Lokpal represents a mechanism for dealing with complaints of corruption against public functionaries and public servants at all levels of government from top to thebottom. Theterm ‘public functionaries’ is often used to refer to persons other than civil servants holding public offices like ministers or other political persons. The complaint should contain allegations that a public servant has committed an offence punishable under the Prevention of Corruption Act. Lokpal has a wide jurisdiction of looking into complaints against public functionaries and public servants who may be serving or who may have retired. The Act mentions the following categories.
¤ Prime minister
¤ Ministers
¤ Members ofparliament
¤ Group ‘A’ or Group ‘B’ officer or equivalent or above when serving or who has served in the Central government
¤ Any Group ‘C’ or Group ‘D’ official or equivalent when serving or who has served in the Central government
¤ Any person who is or has been a chairperson or member or officer or employeeinany body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it. This covers the officials working in any Central government undertaking including banks and any other entity which receives Central government funds.
¤ Officials (such as directors, managers, secretaries or other officers) in bodies which are wholly or partly financed by the Government and the annual income of which exceeds such amount as may be specified by the Central Government.
¤ Officials of every other society or association of persons or trust which receives more than a specified amount or more than Rs 10 lakhs from any foreign donors.
Inquiry Wing and Prosecution Wing
The traditional practice is to place investigative and prosecution agencies under the executive wing of government. For example, State police, CBI and Enforcement directorate are investigative agencies. In recent years, to reduce political interference in corruption cases, CBI has been brought under the direction and superintendence of Central Vigilance Commission, with regard to corruption cases. Supreme Court is considering the question of making CBI autonomous from government, with a view to delink corruption case investigations from government influence.
Lokpal will have an in house Inquiry Wing headed by the Director of Inquiry for conducting preliminary inquiry into any allegations of corruption. Lokpal will also have a Prosecution Wing headed by the Director of Prosecution. This wing will prosecute public servants charged after investigation into complaints received by Lokpal. The Lokpal can independently constitute these Directorates.
Procedure for Complaint Handling
The Act lays down the procedure for handling the complaints. When Lokpal gets a complaint, they will first decide whether to proceed with the matter or to close it. Frivolous and unsubstantiated complaints will be closed. But if the Lokpal decides to proceed further, it shall order a preliminary inquiry against any public servant by its Inquiry Wing or any agency (including the CBI) to ascertain whether there exists a prima facie case for proceeding in the matter.
Lokpal can send complaints received by it about Group A or Group B or Group C or Group D government servants to the Central Vigilance Commission. The Central Vigilance Commission after making preliminary inquiry of the complaint shall submit its report to the Lokpal about public servants of Group A and Group B. As regards public servants belonging to Group C and Group D, it can decide the further course of action on its own.
During the preliminary inquiry, the Inquiry Wing or CBI also has to seek the comments on the allegations made in the complaint from the public servant and from the competent authority or his designatedofficial superior. Thereafter, the report has to be submitted to Lokpal. A bench consisting of not less than three Members of the Lokpal will consider the report received from the Inquiry Wing or CBI. After giving an opportunity of being heard to the public servant, the bench will decide whether there exists a prima facie case and which course to adopt. There are three alternatives if a prima facie case is made out in the report: (a) investigation by any agency or the CBI; (b) initiation of the departmental proceedings or any other appropriate action against the concerned public servants by the competent authority; and (c) closure of the proceedings against the public servant. If the complaint is malicious or baseless, action can be taken against the complainant.
When Lokpal orders an investigation, CBI has to complete the investigation within six months and submit the investigation report containing its findings to the Lokpal. A bench consisting of three Members has to consider the investigation report. They may decide either to
(a) file chargesheet or closure report before the Special Court against the public servant;
(b) initiatedepartmental proceedings or other appropriate actionagainst the concerned public servant through the competent authority.
The Lokpal may, if it decides to file a chargesheet, direct its Prosecution Wing to initiate prosecution in the Special Court. Lokpal Act contains provisions for setting up special courts for the trial of cases filed by Lokpal.
Government has created safeguards to protect senior officers who participate in or take sensitive decisions. There are general legal clauses which protect actions which public servants take in good faith. In such cases, no action can be taken against them. In addition, there are provisions in relevant laws which lay down that investigations or prosecutions cannot be started against officers of certain seniority without the prior approval of government or other competent authority. These provisions are section 197 of the Code of Criminal Procedure, section 6A of the Delhi Special Police Establishment Act, and section 19 of the Prevention of Corruption Act.
These provisions have often become a means of delaying action against errant officials. They have also created avoidable legal complications in court proceedings. There have been persistent demands for removing these provisions. These requirements have been made inapplicable in the Lokpal Act. No sanction or approval of any authority is required when the Lokpal orders a preliminary inquiry or an investigation or prosecution. This will not apply to those who hold constitutional offices and are removable by procedures separately laid down in the constitution.
The Act empowers the Lokpal to attach the proceeds of corruption (cash and other assets) in possession of a public servant. The attachment can be done for 90 days, and subject to the approval of the special court, for the duration of the prosecution against the public servant. If the charges are proved against the public servant, the attached proceeds can be confiscated by the central government. Otherwise, they are returned to the public servant.