may be willing to entertain complaints about very old incidents of corruption, if backed up with proper evidence.

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BAR OF JURISDICTION 55. No civil court shall have jurisdiction in respect of any matter which the Lokpal is empowered by or under this Act to determine. LEGAL ASSISTANCE 56. The Lokpal shall provide to every person against whom a complaint has been made, before it, under this Act, legal assistance to defend his case before the Lokpal, if such assistance is requested for.

1. Govt. Lokpal Bill has this good technical point, to avoid confusion about overlapping jurisdiction of civil courts. This is a typical Bar-of-Jurisdiction clause. 1. Govt Lokpal Bill has this clause to give assistance to those who are financially not able to defend themselves.

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ACT TO HAVE OVERRIDING EFFECT 57. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.

1. A necessary technical clause to avoid conflict with other older legislations.

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ACT IN ADDITION TO EXISTING LAWS 58. The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force.

1. A necessary technical clause to avoid conflict with other older legislations.

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AMENDMENT OF CERTAIN ENACTMENTS 59. The enactments specified in the Second Schedule shall be amended in the manner specified therein. 2 SCHEDULE AMENDMENT TO CERTAIN ENACTMENTS PART I AMENDMENT TO THE COMMISSIONS OF INQUIRY ACT, 1952 (60 OF 1952) In section 3, in sub-section (1), for the words The appropriate Government may, the words and figures Save as otherwise provided in the Lokpal Act, 2011, the appropriate Government may shall be substituted. PART II AMENDMENTS TO THE PREVENTION OF CORRUPTION ACT, 1988 (49 OF 1988) 1. In section 13, in sub-section (2), for the words seven years, the words ten years shall be substituted. 2. In section 14, for the words seven years, the words ten years shall be substituted. 3. In section 19, in sub-section (1), after the words except with the previous sanction, the words and figures save as otherwise provided in the Lokpal Act, 2011 shall be inserted. PART III AMENDMENT TO THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974)
ND

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APPLICABILITY AND MODIFICATIONS OF THE PROVISIONS OF CERTAIN OTHER ACTS 29. (1) Section 19(1) and 19(2) of the Prevention of Corruption Act shall be deleted. (2) Section 6A of the Delhi Special Police Establishment Act shall not be applicable to the proceedings under this Act. (3) Section 197 of Cr. PC shall not applicable to any proceedings under this Act. (4) The provisions of sections 105C to 105I of CrPC shall apply to offences under the Prevention of Corruption Act whether or not they are transnational in nature. (5) Section 389(3) of CrPC shall not apply to offences under Prevention of Corruption Act. (6) The right to file appeals under section 377 or 378 of CrPC shall be exercised by Lokpal. (7) Under section 372 of CrPC, the power to file an appeal shall be with the complainant as well. (8) Notwithstanding anything contained in Section 397 of CrPC, no court shall ordinarily call for records in cases related to trial of offences in Prevention of

1. Govt Lokpal Bill says: No case where a complaint has been made to the Lokpal shall be referred for inquiry under the Commissions of Inquiry Act, 1952. Amendment to Commission of Inquiry Act will make this effective. Amendments to Prevention of Corruption Act 1988 raises the maximum jail term for habitually corrupt people from seven years to 10 years. Amendment to CrPC removes the need for seeking sanction of higher-ups for prosecuting a public servant, if the complaint is made to Lokpal. 2. Jan Lokpal Bill says: The sections of Prevention of Corruption Act requiring previous sanction of the higher-ups of a public servant stand deleted. The provisions of Delhi Special Police Establishment Act, and of CrPC (Section 197) that require prior sanction before prosecution of public servants also stand nullified in the context of Lokpal. Section 389(3) of CrPC, which grants a convicted person suspension of imprisonment while he is on bail for

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In section 197, after the words except with the previous sanction, the words and figures save as otherwise provided in the Lokpal Act, 2011 shall be inserted.

Corruption Act during any trial by a special court. Provided that if the court calls for records, the same shall be returned within a month. (9) Any permission which is required under any law for initiating investigation or initiating prosecution under any Act shall be deemed to have been granted once the Lokpal has granted permission to initiate investigation or prosecution for any offences under the Prevention of Corruption Act. (10) The power of the Lokpal to investigate offences under the Prevention of Corruption Act shall be with the Lokpal notwithstanding any provision in the Money Laundering Act, 2002. (11) The jurisdiction of the special courts under the Prevention of Corruption Act, 1988 to try offences under such act shall be with the Special Court notwithstanding any provision in the Money Laundering Act, 2002. (12) The appropriate Bench of the Lokpal shall be deemed to be the designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages or data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885. (13) Section 4 (4) of Prevention of Corruption Act shall

appealing the sentence, will not apply to Prevention of Corruption Act. i.e. Those convicted will go straight to jail, and will have to fight their appeal from jail. Section 397 of CrPC will not apply to ongoing trial of corruption case by a special court. If a High Court calls for the records being examined by a Special Court, they shall have to be returned within a month. This is intended to prevent undertrials from delaying their conviction by manipulating to get their records held up in High Courts a favourite tactic of many lawyers. No law requiring permission for investigation or prosecution will be applicable once Lokpal decides to investigate and prosecute. Even cases being investigated by Enforcement Directorate as per Money Laundering Act 2002 will not be barred from the jurisdiction of the Lokpal for investigation and prosecution. Nor will the Special Court be barred from trying such cases. Lokpal will have powers to intercept and monitor all forms of messages through physical or electronic media. He can read sealed letters, tap telephones, hack internet and emails, SMSes etc. In short, if a person is under investigation, none of his communications will be private. Section 4(4) of Prevention of Corruption

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be amended as Notwithstanding anything contained in the Code of Criminal Procedure, 1973 a Special Judge shall hold the trial of an offence on day-to-day basis, and shall not grant adjournment for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice and for reasons to be recorded in writing

Act states that as far as practicable, the Special Court shall hold trials on a day-today basis. Jan Lokpal Bill amends this by deleting as far as practicable and makes it an absolute mandate to hold daily trials. It further adds that it shall not grant adjournments for any purpose, barring exceptional circumstances to be recorded in writing. 1. Govt Lokpal relies on Central Govt. to make rules to carry out the provisions of this Act. It lays down a clear list of areas for which rules must be framed. It acknowledges rule-making as a specialized government function. Jan Lokpal takes rule-making as a power of Lokpal. It does not leave it to the government.

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POWER TO MAKE RULES 60. (1) The Central Government may, by notification make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the form of complaint referred to in clause (d) of sub-section (1) of section 2; (b) the term of the Search Committee, the fee and allowances payable to its members and the manner of selection of panel of names under sub-section (5) of section 4; (c) the procedure of inquiry into misbehaviour for removal of the Chairperson or any Member under sub-section (1) of section 8; (d) the post or posts in respect of which the appointment shall be made after consultation with the Union Public Service Commission under the proviso to subsection (1) of section 11; (e) other matters for which the Lokpal shall have the

6. The Lokpal shall have the following functions and powers g) to provide by rules for the terms and conditions of service including the allowances and pension payable to the officers and staff of the Lokpal.

2.

Pros & Cons: a) Rule-making is a neglected function. Government often fails to lay down rules in a timely manner. b) Lokpal itself may be better equipped to make effective rules, as it would be in touch with the ground realities. c) However, Lokpal may subjectively make rules to maximise its own authority. It may fail to bear in mind the larger context of the administration and constraints posed the rules of other organizations.

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powers of a civil court under clause (vi) of subsection (1) of section 31; (f) the manner of sending the order of attachment along with the material to the Special Court under sub-section (2) of section 33; (g) the manner of transmitting the letter of request under sub-section (2) of section 39; (h) the manner of making reference to the Chief Justice of India under subsection (3) of section 40; (i) the form and the time for preparing in each financial year the budget for the next financial year, showing the estimated receipts and expenditure of the Lokpal under section 43; (j) the form for maintaining the accounts and other relevant records and the form of annual statement of accounts under sub-section (1) of section 45; (k) the form and manner and the time for preparing the returns and statements along with particulars under sub-section (1) of section 46; (l) the form and the time for preparing an annual report giving a summary of its activities during the previous year under sub-section (2) of section 46; (m) the form of annual return to be filed by a public servant under sub-section (5) of section 47; (n) the minimum value for which the competent authority may condone or exempt a public servant from furnishing information in respect of assets under the proviso to section 48; (o) any other matter which is to be or may be prescribed.

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POWER OF LOKPAL TO MAKE REGULATIONS 61. (1) Subject to the provisions of this Act and the rules made thereunder, the Lokpal may, by notification make regulations to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely: (a) the conditions of service of the secretary and other officers and staff of the Lokpal and the matters which in so far as they relate to salaries, allowances, leave or pensions, require the approval of the President under sub-section (2) of section 11; (b) the place of sittings of Benches of the Lokpal under clause (f) of sub-section (1) of section 19; (c) the manner for displaying on the website of the Lokpal, the status of all complaints pending or disposed of along with records and evidence with reference thereto under sub-section (13) of section 23; (d) the manner and procedure of conducting an inquiry or investigation under sub-section (15) of section 23; (e) any other matter which is required to be, or may be, specified under this Act.

18. (1) The Lokpal may by notification make regulations consistent with this Act to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power contained in sub-section (1) any such regulations may provide for all or any of the following matters, namely:a) the creation of different wings in the Lokpal to deal with different subjects like investigation, prosecution and grievances; b) the conferment of authority on officers at different levels to exercise powers under the Act and to lay down the procedure for any inquiries including those relating to complaints against its officers or members of staff ; c) periods within which the investigations and inquiries have to be completed d) To provide for the taking of certain decisions by appropriate benches of the Lokpal by circulation only. (e) Work norms for each category of officers and staff of Lokpal. 10(3) All policy level decisions including formulation of regulations, assignment and delegation of functions and powers shall be taken by the Board in accordance with regulations.

1. Govt. Lokpal Bill says that Lokpal may make regulations to provide for: conditions of service the places where different benches will sit the way to display status of complaints on the website The procedure for conducting enquiry and investigation Other matters 2. Jan Lokpal Bill says more-or-less the same thing in different words.

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LAYING OF RULES AND REGULATIONS 62. Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

18 (3) The regulations framed by the Lokpal under this Section shall be laid, as soon as may be after they are issued or made, before each House of Parliament.

1. Govt Lokpal Bill acknowledges the power of the Parliament to make modifications in the rule or regulations proposed by Lokpal. 2. Jan Lokpal Bill says that the regulations under section 18 will be laid before Parliament at the earliest AFTER they are issued or made. It says nothing about modification by Parliament. This could imply that it expects the Parliament to be a rubber stamp. It appears that Jan Lokpal will not be accountable to Parliament, and it will have jurisdiction over Central Govt, MPs, Judges, Ministers and Prime Minister.

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POWER TO REMOVE DIFFICULTIES 63. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty: Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

19. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, on the recommendation of the Lokpal, by order, not inconsistent with the provisions of this Act, remove the difficulty provided that no such order shall be made after the expiry of a period of 2 years from the date of commencement of this Act. (2) Every order made under this section shall be laid before each house of Parliament.

Removal of difficulties is a standard clause in almost every new legislation.

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1 Schedule OATH OF OFFICE I, A.B, having been appointed Chairperson (or a Member) of the Lokpal, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will.

st

No Equivalent Provisions

Dear friends, I have tried to make this an unbiased assessment. The aim was to facilitate thinking on both the proposed versions of Lokpal that are before the Standing Committee. Please revert to me with your reasoned views if you feel that I have come to faulty conclusions or made undeserved remarks against either version. A visual idea of the two proposed Lokpals can be seen here: http://tinyurl.com/Flowchart-JanLokpal-GovtLokpal Warm Regards, Krishnaraj Rao Mumbai 98215 88114 thebravepedestrian@gmail.com

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