The Indian government last week tabled its version of draft legislation to set up the Lokpal, a corruption complaints ombudsman. Anti-corruption advocates were quick to burn copies of the government draft, because, as expected, it doesn’t allow the agency to investigate a sitting prime minister.
But what else is in the draft? Here’s a quick guide.
1. Staffing. The chairperson of the Lokpal must be a former chief justice or judge in the Supreme Court of India. In addition, the Lokpal should have eight other members of whom at least four must also have been a former chief justice or judge of the Supreme Court.
This restricts the pool of candidates for at least five spots to people over the age of 65, which is the retirement age for Indian Supreme Court justices. At any given time, there should be 31 serving Supreme Court judges, though in any given year just a handful will retire.
For the remaining spots, candidates should have at least 25 years of experience in anti-corruption policy, governance, finance or management.
These people will be selected by a committee of eight, including the prime minister, Lok Sabha speaker, Lok Sabha opposition leader, Rajya Sabha opposition leader, one Cabinet minister, one judge, one legal scholar and one person of “eminence in public life.”
2. Jurisdiction. The Lokpal can investigate a prime minister after he or she has left office; a sitting or former minister; members of parliament (with some limitations); “Group A” civil servants and above (as defined in the 1989 Prevention of Corruption Act); and the chairperson and senior executives of a company or body that is at least partly financed by the government or controlled by it.
The Lokpal can also investigate executives of bodies and trusts that receive public donations and that have an income over an amount to be decided. This is a provision that could apply, for example, to yoga guru Baba Ramdev’s trusts.
Only a chief justice can investigate allegations of corruption against the Lokpal chairperson and members, but other Lokpal employees come under this act’s jurisdiction.
The statute of limitations has been set at seven years for complaints that can be investigated.
3. Investigation. The Lokpal will have an investigation wing to inquire into whether a public servant has violated the 1988 anti-corruption act. Until this wing is set up, the central government is supposed to make available police and other staff to the Lokpal. After obtaining consent from individual states, Lokpal police can be given the same powers as regular state police. Investigations must be conducted by a police officer of the rank of deputy superintendent of police or higher.
On the receipt of a complaint, the Lokpal must carry out a preliminary inquiry in 30 days, which can be extended to three months if reasons for doing so are provided in writing. On the basis of that inquiry, which should include a hearing for the person accused, the Lokpal decides whether to proceed further against the person or dismiss the complaint.
In the course of an investigation, the Lokpal can seize and retain documents. All documents being used against the accused should also be made available to him or her. The search provisions of the 1973 Code of Criminal Procedure relating to magistrates will govern Lokpal searches. The Lokpal can require witnesses to appear before it mandatorily.
If the Lokpal decides to proceed further, it must complete its investigation within a year of the original complaint, but preferably six months. After that, the ombudsman must file a complaint in a special corruption court, recommend disciplinary action or dismiss the complaint. If the Lokpal is going to prosecute, it must also send a report to the government to be tabled in Parliament.
If the Lokpal believes a person has benefited from corruption and is on the verge of concealing those profits, it can provisionally freeze assets for up to 90 days after recording its reasons in writing. In doing so, the Lokpal should follow the regulations in the second schedule of the 1961 Income Tax Act while it requests the special court to freeze the assets for the duration of the inquiry.
Legal assistance should be provided to the accused if it is requested.
4. Prosecution. The Lokpal can itself prosecute public servants in special courts the government will set up under the Prevention of Corruption Act, 1988, or under the Lokpal Act. Once a case is filed in a special court, a trial must be completed within a year. This can be extended, three months at a time, to an extra year, provided that reasons for requiring the extra time are provided in writing.
Penalties. If a government department is asked by the Lokpal to take disciplinary action against an officer, it must begin doing so within 30 days.
If a public servant is convicted of corruption in the special court, the court can assess the estimated losses from the misconduct and order that this amount be recovered from the officer.
The minimum jail time for an offence under the corruption act is two years. The act amends the 1988 act to extend the maximum jail time for corruption offences to 10 years, up from seven.
If a corruption court finds that a “frivolous” complaint was made, it can impose a jail time of two to five years and/or a fine of 25,000 rupees ($555) to 200,000 rupees. (Under the draft preferred by activist Anna Hazare and the India Against Corruption group, jail time can be imposed only on frivolous complaints against Lokpal officers.)