The government has finally set the stage for the passage of the controversial Lokpal Bill in the Budget session of Parliament. The Union Cabinet headed by Prime Minister Manmohan Singh approved the draft of the bill with some amendments proposed by the Select Committee of Rajya Sabha.
There are, however, some issues like the government’s discretion in transferring an investigating officer of a case without seeking the consent of Lokpal over which the opposition could raise an objection. Anna Hazare has already threatened a fresh agitation.
The draft has also done away with Part III of the bill, which dealt with Lokayukta in the states. Several parties and state governments had opposed the provision seeking formation of Lokpal and Lokayukta under one central Act. On the basis of the recommendations of the parliamentary Select Committee, the government has inserted Section 63, which seeks 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. It also did not accept the Select Committee’s recommendation excluding NGOs from Lokpal’s scrutiny.
On CBI, the government has decided not to accept one of the most important recommendations of the Select Committee – approval of Lokpal for transfer of officers of CBI investigating cases referred by Lokpal. It argued that it would affect the smooth functioning of the CBI.
However, it approved of other recommendations of the committee on the agency. These include: (a) the setting up of a Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director, CBI, (b) the appointment of the Director of Prosecution on the recommendation of the Central Vigilance Commission, (c) maintenance of a panel of advocates by CBI, other than Government Advocates, with the consent of the Lokpal for handling Lokpal referred cases, (d) transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal, (e) provision of adequate funds to CBI for investigating cases referred by Lokpal.
The Lokpal and Lokayuktas Bill, 2011, was passed by the Lok Sabha on 27th December, 2011. It was taken up for discussion and passing in the Rajya Sabha on 29 December, on the last day of the Winter session. But since the opposition moved a number of amendments and had mobilised adequate numbers to beat the government on the floor of the House, the government got the House adjourned sine-die at midnight on the plea that it did not have mandate to run the House past midnight.
The Rajya Sabha had then adopted a motion on 21 May 2012 to refer the Bill to a Select Committee of the Rajya Sabha for examination and report. If the new draft is passed by Rajya Sabha then it would have to be sent to Lok Sabha for approval.
In clause 20(1) of the Bill, the Select Committee has recommended that the Lokpal be given the power to order an investigation straightaway (without first ordering a preliminary inquiry) in case it finds that a prima facie case exists. The 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.
The committee had recommended that seeking of comments from the public servant during the preliminary inquiry should not be mandatory and had accordingly suggested the addition of the word “may” in the said clause. The government has decided to oppose this recommendation of the Select Committee and move an official amendment to the effect. Similar recommendation of the Select Committee to dispense with the opportunity of hearing to the public servant before ordering regular investigation by the Lokpal in clause 20(3) of the Bill, has also not been accepted.
The government has accepted Select Committee recommendation that the power to grant sanction for prosecution of public servants could be shifted to Lokpal. Lokpal, however, will be required to seek comments of the competent authority and the public servant before taking such decision.
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 (Prime Minister, Lok Sabha Speaker , Leader of Opposition in Lok Sabha and Chief Justice of India). The government has decided to accept this recommendation.
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 original phrase. The government has decided to accept this recommendation.
The Select Committee had recommended exclusion of bodies and institutions (NGOs) 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), the government has decided not to accept this recommendation and seek an official amendment in the Bill.
However, with 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), the 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.