(Jan. 8, 2014) On January 1, 2014, President Pranab Mukherjee of India signed into law landmark legislation aimed at combating corruption by creating an anti-graft ombudsman with broad powers to prosecute all offending politicians, ministers, and senior civil servants, including the Prime Minister of the country. (Indian President Signs Historic Anti-Corruption Law, AUSTRALIA NETWORK NEWS (updated Jan. 2, 2014).) In a rare show of unity, the ruling Congress Party and main opposition Bharatiya Janata Party both supported approval of the Lokpal [ombudsman, literally protector or caretaker of the people, in Hindi] and Lokyukta [ombudsman at the state level] Bill in the lower house (Rajya Sabha) of the Parliament, smoothing the way for its passage in the upper house (Lok Sabha) on December 31, 2013. (Id.)
Key stated objectives of the new law are the more effective implementation of the United Nations Convention Against Corruption, which India has ratified, and the prompt and fair investigation and prosecution of cases of corruption. (United Nations Convention Against Corruption, United Nations Office on Drugs and Crime website (last visited Jan. 3, 2014).) The legislation was adopted on the basis and in furtherance of India’s main anti-corruption law, The Prevention of Corruption Act, 1988 (Act No. 49 (Sept. 9, 1988), Ministry of Personnel, Public Grievances and Pensions website).
The ombudsman’s office will coordinate some of its activities with the Central Vigilance Commission (CVC), “an independent watchdog agency established in 1964 with a mandate to undertake inquiries or investigations of transactions involving certain categories of public servants.” (India Country Profile: Public Anti-Corruption Initiatives, BUSINESS ANTI-CORRUPTION PORTAL (last visited Jan. 3, 2014).) The CVC, however, “is advisory and does not have direct powers to investigate” under the CVC Act 2003 (THE GAZETTE OF INDIA (Sept. 12, 2003)), it is authorized to look into alleged offenses committed by federal-level officials under the Prevention of Corruption Act, but not those allegedly committed by officials at the state level. (India Country Profile: Public Anti-Corruption Initiatives, supra.) Reportedly, the independence of the CVC has been called into question; for example, a 2011 Global Integrity report noted that in the agency’s appointment process, merit is not necessarily a criterion for obtaining a senior post, a factor that can detract from the CVC’s independence. (Id.)
A Lokpal bill was first introduced in the Lok Sabha in 1968, and subsequently nine other attempts at passage were made before its successful adoption in 2013. (Nikhila Gill, Lokpal Bill: Over Four Decades of Failed Attempts, THE NEW YORK TIMES (updated Dec. 26, 2011).) An anti-corruption movement launched in 2011 by activist Anna Hazare, in which politician Arvind Kejriwal, dubbed an “anti-graft hero,” played a key role, gave impetus to the bill’s successful passage. (Indian President Signs Historic Anti-Corruption Law, supra.)
Hazare’s home state of Maharashtra was the first Indian state to enact a Lokayukta and Upa-Lokayukta Act, in 1971; other states followed suit. However, as a former Maharashtra state ombudsman noted, the Act was “very weak” and the office of ombudsmen seemed to be merely “a symbolic institution,” with “no powers to investigate” and the need “to depend on the state government,” so that even a recommendation to hold criminal proceedings required government permission. (Prafulla Marpakwar, Lokayukta a ‘Paper Tiger’ in Anna’s Home State, THE TIMES OF INDIA (Aug. 18, 2011).)
Some Features of the Ombudsman
The legislation seeks to establish the Lokpal and Lokayuktas, with state laws on the subject to be enacted by the respective state legislatures within one year of the Act’s entry into force. (Lokpal Now a Law as President Pranab Mukherjee Gives His Assent to the Anti-Corruption Legislation, NDTV (Jan. 1, 2014).) The Lokpal and Lokayuktas Bill, 2013 applies to civil servants stationed both inside and outside India. (The Lokpal and Lokayuktas Bill, 2013 (as passed by both Houses), § 1(3), PRS LEGISLATIVE RESEARCH.)
According to the legislation, the Lokpal is to consist of:
(a) a Chairperson, who is or has been either a Chief Justice of India or a Judge of the Supreme Court or an eminent person who fulfils the specified eligibility requirements; and
(b) no more than eight Members, out of whom 50% must be Judicial Members, provided that at least 50% of the Members are from among “persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.” (The Lokpal and Lokayuktas Bill, 2013, § 3(2).)
A person will be eligible for appointment as a Judicial Member if he is or has been a Supreme Court Justice or a Chief Justice of a High Court (id. § 3(3)(a)), and as a Member if “he is a person of impeccable integrity and outstanding ability” with at least 25 years of expertise in such areas as anti-corruption policy, finance, law, and management (id. § 3(3)(b)).
Members, including the Chair, must not be members of Parliament or any state or Union territory legislature, may not have been convicted of certain offenses or dismissed from government service, and must be at least 45 years old.(id. § 3(4)). In addition, they must resign from any office of trust or profit, sever any business or professional connections, and resign from any political party affiliations before assuming office (id.).
The Chairperson and Members are to be appointed by the President based on recommendations obtained from a Selection Committee, comprising the Prime Minister as chairperson and as members the Speaker of the House, the Leader of Opposition of the House, the Chief Justice of India or a Supreme Court judge nominated by him, and two eminent jurists (id. §4(1)).
Other Pending Anti-Corruption Legislation
Congress Party leading member Rahul Gandhi has urged the Lok Sabha “toconsider and enact all six pending anti-corruption Bills before its term expires.” (Manoj Mitta, Fighting Corruption: Laws Needed to Give Lokpal Teeth, THE TIMES OF INDIA (Dec. 21, 2013).) These bills include:
· Right of Citizens for Time Bound Delivery of Goods and Services and Redressal [sic] of their Grievances Bill, 2011;
· Whistleblowers Protection Bill, 2011;
· Judicial Standards and Accountability Bill 2010;
· Prevention of Corruption (Amendment) Bill 2013;
· The Prevention of Bribery of Foreign Pub
lic Officials Bill; and
· The Public Procurement Bill. (Id.)