Lokpal: the Lokpal and Lokayuktas Act 2013

The Prime Minister safeguards, in the provisos to section 14(1)(a), are the most examinable detail in the Act. The Lokpal shall not inquire into an allegation of corruption against the Prime Minister:

1. in so far as it relates to international relations, external and internal security, public order, atomic energy and space; and
2. unless a full bench of the Lokpal, consisting of the Chairperson and all Members, considers the initiation of inquiry and at least two-thirds of its Members approve it.

A further proviso requires that any such inquiry be held in camera, and that if the Lokpal concludes the complaint deserves to be dismissed, the records of the inquiry shall not be published or made available to anyone.

• Section 15: matters pending before any court, committee or authority.
• Sections 16 to 19: constitution of benches, distribution of business, transfer of cases by the Chairperson, and decision by majority.

Procedure, sections 20 to 27

• Section 20: complaints and preliminary inquiry. On receipt of a complaint the Lokpal may order a preliminary inquiry by its Inquiry Wing or by an agency, to ascertain whether there exists a prima facie case, and thereafter may order an investigation by an agency, or departmental proceedings, or closure. The public servant is to be given an opportunity to be heard before a decision to proceed to investigation.
• Section 21: persons likely to be prejudicially affected to be heard, which is the natural justice provision, comparable to section 8B of the Commissions of Inquiry Act 1952 discussed in [Public Inquiries and the Commissions of Inquiry Act 1952].
• Section 22: power to require a public servant or any other person to furnish information.
• Section 23: power of the Lokpal to grant sanction for initiating prosecution, which is significant because the requirement of sanction has historically been the largest obstacle to prosecuting public servants: [The Prevention of Corruption Act 1988].
• Section 24: action on investigation against the Prime Minister and others.
• Section 25: supervisory powers over any agency to which it has referred a matter, including the Delhi Special Police Establishment.
• Section 26: search and seizure. Section 27: powers of a civil court in certain cases.

Assets and enforcement, sections 28 to 39

• Section 28: power to use the services of officers of the Central or State Government.
• Sections 29, 30 and 31: provisional attachment of assets, confirmation of the attachment, and confiscation of assets, proceeds, receipts and benefits arising from an offence.
• Section 32: power to recommend transfer or suspension of a public servant connected with an allegation.
• Section 33: power to give directions to prevent the destruction of records.
• Section 35: Special Courts to be constituted by the Central Government to try cases under the Prevention of Corruption Act 1988.
• Section 36: letter of request to a contracting State, for evidence abroad.
• Sections 37 and 38: removal and suspension of the Chairperson and Members, and complaints against officials of the Lokpal.
• Section 39: assessment of loss and its recovery by the special court.

Accountability, safeguards and miscellaneous, sections 40 to 63

• Section 40: budget. Section 41: grants by the Central Government. Section 42: the annual statement of accounts. Section 43: furnishing of returns to the Central Government. Together these four are the financial accountability of the Lokpal itself, and they matter because a body that investigates the spending of others is answerable for its own.
• Section 44: declaration of assets by public servants. Section 45: presumption as to acquisition of assets by corrupt means in certain cases.
• Sections 46 and 47: prosecution for a false complaint and payment of compensation, and false complaints by a society or association. These provisions were criticised as deterring genuine complainants, and an answer that mentions them shows awareness of the debate.
• Section 48: reports of the Lokpal.
• Section 49: the Lokpal to function as the appellate authority for appeals arising out of other laws.
• Sections 50 and 51: protection of action taken in good faith. Section 52: members and staff to be public servants. Section 53: limitation, so that a complaint is not entertained where the offence is alleged to have been committed more than seven years before. Section 54: bar of jurisdiction. Section 55: legal assistance. Sections 56 and 57: overriding effect, and that the Act is in addition to other laws. Section 58: amendment of certain enactments. Section 59: power of the Central Government to make rules. Section 60: power of the Lokpal to make its own regulations. Section 61: laying of those rules and regulations before each House of Parliament, which is the laying procedure in [Legislative Control over Delegated Legislation]. Section 62: power to remove difficulties.
• Section 63: establishment of the Lokayukta. Every State shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.

The features worth remembering

1. It is a corruption body, not a maladministration body. Its jurisdiction is allegations of corruption under the Prevention of Corruption Act 1988, which is the difference from the classical Ombudsman explained in [The Ombudsman].
2. The Prime Minister is within its jurisdiction, with the subject matter exclusions and the two-thirds full bench safeguard.
3. Not less than half the Members must be Judicial Members.
4. Financial independence is secured by charging expenses on the Consolidated Fund under section 13.
5. It has its own Inquiry Wing and Prosecution Wing, so it is not dependent on a department to inquire or to prosecute.
6. It can grant sanction for prosecution, removing the traditional obstacle.
7. It can attach and confiscate assets, which is a civil recovery power alongside the criminal one.
8. Section 63 obliges the States to create Lokayuktas.

The criticisms

1. Vacancies and delay in constituting it. The Act commenced in 2014 and the body was not fully constituted for years, which is the standing criticism of Indian institutional design.
2. The false complaint provisions in sections 46 and 47 are said to deter genuine complainants, since a complainant faces prosecution if the complaint fails.
3. The seven year limitation in section 53 protects older wrongdoing.
4. The Prime Minister safeguards are defended as necessary and criticised as making an inquiry practically impossible, given the two-thirds requirement and the in camera rule.
5. It depends on other agencies for investigation in many cases, and its supervisory power under section 25 is only as good as the agency.
6. It does not touch maladministration, so the ordinary citizen's ordinary grievance is outside it.

A worked example

A complaint alleges that a Group A officer of a central Ministry accepted money to clear a licence, and that a Union Minister directed him to do so.

1. Jurisdiction. Section 14(1)(d) covers the Group A officer and section 14(1)(b) the Minister. No special safeguard applies, since neither is the Prime Minister.
2. Preliminary inquiry. Under section 20 the Lokpal orders a preliminary inquiry by its Inquiry Wing to ascertain whether a prima facie case exists, and the public servant is given an opportunity to be heard before any decision to proceed to investigation.
3. Hearing. Section 21 requires that a person likely to be prejudicially affected be heard.
4. Investigation and assets. The Lokpal orders investigation by an agency, exercising supervisory powers under section 25, and provisionally attaches the officer's bank accounts under section 29, with confirmation under section 30.
5. Interim measures. It recommends the officer's transfer under section 32 and directs that records be preserved under section 33.
6. Prosecution. It grants sanction under section 23 and its Prosecution Wing prosecutes before a Special Court constituted under section 35.
7. Vary it: the allegation is against the Prime Minister and relates to a defence procurement. Two obstacles. If the matter relates to external or internal security it is excluded altogether by the first proviso to section 14(1)(a); and in any event an inquiry requires the full bench to consider initiation with at least two-thirds of the Members approving, must be held in camera, and, if the complaint is dismissed, the records may not be published or made available to anyone.

What it does NOT mean

It does not mean the Lokpal decides guilt. It inquires, investigates, sanctions and prosecutes; guilt is determined by a Special Court.

It does not mean the Prime Minister is immune. He is expressly within section 14(1)(a), subject to the exclusions and the two-thirds safeguard.

It does not mean it handles ordinary grievances. Its jurisdiction is corruption.

It does not mean a complainant risks nothing. Sections 46 and 47 provide for prosecution for a false complaint.

Quick revision

1. Lokpal and Lokayuktas Act 2013, sixty-three sections.
2. Section 3: a Chairperson and not more than eight Members, not less than half Judicial Members. Section 4: appointment by the President on the recommendation of a Selection Committee of the Prime Minister, the Speaker, the Leader of Opposition, the Chief Justice or his nominee, and an eminent jurist.
3. Sections 11 and 12: the Inquiry Wing and the Prosecution Wing. Section 13: expenses charged on the Consolidated Fund of India.
4. Section 14: jurisdiction over a person who is or has been Prime Minister, a Union Minister, a member of either House, Group A and B officers, Group C and D officials subject to section 20(1), and officers of bodies established by an Act of Parliament or financed or controlled by the Central Government.
5. Prime Minister safeguards: excluded so far as the allegation relates to international relations, external and internal security, public order, atomic energy and space; and an inquiry requires the full bench to consider initiation with at least two-thirds approving, to be held in camera, with the records not published if the complaint is dismissed.
6. Section 20: preliminary inquiry then investigation. Section 21: persons likely to be prejudicially affected to be heard. Section 23: sanction for prosecution. Sections 26 and 27: search and seizure, and civil court powers.
7. Sections 29, 30 and 31: provisional attachment, confirmation and confiscation. Section 32: transfer or suspension. Section 35: Special Courts.
8. Sections 44 and 45: declaration of assets, and presumption of acquisition by corrupt means. Sections 46 and 47: prosecution for false complaints. Section 53: seven year limitation.
9. Section 63: every State shall establish a Lokayukta by State law within one year of the commencement of the Act.

Test yourself

1. Describe the composition and appointment of the Lokpal. Section 3 provides for a Chairperson and not more than eight Members, of whom not less than fifty per cent shall be Judicial Members, with a further requirement that not less than fifty per cent be from the Scheduled Castes, Scheduled Tribes, other backward classes, minorities and women. Section 4 provides that they are appointed by the President on the recommendation of a Selection Committee consisting of the Prime Minister as Chairperson, the Speaker of the House of the People, the Leader of Opposition in that House, the Chief Justice of India or a Judge of the Supreme Court nominated by him, and one eminent jurist nominated by the President on the recommendation of the first four. Independence is further supported by section 13, which charges the expenses of the Lokpal on the Consolidated Fund of India, and by sections 37 and 38 dealing with removal and with complaints against its officials.

2. What is the jurisdiction of the Lokpal, and what special provision applies to the Prime Minister? Under section 14 the Lokpal inquires into any matter involved in, arising from or connected with an allegation of corruption in respect of a person who is or has been Prime Minister, a Minister of the Union, a member of either House of Parliament, a Group A or Group B officer or above from among the public servants defined in section 2(c)(i) and (ii) of the Prevention of Corruption Act 1988 serving in connection with the affairs of the Union, a Group C or Group D official subject to section 20(1), and any chairperson, member, officer or employee of a body, Board, corporation, authority, company, society, trust or autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government. For the Prime Minister two safeguards apply: no inquiry may be made in so far as the allegation relates to international relations, external and internal security, public order, atomic energy or space; and no inquiry may be initiated unless a full bench consisting of the Chairperson and all Members considers its initiation and at least two-thirds of the Members approve. Any such inquiry must be held in camera, and if the complaint is found to deserve dismissal the records may not be published or made available to anyone.

3. What powers does the Lokpal have to deal with the proceeds of corruption? Sections 29, 30 and 31 give it a graduated set of powers over assets. Section 29 allows the provisional attachment of assets where there is reason to believe that they are the proceeds of an offence. Section 30 provides for confirmation of that attachment. Section 31 provides for the confiscation of assets, proceeds, receipts and benefits arising from an offence. Alongside these, section 32 empowers it to recommend the transfer or suspension of a public servant connected with an allegation, section 33 to give directions to prevent the destruction of records, and section 39 provides for the assessment of loss and its recovery by the special court. Section 45 establishes a presumption as to the acquisition of assets by corrupt means in certain cases.

4. Why is the Lokpal described as a corruption body rather than an Ombudsman? Because its jurisdiction under section 14 is confined to allegations of corruption, defined by reference to the Prevention of Corruption Act 1988, whereas the classical Ombudsman inquires into maladministration generally, which covers delay, incompetence, neglect, failure to follow procedure and rudeness. Its machinery reflects that: an Inquiry Wing and a Prosecution Wing, powers of search and seizure, provisional attachment and confiscation, sanction for prosecution and trial before Special Courts constituted under section 35. Those are the powers of a criminal investigation and prosecution body rather than of a grievance office, and the consequence is that the ordinary citizen's ordinary complaint about bad administration falls outside it.

5. State the criticisms of the Lokpal and Lokayuktas Act 2013. That the institution was not constituted for years after the Act commenced, so that the machinery existed on paper without functioning. That sections 46 and 47, which provide for prosecution and compensation where a complaint is false, deter genuine complainants who cannot be sure of proving their allegation. That the seven year limitation in section 53 protects older wrongdoing. That the safeguards for the Prime Minister, requiring approval by two-thirds of a full bench and an inquiry in camera with records withheld if the complaint is dismissed, make an inquiry practically very difficult, though they are defended as necessary to protect the office. That the Lokpal must often rely on other agencies for investigation, its supervisory power under section 25 being only as effective as the agency it supervises. And that, being confined to corruption, it leaves the field of maladministration untouched.