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Chapter 3.6.4: Jan Lokpal Bill: Technical Problems

(August 2011)

Given underneath are technical problems in the Jan Lokpal Bill 2011 downloaded from the website of India Against Corruption (Re: https://docs.google.com/file/d/0B3C_zx4dsPdWOGYxMWE3ZmEtZjNlNi00ZTQzLTkyZjUtYzc3YzI0NTQxY2Uz/edit?pli=1):

Section 4(4)(b): As per this section, no person against whom charges were ever framed in any offence involving moral turpitude can become a lokpal. Section 509 and 510 IPC both qualify as offences involving moral turpitude; section 509 definitely does. Section 509 is a summons case, and it is not necessary to frame charge in a summons case vide section 251 CrPC.

Section 4(5) Explanation: People having legal knowledge through academic pursuits have not been included in the definition of “Legal Background.”

Section 4(21): Who will decide whether the association is likely to “adversely affect”? The provision leaves lots of scope for arbitrary decisions.

Section 6(c): The departmental disciplinary proceedings, which generally decide the fate of bureaucrats, are distinct and separate from the police investigations. This provision, it seems, is merging the two as, it seems, the section provides for decision making with respect to the fate of the bureaucrats, etc, on the basis of the police (lokpal) investigations. This is a clear case of conflict of interest and is also against the constitutional norms of “Separation of Powers.” Also, the police investigations ought to be far more rigorous than the departmental enquiries; the two just can’t be merged. This will actually make the Lokpal weak as he will have to wait much longer before taking action.

Section 6(n): The attachment and confiscation of assets requires judicial decision making. Thus, this section is against the constitutional norms of “Separation of Power.”
Section 6(o): “Lokpal” in this section should be restricted to the officers only as the “board” or “bench”, equal to the Supreme Court in powers, can’t approach the High Courts. A clarification needs to be made.

Section 6(s): “Sentencing policy” is a purely legislative function (can’t even be called delegated legislation); this is clearly against the constitutional norms of “Separation of Power.”

Section 7(2) r/w Sec 9(3) r/w Sec 10(4): The power to produce documents under the CPC and the search warrant u/s 93 CrPC! Why not the production also u/s 91 CrPC! Evidence on affidavit, and the complaint in the form of an FIR! If it is a criminal complaint, then no evidence can be taken on affidavit; I know of an exception to the above rule only u/s 145 NI Act, and that’s, probably, because s. 138 NI Act is a legal fiction, but the complaints under the Lokpal Act, I believe, are not.

Section 7(7): Lokpal can investigate any other offence under any other law! So, can it prosecute too? If yes, the Lokpal will become a superman.

Section 7(8): Same as in Sec 6(o) above

Section 10(1): “Lokpal” needs to be clarified here because “lokpal” includes the “board”, the “benches” as well as the “officers” and the “employees”.

Section 10(2)(c): “[M]erits”! Does it include jurisdiction? I think it does not. So, would any decision passed by a lokpal without jurisdiction be valid? The answer is no because it would be void ab-initio. But, I think, I have made the point.

Section 11(5): Imprisonment of one year is too harsh. It will discourage complaints against the Lokpal.

Section 12: In AIR 1997 SC 1125 (Re: L. Chandra Kumar vs Union of India, AIR 1997 SC 1125; download it from http://indiankanoon.org/doc/1152518/), the Supreme Court refused to accept the contention of the counsels that the Tribunals be bought under the superintendence of the High Courts; however, it allowed the review under Art 226 by a division bench. The Tribunal judges are equivalent to the High Court judges; however, a lokpal bench is equivalent to a bench of the Supreme Court; it’s unpalatable that a Supreme Court equivalent decision be reviewed by a High Court.

Section 20(3): Setting up of courts is a legislative function; the “binding recommendations” means the usurpation of the legislative function.

Sec 22(1) to (4): The “binding recommendations” with respect to the penalties is a purely judicial function. Such recommendations would be based on the enquiry conducted by the judicial officers appointed by the Lokpal on the evidence produced by prosecutors appointed by the Lokpal on the evidence collected by investigators appointed by the Lokpal. So, the Lokpal would be running a parallel government appointing both the judicial and the executive functionaries. This is against both the “Independence of Judiciary” and the “Separation of Powers.” © 2011-2015 Ankur Mutreja