Functioning of Lokpal
14. Functioning of Lokpal: (1) The Chairperson shall be responsible for overall administration and supervision of the institution of Lokpal.
(2) All policy level decisions including formulation of regulations, developing internal systems for the functioning of Lokpal, assigning functions to various officials in Lokpal, delegation of powers to various functionaries in Lokpal etc shall be taken by the Chairperson and the members collectively as a body.
(3) The Chairperson shall have an annual meeting with the Prime Minister to assess the needs of Lokpal for finances and manpower. Lokpal shall be provided resources by the Government on the basis of outcome of this meeting.
(4) Lokpal shall function in benches of three or more members. Benches shall be constituted randomly and cases shall be assigned to them randomly by computer. Each bench shall consist of at least one member with legal background.
(5) Such benches shall be responsible for
(i) granting permission to close any case after a preliminary enquiry
(ii) granting permission to either close a case after investigations or issuing orders imposing penalties under CCS Conduct Rules and/or for initiating prosecution in that case.
(iii) Issuing orders under section 28 and section 13B.
(6) Lokpal may decide to initiate investigations into any case suo moto also.
(7) The decision to initiate investigation or prosecution against any member of the Cabinet or any judge of High Court or Supreme Court shall be taken in a meeting of all the existing members and the Chairperson. Minutes and records of such meetings shall be made public.
15. Making a complaint to the Lokpal
(1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokpal.
Provided that in case of a grievance, if the person aggrieved is dead or for any reason, unable to act for himself, the complaint may be made or if it is already made may be continued by his legal representatives or by any other person who is authorized by him in writing in this behalf.
(2) A complaint could be on a plain paper but should contain all such details as prescribed by Lokpal.
(2A) After its annual report has been presented in the Parliament, the Comptroller and Auditor General of India shall forward all such cases, which constitute an allegation under this Act, to the Lokpal and Lokpal shall act on them as per provisions of this Act.
(3) On receipt of a complaint, the Lokpal shall decide whether it is an allegation or a grievance or a request for whistleblower protection or a mixture of two or more of these.
(4) Every complaint shall have to be compulsorily disposed off by the Lokpal.
Provided that no complaint, other than those which are anonymous or pseudonymous, shall be closed without hearing the complainant.
16. Matters which may be investigated by the Lokpal
Subject to the provisions of this Act, the Lokpal may investigate any action which is taken by or with the general or specific approval of a public servant where a complaint involving a grievance or an allegation is made in respect of such action.
Provided that the Lokpal may also investigate such action suo moto or if it is referred to it by the government, if such action can be or could have been in his recorded opinion, subject of a grievance or an allegation.
17. Matters not subject to investigation
(1) The Lokpal shall not conduct any investigation under this Act in case of a grievance in respect of any action-
(i) if the complainant has or had, any remedy by way of appeal, revision, review or any other remedy before any other authority provided in any other law and he has not availed of the same.
(ii) Taken by a judicial or quasi-judicial body, unless the complainant alleges malafides
(iii) If the substance of the entire grievance is pending before any court or quasi-judicial body of competent jurisdiction.
(iv) any grievance where there is inordinate and inexplicable delay.
(2) Nothing in this Act shall be construed as authorising the Lokpal to investigate any action which is taken by or with the approval of the Presiding Officer of either House of Parliament.
(3) The provisions of this Act shall be in addition to the provisions of any other enactment or any rule or law under which any remedy by way of appeal, revision, review or in any other manner is available to a person making a complaint under this Act in respect of any action and nothing in this Act shall limit or affect the right of such person to avail of such remedy.
(4) Nothing in this section shall bar Lokpal from entertaining a complaint making an allegation of misconduct or corruption or a complaint from a whistleblower seeking protection.
18. Provisions relating to complaints and investigations
(i) (a) The Lokpal, on receipt of a complaint in the nature of an allegation or a grievance or a combination of the two, or in a case initiated on his own motion, may on perusing the documents, either decide to proceed to enquire or investigate into that complaint or decide, to make such preliminary inquiry before proceeding to enquire or investigate into such complaint or direct any other person to make such preliminary inquiry as it deems fit for ascertaining whether there exists reasonable ground for conducting the investigation. The outcome of such preliminary enquiry, and if the complaint is being closed along with reasons for the same and all material collected during preliminary enquiry, shall be communicated to the complainant.
Provided that if any case is closed, all documents related thereto shall thereafter be treated as public. Every month, a list of all such cases shall be put on the website with reasons for closing a case. All material connected with such closed cases will be provided to anyone seeking it under Right to Information Act.
Provided further that if the complaint contains verifiable and specific information about misconduct or corruption, then that case shall not be rejected even if the complaint is anonymous.
Provided further that no complaint of allegation shall be rejected by questioning the motives or intention of the complainant.
Provided further that all hearings before Lokpal shall be video recorded and shall be available to any member of the public on payment of copying costs.
(b) The procedure for preliminary enquiry of a complaint shall be such as the Lokpal deems appropriate in the circumstances of the case and in particular, the Lokpal may, if it deems necessary to do so, call for the comments of the public servant concerned.
Provided that the preliminary enquiry should be completed and a decision taken whether to close a case or to proceed with investigations within one month of receipt of any complaint.
(ii) Where the Lokpal proposes, either directly or after making preliminary inquiry, to conduct any investigation under this Act, he.-
(a) may make such order as to the safe custody of documents relevant to the investigation, as it deems fit.
(b) at appropriate stage of investigations or in the end, it shall forward a copy of the complaint, its findings and copy of the material relied upon to the concerned public servant and the complainant,
(c) shall afford to such public servant and the complainant an opportunity to offer comments and be heard.
Provided that such hearing shall be held in public, except in such rare circumstances, to be recorded in writing, will it be held in camera.
(iii) The conduct of an investigation under this Act against a Public servant in respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to the investigation.
(iv) If, during the course of preliminary inquiry or investigation under this Act, the Lokpal is prima facie satisfied that the allegation or grievance in respect of any action is likely to be sustained either wholly or partly, he may, through an interim order, direct the public servant concerned to stay the implementation or enforcement of the decision or action complained against, or to take such mandatory or preventive action, on such terms and conditions, as he may specify in his order to prevent further harm from taking place.
(v) The Lokpal, either during the course of investigations, if it is satisfied that prosecution is likely to be initiated in that case, or at the end of the investigations at the time of initiating prosecution, shall make a list of moveable and immoveable assets of all the accused in that case and shall notify the same. No transfer of the same shall be permitted after such notification. In the event of final conviction, the court shall be empowered to recover loss determined under section 19 of this Act from this property, in addition to other measures.
(vi) If during the course of investigation or enquiry into a complaint, Lokpal feels that continuance of a public servant in that position could adversely affect the course of investigations or enquiry or that the said person is likely to impact evidence or witnesses, the Lokpal may issue appropriate orders including transfer of that public servant from that position or his suspension.
Provided that such orders shall not be passed against the Prime Minister.
(vii) In case of a grievance, the Lokpal may issue interim orders to the appropriate authority recommending grant of interim relief to the complainant if he is satisfied at any stage of preliminary inquiry on investigation that the complainant has sustained injustice or undue hardship in consequence of any decision or action of a public servant.
(viii) The Lokpal may, at any stage of inquiry or investigation under this Act, direct through an interim order, appropriate authorities to take such action as is necessary, including suspension of a government servant, pending inquiry or investigation.-
(i) to safeguard wastage or damage of public property or public revenue by the administrative acts of the public servant;
(ii) to prevent further acts of misconduct by the public servant;
(iii) to prevent the public servant from secreting the assets allegedly acquired by him by corrupt means;
(ix) Where after investigation into a complaint, the Lokpal is satisfied that the complaint involving an allegation against the public servant, other than the Ministers, Members of Parliament and judges, is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokpal shall pass orders to that effect. In case of public servant being a Minister or a Member of Parliament, Lokpal shall make such recommendation to the President, who shall decide either to accept such recommendation or reject it within a month of its receipt.
Provided that the provisions of this section shall not apply to the Prime Minister.
(x) If, after enquiry into a grievance and after affording reasonable opportunity of being heard to both the complainant and the public authority, the Lokpal is satisfied that such grievance is substantiated either wholly or partly, he shall,
i. Pass appropriate orders directing appropriate authorities to redress the grievance in a manner and within the time prescribed in the order, and
ii. Direct the appropriate authorities to deduct from the salary of the officials mentioned in the order, such penalty amounts as are directed by Lokpal , which shall not be less than Rs 250 per day of delay calculated from day the time limit mentioned in citizens’ charter for redressing that grievance got over, and
iii. Direct the appropriate authorities to compensate the complainant with such amounts as mentioned in the order.
Provided that any grievance shall be disposed within 15 days of its receipt.
Provided further that if it relates to life and liberty of a person or if the matter is such as to warrant immediate attention and the Lokpal is so satisfied, the same shall be disposed within 48 hours.
(xi) All records and information of Lokpal shall be public and shall be provided under Right to Information Act, even at the stage of investigation or enquiry, unless release of such information would adversely affect the process of enquiry or investigation.
Provided that no information in any case shall be withheld under Right to Information Act after the completion of enquiry or investigation.
Recovery of Loss to the Government and punishments
19. Recovery of loss to the Government: If a person is convicted of an offence under Prevention of Corruption Act, then the trial court will also quantify the loss caused to the government and apportion that amount to various convicts from whom this money must be recovered as arrears of land revenue.
19A. Punishments for offences: For offences mentioned in Chapter III of Prevention of Corruption Act, proviso to section 2(4) of this Act and section 28A of this Act, punishment shall not be less than seven years which may extend upto life imprisonment.
Provided that if the accused is any officer of the rank of Joint Secretary in the state or above or a Minister, the punishment shall not be less than ten years.
Provided further that if the offence is of the nature mentioned in proviso to section 2(4) of this Act and if the beneficiary is any corporate house, in addition to other punishments mentioned in this Act and under Prevention of Corruption Act, a fine amounting to five times the loss caused to the government shall be recovered from the accused and the recovery may be done from the assets of the company and from the personal assets of all Directors of the company, if the assets of the accused are inadequate.
Provided further that if the accused is either a member of Lokpal or Chairperson of Lokpal or any person who is in direct or indirect employment of Lokpal, the punishment shall not be less than ten years.
20. Protection of Whistleblower: (1) A whistleblower may write to Lokpal seeking protection from threat of physical or professional victimization or if he has been subjected to such professional or physical victimization.
(2) On receiving such a complaint, Lokpal shall take following steps:
(a) Threat of professional victimization: Lokpal shall conduct appropriate enquiries and if it feels that there is a real threat to the person and the threat is on account of that person having made an allegation under this Act, then the Lokpal shall pass appropriate orders, as soon as possible but in not more than a month of receipt of such complaint, directing appropriate authorities to take such steps as directed by the Lokpal.
(b) If a person complains that he has already been victimized professionally on account of making an allegation under this Act, Lokpal shall, after conducting enquiries, if he is of the opinion that the victimization is indeed because of that person’s having made an allegation under this Act, pass appropriate orders, as soon as possible but in not more than a month, directing appropriate authorities to take such steps as directed by the Lokpal.
Provided that for clause (a) Lokpal may, but for clause (b) the Lokpal shall, also issue orders imposing penalties under CCS Conduct Rules against the officer or officials who issued threats or caused victimization.
Provided further that no such penalties shall be imposed without giving an opportunity of being heard to the affected officials.
(c) Threat of physical victimization: Lokpal shall conduct appropriate enquiries and if it feels that there is a real threat to the person and the threat is on account of that person having made an allegation under this Act or for having filed an RTI application to any public authority covered under this Act, then notwithstanding anything contained in any other law, the Lokpal shall pass appropriate orders, as soon as possible but in not more than a week, directing appropriate authorities, including police, to take such steps as directed by the Lokpal to provide adequate security to that person, to register criminal cases against those who are issuing threats and also to take all such steps necessary to mitigate circumstances leading to such threat.
Provided that if the threat is imminent, Lokpal may decide to act immediately, within a few hours to prevent physical assault on that person.
(d) If a person complains that he has already been physically assaulted on account of making an allegation under this Act and if Lokpal is satisfied after conducting enquiries that the person has been assaulted because of his having made an allegation under this Act or for filing an RTI application in any of the public authorities covered under this Act, then notwithstanding anything else contained in any other law, the Lokpal shall pass such orders, as soon as possible but in not more than 24 hours, directing the concerned authorities to take such steps as directed by the Lokpal to provide adequate security to that person, to register criminal cases and also to ensure that no further harm visits on that person.
(e) If the whistleblower has alleged an act punishable under Prevention of Corruption Act, then for cases under clause (c), Lokpal may and for cases under clause (d), the Lokpal shall, assign the allegations made by that person to a special team, put it on a fast track and complete investigations in that case in not more than a month.
(f) If the whistleblower has alleged an act punishable under any law other than the Prevention of Corruption Act, then for cases under clause (c), Lokpal may and for cases under clause (d), the Lokpal shall, direct the agency which has the powers to enforce that law to assign the allegations made by the whistleblower to a special team, put it on a fast track and complete investigations in that case in such time as directed by the Lokpal.
(g) Lokpal shall have the powers to issue directions to appropriate agencies in the cases covered under clause (f), monitor such investigations and if necessary, issue directions to that agency to do the investigations in the manner as directed by the Lokpal.
(3) If any complainant requests that his identity should be kept secret, Lokpal shall ensure the same. Lokpal shall prescribe detailed procedures on how such complainants shall be dealt with.
(4) Lokpal shall Issue orders to the Public Authorities to make necessary changes in their policies and practices to prevent recurrence of victimization.