Official Amendments to Lokpal and Lokayuktas Bill, 2011- DOPT

Official Amendments to Lokpal and Lokayuktas Bill, 2011

The Union Cabinet has approved the proposals submitted by the Department of Personnel & Training for moving official amendments to the Lokpal and Lokayuktas Bill, 2011 as reported by the Select Committee of Rajya Sabha.

The Lokpal and Lokayuktas Bill, 2011 was passed by the Lok Sabha on 27th December, 2011. The Bill was taken up for discussion and passing in the Rajya Sabha on 29.12.2011. Discussions remained inconclusive. Thereafter, the Rajya Sabha adopted a motion on 21.05.2012 to refer the Bill to a Select Committee of the Rajya Sabha for examination and report.

The Select Committee submitted its report to the Rajya Sabha on 23.11.2012. The Select Committee has, in its Report, made recommendations suggesting amendments to Clause 3(4), 4(1 )(e), 14(1)(g), 14(1)(h), 20(1), 20(2), 20(3), 20(5), 20(6), 20(7), 20(8), 23, 25, 37, 46, 63-97 and Part-II of the Schedule. The Committee has also recommended consequential amendments in other provisions of the Bill as may be necessary.

Significantly, the Committee has recommended to do away with Part-III of the Bill which deals with setting up of the Lokayukta in the States. The Committee has recommended replacement of Part-Ill of the Bill with a new Section 63 which provides 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. Government has decided to accept this recommendation.

Some of the other important recommendations made by the Committee and decisions taken by the Government on them are as follows:

(a) In clause 3(4) of the Bill (dealing with disqualifications for becoming Member of Lokpal), the Select Committee has recommended that the words “connected with any political party” may be replaced by the words “affiliated with any political party”, so as to overcome the ambiguity associated with the word “connected with any political party`”. Government has decided to accept this recommendation.

(b) In clause 4(1 )(e) of the Bill (composition of the Selection Committee for selection of Lokpal), the Select Committee has recommended that the fifth member of the Selection Committee (i.e., eminent jurist) may be nominated by the President on the basis of recommendation of the first four members of the Selection Committee (viz.. Prime Minister, Speaker (Lok Sabha), Leader of Opposition (Lok Sabha) and Chief Justice of India). Government has decided to accept this recommendation.

(c) The Select Committee has recommended exclusion of bodies and institutions receiving donations from the public from the purview of Lokpal. Since bodies receiving donations from the public were also covered in the original Lokpal Bill, 2011 and the Department related Parliamentary Standing Committee had also endorsed this inclusion and had additionally, recommended the inclusion of entities receiving donations from foreign sources under the Foreign Contributions Regulation Act (FCRA), Government has decided not to accept this recommendation and seek an official amendment in the Bill as reported by the Select Committee. However, having regard to Section 10(23BBA) of the Income Tax Act (regarding exemption of income of bodies /authorities established under Central or Provincial Act for administration of public religious or charitable trusts or endowments or societies for religious or charitable purposes registered under Societies Registration Act), Government has decided to exempt only such bodies or authorities established, constituted or appointed by or under any Central or State or Provincial Act providing for administration of public religious or charitable trusts or endowments or societies for religious or charitable purposes registered under the Societies Registration Act. Other non-governmental bodies, such as, NGOs, political parties, etc. receiving donations from the public would thus remain within the purview of Lokpal.

(d) In clause 20(1) of the Bill, the Select Committee has recommended that the Lokpal should be given the power to order an investigation straightaway (without first ordering a preliminary inquiry) in case Lokpal finds that a prima facie case exists. Government has decided to accept this recommendation subject to the modification that the Lokpal should, before coming to a conclusion that there exists a prima facie case for entrusting the matter for investigation, call for the explanation of the public servant and only then decide whether there exists a prima facie case for ordering investigation.

(e) The Committee has recommended that in clause 20(2) of the Bill, the seeking of comments from the public servant during the preliminary inquiry should not be mandatory and has accordingly suggested the addition of the word “may” in the said clause. As the affording of an opportunity to the public servant and to the government/competent authority at this stage, would help clear doubts in several cases and would substantially reduce the number of cases going for regular investigation. Government has decided to oppose this recommendation of the Select Committee and move an official amendment for the purpose. Similar recommendation of the Select Committee to dispense with opportunity of hearing to the public servant before ordering regular investigation by the Lokpal in clause 20(3) of the Bill, is also proposed not to be accepted.

(f) The Select Committee has recommended that the power to grant sanction for prosecution of public servants could be shifted to the Lokpal in place of the Government. The Select Committee has also recommended that Lokpal may be required to seek comments of the competent authority and the public servant before taking such decision. Government has decided to accept this recommendation.

(g) The Select Committee has recommended a number of amendments in the Bill with a view to strengthening the Central Bureau of Investigation (CBI), including (i) the setting up of a Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director, CBI, (ii) the appointment of the Director of Prosecution on the recommendation of the Central Vigilance Commission, (iii) maintenance of a panel of advocates by CBI, other than Government Advocates, with the consent of the Lokpal for handling Lokpal referred cases, (iv) transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal, (v) provision of adequate funds to CBI for investigating cases referred by Lokpal, etc. Government has decided to accept all these recommendations except one. i.e. seeking approval of Lokpal for transfer of officers of CBI investigating cases referred by Lokpal, as it would, in Government`s view, affect the smooth functioning of the CBI.