[CA] Lokpal

 On March 19, Justice Pinaki Chandra Ghosh was appointed as India’s first Lokpal. The announcement came after a delay of five years as the Lokpal and Lokayukta Act, which envisaged appointment of a Lokpal at the Centre and Lokayuktas in the States to look into cases of corruption against certain categories of public servants, was passed in 2013. Now that the Lokpal chairman and eight members have been appointed, there may arise many questions related to its functions, duties and powers. Here, we seek to answer some questions about its functioning and the procedure for dealing with complaints against public servants under the Prevention of Corruption Act.

Who are the public servants covered by the Act?

 The Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union government, or a Member of Parliament, as well as officials of the Union government under Groups A, B, C and D. Also covered are chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre. It also covers any society or trust or body that receives foreign contribution above Rs.10 lakh.

What happens if a charge is made against the PM?

 The Lokpal cannot inquire into any corruption charge against the Prime Minister if the allegations are related to international relations, external and internal security, public order, atomic energy and space, unless a full Bench of the Lokpal, consisting of its chair and all members, considers the initiation of a probe, and at least two-thirds of the members approve it. Such a hearing should be held in camera, and if the complaint is dismissed, the records shall not be published or made available to anyone.

What is the procedure for preliminary inquiry?

 The Inquiry Wing or any other agency will have to complete its preliminary inquiry and submit a report to the Lokpal within 60 days. It has to seek comments from both the public servant and “the competent authority,” before submitting its report. There will be a ‘competent authority’ for each category of public servant. For instance, for the Prime Minister, it is the Lok Sabha, and for other Ministers, it will be the Prime Minister. And for department officials, it will be the Minister concerned.

Who are the functionaries of the Lokpal?

 The Lokpal will have a Secretary, who will be appointed by the Lokpal Chairperson from a panel of names prepared by the Central government. The Secretary will be of the rank of Secretary to the Government of India. The Lokpal will have to appoint an Inquiry Wing, headed by a Director of Inquiry, and a Prosecution Wing, headed by a Director of Prosecution. Until these officers are appointed, the government will have to make available officers and staff from its Ministries and Departments to conduct preliminary inquiries and pursue prosecution. The institution will also have to appoint other officers and staff.

[Polity] Leader of Opposition

Polity

Leader of Opposition

Leader of Opposition (LoP) in India Parliament

·        1977: The leaders of opposition in Lok Sabha and Rajya Sabha were given statutory recognition.

·        They provides constructive criticism of the govt. policies.

·        Gets same salaries and allowances that are equivalent to a Cabinet minister – paid by the govt.

·        To become leader of opposition, a political party needs atleast 10% strength of the house.

House	Total	10% of seat =	LoP
Rajya Sabha	245	25	Ghulam Nabi Azad (Cong = 67)
Lok Sabha	543	55	None (Cong = 44; AIADMK = 37)

·        Congress got only 44 seats in Lok Sabha. Even if we count the whole UPA alliance- its only 60 members.

·        But LoP is given only to party leader and not to alliance leader.

·        Therefore, neither congress nor the UPA leader can be declared as the leader of opposition in Lok Sabha.

 10% rules:

Between	Why
1952- 1969 (1952 – 1977)	Congress had large majority
1980 - 1984	Same
1984 - 1989	TDP leader was made LoP, although TDP had 3 seats less than 10% rule

·        Congress citing that TDP-episode to stake claims over LoP seat in 2014.

·        Final judge: Speaker of Lok Sabha.

·        She said “No party will get LoP seat this time, because none has won the required 55 seats”.

Appointment of Committees & LoP:

LoP required in the following committees
CVC	PM + Home Minister + Leader of Opposition in LS Although 2003 CVC act says, if no LoP then leader of single largest party can be made part of the Committee. But same act also says if vacancy in Committee, still appointment can be done.
CIC	PM + Union Minister + Leader of Opposition in LS RTI Act says “leader of the single largest party in the Lok Sabha”. (Doesn’t make 10% requirement).
NHRC	PM+ Home Minister + Speaker of LS + Dy Chairman of RS + Leader of Opposition of LS + Leader of Opposition of RS As per Protection of Human rights act 1993.- if vacancy in Committee, still appointment can be done.
Lokpal	PM + CJI +Speaker of LS + Leader of Opposition in LS + eminent jurist Even here, if vacancy in Committee, still appointment can be made as per Lokpal Act 2013.
NJAC	CJI +2 SC judges + Union Law Minister + 2 eminent jurist 2 eminent jurist would be recommended by (PM + CJI + Leader of Opposition in LS)

 Arguments on LoP:

Government	Congress
GV Mavalankar, First Lok Sabha speaker - he said main opposition party’s strength must equal the quorum Since quorum rule =10% of total membership Therefore, LoP must be from party with minimum 10% seats. This rule is incorporated in Direction 121(1) in Parliament (facilities) act 1998.	They’re citing Parliament Act of 1977- Norms regarding the salary allowances of leader of Opposition. It says – leader of single largest party in the opposition – would get the LoP post. (So there is no 10% requirement mentioned in it!)
Earlier even during Cong rule when they had majority, they did not give LoP seats to <10% (Except TDP). Since Speaker has given ruling, the matter is closed.	LoP is necessary to ensure public confidence in candidate selection in the high posts.

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[Polity] Lokpal and Lokayukta

Polity

Lokpal & Lokayukta

Introduction:

·        The institution of Ombudsman was first created in Sweden in 1809

·        “Ombud” is a Swedish term and refers to a person who acts as the representative or spokesman of another person

·        “Ombudsman refers to an officer appointed by the legislature to handle complaints against administrative and judicial action” – Donald C. Rowat

·        From Swede, the institution of Ombudsman spread to other Scandinavian countries – Finland (1919), Denmark (1955) and Norway (1962).

·        New Zealand is the first Commonwealth country in the world to have adopted the Ombudsman system in the form of a Parliamentary Commissioner for Investigation in 1962.

·        United Kingdom adopted Ombudsman – like institution called Parliamentary for Administration in 1967

·        The Ombudsman in India is called Lokpal / Lokayukta

·        Russia, China, Poland, Hungary, Czechoslovakia and Romania have created their own institutional device for the redressal of citizens’ grievances. It is called “Procurator System” in these countries.

Lokpal:

·        The Administrative Reforms Commission (ARC) (1966-1970) recommended the setting up of Lokpal and Lokayukta

·        These were to be set upon the pattern of the institution of Ombudsman in Scandinavian countries and the Parliamentary Commissioner for investigation in New Zealand.

·        Lokpal – would deal with complaints against Ministers and Secretaries at Central and State levels

·        Lokayukta (One at the Centre and one at every State) – would deal with complaints against other specified higher officials

·        The ARC kept Judiciary outside the purview of Lokpal and Lokayukta (as like in New Zealand; but in Sweden Judiciary is within the purview of the Ombudsman)

·        Lokpal would be appointed the President after consultation with the CJI, Speaker of Lok Sabha and the Chairman of Rajya Sabha – ARC recommendation

·        So far, 10 official attempts have been made to bring abut legislation on this subject. However, none of the bills were passed by the Parliament.

Lokayuktas:

·        While the Central government is still debating the establishment of the institution of Lokpal,   many States have already set up the institution of Lokayuktas

·        Odisha passed the Act in 1970 itself (but came into force only in 1983)

·        Institution of Lokayukta was established first in Maharashtra in 1971

·        Till now, 18 States and one Union Territory have established the institution of Lokayuktas.

States	Lokayukta created in
Odisha	1970
Maharashtra	1971
Rajasthan	1973
Bihar	1974
Uttar Pradesh	1975
Madhya Pradesh	1981
Andhra Pradesh	1983
Himachal Pradesh	1983
Karnataka	1985
Assam	1985
Gujarat	1986
Punjab	1995
Delhi	1995
Kerala	1999
Jharkhand	2001
Chattisgarh	2002
Haryana	2002
Uttarakhand	2002
Goa	2011

·        Structure of the Lokayukta is not same in all the States

·        Some States like Rajasthan, Karnataka, Andhra Pradesh and Maharashtra have created the Lokayukta as well as Upalokayukta

·        While some States like Bihar, Uttar Pradesh and Himachal Pradesh have created only the Lokayukta

·        Punjab and Odisha have designated officials as Lokpal.

·        Chief Minister is included within the jurisdiction of Lokayukta in the States of Himachal Pradesh, Andhra Pradesh, Madhya Pradesh and Gujarat while he is excluded from the purview of Lokayukta in the States of Maharashtra, Uttar Pradesh, Rajasthan, Bihar and Odisha

 Lokpal and Lokayuktas Act, 2011 (or) 2013:

·        Bill tabled in LS - Dec 22, 2011

·        Passed by Ls - Dec 27, 2011 (again in Dec 18, 2013)

·        Bill tabled in RS - 29 Dec, 2011

·        Bill referred to a Select Committee of RS for consideration - May 21, 2012

·        Bill passed in RS - Dec 17, 2013

·        Bill received assent from President - Jan 01, 2014

·        Came into force - Jan 16, 2014

·        Following are some important features of the Lokpal and Lokayuktas Bill, 2011, passed by Parliament:

Ø     Lokpal at the Centre and Lokayukta at the level of the states

Ø     Lokpal will consist of a chairperson and a maximum of eight members, of which 50 per cent shall be judicial members

Ø     50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities and women

Ø     The selection of chairperson and members of Lokpal shall be through a selection committee consisting of Prime Minister, Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI, eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee

Ø     Prime Minister has been brought under the purview of the Lokpal

Ø     Lokpal’s jurisdiction will cover all categories of public servants

Ø     All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are brought under the jurisdiction of Lokpal

Ø     Provides adequate protection for honest and upright public servants

Ø     Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal

Ø     A high powered committee chaired by the Prime Minister will recommend selection of the Director, CBI

Ø     Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director

Ø     The appointment of the Director of Prosecution, CBI on the recommendation of the Central Vigilance Commission

Ø     Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal

Ø     The bill also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending

Ø     The bill lays down clear time lines for preliminary enquiry and investigation and trial and towards this end, the bill provides for setting up of special courts

Ø     A mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature within a period of 365 days from the date of commencement of the Act

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