Public Authorities and Power Holders Notes | LL.M. Semester 3 | Mumbai University | munotes

An allegation, in the Lokayukta Acts, is an assertion that a public servant has abused his position for gain or favour, or to cause harm to another; or that he was actuated by personal interest or improper motive; or that he is guilty of corruption, lack of integrity or want of probity. It is the culpable end of the range, and its consequence is an inquiry into the officer.

A grievance is a claim that the complainant sustained injustice or undue hardship in consequence of maladministration. This is the ordinary citizen's complaint about delay or refusal or muddle, and its consequence is a recommendation that the department put the matter right.

The distinction runs through the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971, and the point to notice is what the Lokpal and Lokayuktas Act 2013 did with it. That Act took the allegation half and left the grievance half out altogether. India's central ombudsman is a corruption body, and the citizen with a grievance about delay has no ombudsman at all. Chapter 330 takes that gap up.

Why the ordinary courts are a poor remedy

Standing and cost. A person kept waiting eleven months for a pension is not going to file a writ petition. The lawyer costs more than the pension, and the wrong is too small for the machinery.

The ground of review, not the merit. A court exercising judicial review asks whether a decision was within power, whether the procedure was fair and whether the decision was so unreasonable that no reasonable authority could have reached it. It does not ask whether the decision was a good one, and most maladministration is a series of decisions no court would call unreasonable.

Delay compounding delay. The remedy for administrative delay cannot itself take four years, and litigation does.

Nothing is fixed for anybody else. A writ petition corrects one file. It rarely changes the practice that produced the file, because the court is deciding a case and not auditing a department.

And the courts themselves have said so. The whole apparatus of this paper exists because the Constitution's remedies, articles 32 and 226, are necessary and not sufficient. The ombudsman, the vigilance commission, the audit report and the parliamentary committee are all attempts to reach what a writ cannot.

Article 12 and who this paper is about

Article 12 says that in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India, the Government and the Legislature of each of the States, and all local or other authorities within the territory of India or under the control of the Government of India.

Every body in this paper is inside that definition. The Lokpal, the Central Vigilance Commission, the Central Bureau of Investigation, a Commission of Inquiry, a parliamentary committee and the Comptroller and Auditor-General are all authorities within the territory of India, and the fundamental rights therefore bind each of them.

That is not a technicality, and it decides real cases. When section 6A of the Delhi Special Police Establishment Act 1946 was struck down, it was struck down under article 14, which applies because the establishment is the State. When the appointment of a Central Vigilance Commissioner was quashed, it was quashed on an article 32 petition. The controls in this paper are themselves controlled, and article 12 is where that begins.

The three families of control, and the map of this book

MU's eight labels fall into three families, and a student who sees the families will never lose the thread of the paper.

Specialised watchdogs, outside the three organs and answerable to none of them in the ordinary way. The Ombudsman, the Commission of Inquiry, the Vigilance Commission and the investigating agency. These are Modules I and II.

The legislature controlling the executive. Inquiries by legislative committees, legislative control proper, and financial control with the Comptroller and Auditor-General as its instrument. These are Module III and the first half of Module IV.

The judiciary, both as a controller and as a subject of control. Judicial review runs through every chapter, and judicial inquiries, the eighth label, are the point at which the controller becomes the controlled.

A worked example

Mrs Salunkhe retires on 30 April from a State transport corporation after thirty-one years. Her pension papers go to the accounts branch on 2 May. In September she has received nothing.

Step one, what has actually gone wrong. Her file was sent to the wrong section, sat there for six weeks, came back for a signature that had already been obtained, and is now with a clerk who is on long leave and whose desk nobody has been asked to cover. No rule has been broken. Every officer involved would say, correctly, that they followed the procedure.

Step two, what a court could do. She could file a writ petition for a mandamus. She would need a lawyer, a few thousand rupees she does not have, and eighteen months. The Court would direct the corporation to decide her claim within a stated period. It would not ask why the file went to the wrong section, and it would not touch the practice that will do the same thing to the next retiree.

Step three, what this is called. Not corruption, because nobody took anything. Not illegality, because no provision was broken. It is a grievance, in the statutory sense: injustice and undue hardship in consequence of maladministration.

Step four, what an ombudsman could do. Under the Maharashtra Act of 1971 she may complain to the Lokayukta, without a lawyer and without a fee. The Lokayukta may call for the file, ask the corporation to explain, and report. The report cannot order anybody to pay her, and that is the institution's central weakness, taken up in chapter 320.

Step five, and this is the sting. If she lived in a State with no functioning Lokayukta, or if her complaint were against a Union department, she would have nowhere at all to take it, because the Lokpal Act deals with allegations of corruption and not with grievances.

What maladministration does NOT mean

It does not mean an unpopular decision. A Government may lawfully decide to close a bus route or refuse a licence, and a citizen who dislikes the decision has not suffered maladministration. What matters is how the decision was reached and how the citizen was treated, not whether it went their way.

It does not mean only corruption. Corruption is the part of the field that the Prevention of Corruption Act 1988 and the criminal courts reach. Most maladministration is not criminal, which is precisely why a separate control was invented.

It does not mean illegality. An act that is plainly illegal is a matter for a court. Maladministration is the larger and more elusive category of conduct that survives a legality test and still causes injustice.

And it is not confined to the lower ranks. The eight labels in this syllabus reach the Prime Minister, a Chief Minister, a judge of the Supreme Court and the Comptroller and Auditor-General. That is what the title's other half, "power holders", is doing.

Quick revision

Maladministration is defective administrative process causing injustice, whether or not the act is unlawful. No Indian statute defines it.

The Crossman catalogue, 1966: bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness.

Clothier's distinction: not the merits of the decision but the quality of the process.

Indian statutory vocabulary: an allegation is abuse of position, personal interest or corruption; a grievance is injustice or undue hardship from maladministration. The Lokpal Act 2013 covers allegations only.

Why courts are not enough: cost and standing, review of legality rather than merit, delay, and relief that fixes one file rather than a practice.

Article 12 puts every authority in this paper inside the definition of the State, so the controls are themselves subject to Part III.

The three families: specialised watchdogs, legislative control including financial control, and the judiciary as controller and as controlled.

Test yourself

1. Define maladministration and say why no Indian statute defines it. It is administrative action or inaction, often lawful in the narrow sense, which is unjust, oppressive, improperly discriminatory, unreasonably delayed or defective in procedure or motive and causes injustice. It is left undefined for the reason Crossman gave in 1966: any definition would be narrower than the mischief, so the meaning is built case by case.

2. Distinguish an allegation from a grievance, and say why the difference matters in India today. An allegation asserts abuse of position, personal interest or corruption against a public servant, and leads to an inquiry into the officer. A grievance asserts injustice or undue hardship from maladministration, and leads to a recommendation putting the matter right. It matters because the Lokpal and Lokayuktas Act 2013 covers allegations only, so a citizen with a grievance against a Union department has no ombudsman.

3. Give three reasons why judicial review is an inadequate answer to maladministration. The cost and difficulty of standing put it out of reach for small wrongs; a court reviews the legality and reasonableness of a decision rather than its merits, and most maladministration passes that test; and litigation is itself slow and corrects a single file rather than the practice that produced it.

4. Why does article 12 appear in a chapter on maladministration? Because it fixes who this paper is about. Every institution in the eight labels is an authority within the territory of India and is therefore the State for Part III, so the fundamental rights bind each of them. That is why the Single Directive and section 6A of the Delhi Special Police Establishment Act could be tested against article 14 and struck down.

5. Is all maladministration corruption? Answer with reasons. No. Corruption is one species of maladministration, the species the criminal law reaches through the Prevention of Corruption Act 1988. The larger part is delay, inattention, bias and muddle, which break no provision and cause real injustice, and it is that larger part which explains why an ombudsman was thought necessary in addition to the courts and the police.

What the Justitieombudsman could do in 1809

Appointed by the Riksdag, not by the king, for a fixed term, and removable by the Riksdag.

Independent of the Government and of the courts, with his own staff and his own budget.

A jurisdiction over courts as well as over officials. This is the feature that surprises a common law reader. The Swedish ombudsman supervises the observance of the laws by judges too, which no Indian institution does and which the eighth label of this syllabus, judicial inquiries, has to solve in a quite different way.

Access without a lawyer, without a fee and without a form. A complaint could be a letter. This is the feature that most distinguishes the institution from a court.

A power to prosecute. The Justitieombudsman could institute proceedings against an official who had broken the law. This is not the modern pattern; most later ombudsmen recommend rather than prosecute, and India's Lokpal, unusually, can do both.

A duty to report annually to the Riksdag, in public. This is the sanction that actually works, and every statute in this book copies it: the Lokpal's annual report, the Central Vigilance Commission's annual report and the Comptroller and Auditor-General's report are all descendants of this obligation.

A hundred and forty-six years of nothing

The single most examinable fact about the early history is that nobody copied it for a very long time. Finland took the institution in 1919, when it separated from Russia and drew on Swedish constitutional practice. After that, silence until 1955.

Why the delay is a question worth answering in an exam. Three reasons are usually given.

The institution looks unnecessary where the courts are strong. Nineteenth century Britain believed the ordinary courts and ministerial responsibility to Parliament were sufficient, an argument associated with Dicey's account of the rule of law.

The State was small. An officer to supervise officials matters in proportion to how many officials there are and how much discretion they hold. The administrative state that makes an ombudsman necessary is a twentieth century creation.

Sweden's constitutional position was unusual. An officer of a parliament with authority over judges did not fit either the French model of separate administrative courts or the English model of a single hierarchy of ordinary courts.

A worked example

Anders is a shopkeeper in Uppsala in 1830. A customs official has seized his stock on a suspicion he thinks is baseless, and has kept it for four months without deciding anything.

Before 1809 his options are two. Petition the king, whose officer the customs man is; or sue, which is slow, costly, and in practice hopeless against the Crown's servants.

After 1809 there is a third. He writes a letter to the Justitieombudsman. It costs him a sheet of paper.

What the Ombudsman does. He calls for the file, asks the officer to explain, and finds that the seizure was made without the authority the regulations required and that nothing has been done since. He may direct that proceedings be taken against the officer, and he records the case in his annual report to the Riksdag.

What Anders gets. His stock, an official finding that he was wronged, and the knowledge that the case is in a public report.

What everybody else gets, and this is the point. The report is read in the Riksdag. The customs administration knows that its handling of seizures is being examined and published. That is a control on a practice, which is what a lawsuit could never have delivered.

What this has to do with India

Every feature of the 1809 office reappears in the Indian debate of the 1960s, and it reappears because the First Administrative Reforms Commission went and looked at it.

Appointment by, and reporting to, the legislature becomes the Lokpal's Selection Committee and its annual report to the President, laid before both Houses.

Independence from the executive becomes the charge on the Consolidated Fund and the removal only on a reference to the Supreme Court.

Access without cost becomes the complaint provisions of the Lokayukta Acts.

Supervision of judges does not survive the journey. India's judiciary is kept out of the Lokpal's jurisdiction altogether, and MU's eighth label exists because the problem had to be solved another way.

Prosecution is the feature India revived. The Lokpal has a Prosecution Wing, which is closer to 1809 than to the British model of 1967.

What the Swedish origin does NOT mean

It does not mean the Indian institution is a copy. India took the name and the founding idea and built something much larger and much more criminal in character. Saying the Lokpal is the Indian ombudsman is true; saying it is the Swedish ombudsman in Indian conditions is not.

It does not mean the office is only Scandinavian. By the time India legislated in 2013 the institution existed in well over a hundred countries, in the European Union, and in specialised forms such as banking and insurance ombudsmen.

And it does not mean 1809 is the whole answer to an evolution question. A candidate who writes only about Sweden has answered a fifth of MU's second question. The rest is chapters 30 to 100.

Quick revision

Origin: Sweden, Instrument of Government of 1809, the office of Justitieombudsman, created after the deposition of Gustav IV Adolf.

Predecessor: the Justitiekansler of 1713, but he was the king's officer, which is exactly the defect the 1809 office cured.

The word: ombud, an agent or representative.

Six features: appointment by the Riksdag; independence of the executive; jurisdiction over courts as well as officials; free and informal access; a power to prosecute; and a public annual report to Parliament.

Spread: Finland 1919, then nothing until Denmark in 1955.

Why the delay: strong ordinary courts, a small State, and an office that fitted neither the French nor the English model.

Test yourself

1. When and where did the office of Ombudsman originate, and what was the immediate constitutional occasion? Sweden, in the Instrument of Government of 1809, adopted after Gustav IV Adolf was deposed in the coup of March 1809. The Riksdag wanted a supervisor of officialdom answerable to itself rather than to the Crown, because the existing supervisor, the Chancellor of Justice of 1713, was the king's officer.

2. What does the word ombudsman mean, and what follows from the meaning? It means an agent or representative. It follows that the office is representative rather than judicial: the ombudsman acts for the citizen and for the legislature, which is why he may act on his own motion, unlike a judge who must wait for a case.

3. Name four features of the 1809 office and say which of them India did not adopt. Appointment by and answerability to the legislature; independence from the executive; free, informal access without a lawyer; a public annual report; and jurisdiction over the courts. India adopted the first four in substance and did not adopt jurisdiction over the judiciary, which is kept outside the Lokpal Act altogether.

4. Why did no country copy the institution for nearly a century and a half? Because it looked unnecessary where the ordinary courts were thought sufficient, because the State was small enough that officials exercised little discretion, and because an officer of a parliament with authority over judges fitted neither the French system of administrative courts nor the English system of a single ordinary hierarchy. The administrative state that made the office necessary is a twentieth century development.

Powers. To call for documents, to require explanations, to inspect institutions, to investigate on his own initiative, and to report.

Outcome. A recommendation, a criticism, a report to the Folketing, and in a proper case a recommendation that legal aid be granted so the citizen can litigate.

Access. Direct. A citizen writes to the Ombudsman without a lawyer and without a filter, which is a difference from the British model that the next chapter turns on.

New Zealand: the model crosses into the common law

New Zealand passed the Parliamentary Commissioner (Ombudsman) Act 1962 and Sir Guy Powles became the first Ombudsman outside Scandinavia in the common law world. The Act was consolidated in the Ombudsmen Act 1975.

The significance for this paper is not the New Zealand statute's detail but the fact that it was possible at all. Until 1962 the standard objection in Westminster systems was that an ombudsman would cut across ministerial responsibility to Parliament: if a Minister answers to the House for his department, an officer who investigates the department displaces the House.

New Zealand's answer became the standard one and it is worth learning. The ombudsman does not replace ministerial responsibility; he supplies Parliament with the facts on which ministerial responsibility can actually be enforced. A member of Parliament who receives a constituent's complaint has no power to see the file. The ombudsman has, and reports what he finds to Parliament. The control is strengthened, not bypassed.

Two features New Zealand added that matter for the Indian story. The jurisdiction was drawn to cover departments and specified organisations listed in a schedule, so that the reach of the office is a matter of statutory listing rather than of general words. And the Ombudsman was given the power to investigate a decision, recommendation, act or omission relating to a matter of administration and affecting a person in his personal capacity.

The classical model, stated as a definition

By the middle of the 1960s a recognisable type had formed, and the literature calls it the classical or parliamentary ombudsman. Its features are the ones the First Administrative Reforms Commission had before it when it reported in 1966.

Constituted by statute or by the constitution, and not by an executive order.

Appointed by the legislature or on its advice, for a fixed term, removable only for cause.

Independent in salary, tenure and staff.

Jurisdiction over the administration, usually not over the judiciary and often not over the legislature.

Access by direct complaint from an aggrieved person, free of cost, plus a power to act on his own motion.

Investigative powers to call for files and examine officials.

No power to quash or to substitute a decision. The output is a report and a recommendation.

Publicity as the sanction, through an annual report to the legislature.

A worked example

A Danish citizen, Mr Jensen, is refused a building permit in 1958. The refusal is lawful. But the file shows that the officer never told Mr Jensen what objection he had to meet, decided on a ground raised by a neighbour that Mr Jensen was never shown, and took eleven months.

What Mr Jensen writes. A letter to the Ombudsman. No lawyer, no fee, no form.

What the Ombudsman does. He calls for the file. He asks the municipality to comment. He finds that the decision was within power and that the procedure was defective, because a man is entitled to know the case against him.

What the Ombudsman cannot do. He cannot grant the permit, cannot set the refusal aside, and cannot award Mr Jensen a rupee. This is the classical model's central limitation and it is deliberate.

What he does instead. He states his criticism, recommends that the decision be reconsidered on a proper procedure, and records the case in his annual report.

And the practical result. In the great majority of cases the department accepts the recommendation, because a department that refuses one is answering to Parliament for the refusal. That is what is meant by saying the sanction is publicity.

Distinctions worth keeping straight

What this does NOT mean

It does not mean the classical ombudsman is weak. A body whose recommendations are accepted in the great majority of cases is not weak; it is differently powerful. The Indian argument that an ombudsman needs prosecution powers is an argument about Indian conditions, not a criticism of the model in general.

It does not mean India followed New Zealand. India considered the Danish and New Zealand models, took the two-tier idea from nowhere in particular, and ended in 2013 with a body far more criminal in character than either. The evolution is a line of influence, not a line of descent.

And it does not mean the classical model has no Indian counterpart. The Lokayukta Acts of the States are much closer to the classical model than the Lokpal Act is, because most of them cover grievances as well as allegations and most of them work by recommendation.

Quick revision

Denmark: Constitution of 1953, section 55; Ombudsman Act 1954; Stephan Hurwitz takes office 1955. Jurisdiction over the administration, not the courts. Works by recommendation and publicity.

Three Danish changes that made the institution travel: no jurisdiction over judges; recommendation instead of prosecution; and an office that explained itself.

New Zealand: Parliamentary Commissioner (Ombudsman) Act 1962, Sir Guy Powles, the first in the common law world; consolidated in the Ombudsmen Act 1975.

The New Zealand answer to the ministerial responsibility objection: the ombudsman does not displace responsibility to Parliament, he supplies the facts that make it enforceable.

The classical model: statutory, appointed by the legislature, independent, jurisdiction over the administration, free direct access, investigative powers, no power to quash, publicity as the sanction.

Test yourself

1. Name three changes Denmark made to the Swedish model and explain why each mattered. Jurisdiction over the courts was dropped, which made the office acceptable where the judiciary is independent; prosecution was replaced by recommendation and publicity, which meant the office threatened no existing jurisdiction and so met little resistance; and the office was made visible and explained publicly, which is why other countries came to look at it.

2. Why is 1962 a more important date than 1955 for a student of Indian law? Because New Zealand's Act showed that the institution could work inside a Westminster system with ministerial responsibility to Parliament, which was the standing objection in every common law country including India. Once that objection was answered, Britain legislated in 1967 and the Indian Administrative Reforms Commission recommended a Lokpal in 1966.

3. State the standard answer to the objection that an ombudsman cuts across ministerial responsibility. The ombudsman does not replace the responsibility of a Minister to the House. He supplies the House with facts it cannot otherwise obtain, because a member has no power to call for a departmental file and the ombudsman has. Ministerial responsibility is thereby made enforceable rather than displaced.

4. List the features of the classical parliamentary ombudsman. Created by statute or constitution; appointed by or on the advice of the legislature for a fixed term and removable only for cause; independent in salary, tenure and staff; jurisdiction over the administration and usually not over the judiciary; free and direct access for a complainant with a power to act suo motu; power to call for files and examine officials; no power to quash or substitute a decision; and publicity through an annual report to the legislature as the operative sanction.

The trigger. A written complaint by a member of the public who claims to have sustained injustice in consequence of maladministration.

The exclusions. Matters in which the complainant has or had a right of appeal to a tribunal or a remedy in a court of law, unless the Commissioner is satisfied it is not reasonable to expect him to resort to it. Also excluded are foreign affairs, extradition, the investigation of crime and national security, contractual and commercial transactions, and personnel matters in the armed forces and the civil service.

The output. A report to the Member who referred the complaint, a report to the department, and where injustice has been caused and not remedied, a special report to both Houses.

The Select Committee. The House of Commons appointed a Select Committee on the Parliamentary Commissioner to consider his reports, which gives the office a parliamentary partner in exactly the way the Public Accounts Committee is the partner of the Comptroller and Auditor-General. Chapter 1010 develops that comparison.

The MP filter, and the argument about it

What it is. A complaint must be sent to a Member of the House of Commons, and the Member must refer it to the Commissioner with the complainant's consent. There is no direct access.

The argument for it. It preserves the constitutional position that a citizen's grievance against a department is raised through his representative, so the ombudsman reinforces rather than displaces the House. It also filters out complaints that a Member can settle with a letter, which is most of them, and keeps the Commissioner's workload manageable.

The argument against it. It puts a political officer between a citizen and an independent investigator. A citizen who does not know his Member, or whose Member declines, has no remedy. Every other country in the world has managed without it, and the Justice-All Souls review of 1988 recommended its abolition.

Why it matters here. India considered the filter and rejected it. The Lokayukta Acts and the Lokpal Act allow a citizen to complain directly. When a question asks you to compare the Indian institution with the British one, the filter is the first difference to name and the most defensible one to have rejected.

A worked example

Mrs Hollis is refused a disability allowance in 1975. The refusal is within the rules. The file shows the department lost her medical evidence, decided without it, told her nothing for seven months and then wrote a letter that did not answer her question.

Step one. She cannot write to the Commissioner. She writes to her Member of Parliament.

Step two. The Member writes to the department. In most cases this ends the matter, because a departmental official answering a Member's letter reads the file properly, perhaps for the first time.

Step three. The department's answer is unsatisfactory, so the Member refers the complaint to the Parliamentary Commissioner with Mrs Hollis's consent.

Step four. The Commissioner obtains the file, interviews the officers, and finds maladministration: the loss of evidence, the decision taken without it, and the delay.

Step five. He reports to the Member and to the department. The department apologises, reconsiders, and makes a payment for the delay.

Step six, if it had refused. The Commissioner would lay a special report before both Houses. The Select Committee would take evidence from the permanent secretary in public. That is the machinery, and its force is entirely political.

Distinctions: Britain against Denmark, and against India

What beginners get wrong

That the British Commissioner is appointed by Parliament. He is not. He is appointed by the Crown on the Prime Minister's advice, which is an executive appointment, and his parliamentary character comes from the filter, the Select Committee and the reporting duty rather than from the manner of appointment. Students who write that Britain's ombudsman is appointed by Parliament have made a factual error that a careful examiner will notice.

That maladministration is defined in the Act. It is not. The Act uses the word and leaves it undefined, deliberately, for the reason Crossman gave in the debate.

That the office can overturn a decision. It cannot. It reports. Every classical ombudsman is in the same position, and the Indian departure from it in 2013 is the interesting thing about the Indian statute.

Quick revision

Statute: the Parliamentary Commissioner Act 1967. Office: Parliamentary Commissioner for Administration.

Preceded by: the Crichel Down affair of 1954 and the Whyatt Report of 1961, "The Citizen and the Administration", from Justice.

Appointment: by the Crown on the Prime Minister's advice; good behaviour to retiring age; removable on addresses from both Houses; salary charged on the Consolidated Fund.

Jurisdiction: departments and authorities in Schedule 2, in the exercise of administrative functions; excluded where a court or tribunal remedy exists, and in foreign affairs, crime, security, commercial transactions and service matters.

The trigger: injustice in consequence of maladministration, undefined in the Act.

The MP filter: no direct access; complaint through a Member of the House of Commons.

The partner: the Select Committee on the Parliamentary Commissioner.

Test yourself

1. What was the constitutional objection to an ombudsman in Britain, and what overcame it? The Diceyan position that the ordinary courts plus ministerial responsibility to Parliament were a complete protection, and that separate administrative machinery was a step towards the French system. It was overcome by the Crichel Down affair of 1954, which showed a citizen could be gravely wronged without any legal remedy, and by the Whyatt Report of 1961 recommending the Scandinavian and New Zealand model.

2. Explain the MP filter and state the argument on each side. A complaint may reach the Parliamentary Commissioner only through a Member of the House of Commons, who refers it with the complainant's consent. For: it preserves the constitutional route of the citizen's grievance through his representative, reinforcing rather than displacing the House, and it filters out complaints a Member can settle himself. Against: it interposes a political officer between the citizen and an independent investigator, and a citizen whose Member declines has no remedy.

3. Give three differences between the British Commissioner and the Indian Lokpal. Access: through a Member in Britain, direct in India. Subject matter: injustice from maladministration in Britain, allegations of corruption in India. Powers: report and recommendation in Britain, and in India an Inquiry Wing, a Prosecution Wing, attachment and confiscation and trial in special courts.

4. Who appoints the British Parliamentary Commissioner, and why is the answer a trap? The Crown, on the advice of the Prime Minister, so it is an executive appointment. It is a trap because the office is called parliamentary and students assume Parliament appoints him; its parliamentary character comes instead from the MP filter, the duty to report and the Select Committee that examines those reports.

Five: jurisdiction over administrative action. The subject matter is the administration. Whether the judiciary and the legislature are inside is a design choice: Sweden says yes to the courts, everybody else says no.

Six: access that costs nothing and needs nobody. A complaint on plain paper, no lawyer, no fee, no prescribed form in most systems, and a power to take up a matter on his own motion when nobody complains. The suo motu power matters most where the victims are least able to complain.

Seven: powers of investigation, and no power of decision. He may call for any file, examine any officer, enter any office and require any explanation. He may not quash, modify, substitute or order. This combination is the institution's signature and it is what distinguishes it from a court and from a tribunal.

Eight: publicity as the sanction. He reports, and the report goes to the legislature and to the public. A department that ignores a recommendation must explain itself in a forum it cannot control.

A ninth, and whether it belongs

Some writers add a ninth attribute: that the ombudsman investigates and reports, and does not prosecute. On the classical model that is correct. But Sweden began with a power to prosecute and India's Lokpal has a Prosecution Wing and can attach and confiscate property, so a criterion that excludes both the original and the largest modern example is a poor criterion.

The better way to put it in an answer is this. The classical ombudsman recommends. A statute may add prosecution powers, and where it does the body becomes a hybrid: an ombudsman in appointment, independence and access, and an anti-corruption prosecutor in output. India's Lokpal is exactly that hybrid, and saying so is worth more than saying it is or is not a true ombudsman.

Ombudsman, court and tribunal

The row that carries the most marks is the fourth. A court asks a question about legality. An ombudsman asks a question about treatment. That is why an act can survive judicial review and still be maladministration, and it is why the two institutions are not substitutes.

The row that carries the second most is the sixth. A citizen cannot see the file that decided his case; the ombudsman can. Most maladministration is invisible from outside the department, and this is the power that makes it visible.

A worked example

Two people are refused the same benefit on the same day by the same officer.

Mr Rao goes to the High Court under article 226. The Court asks whether the officer had the power, whether he followed the prescribed procedure, and whether the decision is so unreasonable that no reasonable officer could have reached it. The answer to all three is that the refusal was in order. The petition is dismissed. Mr Rao has spent eighteen months and a lawyer's fee to be told that a decision he believes was unfair was lawful.

Mrs Fernandes goes to the Lokayukta. She writes a letter. The Lokayukta calls for the file, and the file shows that the officer decided on a departmental note she was never shown, that her own representation was never put before him, and that he took nine months. None of that makes the refusal unlawful. All of it is maladministration.

The outcome for Mrs Fernandes. A report recommending that the case be reconsidered after showing her the note. She may still be refused, and this time she will know why and will have been heard.

The outcome for everybody else. The report names the practice. If the department keeps deciding on notes it does not disclose, the next report will say so, and a legislature will read it.

What the example proves. The two institutions are answering different questions. A student who writes that an ombudsman is a cheap substitute for a court has not understood either.

What an ombudsman is NOT

Not an appellate authority. He does not sit above the officer and re-decide. If he could, he would be a tribunal.

Not a court of law. He does not follow the Evidence Act, does not sit in public, and issues no order that can be executed.

Not a prosecutor, on the classical model. Where a statute makes him one, as India's does, that is an addition to the model and should be identified as such.

Not a grievance cell of the department. The whole point is that he is outside the department. An internal complaints officer, however diligent, fails attributes two, three and four.

And not, by himself, a cure. An ombudsman with no staff, no budget and no publicity is a letterhead. Several Indian State Lokayuktas have been exactly that, and chapter 240 sets out which.

Quick revision

Eight attributes: created by law; appointed by or on the advice of the legislature; security of tenure and salary; independence from the executive; jurisdiction over administrative action; free, direct, informal access plus a suo motu power; full investigative powers with no power to decide; publicity through a report to the legislature.

The signature combination: he can see everything and order nothing.

Against a court: a court asks whether the decision was lawful, an ombudsman whether the citizen was treated properly.

Against a tribunal: a tribunal re-decides on the merits and binds; an ombudsman reports and recommends.

The hybrid point: prosecution powers do not disqualify a body, they make it a hybrid. Sweden had them in 1809 and India's Lokpal has them now.

Test yourself

1. List the essential attributes of an ombudsman. Creation by constitution or statute; appointment by or on the advice of the legislature; security of tenure and of salary, with removal only for cause; independence from the executive, including own staff and budget and a bar on later government employment; jurisdiction over administrative action; free, direct and informal access for any aggrieved person together with a power to act on his own motion; full powers of investigation with no power to quash or substitute a decision; and publicity through a report to the legislature.

2. Distinguish an ombudsman from a court on three grounds. The court acts only when a case is filed and by a person with standing, at cost and through lawyers, whereas the ombudsman may act on a letter or on his own motion at no cost. The court asks whether the decision was lawful; the ombudsman asks whether the citizen was properly treated. The court's judgment binds and is executable; the ombudsman's report recommends and is enforced by publicity and by the legislature.

3. Does a power to prosecute disqualify a body from being an ombudsman? No. The original Swedish office of 1809 could prosecute, and India's Lokpal has a Prosecution Wing and powers of attachment and confiscation. The better analysis is that such a body is a hybrid: an ombudsman in its appointment, independence and access, and an anti-corruption prosecutor in its output.

4. Why is the power to call for the official file the most important investigative power? Because most maladministration is invisible from outside the department. A citizen refused a benefit cannot see the note on which the refusal was based, cannot know how long the file sat unattended and cannot know what was never put before the deciding officer. The ombudsman can see all of it as of right, which is why he can find wrongs that no court would ever discover.

5. Apply the list: is a departmental grievance cell an ombudsman? No. It may satisfy the criterion of accessibility, but it fails appointment by or on the advice of the legislature, fails security of tenure and salary, and fails independence from the executive, because it sits inside the department it examines and its officers answer to the officers it would have to criticise.

What the Committee recommended

The report is long and its recommendations run to hundreds. Four matter here.

A Central Vigilance Commission. An apex body, headed by a Central Vigilance Commissioner of the status of a Chairman of the Union Public Service Commission, to exercise general check and superintendence over vigilance and anti-corruption work in the Ministries and in public sector undertakings, to advise on disciplinary cases, and to have its own machinery for inquiry.

A Chief Vigilance Officer in every Ministry and Department, to be the Commission's arm inside the organisation. Chapter 690 explains how that arrangement works and why the officer's dual loyalty is its weak joint.

Reform of the sanction and disciplinary procedure, to cut the delay between detection and consequence.

A code of conduct and a system of property returns for public servants, the ancestor of section 44 of the Lokpal and Lokayuktas Act 2013.

What the Government did

The Central Vigilance Commission was constituted by a Government of India resolution dated 11 February 1964, and Nittoor Srinivasa Rau, a retired Chief Justice of the Mysore High Court, was appointed the first Central Vigilance Commissioner.

The word to notice in that sentence is resolution. Not an Act of Parliament. An executive order of the Government, creating a body to supervise the vigilance work of that same Government.

Apply the checklist from chapter 50 and the consequence is immediate. Attribute one, creation by law, fails. Attribute two, appointment by or on the advice of the legislature, fails. Attribute three, security of tenure and salary by law, fails. The Commission that India created in 1964 was a useful body and was not an ombudsman, and it remained in that position until the Act of 2003.

That is the answer to a favourite examination question, and chapter 310 states it as an argument.

Why the Santhanam Committee did not recommend an ombudsman

It is a fair question and the answer is instructive. The Committee's terms of reference were about corruption in the services. It was looking at officials, at the machinery for catching them, and at the procedure for punishing them.

An ombudsman is a different instrument aimed at a different problem: the citizen's grievance against the administration, and the accountability of Ministers rather than of clerks. That problem was picked up two years later by a body with a much wider mandate, the Administrative Reforms Commission, and chapter 70 takes the story there.

The sequence is worth stating plainly in an answer, because students frequently merge the two. Santhanam 1964 gives India its vigilance machinery. The Administrative Reforms Commission 1966 gives India the Lokpal idea. Two committees, two years apart, two different institutions, and India got the first almost immediately and the second forty-nine years later.

A worked example

A Deputy Secretary in a Ministry is suspected in 1966 of taking money to move a file.

Who can act. The Ministry's own vigilance unit, under its Chief Vigilance Officer. If the case looks criminal, the Delhi Special Police Establishment. The Central Vigilance Commission advises on whether a departmental inquiry should be held and on the punishment.

What happens in practice. The Commission gives advice. The Ministry is not bound by it. If the Ministry disagrees it records its reasons, and the disagreement appears in the Commission's annual report.

Where the machinery stops. If the suspicion is against the Minister rather than the Deputy Secretary, none of this reaches him. The Commission's jurisdiction is over public servants of the Union. A Minister is not a public servant in that sense, and the Delhi Special Police Establishment needs sanction to prosecute.

And that gap is the whole point. The vigilance machinery of 1964 reaches the administration. It does not reach the political executive. The demand for a Lokpal is a demand for an institution that does, and every one of the eight failed Bills was resisted at exactly that point.

What this chapter does NOT say

It does not say the Santhanam Committee was a failure. It produced a working institution within a year of reporting, which is more than the Lokpal proposal managed in five decades.

It does not say the Central Vigilance Commission was powerless before 2003. It was influential, its advice was usually followed, and its annual reports were read. The point is narrower and legal: a body created by resolution can be altered or wound up by resolution, and that is a difference in kind and not in degree.

And it does not say the two lines never met. They met in 1997, when the Supreme Court directed that the Commission be given statutory status, and that direction is what produced the Act of 2003. Chapter 580 works that case in full.

Quick revision

Committee on Prevention of Corruption, appointed June 1962, chairman K. Santhanam, reported 31 March 1964.

Findings: structural causes, scattered machinery, a sanction procedure that protected the guilty, and no reach into the higher services or the political level.

Recommendations: a Central Vigilance Commission; a Chief Vigilance Officer in every Ministry; reform of sanction and discipline; a code of conduct and property returns.

The Commission was created by a Government of India resolution of 11 February 1964, not by an Act, and Nittoor Srinivasa Rau was the first Central Vigilance Commissioner.

Apply the checklist: created by resolution, appointed by the Government, no statutory tenure. Not an ombudsman.

The sequence: Santhanam 1964 gives the vigilance machinery; the Administrative Reforms Commission 1966 gives the Lokpal idea.

Test yourself

1. What was the Santhanam Committee and what was its most important institutional recommendation? The Committee on Prevention of Corruption, appointed in June 1962 under K. Santhanam and reporting in March 1964. Its most important institutional recommendation was the constitution of a Central Vigilance Commission as an apex body to exercise general check and superintendence over vigilance and anti-corruption work in the Union, supported by a Chief Vigilance Officer in each Ministry.

2. How was the Central Vigilance Commission created, and why does the manner of creation matter? By a Government of India resolution dated 11 February 1964, that is by an executive order and not by legislation. It matters because a body created by resolution can be altered, weakened or abolished by resolution of the same Government it supervises, so it fails the first three attributes of an ombudsman: creation by law, appointment on the advice of the legislature, and statutory security of tenure and salary.

3. Why did the Santhanam Committee not recommend an ombudsman? Because its terms of reference were corruption in the public services. It was concerned with officials, with detection and with disciplinary procedure. The citizen's grievance against the administration and the accountability of the political executive are different problems, and they were taken up in 1966 by the Administrative Reforms Commission, whose mandate was much wider.

4. Identify the gap in the 1964 machinery that the Lokpal proposal was meant to fill. The vigilance machinery reached public servants of the Union but not the political executive. A Minister was outside the Commission's jurisdiction, and prosecution of a public servant required previous sanction, which was itself used to delay and refuse. An institution that could inquire into Ministers, and ultimately into the Prime Minister, is what the Lokpal proposal was for, and it is the point at which every Lokpal Bill was resisted.

Both allegations and grievances. This is the feature the Act of 2013 abandoned. The Commission proposed that the institution deal with allegations, meaning abuse of position, corruption, favouritism and improper motive, and with grievances, meaning injustice or hardship from maladministration. Chapter 10 explained the difference and chapter 330 explains what its loss cost.

Informal, private proceedings. Not a court, no lawyers as of right, no rules of evidence, and inquiries conducted in private so that a person against whom nothing is found is not damaged by the inquiry.

A duty to report annually to Parliament, which is the classical sanction.

Both to be free from executive interference in their functioning, with their own staff and a charge on the Consolidated Fund.

Where the names come from

Neither word existed before 1966 in this sense. Lokpal was coined from lok, the people, and pal, protector or guardian: protector of the people. Lokayukta was coined from lok and ayukta, an officer or commissioner: the people's commissioner. L.M. Singhvi is generally credited with proposing them, in the Lok Sabha debate on the subject in 1963 and afterwards.

The coining matters for a reason beyond etymology. It shows that the Commission was not proposing to import an office but to naturalise it, and the naturalisation is why the two-tier design has no exact foreign parallel. Neither Sweden nor Britain divides its ombudsmen by the rank of the person complained against.

A worked example of the two-tier design as intended

Suppose the design of 1966 had been enacted as proposed.

A citizen complains that a Block Development Officer has sat on his application for eleven months. That is a grievance against an official below the level of Secretary. It goes to the Lokayukta of his State.

A citizen complains that a State Minister granted a licence to a relative. That is an allegation against a Minister. It goes to the Lokpal, because the Lokpal's jurisdiction covers Ministers at the Union and the State level alike.

A citizen complains that a Secretary to the Government of India decided a tender on an irrelevant consideration. Secretaries are with the Lokpal.

Notice what the design achieves. One institution deals with the political and administrative summit, where the pressure to protect is greatest and where distance from the State Government is therefore essential. The other deals with the mass of ordinary complaints close to where they arise, where volume matters more than distance.

And notice what happened instead. The States legislated for Lokayuktas from 1971 onwards, each on its own terms, with jurisdiction over Ministers as well as officials. The Centre passed nothing until 2013, and when it did it created a Lokpal that deals with allegations of corruption and leaves grievances to nobody. The design was never built as designed.

What the Commission got right, and what it missed

Right: that independence has to be built into appointment, tenure and money. Every Indian institution in this book that works has those three, and every one that does not, does not.

Right: that the institution must reach Ministers. The Commission said so in 1966 and it took forty-seven years to legislate, and the resistance was always at that point.

Right: that proceedings should be informal and private. Section 25 of the Lokpal Act's predecessor drafts and the hearing requirements in the modern Acts descend from this.

Missed: the machinery of investigation. The Commission did not confront the problem that an ombudsman in India would need investigators, and that investigators in India belong to the police. Every failure of an Indian Lokayukta since has turned on that, and the Act of 2013 answered it only partly by creating an Inquiry Wing while leaving the actual investigation with agencies it does not control.

Missed: the States. It recommended a Lokayukta for every State and could not compel one. The gap was closed only by section 63 of the Act of 2013, forty-seven years later, and even that requires the State to legislate.

What this proposal was NOT

It was not a Bill. The Commission recommends; Parliament legislates. Chapter 80 is the record of what Parliament did with the recommendation, which for a very long time was nothing.

It was not a proposal for a prosecuting body. The 1966 Lokpal would report and recommend. The prosecution powers in the Act of 2013 are an Indian addition made almost half a century later, under quite different pressure.

And it was not a proposal to bring the judiciary in. The Commission proposed independence from the judiciary, not jurisdiction over it. India has never given an ombudsman jurisdiction over judges, which is why the eighth label of this syllabus needs a wholly separate answer.

Quick revision

Body: the Administrative Reforms Commission, constituted January 1966. Chairman Morarji Desai, later K. Hanumanthaiya.

Report: the Interim Report on Problems of Redressal of Citizens' Grievances, October 1966, its first report.

Proposal: a two-tier institution. Lokpal at the Centre for Ministers and Secretaries; Lokayukta at the Centre and in each State for other officials.

Features: independence of executive and judiciary; non-partisan appointment after consultation with the Chief Justice of India and the Leader of the Opposition; jurisdiction over allegations and grievances both; informal and private proceedings; annual report to Parliament.

Names: Lokpal, protector of the people; Lokayukta, the people's commissioner. Coined in the Indian debate, not borrowed.

What was missed: the machinery of investigation, and any means of compelling the States to act.

Test yourself

1. What did the Administrative Reforms Commission recommend in 1966, and why did it deal with this subject first? It recommended a two-tier institution, a Lokpal at the Centre for complaints against Ministers and Secretaries and a Lokayukta at the Centre and in every State for complaints against other officials, both independent, non-partisan in appointment, informal and private in procedure and reporting annually to Parliament. It took the subject first because administrative reform is slow and the citizen's grievance is immediate, so a programme that produced nothing usable for years would not carry public confidence.

2. On what basis did the proposal divide work between the Lokpal and the Lokayukta? By the rank of the person complained against, not by subject matter. Ministers, at the Union and in the States, and Secretaries were for the Lokpal; all other officials were for the Lokayukta.

3. Which feature of the 1966 proposal did the Lokpal and Lokayuktas Act 2013 abandon, and with what consequence? Jurisdiction over grievances. The 1966 design covered both allegations of corruption and abuse and grievances of injustice or hardship from maladministration. The Act of 2013 covers allegations only, so a citizen complaining of delay or unfairness by a Union department has no ombudsman to go to.

4. Where do the words Lokpal and Lokayukta come from, and why does it matter? They were coined in the Indian debate of the 1960s from lok, the people, with pal, protector, and ayukta, commissioner. It matters because it shows the Commission was naturalising the institution rather than importing it, which is why the two-tier division by rank has no exact parallel in Sweden, Denmark, New Zealand or Britain.

The third was the reach downwards. Whether the institution should cover the whole civil service, which makes it unmanageable, or only the top, which makes it symbolic. The Act of 2013 covers a very wide range of public servants and puts them in classes with different procedures.

Why it kept failing: three explanations, and which to prefer

The political explanation. An institution designed to investigate Ministers has to be created by Ministers, and the incentive runs the wrong way. This is the explanation the movement of 2011 used and it has obvious force.

The institutional explanation. India already had a Central Vigilance Commission from 1964, a Central Bureau of Investigation, a Comptroller and Auditor-General, parliamentary committees and an active judiciary exercising judicial review. Each new proposal had to answer the question what a Lokpal would add, and successive Governments answered it by saying, not enough.

The federal explanation. A Bill that covered State Ministers raised the objection that public order and services are State subjects and that Parliament was legislating into the States' field. This is why the two-tier design of 1966 was never enacted as designed, and why section 63 of the Act of 2013 ends by requiring States to legislate rather than by legislating for them.

Which to prefer. In an answer, give all three and say that they are not alternatives. The political explanation says why nobody pushed; the institutional explanation gave the refusal a respectable form; the federal explanation limited what could be drafted even when the will existed.

What the States did while the Centre did nothing

This is the part of the story students most often leave out, and it is a real gap in an answer.

Maharashtra legislated in 1971, and the Maharashtra Lokayukta and Upa-Lokayuktas Act came into force in 1972, making it among the first States in the country to have the institution. Odisha had passed an Act in 1970. Rajasthan, Bihar, Uttar Pradesh, Madhya Pradesh, Andhra Pradesh, Himachal Pradesh, Karnataka, Assam, Gujarat, Delhi, Punjab, Kerala, Haryana and others followed over the next three decades.

So the two-tier design was built upside down. The lower tier came into existence across most of the country while the upper tier did not exist at all, and each State designed its lower tier differently. Chapters 240 to 300 deal with what that produced, and chapter 250 with Maharashtra's own Act.

A worked example: how a Bill lapses

The mechanics are worth working once, because MU's question asks about evolution and lapse is the mechanism of the whole story.

A Bill is introduced in the Lok Sabha in year one. It is referred to a Standing Committee, which takes evidence and reports in year two.

The Bill is taken up, debated and passed by the Lok Sabha in year three, with amendments.

It goes to the Rajya Sabha. The Rajya Sabha refers it to a Select Committee.

The Lok Sabha is dissolved in year four, at the end of its term or earlier.

Article 107(5) applies. A Bill pending in the Lok Sabha lapses on dissolution. A Bill passed by the Lok Sabha and pending in the Rajya Sabha also lapses. Only a Bill pending in the Rajya Sabha and not passed by the Lok Sabha survives, and a Bill for which a joint sitting has been notified survives.

The result. Everything done in four years is gone. The next Government must start again with a fresh introduction, a fresh committee and a fresh debate.

That is what happened to the Bill of 1968, which had cleared the Lok Sabha, and to six more after it. No majority ever had to be found against a Lokpal. It was enough for a House to end.

What this history does NOT show

It does not show that Parliament was unanimously hostile. The Lok Sabha passed the Bill in 1969. Successive Governments of different parties introduced Bills. The obstruction was quieter than hostility and more effective.

It does not show that nothing was happening. The States were legislating throughout, the Central Vigilance Commission was working, and from 1997 the Supreme Court began building the machinery by direction in the hawala case.

And it does not show that the Act of 2013 settled everything. It created the institution and left the questions about investigating machinery and about the States where they were. The first Lokpal took office in March 2019, which chapter 230 explains.

Quick revision

Eight Bills: 1968, 1971, 1977, 1985, 1989, 1996, 1998, 2001, then the Bill of 2011 that became the Act.

The 1968 Bill alone passed the Lok Sabha, in 1969, and lapsed in the Rajya Sabha on dissolution.

The mechanism of failure: lapse under article 107(5), not defeat on a vote.

The three recurring disputes: the Prime Minister's inclusion; the investigating machinery and control of the Central Bureau of Investigation; and how far down the services the jurisdiction should reach.

Three explanations: political incentive, institutional duplication, and federal objection. Give all three.

Meanwhile the States legislated: Odisha 1970, Maharashtra 1971, and most others over the following three decades, so the lower tier existed while the upper tier did not.

Test yourself

1. How many Lokpal Bills were introduced before the Act of 2013, and how did they fail? Eight, in 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001, together with the Bill of 2011 that eventually became the Act. None was defeated on a vote. Each lapsed on the dissolution of the House in which it was pending, under article 107(5), or was withdrawn, so a Government that did not want the measure had only to let time run.

2. Which Bill came closest, and what happened to it? The Bill of 1968. It was passed by the Lok Sabha in 1969 and was pending in the Rajya Sabha when the Lok Sabha was dissolved, so it lapsed. No later Bill was passed by either House until 2013.

3. Name the three recurring points of dispute. Whether the Prime Minister should be within the jurisdiction; what investigating machinery the institution should have and who should control the Central Bureau of Investigation; and how far down the public services the jurisdiction should extend.

4. Give three explanations for the repeated failure and say how they relate. The political explanation, that an institution to investigate Ministers must be created by Ministers, so the incentive runs the wrong way. The institutional explanation, that India already had a vigilance commission, an investigating agency, an auditor, parliamentary committees and judicial review, so each proposal had to justify the addition. The federal explanation, that covering State Ministers trespassed on State subjects. They are not alternatives: the political explanation says why nobody pushed, the institutional explanation gave the refusal a respectable form, and the federal explanation limited what could be drafted.

5. What were the States doing during this period? Legislating. Odisha passed an Act in 1970 and Maharashtra in 1971, and most States followed over the next three decades, each on its own terms. The result was that the lower tier of the 1966 design existed across most of the country while the upper tier did not exist at all, and the lower tier was built to a different pattern in every State.

The single biggest difference is the fourth row. A Lokpal that must ask another agency to investigate is dependent on that agency; a Lokpal with its own force is a new police organisation answerable to nobody elected. The Act of 2013 chose neither cleanly: it created an Inquiry Wing and a Prosecution Wing of its own, and left investigation to be directed to an existing agency, with supervisory powers over that agency while it investigates on the Lokpal's reference. Chapter 160 works out what those supervisory powers amount to.

What the Standing Committee did

The Bill of 2011 went to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice under Abhishek Singhvi. This is a legislative committee doing exactly the work Module III's fifth label is about, and it is worth pointing at when a question asks for an example of a committee inquiry with a real result.

The Committee took evidence, including from the movement, and reported in December 2011. Its report is why the Act contains the Selection Committee it does, why the Lokpal is a multi-member body with judicial members, and why the classes of public servant in section 14 are graded rather than uniform.

Then the Rajya Sabha referred the Bill to a Select Committee, which reported in November 2012. The Select Committee's recommendations produced the provisions on the States in section 63 and the changes to the powers of search and attachment.

The lesson to draw in an answer. The Act was not written by the movement and it was not written by the Government. It was written, in substantial part, by two parliamentary committees, which is what those committees exist for.

What the Act took from the movement, and what it refused

Took: a multi-member body, not a single officer. The Jan Lokpal draft wanted a bench-like institution and the Act created a Chairperson and up to eight Members.

Took: judicial members. Not fewer than half the Members must be judicial members.

Took: a Prosecution Wing and the power to attach and confiscate. These are far beyond the classical model.

Took: coverage of a very wide class of public servants, including societies and trusts receiving foreign contribution above a threshold.

Refused: the higher judiciary. Judges are outside the Lokpal Act. India's answer to judicial accountability is the Judges (Inquiry) Act 1968 and the in-house procedure, which is Module IV's second half.

Refused: conduct inside Parliament. Anything said or any vote given in Parliament is protected by article 105(2), and the Act does not attempt to reach it. Chapter 1100 explains how far that protection now goes after the decision of 4 March 2024.

Refused: its own police force. Investigation remains with the agencies.

Refused: grievances. The citizens' charter and the redress of grievances went into a separate Bill, the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill 2011, and that Bill lapsed. Chapter 330 is about the hole this left.

A worked example: reading the Act as a compromise

Take one provision and see both drafts inside it.

Section 14(1)(a) brings the Prime Minister within the Lokpal's jurisdiction. That is the movement's point, and the point on which every Bill since 1968 had foundered.

The provisos take most of it back. No inquiry into the Prime Minister in matters relating to international relations, external and internal security, public order, atomic energy and space. An inquiry may be held only if the Full Bench considers initiating it and at least two-thirds of the Members approve. The hearing is to be held in camera, and if the Full Bench decides the complaint should be dismissed the records are not published or made available to anyone.

Read the two together and the compromise is visible. The Prime Minister is inside, so the principle is conceded; the conditions are such that an inquiry into a Prime Minister is a rare and heavily guarded event, so the fear is answered. Whether the balance is right is a legitimate question in an answer; that it is a balance and not a victory for either side is the observation that shows understanding.

What this chapter does NOT claim

It does not claim the movement wrote the Act. It did not, and saying so is a common error. The movement made the subject unavoidable; the committees wrote the provisions.

It does not claim the Act is a strong statute or a weak one. That judgment belongs at the end of the module, after the provisions have been read, and chapter 320 makes it.

And it does not claim that an agitation is how laws should be made. The observation to make is narrower and more interesting: a Bill that had lapsed eight times passed when the political cost of letting it lapse a ninth time exceeded the cost of passing it. That is a fact about how the constitutional machinery actually responds to pressure, and it is worth a sentence.

Quick revision

Trigger: the disclosures of 2010 and 2011, including the Comptroller and Auditor-General's reports on spectrum and coal, and the India Against Corruption movement led by Anna Hazare.

The movement's draft: the Jan Lokpal Bill.

Route: Government's Lokpal Bill 2011, to the Standing Committee on Personnel, Public Grievances, Law and Justice, passed by the Lok Sabha in December 2011, referred by the Rajya Sabha to a Select Committee which reported in November 2012, passed by both Houses in December 2013.

Assent 1 January 2014, as Act 1 of 2014. In force 16 January 2014.

Taken from the movement: a multi-member body, judicial members, a Prosecution Wing, attachment and confiscation, wide coverage.

Refused: the higher judiciary, conduct in Parliament, an own police force, and grievances.

Test yourself

1. Why did a Bill that had failed eight times pass in 2013? Because three things converged: very large disclosures in audit reports and public controversies in 2010 and 2011 which put the subject in general circulation; a widespread view that the existing institutions acted only when a court compelled them; and an organised campaign that produced a complete alternative draft, the Jan Lokpal Bill, so that the demand could not be absorbed by promising to consider the matter.

2. Name the two parliamentary committees that shaped the Act and say what each contributed. The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, which reported in December 2011 and is the source of the Selection Committee, the multi-member composition with judicial members and the graded classes of public servant; and the Rajya Sabha Select Committee, which reported in November 2012 and is the source of the provisions on the States in section 63 and of changes to the powers of search and attachment.

3. State four things the Act refused to take from the Jan Lokpal draft. Jurisdiction over the higher judiciary; jurisdiction over anything said or any vote given in Parliament, which article 105(2) protects; an investigating force of the Lokpal's own with the Central Bureau of Investigation's anti-corruption wing merged into it; and jurisdiction over citizens' grievances, which was put into a separate Bill that lapsed.

4. Show how section 14 embodies the compromise. It brings the Prime Minister within jurisdiction, which concedes the principle every Bill since 1968 had fought over. It then excludes matters of international relations, external and internal security, public order, atomic energy and space; requires the Full Bench to consider initiating the inquiry with at least two-thirds of the Members approving; requires the hearing to be in camera; and forbids publication of the records if the complaint is dismissed. The principle is granted and the conditions make its exercise rare and guarded.

PART III, ESTABLISHMENT OF THE LOKAYUKTA: section 63.

THE SCHEDULE.

Three things to notice about that table, because each is examinable.

The Inquiry Wing, the Prosecution Wing and the charge on the Consolidated Fund each get a whole chapter to themselves, for one section apiece. A drafter gives a single section its own chapter when he wants it to be conspicuous, and these three are the features that mark this institution off from a classical ombudsman: it inquires with its own wing, prosecutes with its own wing, and is paid without an annual vote.

Chapter VI is called jurisdiction and contains the benches. Sections 16 to 19 constitute benches, distribute business, allow the Chairperson to transfer cases and provide for decision by majority. A body that sits in benches and decides by majority is being built to look like a court, and the drafter has put that fact inside the jurisdiction chapter rather than in a separate one.

Chapter X is about complaints against the Lokpal itself. The institution that inquires into everybody has a chapter about who inquires into it, which is the point chapter 180 develops.

Section 1: extent, application and commencement

Section 1(1) gives the short title. Section 1(2) provides that the Act extends to the whole of India. Section 1(3) provides that it shall apply to public servants in and outside India. Section 1(4) provides that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

The footnote to section 1(4) records the notification: 16 January 2014, by S.O. 119(E) of that date. That is the date to remember. It is the date from which the five-year wait in chapter 230 is measured, and it is what the Supreme Court relied on in 2017 when it held that a law duly enacted and brought into force must be given effect to.

Section 1(3) is easy to skip and worth a sentence in an answer. A public servant does not escape the Act by being posted abroad. The Convention the preamble recites requires exactly that reach, and section 36's letter of request to a contracting State is the machinery that makes it usable.

A note on the title. The Act is called the Lokpal and Lokayuktas Act although it establishes only the Lokpal. Part III, one section long, requires the States to establish Lokayuktas by law. A student who notices this has read the Act rather than a summary of it.

Section 2: the definitions that decide the Act's reach

"Competent authority" is defined at length and is the authority whose sanction or permission is needed at various points: for the Prime Minister the House of the People, for a Minister of the Union the Prime Minister, for a member of either House the Chairman or the Speaker, and for other public servants the Government or the authority prescribed. The definition matters because the Act repeatedly requires a competent authority to act, and the identity of that authority is where political control over the process actually sits.

"Complaint" means a complaint alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act 1988. That definition alone tells you what kind of institution this is: an anti-corruption body, not a grievance body.

"Public servant" is defined by reference to the classes in section 14, which is why chapter 140 has to be long: the Act does not carry a self-contained definition of who may be inquired into, it puts the whole of it in the jurisdiction section.

"Preliminary inquiry" and "investigation" are kept apart throughout. A preliminary inquiry asks whether a prima facie case exists; an investigation is investigation in the sense of the Code of Criminal Procedure. Chapter 150 works out the difference and why it decides the shape of Chapter VII.

"Special Court" means the court of a special judge appointed under the Prevention of Corruption Act 1988, which is where a prosecution the Lokpal sanctions is tried.

A worked example: placing a section without the contents page

A question mentions "the Lokpal's power to attach property provisionally". Where is it?

Step one, ask what kind of provision it is. It is a power exercised in aid of an inquiry, and it concerns property.

Step two, use the map. Powers of the Lokpal are Chapter VIII, sections 25 to 34. Special Courts are Chapter IX.

Step three, narrow inside Chapter VIII. The chapter runs from supervisory powers through search and seizure and the powers of a civil court to provisional attachment, confirmation of attachment, confiscation, the recommendation of transfer or suspension, directions to prevent the destruction of records, and delegation.

Step four, check. Section 29 is provisional attachment of assets, section 30 is confirmation of attachment and section 31 is confiscation. Chapter 170 reads them.

Why this matters in an examination. A three-hour paper with seven questions rewards a candidate who can navigate. A candidate who has memorised a dozen section numbers and lost the shape will misplace the thirteenth; a candidate who holds the shape will place a section they have half forgotten.

Distinctions: the Act against its two neighbours

What beginners get wrong about this Act

That the Lokpal is a court. It is not. It inquires and sanctions prosecution; the trial is before a Special Court under the Prevention of Corruption Act 1988. That it sits in benches and decides by majority makes it look judicial and does not make it a court.

That the Lokpal handles complaints about bad service. It does not. A complaint under the Act is an allegation of an offence under the Prevention of Corruption Act.

That the Act created Lokayuktas. It did not. Part III requires the States to establish them by law.

That the Act is confined to India. Section 1(3) applies it to public servants in and outside India, and section 36 provides for a letter of request to a contracting State.

Quick revision

Act 1 of 2014. Assent 1 January 2014. In force 16 January 2014, by S.O. 119(E).

Preamble recites the United Nations Convention Against Corruption, which India has ratified.

Section 1: (1) short title, (2) extends to the whole of India, (3) applies to public servants in and outside India, (4) commencement by notification.

Structure: Part I preliminary, s.1. Part II, Lokpal for the Union, ss.2 to 62 in fifteen chapters. Part III, establishment of the Lokayukta, s.63. Plus the Schedule.

Chapters to remember: II establishment ss.3 to 10; III Inquiry Wing s.11; IV Prosecution Wing s.12; V expenses charged on the Consolidated Fund s.13; VI jurisdiction and benches ss.14 to 19; VII procedure ss.20 to 24; VIII powers ss.25 to 34; IX Special Courts ss.35 and 36; X complaints against the Lokpal's own people ss.37 and 38; XIII declaration of assets ss.44 and 45; XV miscellaneous ss.48 to 62.

Definitions that decide the reach: competent authority; complaint, meaning an allegation of an offence under the Prevention of Corruption Act 1988; public servant, defined through section 14; and the preliminary inquiry against investigation distinction.

Test yourself

1. Give the Act's number, the date of assent and the date it came into force. Act 1 of 2014. Assent on 1 January 2014. It came into force on 16 January 2014, on a notification under section 1(4), S.O. 119(E) of that date.

2. Set out the Act's three Parts and say what is in each. Part I, Preliminary, is section 1 alone. Part II, Lokpal for the Union, runs from section 2 to section 62 in fifteen chapters, covering definitions, establishment, the Inquiry Wing, the Prosecution Wing, the charge on the Consolidated Fund, jurisdiction and benches, procedure, powers, Special Courts, complaints against the Lokpal's own people, assessment of loss, finance and audit, declaration of assets, offences and penalties, and miscellaneous. Part III is section 63, requiring the States to establish Lokayuktas.

3. Why do the Inquiry Wing, the Prosecution Wing and the charge on the Consolidated Fund each have a chapter of their own for a single section? Because a drafter gives one section its own chapter to make it conspicuous, and these three are precisely the features that distinguish this institution from a classical ombudsman: an inquiring arm of its own, a prosecuting arm of its own, and money that does not depend on an annual vote and so cannot be withheld by the executive it investigates.

4. What does the preamble's reference to the United Nations Convention Against Corruption explain? It supplies part of the Act's justification and accounts for features that look excessive by classical ombudsman standards. The Convention requires States to maintain preventive anti-corruption bodies, to criminalise bribery and to provide for the freezing, seizure and confiscation of proceeds of corruption, and Chapter VIII's attachment and confiscation provisions and section 36's letter of request to a contracting State are India giving effect to those requirements.

5. What does the definition of "complaint" tell you about the character of the institution? That it is an anti-corruption body and not a grievance body. A complaint under the Act alleges an offence punishable under the Prevention of Corruption Act 1988, so a citizen aggrieved by delay, discourtesy or unfairness has no complaint to make under this Act at all, and the grievance half of the 1966 design has no home.

Section 3(4) disqualifies. The Chairperson or a Member shall not be a member of Parliament or of a State or Union territory legislature; a person convicted of an offence involving moral turpitude; a person under forty-five years of age on the date of assuming office; a member of a Panchayat or Municipality; or a person who has been removed or dismissed from the service of the Union or a State.

And section 3(4) goes on to require that the Chairperson or a Member shall not hold any office of trust or profit other than his office, be affiliated with any political party, carry on any business or practise any profession. Before entering office he must resign any office of trust or profit, sever his connection with the management of any business, and cease to practise any profession.

Reading section 3 as a design

Nine at most, and at least half of them judges. The multi-member design came from the Standing Committee, and it is what allows the Lokpal to sit in benches under section 16. A single officer, which is the classical ombudsman, could not have carried the volume of a jurisdiction that reaches every Group A, B, C and D public servant.

Half judicial is the compromise. It answers the objection that a body with prosecution and attachment powers should have judicial minds in it, and it stops short of making the Lokpal a court.

Twenty-five years for a non-judicial Member is a high bar deliberately set, and it means the non-judicial Members are in practice retired civil servants, auditors and bankers.

The reservation proviso is unusual in a statute creating a constitutional-style office and is worth noticing in an answer, because it is one of the few provisions in this book that treats the composition of a watchdog as a question of representation as well as of competence.

The bar on practising a profession matters for a retired judge, who would otherwise arbitrate. It is a real financial sacrifice and it is part of what makes recruitment to these offices difficult.

Section 4: how they are chosen

Section 4(1) provides that the Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of:

1. The Prime Minister, Chairperson of the Committee.
2. The Speaker of the House of the People, Member.
3. The Leader of Opposition in the House of the People, Member.
4. The Chief Justice of India or a Judge of the Supreme Court nominated by him, Member.
5. One eminent jurist, recommended by the four above and nominated by the President, Member.

Count the votes and the design is visible. The Government of the day has the Prime Minister. The Speaker comes from the majority party. That is two. The Leader of Opposition, the Chief Justice or his nominee and the eminent jurist are three, and the eminent jurist is chosen by all four of the others. No Government commands this committee, and that is the whole point.

Section 4(2) provides that no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. Nine words that decided the most important Lokpal case there has been, because for years the Government's answer to why no Lokpal had been appointed was that there was no Leader of Opposition. Chapter 230 works it.

Section 4(3) requires the Selection Committee to constitute a Search Committee of at least seven persons of standing with special knowledge and expertise in anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management, or any other matter useful in making the selection. The first proviso requires that not less than fifty per cent of the Search Committee be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women. The second proviso allows the Selection Committee to consider a person other than those the Search Committee recommends.

Section 4(4) requires the Selection Committee to regulate its own procedure in a transparent manner for selecting the Chairperson and Members.

Section 4(5) leaves the term of the Search Committee, the fees and allowances of its members and the manner of selecting the panel to be prescribed by rules.

A worked example

Suppose a vacancy arises in the office of a Judicial Member.

Step one, section 5. The President must take, or cause to be taken, all necessary steps for the appointment at least three months before the term expires. Chapter 120 reads that section.

Step two, section 4(3). The Selection Committee constitutes a Search Committee of at least seven, half of them from the categories the proviso names.

Step three. The Search Committee prepares a panel. Under the second proviso the Selection Committee may look outside that panel, so the Search Committee filters without binding.

Step four, section 4(1) and 4(4). The Selection Committee, five members, regulates its own procedure transparently and recommends a name.

Step five, section 3(3)(a). The candidate must be, or have been, a Judge of the Supreme Court or a Chief Justice of a High Court. Nothing else will do for a Judicial Member.

Step six, section 3(4). Before entering office the appointee resigns any office of profit, severs business connections and stops practising.

Step seven, section 6. The President appoints by warrant under his hand and seal. Chapter 120 takes it from there.

Now change one fact. Suppose the House of the People has no recognised Leader of Opposition, because no party in opposition has a tenth of the seats. Does the process stop? Section 4(2) says it does not: a vacancy in the Selection Committee does not invalidate an appointment. That sentence is the answer to five years of delay.

Distinctions: three selection committees compared

The row that matters is the fourth. The Central Vigilance Commissioner is chosen by a committee with no judicial member at all, two of whose three members are Ministers. That is the weakest of the three, and it is worth saying so when a question asks you to compare these institutions.

What beginners get wrong

That the Lokpal must have a judge as Chairperson. Section 3(2)(a) allows an eminent person meeting the section 3(3)(b) qualification. In practice the Chairpersons have been judges, but the Act does not require it.

That the Selection Committee appoints. It recommends. The President appoints, on that recommendation, by warrant under his hand and seal.

That the Search Committee's panel binds. The second proviso to section 4(3) says the Selection Committee may consider a person outside it.

That fifty per cent judicial means four of eight. It means fifty per cent of the Members, and the Members are "not exceeding eight". If six Members are appointed, three must be Judicial Members.

Quick revision

Section 3(1): establishes the Lokpal.

Section 3(2): a Chairperson plus not more than eight Members, of whom fifty per cent are Judicial Members; proviso, not less than fifty per cent of Members from SC, ST, OBC, Minorities and women.

Section 3(3): Chairperson, a serving or former Chief Justice of India or Judge of the Supreme Court, or an eminent person; Judicial Member, a serving or former Judge of the Supreme Court or Chief Justice of a High Court; other Member, impeccable integrity and twenty-five years in anti-corruption policy, public administration, vigilance, finance, law or management.

Section 3(4): disqualifications, including under forty-five years of age, and the bar on office of profit, political affiliation, business and practice.

Section 4(1): appointment by the President on the recommendation of a Selection Committee of five: Prime Minister as Chairperson, Speaker of the House of the People, Leader of Opposition in the House of the People, Chief Justice of India or his nominee, and one eminent jurist.

Section 4(2): a vacancy in the Selection Committee does not invalidate an appointment.

Section 4(3): a Search Committee of at least seven, whose panel does not bind. Section 4(4): transparent procedure.

Test yourself

1. Set out the composition of the Lokpal. A Chairperson and not more than eight Members. The Chairperson is or has been a Chief Justice of India or a Judge of the Supreme Court, or is an eminent person qualified under section 3(3)(b). Fifty per cent of the Members must be Judicial Members, that is serving or former Judges of the Supreme Court or Chief Justices of High Courts. Not less than fifty per cent of the Members must be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.

2. Name the five members of the Selection Committee and explain what the composition is designed to achieve. The Prime Minister as Chairperson, the Speaker of the House of the People, the Leader of Opposition in the House of the People, the Chief Justice of India or a Judge of the Supreme Court nominated by him, and one eminent jurist recommended by those four and nominated by the President. The design denies the Government of the day a majority: it holds the Prime Minister and, in practice, the Speaker, while the Leader of Opposition, the judicial member and the jurist are outside its control and the jurist is chosen by all four.

3. What does section 4(2) provide, and why has it mattered so much? That no appointment of a Chairperson or Member shall be invalid merely by reason of any vacancy in the Selection Committee. It mattered because between 2014 and 2019 the Government's explanation for appointing no Lokpal was that the House of the People had no recognised Leader of Opposition, and section 4(2) is the answer to that: a vacancy does not stop the Committee acting.

4. Does the Search Committee's panel bind the Selection Committee? No. The second proviso to section 4(3) expressly allows the Selection Committee to consider a person other than those recommended by the Search Committee, so the Search Committee filters and advises but does not confine the choice.

5. What must a person do before entering office as Chairperson or Member? Under section 3(4) he must resign any office of trust or profit he holds, sever his connection with the conduct and management of any business he carries on, and cease to practise any profession. He must also not be affiliated with any political party. The restrictions exist because the office is meant to be free of any interest that could be worked on.

The proviso allows him to resign by writing addressed to the President, or to be removed in the manner provided in section 37.

Three things to notice. The term is fixed, so it cannot be shortened administratively. There is no reappointment, which section 8 makes explicit, so nobody can be influenced by the hope of another term. And the warrant under the President's hand and seal is the same formality used for a Judge of the Supreme Court, the Comptroller and Auditor-General and the Central Vigilance Commissioner: a deliberate signal about the class of office this is.

Section 7: the salary

The Chairperson gets the salary, allowances and other conditions of service of the Chief Justice of India. Other Members get those of a Judge of the Supreme Court.

The first proviso deals with a person already in receipt of a pension for previous service under the Union or a State: his salary is reduced by the amount of that pension, and where he has commuted part of it, by the amount of the commuted portion. This is the standard rule against drawing pay and pension for the same public service twice.

The second proviso is the one that matters constitutionally. The salary, allowances and pension payable to, and other conditions of service of, the Chairperson or a Member shall not be varied to his disadvantage after his appointment.

Read that against article 148(4) for the Comptroller and Auditor-General and against section 5 of the Central Vigilance Commission Act 2003. It is the same guarantee, and it exists because a Government that can reduce a watchdog's pay after appointing him has a lever on him. Note the difference from the CAG: the CAG's salary is charged on the Consolidated Fund by the Constitution, whereas the Lokpal's charge is by section 13 of an ordinary Act, which Parliament can amend.

Section 8: what he may not do afterwards

On ceasing to hold office the Chairperson and every Member is ineligible for:

1. Reappointment as Chairperson or Member of the Lokpal.
2. Any diplomatic assignment, appointment as administrator of a Union territory, and any other assignment or appointment required by law to be made by the President by warrant under his hand and seal.
3. Further employment to any other office of profit under the Government of India or the Government of a State.
4. Contesting any election of President or Vice-President, or of a member of either House of Parliament, of either House of a State legislature, of a Municipality or of a Panchayat, within a period of five years from the date of relinquishing the post.

Section 8(2) makes one exception: a Member may be appointed Chairperson if his total tenure as Member and Chairperson does not exceed five years.

Why this is the sharpest of the six sections. The classical criticism of Indian watchdog offices is the post-retirement appointment: a body that can be rewarded afterwards is not independent while it sits. Section 8 closes governorships, diplomatic posts, tribunal chairs and offices of profit, and it closes elective office for five years, which is unusual and is aimed at a specific temptation. Compare section 8 with the CAG's position under article 148(4), which bars further office under the Union or a State and says nothing about contesting an election.

Section 9: who acts when the Chairperson cannot

Section 9(1). On a vacancy in the office of Chairperson by death, resignation or otherwise, the President may by notification authorise the senior-most Member to act as Chairperson until a new Chairperson is appointed.

Section 9(2). When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, the senior-most Member available, as the President may authorise, shall discharge his functions until he resumes.

The point to notice. The successor is fixed by seniority, not chosen. A Government that could pick the acting Chairperson could effectively appoint one without the Selection Committee, and section 9 shuts that door.

Section 10: the staff, and who appoints them

Section 10(1). A Secretary to the Lokpal in the rank of Secretary to the Government of India, appointed by the Chairperson from a panel of names sent by the Central Government.

Section 10(2). A Director of Inquiry and a Director of Prosecution, not below the rank of Additional Secretary to the Government of India or equivalent, appointed by the Chairperson from a panel sent by the Central Government. These two head the Inquiry Wing and the Prosecution Wing that chapter 130 reads.

Section 10(3). Other officers and staff are appointed by the Chairperson, or by such Member or officer as he directs. The proviso lets the President require, by rule, that appointments to specified posts be made after consultation with the Union Public Service Commission.

Section 10(4). Conditions of service of the Secretary and other officers and staff are as the Lokpal specifies by regulations, subject to any law made by Parliament, and the proviso subjects the salary parts of those regulations to the approval of the Central Government.

Read section 10 honestly and it is a compromise. The Chairperson appoints, which is the independence point; but he appoints from a panel the Central Government sends, and the pay parts of his regulations need the Government's approval. That is not the position of the Comptroller and Auditor-General, who under section 23 of his own Act makes rules subject to the President's approval but is not handed a panel. It is a real and examinable limitation on the Lokpal's autonomy.

A worked example

A Chairperson is appointed on 1 April 2019 at the age of sixty-eight.

Term. Five years would run to 31 March 2024. But section 6 also fixes seventy as the outer limit, so the term ends on his seventieth birthday in 2021, whichever is earlier being the rule.

Salary. That of the Chief Justice of India. If he is drawing a pension as a retired Judge of the Supreme Court, the first proviso to section 7 reduces his salary by the amount of that pension and by the commuted portion.

During his tenure the Government proposes to revise allowances downward. The second proviso to section 7 forbids variation to his disadvantage after appointment. It cannot be done to him.

He falls ill and takes three months' leave. Section 9(2): the senior-most Member available, authorised by the President, discharges his functions.

He retires in 2021. Section 8 now bites. He may not be reappointed; may not be made a Governor or given a diplomatic assignment or any office required to be filled by warrant; may not take any office of profit under the Union or a State; and may not contest an election to Parliament, a State legislature, a Municipality or a Panchayat until 2026.

And the vacancy. Section 5 required steps for filling it to begin at least three months before the term ended.

What beginners get wrong

That the term is five years, full stop. It is five years or seventy, whichever is earlier, so an appointee of sixty-eight serves two.

That the Lokpal appoints its own people freely. The Chairperson appoints, from a panel the Central Government sends.

That section 8 is only about jobs. It also bars contesting an election for five years, which no comparable Indian office does.

That removal is dealt with here. It is not. Section 6's proviso points to section 37, which is in Chapter X, and chapter 180 reads it.

Quick revision

s.5 steps to fill a vacancy at least three months before expiry.

s.6 term of five years or age seventy, whichever is earlier; appointed by the President by warrant under his hand and seal; may resign to the President or be removed under section 37.

s.7 salary of the Chief Justice of India for the Chairperson and of a Judge of the Supreme Court for a Member; pension set off; not to be varied to his disadvantage after appointment.

s.8 after office: no reappointment; no diplomatic assignment or administratorship or any post filled by warrant; no office of profit under the Union or a State; no contesting elections for five years. Exception: a Member may become Chairperson if the total does not exceed five years.

s.9 the senior-most Member acts on a vacancy or during absence.

s.10 Secretary, Director of Inquiry, Director of Prosecution and staff appointed by the Chairperson from panels sent by the Central Government; conditions by regulations, salary parts needing Government approval.

Test yourself

1. State the term of office of the Chairperson and Members and how it ends. Five years from the date of entering office or until attaining the age of seventy, whichever is earlier. It ends by efflux of time, by resignation in writing addressed to the President, or by removal in the manner provided in section 37.

2. What is the second proviso to section 7 and why does it matter? It provides that the salary, allowances and pension payable to, and the other conditions of service of, the Chairperson or a Member shall not be varied to his disadvantage after his appointment. It matters because a Government able to reduce a watchdog's remuneration after appointing him holds a lever over him, and the same guarantee appears for the Comptroller and Auditor-General in article 148(4) and for the Central Vigilance Commissioner in the Act of 2003.

3. List the restrictions section 8 imposes after office and explain the reasoning. No reappointment as Chairperson or Member; no diplomatic assignment, administratorship of a Union territory or other post required to be filled by warrant of the President; no further office of profit under the Union or a State; and no contesting any election to the offices of President or Vice-President, either House of Parliament or of a State legislature, a Municipality or a Panchayat for five years. The reasoning is that an officer who may be rewarded after office is not independent during it, and the election bar addresses the particular temptation of a political career built on the office.

4. Who appoints the Lokpal's Secretary and its two Directors, and what is the limitation on that power? The Chairperson appoints all three: the Secretary in the rank of Secretary to the Government of India, and the Director of Inquiry and the Director of Prosecution not below the rank of Additional Secretary. The limitation is that in each case he appoints from a panel of names sent by the Central Government, and that the salary provisions of the regulations governing staff need the Central Government's approval.

5. What happens if the Chairperson dies in office? Under section 9(1) the President may, by notification, authorise the senior-most Member to act as Chairperson until a new Chairperson is appointed. The successor is fixed by seniority rather than chosen, so that an acting appointment cannot be used to bypass the Selection Committee. Section 5 separately obliges the President to have begun the steps for filling the vacancy.

Section 11(2) gives officers of the Inquiry Wing not below the rank of Under Secretary to the Government of India the same powers as are conferred upon the Inquiry Wing of the Lokpal under section 27, which is the section giving the Lokpal the powers of a civil court. Chapter 160 reads section 27.

Section 12: the Prosecution Wing

Section 12(1) requires the Lokpal, by notification, to constitute a Prosecution Wing headed by the Director of Prosecution for the purpose of prosecution of public servants in relation to any complaint by the Lokpal under the Act, with the same proviso about officers lent by the Central Government until the Wing exists.

Section 12(2). The Director of Prosecution, after having been so directed by the Lokpal, files a case in accordance with the findings of the investigation report before the Special Court, and takes all necessary steps in respect of the prosecution for an offence punishable under the Prevention of Corruption Act 1988.

Section 12(3) is the sentence that changes the character of the institution. The case filed under section 12(2) shall be deemed to be a report, filed on completion of investigation, referred to in section 173 of the Code of Criminal Procedure 1973.

What that deeming does. A criminal trial for a Prevention of Corruption Act offence normally begins when the police file a report under section 173 of the Code, commonly called a charge sheet, and the court takes cognizance on it. Section 12(3) gives the Lokpal's Director of Prosecution the same standing. The Lokpal is therefore not asking a police agency to file a case and hoping it will; it files one itself, through its own officer, and the court must treat it as the completed report of an investigation.

Set that against the classical model and the distance is obvious. A Danish or British ombudsman writes a report. The Lokpal writes a report, sanctions prosecution under section 23, and then prosecutes.

Section 13: the money

Section 13 provides that the administrative expenses of the Lokpal, including all salaries, allowances and pensions payable to or in respect of the Chairperson, Members, Secretary and other officers and staff, shall be charged upon the Consolidated Fund of India, and that any fees or other moneys taken by the Lokpal shall form part of that Fund.

What "charged upon the Consolidated Fund" means, in plain terms. Expenditure from the Consolidated Fund of India falls into two classes under article 112(3) of the Constitution. Charged expenditure is not submitted to the vote of Parliament, although it may be discussed. Voted expenditure is submitted to the House as demands for grants, which the House may reduce or refuse. Chapter 1320 works this distinction out in full, because it is the heart of Module IV.

So the practical effect is that no Minister can propose, and no majority can vote, a cut in the Lokpal's budget as a way of expressing displeasure. The same device protects the salary of a Judge of the Supreme Court, of the Comptroller and Auditor-General under article 148(6), of the Chairman of the Union Public Service Commission and of the Central Vigilance Commission under section 13 of its own Act.

And notice the limitation. Article 148(6) charges the CAG's expenses on the Consolidated Fund by the Constitution. Section 13 charges the Lokpal's by an ordinary Act, which Parliament may amend by a simple majority. The protection is real and it is one rung lower than the CAG's.

A worked example

A complaint alleges that a Joint Secretary took money to clear a licence.

Step one, section 20. The Lokpal decides there is a prima facie case to proceed and orders a preliminary inquiry.

Step two, section 11. The preliminary inquiry is conducted by the Inquiry Wing under the Director of Inquiry. If the Wing is not yet constituted, officers lent by the Central Government under the proviso do it.

Step three, section 11(2) with section 27. Those officers, being not below the rank of Under Secretary, may summon and enforce attendance, require documents, receive evidence on affidavit and requisition public records.

Step four. On the preliminary inquiry report the Lokpal may order an investigation by an agency, which is a different thing and is chapter 150's subject.

Step five, section 23. On the investigation report the Lokpal may grant sanction for prosecution. It does not have to ask the Government, and chapter 155 explains why that single fact matters more than almost anything else in the Act.

Step six, section 12. The Lokpal directs the Director of Prosecution, who files the case before the Special Court.

Step seven, section 12(3). The court treats that filing as a report under section 173 of the Code and proceeds to trial.

Now ask who paid for all of it. Section 13: the Consolidated Fund, charged, not voted.

Distinctions: what each wing does

What beginners get wrong

That the Inquiry Wing investigates. It conducts a preliminary inquiry, which the Act keeps distinct from an investigation throughout Chapter VII. Investigation is directed to an agency.

That the Prosecution Wing decides to prosecute. It does not. Section 12(2) says the Director acts after having been so directed by the Lokpal, and the sanction comes from the Lokpal under section 23.

That the Lokpal has its own police. It does not, and the argument about whether it should is chapter 940's.

That charged expenditure cannot be discussed. It can be discussed in the House; it cannot be voted on.

Quick revision

s.11 Inquiry Wing, headed by the Director of Inquiry, for preliminary inquiry into Prevention of Corruption Act offences; proviso, Central Government lends officers until it is constituted; s.11(2) gives officers of and above Under Secretary rank the s.27 powers.

s.12 Prosecution Wing, headed by the Director of Prosecution; files the case before the Special Court after being directed by the Lokpal; s.12(3) deems that filing a report under section 173 of the Code of Criminal Procedure.

s.13 administrative expenses charged upon the Consolidated Fund of India, so not submitted to the vote; fees taken form part of the Fund.

The three together are why the Lokpal is a hybrid and not a classical ombudsman: it inquires with its own arm, prosecutes with its own arm, and is paid without an annual vote.

Test yourself

1. Distinguish the Inquiry Wing from the Prosecution Wing. The Inquiry Wing under section 11 is headed by the Director of Inquiry and conducts the preliminary inquiry into an alleged offence under the Prevention of Corruption Act, before any investigation is ordered; its officers of and above the rank of Under Secretary have the Lokpal's section 27 powers. The Prosecution Wing under section 12 is headed by the Director of Prosecution and comes in at the other end: on the Lokpal's direction it files the case on the findings of the investigation report before the Special Court and conducts the prosecution.

2. What is the effect of section 12(3)? It deems the case filed by the Director of Prosecution to be a report filed on completion of investigation under section 173 of the Code of Criminal Procedure 1973. The Special Court must therefore treat it as it would a police charge sheet and may take cognizance on it, so the Lokpal initiates the trial itself rather than asking a police agency to do so.

3. Explain what it means that the Lokpal's expenses are charged on the Consolidated Fund, and state the limitation on that protection. Charged expenditure under article 112(3) is not submitted to the vote of Parliament, though it may be discussed, whereas voted expenditure goes to the House as demands for grants which may be reduced or refused. So the Lokpal's budget cannot be cut by a vote of the House. The limitation is that the charge is made by section 13 of an ordinary Act, which Parliament may amend by simple majority, whereas the Comptroller and Auditor-General's charge is made by article 148(6) of the Constitution itself.

4. What does the proviso to section 11 reveal about the Lokpal's early working? That until the Inquiry Wing is constituted, the preliminary inquiries are conducted by officers and staff made available by the Central Government from its own Ministries and Departments. A body created to inquire into Ministers and senior public servants therefore begins by inquiring through officers lent by the executive, which is a genuine limitation on its independence and one that a good answer on the Lokpal's effectiveness should name.

(g) the corresponding clause for societies, trusts and other entities in receipt of donations above the prescribed thresholds, including foreign contribution above ten lakh rupees a year.

The Explanation to clauses (f) and (g) clarifies that any entity or institution by whatever name called, corporate, society, trust, association of persons, partnership, sole proprietorship or limited liability partnership, whether registered under any law or not, is covered; and the proviso deems any person referred to in the clause to be a public servant under section 2(c) of the Prevention of Corruption Act 1988, so that Act applies to him.

Read clause (e) with the reference to section 20(1) and the graded design appears. Group C and D officials are inside the jurisdiction, but complaints against them are routed to the Central Vigilance Commission, which reports back to the Lokpal. A body of nine cannot personally inquire into every clerk in the Union, and the Act says so by cross-reference rather than by exclusion.

The two provisos on the Prime Minister

Proviso one, clause (i): subject matter. The Lokpal shall not inquire into any allegation of corruption against the Prime Minister in so far as it relates to international relations, external and internal security, public order, atomic energy and space.

Proviso one, clause (ii): procedure. No inquiry unless a full bench of the Lokpal consisting of its Chairperson and all Members considers the initiation of the inquiry and at least two-thirds of its Members approve of it.

Proviso two: secrecy. Any such inquiry shall be held in camera, and if the Lokpal concludes that the complaint deserves to be dismissed, the records of the inquiry shall not be published or made available to anyone.

In camera means behind closed doors, with the public and the press excluded.

How to assess these in an answer. They are a genuine compromise and both readings are respectable. In favour: an office whose holder can be paralysed by an inquiry into his handling of a border crisis is a national security problem, and a dismissed complaint that leaves a public record damages a Prime Minister who has been cleared. Against: the excluded subjects are exactly the areas where the largest contracts are placed, defence procurement lying squarely inside external security; and a two-thirds vote of a body the Government's own Selection Committee helped choose is a high bar.

Section 14(2): what the Lokpal may not touch in Parliament

The Lokpal shall not inquire into any allegation of corruption against a member of either House in respect of anything said or a vote given by him in Parliament or any committee thereof, covered under clause (2) of article 105 of the Constitution.

This is the Act deferring to the Constitution, and it is the point at which Module I joins Module III. Article 105(2) provides that no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof.

And the law under article 105(2) has changed since this Act was passed. When the Act was drafted, the leading decision held that a member who took a bribe and then voted was immune from prosecution. On 4 March 2024 a bench of seven judges overruled that. Chapter 1100 works the change in full. The consequence for section 14(2) is a real question worth raising in an answer: the sub-section excludes what article 105(2) covers, and what article 105(2) covers is now narrower than it was, because bribery is not "in respect of" the vote at all.

Section 14(3): the outsider who paid

The Lokpal may inquire into the act or conduct of any person other than those in sub-section (1) if that person is involved in abetting, bribe giving or bribe taking or conspiracy relating to an allegation of corruption under the Prevention of Corruption Act 1988 against a person in sub-section (1).

The proviso: no action against a person serving in connection with the affairs of a State without the consent of the State Government.

Two points. The bribe giver is inside, which matters because the 2018 amendment to the Prevention of Corruption Act made bribe giving an offence in its own right. And the proviso is a federal safeguard of the same family as section 6 of the Delhi Special Police Establishment Act, which chapter 820 reads.

Section 14(4): no Commission of Inquiry on the same matter

No matter in respect of which a complaint has been made to the Lokpal under this Act shall be referred for inquiry under the Commissions of Inquiry Act 1952.

This is one section joining MU's first label to its second, and it is worth a paragraph in any answer that touches either. The reason is not tidiness. A Commission of Inquiry produces a report that binds nobody, and section 6 of the 1952 Act makes a statement to a Commission inadmissible against its maker. If a matter could be moved from the Lokpal to a Commission, a Government facing a corruption inquiry with prosecution at the end of it could convert it into an inquiry with nothing at the end of it. Section 14(4) shuts that door.

The Explanation to section 14: only conduct in office

A complaint under the Act shall only relate to a period during which the public servant was holding or serving in that capacity. Conduct before appointment and after demitting office is outside.

Section 15: matters already elsewhere

Where a matter or proceeding relating to an allegation of corruption under the Prevention of Corruption Act 1988 was pending before any court, or before a committee of either House of Parliament, or before any other authority, either before the Act commenced or before an inquiry begins under it, that matter or proceeding shall be continued before that court, committee or authority.

So the Lokpal does not take over pending matters. Notice again the interaction with Module III: a committee of either House is named in terms, so a matter already before a parliamentary committee stays there.

A worked example

A complaint alleges that a Minister of the Union took money to award a defence contract, that a Joint Secretary processed the file, and that a private company paid.

The Minister: clause (b), inside, and no special safeguard applies. Only the Prime Minister has the provisos.

The Joint Secretary: clause (d), a Group A officer serving in connection with the affairs of the Union, inside.

The company that paid: section 14(3), inside as a bribe giver, and by the proviso to the Explanation deemed a public servant for the purposes of the Prevention of Corruption Act.

Now make the allegation against the Prime Minister instead. Clause (a) brings him in, but proviso (i) excludes matters relating to external security and a defence contract may well be argued into that exclusion. Even if it is not, proviso (ii) requires a full bench and a two-thirds vote before the inquiry may begin, proviso two requires it to be in camera, and a dismissal seals the record.

Now suppose the allegation is that the Minister said something corrupt in a speech in the Lok Sabha. Section 14(2) with article 105(2) keeps the Lokpal out of anything said or any vote given in the House.

And suppose the Government would prefer a retired judge to look at the whole affair. Section 14(4) forbids referring the matter to a Commission of Inquiry once a complaint has been made to the Lokpal.

What beginners get wrong

That the Prime Minister is excluded. He is not. He is included with conditions, and the conditions are what an answer must state.

That Group C and D officials are outside. They are inside, under clause (e), but routed through the Central Vigilance Commission by section 20(1).

That only Government servants are covered. Clauses (f) and (g) reach bodies financed or controlled by the Government and societies and trusts taking donations above the prescribed limits, and section 14(3) reaches the private bribe giver.

That the Lokpal can look at a person's whole life. The Explanation confines a complaint to the period during which the person was holding or serving in that capacity.

That the Lokpal takes over pending cases. Section 15 says the opposite.

Quick revision

s.14(1): (a) Prime Minister, present or former; (b) Union Minister; (c) member of either House; (d) Group A and B; (e) Group C and D, routed via s.20(1); (f) bodies established by an Act of Parliament or financed or controlled by the Centre; (g) societies and trusts above the prescribed donation thresholds.

Prime Minister, proviso one: excluded subjects are international relations, external and internal security, public order, atomic energy and space; and no inquiry without a full bench and the approval of at least two-thirds of the Members. Proviso two: in camera, and on dismissal the records are not published.

s.14(2): nothing said or any vote given in Parliament or a committee, per article 105(2).

s.14(3): abettors, bribe givers, bribe takers and conspirators outside the list; proviso, consent of the State Government for a State servant.

s.14(4): a matter complained of to the Lokpal may not be referred to a Commission of Inquiry.

Explanation: only conduct while holding or serving in that capacity.

s.15: matters already before a court, a committee of either House or another authority continue there.

Test yourself

1. Is the Prime Minister within the Lokpal's jurisdiction? Answer fully. Yes, under section 14(1)(a), whether serving or former, but subject to two provisos. The first excludes allegations in so far as they relate to international relations, external and internal security, public order, atomic energy and space, and forbids an inquiry unless a full bench consisting of the Chairperson and all Members considers initiating it and at least two-thirds of the Members approve. The second requires the inquiry to be held in camera and forbids publication of the records if the complaint is dismissed.

2. What does section 14(4) provide, and why? That no matter in respect of which a complaint has been made to the Lokpal may be referred for inquiry under the Commissions of Inquiry Act 1952. The reason is that a Commission's report binds nobody and a statement made to a Commission is inadmissible against its maker under section 6 of that Act, so allowing a transfer would let a corruption inquiry that can end in prosecution be converted into one that can end in nothing.

3. How does section 14(2) interact with the current law on legislative privilege? Section 14(2) excludes from the Lokpal's jurisdiction anything said or any vote given by a member in Parliament or a committee, in so far as article 105(2) covers it. Article 105(2) was construed in 1998 to confer immunity on a member who took a bribe and voted, but that construction was overruled by seven judges on 4 March 2024, which held that bribery is complete on acceptance and is not in respect of the vote. The exclusion in section 14(2) is therefore narrower now than when the Act was drafted.

4. Are Group C and Group D officials within the jurisdiction? Yes, under section 14(1)(e), but the complaint is dealt with through the Central Vigilance Commission by virtue of the reference to section 20(1), which reports its findings back to the Lokpal. The design keeps them inside the Act while preventing a nine-member body from being submerged in the volume.

5. Can the Lokpal inquire into a private company that paid a bribe? Yes. Section 14(3) allows an inquiry into the act or conduct of any person outside sub-section (1) who is involved in abetting, bribe giving or bribe taking, or in a conspiracy, relating to an allegation of corruption against a person inside sub-section (1). Where the person is serving in connection with the affairs of a State, the proviso requires the consent of the State Government.

Section 16(4) allows a case to be moved up: if at any stage of a hearing it appears to the Chairperson or a Member that a case is of such a nature that it ought to be heard by a bench of three or more Members, the case may be transferred by the Chairperson, or referred to him for transfer, to such bench as he deems fit.

The word ordinarily in clauses (c) and (f) is doing work. A bench must ordinarily have a Judicial Member, which admits of exceptions; and benches ordinarily sit in Delhi, which allows the Lokpal to sit elsewhere by regulation. Statutory drafting uses "ordinarily" where a rule is intended to hold in the general run of cases without being absolute.

Section 17: distributing the work

Where benches are constituted, the Chairperson may from time to time, by notification, make provisions for the distribution of the business of the Lokpal among the benches, and provide for the matters that may be dealt with by each bench.

Note the parallel with a High Court's roster, which the Chief Justice controls as master of the roster. The Act gives the Chairperson the same control, and the same criticism attaches to it: the person who decides which bench hears which case has real influence over outcomes, and the Act supplies no criteria.

Section 18: transferring a case

On an application for transfer made by the complainant or the public servant, the Chairperson, after giving an opportunity of being heard to whichever of them applied, may transfer any case pending before one bench to any other bench.

Two things worth noticing. The right to apply belongs to both sides, which is even-handed. And the Chairperson must hear the applicant before deciding, which is the audi alteram partem rule, meaning hear the other side, appearing in a small procedural provision.

Section 19: when a bench divides

If the Members of a bench consisting of an even number of Members differ in opinion on any point, they shall state the point or points on which they differ and make a reference to the Chairperson, who shall either hear the point himself or refer it for hearing to one or more other Members; and the point shall be decided according to the opinion of the majority of the Members of the Lokpal who have heard the case, including those who first heard it.

Work the arithmetic, because this is where students go wrong. A bench of two divides one to one. The point goes to the Chairperson. Suppose he hears it himself and agrees with Member A. The majority is then counted among all who have heard the case: A, B and the Chairperson, that is two to one in favour of A's view. The original Members' opinions are not discarded; they are counted.

Why the section speaks only of an even number. A bench of three cannot divide without a majority emerging. The provision is only needed where the numbers can deadlock.

A worked example

A complaint is made against a Secretary to the Government of India serving in Mumbai.

Step one, section 16(2). The Lokpal has notified the areas each bench covers. The complaint goes to the bench with jurisdiction.

Step two, section 16(1)(b) and (c). The Chairperson has constituted that bench with two Members, one Judicial and one non-Judicial.

Step three, section 16(1)(e). The Chairperson is not on it, so the Judicial Member presides.

Step four, section 18. The Secretary applies for transfer, saying a Member of that bench was until recently the Secretary of the very Ministry in which he serves. The Chairperson hears him and transfers the case.

Step five, section 16(4). At the hearing the new bench forms the view that the matter raises a question of the reach of section 14(1)(f) over an autonomous body, which ought to be settled by a larger bench. It is referred to the Chairperson, who transfers it to a bench of three.

Step six, section 19 is not needed. A bench of three cannot deadlock. Had the bench remained at two and divided, the point would have gone to the Chairperson and been decided by the majority of all who heard it.

Distinctions: the Lokpal's benches against a court's

The last row is the one to make in an answer. The Act creates a court-like structure and provides no appeal within it. Judicial review under article 226 or article 32 remains, but the Act itself contemplates no rehearing.

What beginners get wrong

That every bench must have a Judicial Member. Section 16(1)(c) says ordinarily.

That the Chairperson must be on a bench. He need not; clause (e) provides for a bench without him.

That section 19 applies to any difference of opinion. It applies to a bench of an even number of Members.

That the Chairperson decides the split himself. He may hear it himself or refer it to other Members, and either way the point is decided by the majority of all who have heard the case.

Quick revision

s.16: jurisdiction exercised by benches; constituted by the Chairperson with two or more Members; ordinarily at least one Judicial Member; Chairperson presides if on the bench, otherwise the Judicial Member; benches sit ordinarily at New Delhi; the Lokpal notifies each bench's area; the Chairperson may constitute or reconstitute at will; a case may be moved to a bench of three or more.

s.17: the Chairperson distributes business by notification.

s.18: transfer on the application of the complainant or the public servant, after hearing him.

s.19: an even bench that differs states the points and refers to the Chairperson, who hears them or refers them on; decided by the majority of all who have heard the case, including those who first heard it.

Test yourself

1. How is a bench of the Lokpal constituted and who presides? The Chairperson constitutes it with two or more Members as he deems fit, and every bench ordinarily consists of at least one Judicial Member. Where the bench includes the Chairperson he presides; where it consists of a Judicial Member and a non-Judicial Member without the Chairperson, the Judicial Member presides.

2. Explain the procedure when a bench of two Members differs. Under section 19 they state the point or points on which they differ and refer them to the Chairperson. He may hear the point himself or refer it to one or more other Members. The point is then decided according to the opinion of the majority of the Members of the Lokpal who have heard the case, including the two who first heard it, so the original opinions are counted and not set aside.

3. Who may apply for the transfer of a case, and what must the Chairperson do before deciding? Either the complainant or the public servant may apply. The Chairperson must give the applicant an opportunity of being heard before transferring the case from one bench to another, which is the rule of hearing the other side appearing in a procedural provision.

4. Does the bench structure make the Lokpal a court? No. It gives the Lokpal the shape of a court: benches, a presiding member, distribution of business, transfer and decision by majority. But the Lokpal decides no dispute between two parties, gives no judgment enforceable of its own force, and conducts an inquiry rather than a trial, the trial being before the Special Court under section 35. It has the form of a court and not the function of one, and the Act provides no appeal against its decisions.

Second proviso. On such a reference the Commission, after preliminary inquiry, submits its report to the Lokpal in the case of Group A and B; and in the case of Group C and D it proceeds under its own Act instead.

Third proviso. Before ordering an investigation under clause (b), the Lokpal shall call for the explanation of the public servant so as to determine whether a prima facie case for investigation exists.

Fourth proviso. Seeking that explanation shall not interfere with any search and seizure required to be undertaken by an agency under the Act.

Read the first two provisos together and you have the answer to a question examiners like. The Lokpal and the Central Vigilance Commission are not rivals; the Act makes the Commission the Lokpal's inquiring arm for the civil service, keeps Group A and B answerable back to the Lokpal, and leaves Group C and D wholly to the Commission's own machinery. Chapter 720 develops the division.

And the third proviso is a real protection. A public servant is heard before an investigation is even ordered, which is more than the ordinary criminal law gives anybody. The fourth proviso stops that protection being used to empty a cupboard.

Section 20(2) to (4): the preliminary inquiry

Sub-section (2). During the preliminary inquiry the Inquiry Wing or the agency conducts the inquiry, and on the material, information and documents collected seeks the comments of the public servant and of the competent authority; after obtaining them it submits a report to the Lokpal within sixty days from the date of receipt of the reference.

Sub-section (3). A bench of not less than three Members shall consider every such report and, after giving an opportunity of being heard to the public servant, decide whether a prima facie case exists, and proceed with one or more of:

1. (a) investigation by an agency or the Delhi Special Police Establishment;
2. (b) initiation of departmental proceedings or other appropriate action by the competent authority;
3. (c) closure of the proceedings against the public servant, and to proceed against the complainant under section 46.

Sub-section (4). A preliminary inquiry shall ordinarily be completed within ninety days, and for reasons recorded in writing within a further ninety days from the date of receipt of the complaint.

Clause (c) is the most criticised sentence in the Act and chapter 200 works it. A closure of the case against the public servant is coupled with the possibility of prosecuting the complainant for a false complaint. The intention is to deter malicious complaints; the effect that critics point to is to deter complaints altogether.

Section 20(5) to (12): the investigation and after

Sub-section (5). The Lokpal directs an agency to investigate as expeditiously as possible and to complete the investigation within six months from the date of its order, extendable by a further period not exceeding six months at a time for reasons recorded in writing.

Sub-section (6). Notwithstanding section 173 of the Code of Criminal Procedure, the agency shall, in cases referred by the Lokpal, submit the investigation report under that section to the court having jurisdiction and forward a copy to the Lokpal.

Sub-section (7). A bench of not less than three Members considers every such report and, after obtaining the comments of the competent authority and the public servant, may:

1. (a) grant sanction to its Prosecution Wing or the investigating agency to file a charge sheet, or direct the closure report before the Special Court; or
2. (b) direct the competent authority to initiate departmental proceedings or other appropriate action.

Sub-section (8) allows the Lokpal, after deciding under sub-section (7), to direct its Prosecution Wing or the investigating agency accordingly.

Sub-section (9). The Lokpal may pass orders for the safe custody of documents during a preliminary inquiry or investigation.

Sub-section (10). The Lokpal's website shall display to the public the status of the number of complaints pending and disposed of, in the manner specified by regulations.

Sub-section (11). The Lokpal may retain original records and evidence likely to be required in the inquiry, the investigation or the conduct of a case by it or by the Special Court.

Sub-section (12). The manner and procedure of a preliminary inquiry or investigation, including what material and documents are to be made available to the public servant, is as specified by regulations.

Sub-section (10) is a small provision with a large idea in it. Publicity is the classical ombudsman's sanction, and here it appears as a statutory duty to publish caseload. It is the only place in the Act where the Lokpal must tell the public anything without waiting for its annual report.

Section 21: the person who is not accused

If at any stage the Lokpal considers it necessary to inquire into the conduct of any person other than the accused, or is of opinion that the reputation of any person other than an accused is likely to be prejudicially affected by the preliminary inquiry, it shall give that person a reasonable opportunity of being heard in the preliminary inquiry and to produce evidence in his defence, consistent with the principles of natural justice.

This is section 8B of the Commissions of Inquiry Act 1952 in a different statute, and the resemblance is not accidental. Chapter 440 reads section 8B, and a good answer on either institution should notice that Indian law has settled on the same protection for anyone whose reputation an inquiry may damage, whether or not they are the target.

Section 22: the power to require information

For the purposes of any preliminary inquiry or investigation, the Lokpal or the investigating agency may require any public servant or any other person who in its opinion is able to furnish information or produce documents relevant to the inquiry or investigation, to furnish that information or produce those documents.

Notice the breadth. Any person, not only a public servant. This is the power chapter 50 identified as the one that makes maladministration visible: the ombudsman can see the file that decided the case.

A worked example

A complaint alleges that a Group A officer of a Ministry took two lakh rupees to clear a bill.

Day 0. The complaint is received. The Lokpal decides to proceed and orders a preliminary inquiry: section 20(1)(a).

First proviso. The officer is Group A, so the complaint must be referred to the Central Vigilance Commission.

Within sixty days of the reference. The Commission conducts the preliminary inquiry, seeks the comments of the officer and of his competent authority, and reports to the Lokpal: section 20(2) with the second proviso.

Ninety days, extendable by ninety. That is the outer limit for the preliminary inquiry itself: section 20(4).

A bench of three or more. It considers the report, hears the officer, and finds a prima facie case: section 20(3).

Third proviso to section 20(1). Before ordering an investigation the Lokpal calls for the officer's explanation.

Investigation ordered. Six months, extendable by six at a time: section 20(5). The agency files its section 173 report with the court having jurisdiction and copies it to the Lokpal: section 20(6).

A bench of three or more again. It obtains the comments of the competent authority and the officer, and grants sanction for a charge sheet: section 20(7)(a) with section 23.

Now change the finding. Suppose the bench at the section 20(3) stage finds no prima facie case. It closes the proceedings, and it may proceed against the complainant under section 46.

And change the rank. Had the officer been Group C, the second proviso would have sent the matter to the Central Vigilance Commission to be dealt with under its own Act, and it would not have come back to the Lokpal at all.

What beginners get wrong

That every complaint leads to a preliminary inquiry. Section 20(1)(b) allows the Lokpal to order an investigation directly where a prima facie case already exists.

That the Lokpal itself inquires into every public servant. The first proviso makes reference to the Central Vigilance Commission compulsory for Groups A to D once a preliminary inquiry is decided on.

That the public servant is heard once. He is heard at least three times: for comments under section 20(2), on the report under section 20(3), and by way of explanation under the third proviso before an investigation is ordered.

That the ninety day and sixty day limits are the same clock. Sixty days runs from receipt of the reference by the inquiring body; ninety days runs from receipt of the complaint.

Quick revision

s.20(1): preliminary inquiry or investigation. Four provisos: reference of Groups A to D to the Central Vigilance Commission; Groups A and B report back, Groups C and D stay with the Commission; the public servant's explanation before an investigation; and no interference with search and seizure.

s.20(2): report within sixty days of the reference, after comments from the public servant and the competent authority.

s.20(3): a bench of not less than three, after hearing the public servant, orders investigation, departmental proceedings, or closure with action against the complainant under section 46.

s.20(4): preliminary inquiry ninety days, extendable by ninety.

s.20(5): investigation six months, extendable by six at a time.

s.20(6): the agency files the section 173 report with the court, copy to the Lokpal.

s.20(7): a bench of three or more grants sanction for a charge sheet or directs departmental action.

s.20(10): the website displays complaints pending and disposed of.

s.21: a person other than the accused whose reputation may be prejudicially affected must be heard.

s.22: power to require information or documents from any person.

Test yourself

1. Distinguish a preliminary inquiry from an investigation under the Act. A preliminary inquiry, under section 20(1)(a), is conducted by the Inquiry Wing or an agency to ascertain whether a prima facie case exists; it must be completed ordinarily in ninety days, extendable by ninety, and produces a report to the Lokpal within sixty days of the reference. An investigation, under section 20(1)(b) and (5), is investigation in the sense of the Code of Criminal Procedure, done by an agency within six months extendable by six months at a time, and ends in a report under section 173 filed with the court having jurisdiction.

2. What happens to a complaint against a Group C official? Under the first proviso to section 20(1) it must be referred to the Central Vigilance Commission. Under the second proviso the Commission, in the case of Group C and Group D public servants, proceeds in accordance with the Central Vigilance Commission Act 2003 rather than reporting back to the Lokpal, which is the position for Group A and B.

3. How many times is the public servant heard before a charge sheet is filed? At least three times. His comments are sought during the preliminary inquiry under section 20(2); he is given an opportunity of being heard by the bench considering the report under section 20(3); and his explanation is called for under the third proviso to section 20(1) before an investigation is ordered. His comments are also obtained again by the bench considering the investigation report under section 20(7).

4. Who else must be heard, and under which section? Under section 21, any person other than the accused whose conduct the Lokpal considers it necessary to inquire into, or whose reputation is likely to be prejudicially affected by the preliminary inquiry, must be given a reasonable opportunity of being heard and to produce evidence in his defence, consistent with the principles of natural justice.

5. What may the Lokpal do if it finds no prima facie case? Under section 20(3)(c) it may close the proceedings against the public servant and proceed against the complainant under section 46, which provides for prosecution for a false complaint and compensation to the public servant. That coupling is the most criticised feature of the Act's procedure, because a deterrent aimed at malicious complaints also deters honest ones.

A non obstante clause, "notwithstanding anything contained in", means that where this provision and the named provisions conflict, this one prevails.

Three statutes named, and each is a separate lock. Section 197 of the Code is the general protection for a public servant. Section 19 of the Prevention of Corruption Act is the special one for corruption. Section 6A of the Delhi Special Police Establishment Act required prior approval before the Central Bureau of Investigation could even inquire into a senior officer, and it was struck down as violative of article 14 in May 2014, four months after this Act came into force.

So in a Lokpal case the sanction decision belongs to the Lokpal. The Government does not decide whether its own Minister may be prosecuted. Once that sentence is understood, most of what people say about the Lokpal being toothless has to be reconsidered.

Section 23(2): and nobody else's sanction will do

No prosecution shall be initiated against a public servant accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty, and no court shall take cognizance of such an offence, except with the previous sanction of the Lokpal.

Read (1) and (2) together. Sub-section (1) gives the Lokpal the power to sanction. Sub-section (2) makes that sanction the only one that counts in the cases the Act covers. The Lokpal's sanction is not an additional permission on top of the Government's; it replaces it.

"Purporting to act" is worth explaining, because it is doing work. A corrupt act is never truly in the discharge of official duty. If sanction were required only for acts genuinely in the discharge of duty, no corruption case would ever need one and the protection would be empty. The words "purporting to act" bring in the officer who was ostensibly performing his function, and the courts have long read the sanction provisions that way.

Section 23(3): the constitutional office holders

Nothing in sub-sections (1) and (2) applies in respect of persons holding office in pursuance of the provisions of the Constitution and in respect of which a procedure for removal has been specified therein.

Who that means. A Judge of the Supreme Court or a High Court, whose removal is governed by article 124(4) read with article 217 and 218. The Comptroller and Auditor-General, whose removal follows the same route under article 148(1). The Chief Election Commissioner, under article 324(5). The Chairman and members of the Union Public Service Commission, under article 317.

Why the exception. Because the Constitution has already provided how those persons are to be dealt with, and an ordinary Act cannot substitute a different route. It is the same principle that keeps the judiciary out of the Lokpal Act altogether and sends MU's eighth label to the Judges (Inquiry) Act 1968 instead.

What it does not mean. It does not mean such a person cannot be prosecuted at all. It means section 23 does not govern the sanction. For a judge the position is the one settled in 1991 and worked in chapter 1700: he is a public servant under the corruption law, the President sanctions, and no case may be registered without consulting the Chief Justice of India.

Section 23(4): article 311 and article 320(3)(c) survive

Sub-sections (1) to (3) are without prejudice to the generality of article 311 and article 320(3)(c).

Article 311 protects a civil servant against dismissal, removal or reduction in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. Article 320(3)(c) requires the Union or a State Public Service Commission to be consulted on disciplinary matters affecting a civil servant.

So the Act does not touch the departmental route. A criminal prosecution under the Prevention of Corruption Act and a departmental proceeding under article 311 run on separate tracks, and section 20(3)(b) and section 20(7)(b) both allow the Lokpal to direct the departmental route instead of, or as well as, the criminal one.

Section 24: the Prime Minister, Ministers and members of Parliament

Where, after the conclusion of the investigation, the findings of the Lokpal disclose the commission of an offence under the Prevention of Corruption Act 1988 by a public servant referred to in clause (a), (b) or (c) of section 14(1), that is a present or former Prime Minister, a Minister of the Union, or a member of either House, the Lokpal may file a case in the Special Court and shall send a copy of the report together with its findings to the competent authority.

Why the highest three get their own section. Because for them there is no departmental authority to direct. A Secretary can be proceeded against departmentally; a Minister cannot. So the Act gives the Lokpal a direct route: file the case, and inform the competent authority, which under section 2 is the House of the People for a Prime Minister, the Prime Minister for a Union Minister and the Speaker or Chairman for a member.

Notice what the competent authority receives. A copy of the report and the findings. Not a request for permission. The political authority is informed, not consulted, and that is the difference between this Act and everything that preceded it.

A worked example

The Lokpal completes an investigation into a Minister of the Union and finds a prima facie offence under section 7 of the Prevention of Corruption Act.

Under the old law, before 2014, the prosecution would have needed sanction under section 19 of the Prevention of Corruption Act from the authority competent to remove the Minister from office, which in practice meant the political executive. Cases waited years for it.

Under section 23(1), the Lokpal grants the sanction itself, and the three named provisions do not stand in the way.

Under section 23(2), no court may take cognizance except on that sanction, so nobody can argue that some other sanction was also required.

Under section 24, the Lokpal may file the case in the Special Court and must send a copy of the report and findings to the Prime Minister, who is the competent authority for a Union Minister.

Under section 12(2) and (3), the Director of Prosecution files it and the filing is deemed a report under section 173 of the Code.

Now change the accused to a Judge of the High Court. Section 23(3) takes the matter out of section 23 altogether, because the Constitution prescribes a removal procedure for him. And in any case a judge is not within section 14 at all.

What beginners get wrong

That the Lokpal's sanction is in addition to the Government's. It is instead of it. Section 23(2) makes the Lokpal's the only sanction that counts.

That section 23 abolished sanction. It did not. It moved the decision. The filter against vexatious prosecution of officials remains; it is simply operated by a body that is not the accused's employer.

That section 23(3) makes constitutional office holders immune. It makes section 23 inapplicable to them. Their prosecution is governed by the ordinary law and, for judges, by the safeguards laid down in 1991.

That section 24 requires anybody's permission. It requires the Lokpal to send a copy of its report to the competent authority. Sending a copy is not asking.

Quick revision

s.23(1): notwithstanding s.197 CrPC, s.6A DSPE Act and s.19 Prevention of Corruption Act, the Lokpal grants sanction under s.20(7)(a).

s.23(2): no prosecution and no cognizance for an offence committed while acting or purporting to act in the discharge of official duty except with the previous sanction of the Lokpal.

s.23(3): does not apply to holders of constitutional offices for whose removal the Constitution prescribes a procedure.

s.23(4): without prejudice to article 311 and article 320(3)(c).

s.24: for a present or former Prime Minister, Union Minister or member of either House, the Lokpal may file the case in the Special Court and shall send the report and findings to the competent authority.

The historical point: sanction had rested with the accused's own Government since 1947 and was the standing obstacle the Santhanam Committee identified in 1964. Section 23 moves it.

Test yourself

1. What is sanction for prosecution, why does it exist, and why did it become a problem? It is the requirement that a designated authority permit the prosecution of a public servant for an act done in the discharge of official duty, in section 197 of the Code of Criminal Procedure and section 19 of the Prevention of Corruption Act. It exists to protect officials from vexatious prosecution for taking hard decisions. It became a problem because the authority granting it was the Government employing the accused, so the political executive decided whether its own Ministers and Secretaries could be prosecuted, and sanction was refused or simply not decided.

2. State the effect of section 23(1) and (2). Section 23(1) gives the Lokpal the power to grant sanction for prosecution under section 20(7)(a), notwithstanding section 197 of the Code, section 6A of the Delhi Special Police Establishment Act and section 19 of the Prevention of Corruption Act. Section 23(2) provides that no prosecution may be initiated and no court may take cognizance of an offence alleged to have been committed while acting or purporting to act in the discharge of official duty except with the Lokpal's previous sanction. Together they move the sanction decision from the Government to the Lokpal and make the Lokpal's sanction the only one required.

3. Why do the words "purporting to act" appear in section 23(2)? Because a corrupt act is never genuinely in the discharge of official duty, so a protection confined to acts truly in the discharge of duty would never apply to a corruption case and would be empty. The words bring within the provision the officer who was ostensibly performing his function, which is how the sanction provisions have long been read.

4. Who is excepted by section 23(3) and why? Persons holding office in pursuance of the Constitution for whose removal the Constitution itself prescribes a procedure, such as Judges of the Supreme Court and the High Courts, the Comptroller and Auditor-General, the Chief Election Commissioner and members of the Public Service Commissions. The reason is that an ordinary Act cannot substitute its own route where the Constitution has laid one down.

5. What does section 24 permit the Lokpal to do about a Minister, and what does it require? Where the findings after investigation disclose an offence under the Prevention of Corruption Act by a present or former Prime Minister, Union Minister or member of either House, the Lokpal may file a case in the Special Court. It must send a copy of the report together with its findings to the competent authority, which is the House of the People for a Prime Minister, the Prime Minister for a Union Minister and the Speaker or Chairman for a member. The competent authority is informed; its permission is not sought.

What that distinction means. The Lokpal may direct that a case be investigated, may set the pace, may require reports, may say the inquiry is inadequate. It may not tell the agency what to find or how to dispose of the case. It is the same line the Supreme Court drew for itself in the hawala matter when it monitored an investigation without directing its content, and chapter 870 works that out.

Section 25(2). The Central Vigilance Commission shall send a statement, at such intervals as the Lokpal directs, on action taken on complaints referred to it under the second proviso to section 20(1); and on receiving it the Lokpal may issue guidelines for the effective and expeditious disposal of such cases.

Notice the asymmetry. Over the Delhi Special Police Establishment the Lokpal has superintendence and may direct. Over the Central Vigilance Commission it receives statements and may issue guidelines. The Commission is a statutory body of the same standing and the Act does not subordinate it.

Section 26: search and seizure

Section 26(1). If the Lokpal has reason to believe that documents useful for or relevant to an investigation are secreted in any place, it may authorise the agency to which the investigation has been given to search for and seize them.

Section 26(2). If satisfied that a seized document may be used as evidence and that it is necessary to retain it, the Lokpal may retain it or direct an authorised officer to retain it till the completion of the investigation. The proviso allows a document to be returned after retaining duly authenticated copies.

Two points for an answer. The power is exercised through the investigating agency, not by the Lokpal's own officers, which is another instance of the institution depending on machinery it does not own. And "reason to believe" is an objective standard: it requires material, not suspicion, and it is the phrase courts examine when a search is challenged.

Section 27: the powers of a civil court

Section 27(1). For the purpose of any preliminary inquiry, the Inquiry Wing shall have all the powers of a civil court under the Code of Civil Procedure 1908 while trying a suit, in respect of:

1. (i) summoning and enforcing the attendance of any person and examining him on oath;
2. (ii) requiring the discovery and production of any document;
3. (iii) receiving evidence on affidavits;
4. (iv) requisitioning any public record or copy from any court or office;
5. (v) issuing commissions for the examination of witnesses or documents, the proviso limiting a commission for a witness to a case where the witness is not in a position to attend;
6. (vi) such other matters as may be prescribed.

Section 27(2) deems any proceeding before the Lokpal to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code, which is the offence of giving false evidence.

What "the powers of a civil court in respect of the following matters" means. It does not make the body a civil court. It borrows six specific powers, and only those six. This drafting device appears in almost every Indian statute creating an inquiring body, including section 5 of the Commissions of Inquiry Act 1952 and section 11 of the Central Vigilance Commission Act 2003, and chapter 410 compares them.

Why section 27(2) matters practically. Lying to a body whose proceedings are deemed judicial is perjury. Without that deeming a witness could mislead an inquiry with no criminal consequence.

A limitation worth noticing. Section 27(1) gives these powers for the purpose of a preliminary inquiry. At the investigation stage the powers are the agency's under the Code of Criminal Procedure, not the Lokpal's.

Section 28: borrowed officers

Section 28(1). For conducting any preliminary inquiry or investigation, the Lokpal may utilise the services of any officer or organisation or investigating agency of the Central Government or any State Government.

Section 28(2). Such an officer, organisation or agency may, subject to the superintendence and direction of the Lokpal, summon and enforce attendance and examine any person, require the discovery and production of documents, and requisition any public record.

Section 28(3). It shall inquire or investigate and submit a report to the Lokpal within the period the Lokpal specifies.

This section and the proviso to section 11 are the same admission twice. The Lokpal does not have an investigative force of its own and works through officers of the Governments it investigates. Section 28(2)'s phrase "subject to the superintendence and direction of the Lokpal" is the protection, and how much protection it is in practice is the question a good answer raises.

A worked example

The Lokpal refers a case against a Secretary to the Delhi Special Police Establishment for investigation.

Section 25(1). From the moment of that reference the Lokpal has superintendence over the establishment in that matter, notwithstanding section 4 of the 1946 Act and section 8 of the 2003 Act.

It may therefore direct that the investigation be completed within the six months section 20(5) allows; that a report be filed with it; that a particular line be examined; that officers not be changed.

It may not direct that the Secretary be charge sheeted, or that the case be closed. The proviso forbids requiring the agency to investigate and dispose of the case in a particular manner.

Section 26. Told that account books are hidden at a farmhouse, the Lokpal, having reason to believe it, authorises the establishment to search and seize. It retains the books until the investigation ends, returning the originals against authenticated copies.

Section 27. At the earlier preliminary inquiry stage the Inquiry Wing had summoned the Secretary's subordinate and examined him on oath, and requisitioned the file from the Ministry.

Section 27(2). The subordinate lied. Because the proceeding is deemed judicial for section 193 of the Penal Code, he has committed an offence.

Section 28. The Lokpal, needing an accountant, uses the services of an officer of the Ministry of Finance, who works subject to its superintendence and reports within the time it fixes.

Distinctions: three bodies' civil court powers

The row that differs is the first, and it is the difference between a standing body and a body created for one matter.

What beginners get wrong

That the Lokpal controls the Central Bureau of Investigation. It has superintendence over matters it has referred. Everything else is with the Central Vigilance Commission or the Central Government.

That superintendence means direction of the outcome. The proviso to section 25(1) says the opposite.

That the Lokpal can search premises itself. It authorises the investigating agency to do it.

That section 27 makes the Lokpal a civil court. It borrows six enumerated powers of one.

Quick revision

s.25(1): superintendence over and direction to the Delhi Special Police Establishment in matters the Lokpal has referred, notwithstanding s.4 DSPE Act and s.8 CVC Act; proviso, no requiring an agency to investigate and dispose of a case in a particular manner.

s.25(2): the Central Vigilance Commission sends statements on referred complaints; the Lokpal may issue guidelines.

s.26: search and seizure through the investigating agency on reason to believe documents are secreted; retention till the investigation ends, originals returnable against authenticated copies.

s.27: the Inquiry Wing has six enumerated powers of a civil court for a preliminary inquiry; proceedings deemed judicial proceedings under section 193 of the Penal Code.

s.28: services of any officer, organisation or agency of the Central or a State Government, subject to the Lokpal's superintendence, reporting within the time it fixes.

Test yourself

1. What powers does section 25 give the Lokpal over the Central Bureau of Investigation, and what is the limit? Powers of superintendence over, and to give direction to, the Delhi Special Police Establishment in respect of matters the Lokpal has referred for preliminary inquiry or investigation, notwithstanding section 4 of the Delhi Special Police Establishment Act 1946 and section 8 of the Central Vigilance Commission Act 2003. The limit is the proviso: the Lokpal may not exercise those powers so as to require the agency to investigate and dispose of any case in a particular manner, so it may control the process and not the conclusion.

2. Who has superintendence over the Central Bureau of Investigation? Three bodies, in defined classes of case. The Lokpal, over matters it has referred, under section 25 of the Lokpal Act. The Central Vigilance Commission, over the investigation of offences under the Prevention of Corruption Act, under section 8 of the CVC Act 2003 read with the proviso to section 4(1) of the Delhi Special Police Establishment Act. The Central Government, over everything else, under section 4(1) of that Act.

3. List the powers of a civil court the Inquiry Wing has and say what section 27(2) adds. Summoning and enforcing attendance and examining on oath; requiring discovery and production of documents; receiving evidence on affidavit; requisitioning any public record or copy from a court or office; issuing commissions for the examination of witnesses or documents, a commission for a witness only where he cannot attend; and such other matters as may be prescribed. Section 27(2) deems any proceeding before the Lokpal to be a judicial proceeding within section 193 of the Indian Penal Code, so that giving false evidence before it is perjury.

4. What does section 28 reveal about the Lokpal's investigative capacity? That it has none of its own for the most part. The Lokpal may use the services of any officer, organisation or investigating agency of the Central or a State Government, who then exercises powers of summoning, discovery and requisition subject to the Lokpal's superintendence and reports within the time the Lokpal fixes. Read with the proviso to section 11, it means the institution relies on officers of the Governments it exists to inquire into, which is the standing criticism of its design.

Why the Income-tax Act's Schedule. Because attaching property requires machinery, and India already had a worked-out set of rules for attaching and selling property to recover tax. Rather than write a new code, Parliament borrowed one. This is a common drafting technique and worth naming in an answer as legislation by reference.

Section 29(2). Immediately after attachment the Lokpal or the authorised officer forwards a copy of the order, with the material in his possession, to the Special Court.

Section 30: confirmation by the Special Court

Section 30(1). Within thirty days of a provisional attachment the Lokpal shall direct its Prosecution Wing to file an application before the Special Court stating the facts and praying for confirmation of the attachment until the proceedings against the public servant conclude.

Section 30(2). The Special Court may, if of the opinion that the property was acquired through corrupt means, confirm the attachment until the proceedings conclude.

Section 30(3). If the public servant is subsequently acquitted, the property shall, subject to the court's orders, be restored to him together with the benefits that accrued during the attachment.

Section 30(4). If he is subsequently convicted, the proceeds relatable to the offence are dealt with accordingly.

The design in one sentence. The Lokpal may freeze for ninety days on its own; anything longer requires a court, and the court must form an opinion that the property came from corruption. That is the safeguard, and it is the reason the attachment power is defensible in a body that is not a court.

Section 31: confiscation

Section 31(1). Without prejudice to sections 29 and 30, where the Special Court, on prima facie evidence, has reason to believe or is satisfied that assets, proceeds, receipts and benefits have arisen or been procured by means of corruption by the public servant, it may authorise their confiscation till his acquittal.

Section 31(2). Where a confiscation order is modified or annulled by the High Court, or the public servant is acquitted by the Special Court, the property shall be returned; and where return is not possible for any reason, he shall be paid the price, including the money confiscated, with interest at five per cent per annum from the date of confiscation.

Two things to notice. The power is the court's, not the Lokpal's, which is a real distinction from section 29. And section 31(2) provides a compensation rule, which most Indian confiscation statutes do not, with a stated rate.

Section 32: transfer or suspension

Section 32(1). Where the Lokpal, while making a preliminary inquiry, is prima facie satisfied on the evidence available that:

1. (i) the continuance of the public servant in his post while the preliminary inquiry is being conducted is likely to affect the inquiry adversely; or
2. (ii) he is likely to destroy or tamper with evidence or influence witnesses,

it may recommend to the Central Government the transfer or suspension of that public servant for the period specified.

Note the persons covered: clause (d), (e) or (f) of section 14(1), that is Group A and B officers, Group C and D officials, and office bearers of bodies financed or controlled by the Centre. Not the Prime Minister, a Minister or a member of Parliament, who are clauses (a), (b) and (c). There is no power to recommend that a Minister be moved.

Section 32(2). The Central Government shall ordinarily accept the recommendation, except for reasons to be recorded in writing where it is not feasible for administrative reasons.

"Shall ordinarily accept, except for reasons recorded in writing" is a formula worth learning. It is not binding and it is not merely advisory. It creates a presumption in favour of compliance and requires a written justification for refusal, which is reviewable. The same formula recurs across Indian administrative law wherever a recommending body is meant to be taken seriously without displacing the executive's responsibility.

Section 33: preserving the record

The Lokpal may issue appropriate directions to a public servant entrusted with the preparation or custody of any document or record:

1. (a) to protect it from destruction or damage;
2. (b) to prevent the public servant from altering or secreting it;
3. (c) to prevent him from transferring or alienating any assets allegedly acquired through corrupt means.

A quiet but important power. Most corruption cases are lost on documents that disappear between the complaint and the inquiry. Section 33 lets the Lokpal act before it has any case at all, which is earlier than section 29 allows.

Section 34: delegation

The Lokpal may, by general or special order in writing and subject to specified conditions and limitations, direct that any administrative or financial power conferred on it may also be exercised by such of its Members, officers or employees as the order specifies.

Read the words carefully. Administrative or financial. Not the power to inquire, to grant sanction, to attach or to recommend transfer. Those are not delegable, and the omission is deliberate.

A worked example

The Lokpal is conducting a preliminary inquiry into a Group A officer.

Section 33. On the first day it directs the Ministry's record officer to protect the relevant files and forbids the officer from altering them. No prima facie case is needed for this.

Section 32. The officer is the head of the very division holding the files. The Lokpal is prima facie satisfied that his continuance is likely to affect the inquiry adversely and recommends his transfer. The Central Government must ordinarily accept, and must record reasons in writing if it does not.

Section 29. Material comes in showing that he holds a flat bought with the proceeds and that he has begun to sell it. All three conditions are met: proceeds of corruption, accused of an offence relating to corruption, and property likely to be dealt with so as to frustrate confiscation. The Lokpal records its reasons in writing and provisionally attaches the flat for ninety days, in the manner of the Second Schedule to the Income-tax Act 1961.

Section 29(2). A copy of the order and the material go at once to the Special Court.

Section 30(1). Within thirty days the Prosecution Wing applies to the Special Court for confirmation.

Section 30(2). The Special Court forms the opinion that the flat was acquired through corrupt means and confirms the attachment until the proceedings conclude.

Section 31. On prima facie evidence the Special Court authorises confiscation until acquittal.

And if he is acquitted. Section 30(3) restores the property with the benefits that accrued; section 31(2) requires return of confiscated assets, or payment of the price with interest at five per cent per annum from the date of confiscation.

Distinctions: attachment against confiscation

What beginners get wrong

That the Lokpal can confiscate. It cannot. It attaches for up to ninety days; confirmation and confiscation are the Special Court's.

That any one of the three conditions in section 29(1) will do. All three must be satisfied.

That the Lokpal can suspend an officer. It recommends; the Central Government acts, and must ordinarily accept.

That a Minister can be transferred out of the way. Section 32 covers only clauses (d), (e) and (f) of section 14(1).

That section 34 lets the Lokpal delegate its work. It permits delegation of administrative and financial powers only.

Quick revision

s.29: provisional attachment up to ninety days, on three cumulative conditions, reasons in writing, in the manner of the Second Schedule to the Income-tax Act 1961; copy and material to the Special Court at once.

s.30: application by the Prosecution Wing within thirty days; the Special Court confirms till the proceedings conclude; on acquittal the property is restored with benefits accrued.

s.31: confiscation by the Special Court on prima facie evidence, till acquittal; on annulment or acquittal, return, or the price with interest at five per cent per annum.

s.32: recommendation of transfer or suspension for section 14(1)(d), (e) and (f) public servants; the Central Government shall ordinarily accept, except for reasons recorded in writing.

s.33: directions to protect records and to prevent alteration, secreting or alienation.

s.34: delegation of administrative or financial powers only.

Test yourself

1. State the conditions for a provisional attachment under section 29 and the period it may run. The Lokpal or its authorised officer must have reason to believe, on the basis of material in his possession and for reasons recorded in writing, that a person is in possession of proceeds of corruption, that he is accused of an offence relating to corruption, and that the proceeds are likely to be concealed, transferred or dealt with so as to frustrate confiscation proceedings. All three must be satisfied. The attachment may be for a period not exceeding ninety days, in the manner provided in the Second Schedule to the Income-tax Act 1961.

2. Who confirms an attachment and who confiscates, and what happens on acquittal? The Special Court does both. On an application by the Prosecution Wing within thirty days it may confirm the attachment until the proceedings conclude if of the opinion that the property was acquired through corrupt means, and under section 31 it may authorise confiscation on prima facie evidence until acquittal. On acquittal the attached property is restored with the benefits that accrued, and confiscated property is returned or, where return is impossible, its price is paid together with the money confiscated and interest at five per cent per annum from the date of confiscation.

3. Explain the formula "shall ordinarily accept, except for reasons to be recorded in writing". It sits between a binding direction and mere advice. It creates a presumption that the recommendation will be acted on, and it requires the Government to justify a refusal in writing, which makes the refusal examinable and reviewable. In section 32(2) it applies to a recommendation for the transfer or suspension of a public servant during a preliminary inquiry, and the only permitted ground of refusal is that compliance is not feasible for administrative reasons.

4. Why does an ombudsman statute contain attachment and confiscation powers at all? Because the Act's preamble recites that India has ratified the United Nations Convention Against Corruption and that the law is enacted for its more effective implementation. The Convention requires States Parties to provide for the identification, tracing, freezing, seizure and confiscation of the proceeds of corruption, and Parliament placed those powers in the Lokpal rather than creating a separate body. It is also the clearest reason for calling the Lokpal a hybrid rather than a classical ombudsman.

What happens if two years pass and the trial is not over. The Act does not say. A time limit with no consequence attached is a direction to the court rather than a bar on it, and no Indian court has held that a trial under this Act becomes void on the expiry of two years. That is a genuine weakness and an honest answer says so.

What "Special Court" means here. Section 2 defines it as the court of a special judge appointed under the Prevention of Corruption Act 1988. So the Act does not invent a new kind of court; it uses the existing special judge machinery and adds a timetable.

Section 36: the letter of request

When it applies. In the course of a preliminary inquiry, an investigation or a proceeding under the Act, an officer of the Lokpal authorised in that behalf may apply to a Special Court saying that evidence is required and that he is of the opinion that such evidence may be available in a place in a contracting State.

What the Special Court may do. On being satisfied that the evidence is required, it may issue a letter of request to a court or an authority in the contracting State competent to deal with it, asking that authority to examine the facts and circumstances of the case, to take such steps as the letter specifies, and to forward the evidence so taken or collected.

The non obstante clause. Section 36 operates notwithstanding anything in this Act or the Code of Criminal Procedure 1973, so the general provisions of the Code on evidence taken abroad do not confine it.

"Contracting State" means a State with which India has an arrangement for mutual assistance in criminal matters, whether by a bilateral treaty or a multilateral convention. The United Nations Convention Against Corruption, which the preamble recites, is itself such a framework, and its chapter on international cooperation is the reason this section exists.

Why this matters for the institution's reach. Section 1(3) applies the Act to public servants in and outside India. That would be an empty claim without a way of getting evidence from abroad. Section 36 is the machinery, and the pair should be cited together in any answer about the Lokpal's jurisdiction.

A worked example

The Lokpal investigates a Secretary alleged to have taken money into an account in a foreign country.

Section 20(5). The investigation is directed to an agency, to be completed in six months.

The problem. The bank records are abroad and no Indian process reaches them.

Section 36(1). An authorised officer of the Lokpal applies to the Special Court, saying evidence is required and may be available in that country, which is a contracting State.

The Special Court is satisfied and issues a letter of request to the competent court or authority there, asking it to examine the facts, to take the steps the letter specifies, and to forward the evidence.

The evidence arrives. The investigation is completed and the report goes to the court having jurisdiction under section 20(6), with a copy to the Lokpal.

Section 20(7)(a) with section 23. The Lokpal grants sanction and directs a charge sheet.

Section 12(2). The Director of Prosecution files the case in the Special Court.

Section 35(2). That court must complete the trial within a year, and may extend only in three month blocks with reasons recorded before each block ends, to an outer limit of two years.

Section 29 and 30 in parallel. If the flat bought with the money is being sold, the Lokpal attaches it for ninety days and the Prosecution Wing applies within thirty days for confirmation.

What beginners get wrong

That the Lokpal tries the case. It does not. The trial is in the Special Court, which is a court of a special judge under the Prevention of Corruption Act.

That the Lokpal constitutes the Special Courts. It recommends the number; the Central Government constitutes them.

That the one year limit is absolute. It may be extended in three month blocks up to a total of two years, with reasons recorded in writing before the end of each block.

That the Lokpal issues the letter of request. The Special Court issues it, on the application of an authorised officer of the Lokpal.

Quick revision

s.35(1): the Central Government shall constitute Special Courts as recommended by the Lokpal, for cases under the Prevention of Corruption Act 1988 or this Act.

s.35(2): trial to be completed in one year from filing; extendable by three month periods, reasons recorded in writing before the end of each, to a maximum of two years. No consequence stated for exceeding it.

Special Court means the court of a special judge under the Prevention of Corruption Act 1988 (s.2).

s.36: on the application of an authorised officer of the Lokpal, the Special Court may issue a letter of request to a court or authority in a contracting State, notwithstanding this Act or the Code of Criminal Procedure, to examine the facts, take specified steps and forward the evidence.

Read s.36 with s.1(3), which applies the Act to public servants in and outside India.

Test yourself

1. Who constitutes the Special Courts and how many are there to be? The Central Government constitutes them, and the number is that recommended by the Lokpal. They hear and decide cases arising out of the Prevention of Corruption Act 1988 or under the Lokpal and Lokayuktas Act. A Special Court is the court of a special judge appointed under the Prevention of Corruption Act.

2. State the time limit for a trial and how it may be extended. Each trial is to be completed within one year of the case being filed. If it cannot be, the Special Court must record reasons and complete it within a further period of not more than three months, or further such periods of not more than three months each, with reasons recorded in writing before the end of each period, subject to an outer limit of two years in total.

3. What is a letter of request and who issues it? It is a request from a court in one country to a court or competent authority in another asking it to examine the facts of a case, take specified steps and forward the evidence so obtained. Under section 36 it is issued by the Special Court, not by the Lokpal, on the application of an officer of the Lokpal authorised in that behalf who is of the opinion that the evidence may be available in a contracting State, and the section operates notwithstanding this Act or the Code of Criminal Procedure.

4. Why is section 36 necessary? Because section 1(3) applies the Act to public servants in and outside India, and a claim to reach conduct and assets abroad is worthless without a means of obtaining evidence located there. Section 36 supplies that means, and it reflects the international cooperation obligations of the United Nations Convention Against Corruption, which the Act's preamble recites as part of its purpose.

5. What is the weakness of the time limit in section 35(2)? That the Act attaches no consequence to its breach. It directs the Special Court to finish within one year and, at the outside, two, but does not say what follows if the trial runs longer. A time limit with no sanction operates as a direction to the court rather than a bar on the proceedings, and no court has held that a trial under the Act becomes void on the expiry of two years.

Count the locks. A hundred Members of Parliament must sign. The President must make the reference. The Supreme Court must inquire and must report that the person ought to be removed. Only then may the President order removal. And suspension in the meantime needs the Supreme Court's recommendation or interim order, so the executive cannot sideline a Lokpal by suspending him while a reference is pending.

Compare it with the other offices in this book. The Central Vigilance Commissioner is removed on the same pattern, a reference to the Supreme Court, under section 6 of the Act of 2003, and chapter 620 reads it. A Judge of the Supreme Court is removed by an address of both Houses after an inquiry under the Judges (Inquiry) Act 1968, and chapter 1560 reads that. The Comptroller and Auditor-General is removed in the same manner as a judge, under article 148(1). The Lokpal's route is closer to the Central Vigilance Commissioner's than to the judge's: a court decides, not the House.

Section 38: complaints against the Lokpal's own people

Section 38(1). Every complaint of allegation or wrongdoing against any officer or employee, or any agency including the Delhi Special Police Establishment, under or associated with the Lokpal, for an offence punishable under the Prevention of Corruption Act 1988, is dealt with under this section.

Section 38(2). The Lokpal shall complete the inquiry within thirty days from the date of receipt.

Section 38(3). While inquiring, if prima facie satisfied on the evidence that the continuance of the officer, employee or agency in his post is likely to affect the inquiry adversely, or that he is likely to destroy or tamper with evidence or influence witnesses, the Lokpal may pass appropriate orders, including transfer or suspension.

Thirty days is the tightest limit in the Act. A preliminary inquiry into a Minister gets ninety days extendable to a hundred and eighty; an inquiry into the Lokpal's own clerk gets thirty. The message the drafter is sending is deliberate: a body that takes six months over its own staff has no standing to demand speed from anybody else.

Section 39: recovering the loss

If a public servant is convicted of an offence under the Prevention of Corruption Act 1988 by the Special Court, that court may, notwithstanding and without prejudice to any other law, make an assessment of the loss caused to the public exchequer on account of actions or decisions of that public servant not taken in good faith and for which he stands convicted, and order recovery of that loss from him, if possible or quantifiable.

The proviso. If the Special Court, for reasons recorded in writing, concludes that the loss was caused pursuant to a conspiracy with the beneficiary or beneficiaries of the public servant's actions or decisions, the loss may also be recovered from those beneficiaries proportionately.

This is unusual and worth a paragraph. Indian criminal law punishes; it rarely quantifies the public loss and orders restitution in the same proceeding. Section 39 does, and the proviso reaches the private party who gained. Read it against the coal blocks litigation, where the Comptroller and Auditor-General's estimate of loss and the question of recovery from allottees were argued for years in separate proceedings. Section 39 puts assessment and recovery in the hands of the trial court.

Note the limits. It applies only on conviction, only to actions not taken in good faith, and only where the loss is possible or quantifiable. Those three conditions are what keep it from becoming a general power to fine.

Sections 40 to 43: the money and the returns

Section 40, budget. The Lokpal prepares its budget for the next financial year in the prescribed form and at the prescribed time, showing estimated receipts and expenditure, and forwards it to the Central Government for information.

Read "for information" carefully. Not for approval. The Lokpal tells the Government what it intends to spend. That is the counterpart of section 13's charge on the Consolidated Fund.

Section 41, grants. The Central Government may, after due appropriation made by Parliament by law, make grants to the Lokpal for the salaries and allowances of the Chairperson and Members and for administrative expenses including staff salaries and pensions.

Section 40 and 41 read together are slightly awkward and a careful student should notice it. Section 13 charges administrative expenses on the Consolidated Fund, which means no vote. Section 41 speaks of grants after due appropriation by Parliament by law, which is the voted route. The reconciliation is that the charge under section 13 covers the expenses it names and the grant mechanism handles the flow of funds; but the drafting leaves room for argument, and pointing that out is the kind of observation that distinguishes an answer.

Section 42, accounts and audit. The Lokpal maintains proper accounts and prepares an annual statement of accounts in the form prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India. Those accounts shall be audited by the Comptroller and Auditor-General at such intervals as he specifies. In that audit he, or a person appointed by him, has the same rights, privileges and authority as he has in relation to the audit of Government accounts, and in particular the right to demand the production of books, accounts, vouchers and other documents and to inspect the offices.

Section 43, returns. The Lokpal furnishes to the Central Government, at such time and in such form as prescribed or requested, such returns, statements and particulars regarding any matter under its jurisdiction as the Government requires.

Section 43 is the one provision in this group that cuts the other way, and an evaluative answer should say so. An institution that must furnish the Central Government such particulars in regard to any matter under its jurisdiction as that Government may from time to time require is, on the face of the words, answerable to the executive for its work. The words are wide, and how narrowly they are read in practice matters.

A worked example

Allegations circulate that a Member of the Lokpal accepted a benefit.

Section 37(1). The Lokpal cannot inquire into it. Its own Member is outside its jurisdiction.

Section 37(2). A petition signed by at least a hundred Members of Parliament goes to the President, who makes a reference to the Supreme Court. The Court inquires under the prescribed procedure.

Section 37(3). The Court makes an interim recommendation that the Member be suspended. On receiving it the President may suspend him until the final report.

The Court reports that he ought to be removed. The President orders removal.

Now change the person to a Deputy Director in the Inquiry Wing. Section 38 applies. The Lokpal must complete the inquiry within thirty days, and may transfer or suspend him meanwhile if satisfied that his continuance would affect the inquiry or that he might tamper with evidence.

And change the subject to money. The Lokpal's own accounts, prepared under section 42(1) in a form settled in consultation with the Comptroller and Auditor-General, are audited by him under section 42(2) with the full rights he has over Government accounts.

Distinctions: three removals compared

What beginners get wrong

That the Lokpal investigates complaints against its own Members. Section 37(1) expressly forbids it.

That Parliament removes the Lokpal. It does not. A hundred Members petition; the Supreme Court inquires and reports; the President orders.

That section 39 is a fine. It is an assessment and recovery of quantified loss to the exchequer, available only on conviction and only for actions not taken in good faith, and it can reach a conspiring beneficiary proportionately.

That the Lokpal's budget is approved by the Government. Section 40 says it is forwarded for information.

Quick revision

s.37(1): the Lokpal shall not inquire into a complaint against its own Chairperson or Members.

s.37(2): removal by the President on misbehaviour, after the Supreme Court, on a reference by the President made on a petition signed by at least one hundred Members of Parliament, reports that he ought to be removed.

s.37(3): suspension by the President on the Supreme Court's recommendation or interim order.

s.38: complaints against the Lokpal's officers, employees and associated agencies under the Prevention of Corruption Act, inquiry to be completed in thirty days, with power to transfer or suspend.

s.39: on conviction, the Special Court may assess loss to the public exchequer from acts not taken in good faith and order recovery, and by the proviso from conspiring beneficiaries proportionately.

s.40: budget forwarded to the Central Government for information. s.41: grants after appropriation by Parliament. s.42: accounts audited by the Comptroller and Auditor-General with his full rights. s.43: returns and particulars to the Central Government as it requires.

Test yourself

1. How may the Chairperson or a Member of the Lokpal be removed? Only by order of the President on the ground of misbehaviour, and only after the Supreme Court has inquired and reported that he ought to be removed. The Court acts on a reference made by the President, and the President makes that reference on a petition signed by at least one hundred Members of Parliament. Pending the reference the President may suspend him, but only on the Supreme Court's recommendation or interim order.

2. Why does section 37(1) forbid the Lokpal from inquiring into complaints against its own Members? Because an institution investigating its own members satisfies nobody: the colleagues who would sit in judgment are the very people whose impartiality is in question. The Act therefore places that inquiry outside the institution altogether, with the Supreme Court, which is the same solution used for the Central Vigilance Commissioner.

3. What is the time limit for an inquiry into a complaint against the Lokpal's own officer, and what does it signify? Thirty days from receipt of the complaint, under section 38(2). It is the tightest limit in the Act, against ninety days extendable to a hundred and eighty for a preliminary inquiry into a public servant, and the difference is deliberate: a body that is slow with its own staff cannot credibly demand speed from anyone else.

4. Explain section 39 and its proviso. Where a public servant is convicted by the Special Court of an offence under the Prevention of Corruption Act, that court may assess the loss caused to the public exchequer by his actions or decisions not taken in good faith and for which he stands convicted, and order recovery of that loss from him where it is possible or quantifiable. By the proviso, if the court concludes for reasons recorded in writing that the loss was caused pursuant to a conspiracy with the beneficiaries of those actions, the loss may also be recovered from those beneficiaries proportionately.

5. Who audits the Lokpal, and with what powers? The Comptroller and Auditor-General of India, under section 42(2), at such intervals as he specifies. The Lokpal's annual statement of accounts is prepared in a form prescribed by the Central Government in consultation with him. In conducting the audit he, or any person appointed by him, has the same rights, privileges and authority as he has in relation to the audit of Government accounts, including the right to demand the production of books, accounts, vouchers and other documents and to inspect the offices.

Three consequences follow, and all three are examinable.

The statutory detail moved into rules. What must be declared, by when, in what form and with what publicity is now for the Central Government to prescribe. Parliament wrote the duty and delegated the content. That is a legitimate technique and it is also, precisely, the delegation problem Module III's sixth label is about: the substance of a citizen's or an officer's obligation now lives in a rule that no House has voted on. Chapter 1220 sets out the doctrinal limit.

The express requirement to declare a spouse's and dependent children's assets disappeared from the section. Whether it survives depends on the rules made under it, which is a very different legal position from a statutory command.

And the substitution is retrospective to 16 January 2014, the date the Act itself came into force. So the amended section is treated as having been the law from the beginning, and no public servant is in breach for not having complied with the original section during 2014 to 2016. That is the practical purpose of the retrospective date and it should be stated plainly in an answer.

Section 45: the presumption

If any public servant, wilfully or for reasons which are not justifiable, fails:

1. (a) to declare his assets; or
2. (b) gives misleading information in respect of such assets and is found to be in possession of assets not disclosed or in respect of which misleading information was furnished,

then such assets shall, unless otherwise proved, be presumed to belong to the public servant and shall be presumed to be assets acquired by corrupt means.

The proviso allows the competent authority to condone or exempt a public servant from furnishing information about assets not exceeding such minimum value as may be prescribed.

Reading section 45 properly

It is a rebuttable presumption, not a deeming provision. The words "unless otherwise proved" mean the public servant may displace it by evidence. A deeming provision, by contrast, would make the fact conclusive. Students lose marks by describing this as conclusive.

It presumes two things, not one. First, that the assets belong to the public servant, which matters where property is held in another name. Second, that they were acquired by corrupt means. The first presumption is about ownership, the second about origin.

The mental element is in the opening words. "Wilfully or for reasons which are not justifiable" excludes the officer who omitted an asset by oversight and can say so. A presumption of corruption triggered by carelessness would be indefensible, and the section does not do that.

Clause (b) has a conjunctive condition. Misleading information alone is not enough; the officer must also be found in possession of the assets not disclosed or misdescribed. So the presumption attaches to concrete property, not to a paperwork failure.

The proviso is a de minimis rule. De minimis, from a Latin maxim meaning the law does not concern itself with trifles, describes a rule that excludes very small matters. Here the competent authority may condone non-disclosure of assets below a prescribed minimum value, so an officer is not caught by a presumption of corruption over a bicycle.

A worked example

Mr Deshpande, a Group A officer of a Union Ministry, files his declaration under section 44 and the rules made under it. He declares a flat in Pune and a car.

Case one. During an inquiry it emerges that he also owns a plot in Nashik, purchased two years earlier, which he did not declare and which he cannot explain having forgotten, because he received rent on it and banked the rent.

Apply section 45. The failure is wilful or at least not justifiable; the asset was not disclosed; he is found in possession of it. The presumption arises: the plot is presumed to belong to him and to have been acquired by corrupt means.

What he must then do. Prove otherwise. He may show that it came from a legacy, from the sale of ancestral land, from his wife's independent income, or from a loan. The presumption is rebuttable and the burden is now his.

Case two. He fails to declare a fixed deposit of eleven thousand rupees. The proviso applies if the prescribed minimum value exceeds that sum, and the competent authority may condone the omission.

Case three. He declares the plot but describes it as agricultural land worth four lakhs when it is a commercial plot worth ninety lakhs. That is misleading information under clause (b), and he is found in possession of the asset in respect of which the misleading information was furnished, so the presumption applies.

And notice what the presumption feeds into. Assets presumed to be acquired by corrupt means are proceeds of corruption for section 29, which is the attachment power chapter 170 reads. The declaration regime, the presumption and the attachment power are one mechanism in three sections.

Distinctions: this presumption against the Prevention of Corruption Act's

The row that matters is the second. Section 45 does not create an offence. It creates a presumption that helps prove one.

What beginners get wrong

That section 44 still requires a spouse's and children's assets to be declared. The substituted section requires a declaration "in such form and manner as may be prescribed", so the answer is in the rules and not in the section.

That the presumption is conclusive. "Unless otherwise proved" makes it rebuttable.

That any non-declaration triggers it. The failure must be wilful or for reasons which are not justifiable, and under clause (b) the officer must also be found in possession.

That the 2016 amendment was cosmetic. It replaced a detailed statutory obligation with a delegated one and did so retrospectively to the date the Act came into force, which changed both the content of the duty and the position of everybody who had not complied since 2014.

Quick revision

s.44, as substituted by Act 37 of 2016, s.2, w.e.f. 16 January 2014: every public servant shall declare his assets and liabilities in such form and manner as may be prescribed.

What the amendment changed: the detail moved from the section into rules; the express reference to spouse and dependent children went out of the section; and the substitution is retrospective to the commencement of the Act.

s.45: on a wilful or unjustifiable failure to declare, or misleading information plus possession, the assets are presumed to belong to the public servant and to have been acquired by corrupt means, unless otherwise proved.

Proviso: the competent authority may condone or exempt where the assets do not exceed a prescribed minimum value.

Where it leads: assets presumed acquired by corrupt means are proceeds of corruption for section 29, attachment.

Test yourself

1. What does section 44 require, and how did the Amendment Act of 2016 change it? It requires every public servant, on and from the commencement of the Act, to make a declaration of his assets and liabilities in such form and manner as may be prescribed. The Amendment Act 2016, section 2, substituted the section with effect from 16 January 2014. The original section set out the contents of the declaration in the statute, required the assets of the spouse and dependent children, and fixed a thirty day and an annual deadline; the substituted section states the duty and leaves the whole content to rules, and it does so retrospectively to the date the Act came into force.

2. State the presumption in section 45 and its conditions. Where a public servant wilfully, or for reasons which are not justifiable, fails to declare his assets, or gives misleading information about them and is found in possession of assets not disclosed or misdescribed, those assets shall, unless otherwise proved, be presumed to belong to him and to have been acquired by corrupt means. The mental element is wilfulness or the absence of justification, and under clause (b) misleading information must be coupled with actual possession.

3. Is the presumption conclusive? Explain. No. The words "unless otherwise proved" make it rebuttable, so the public servant may displace it by evidence showing a lawful source such as inheritance, a spouse's independent income, the sale of other property or a loan. A conclusive presumption would be a deeming provision, and section 45 is not drafted that way.

4. How does the declaration regime connect to the Lokpal's power of attachment? Section 45 presumes undisclosed or misdescribed assets to have been acquired by corrupt means. Assets so acquired are proceeds of corruption, and section 29 empowers the Lokpal, on reason to believe recorded in writing and where all three of its conditions are met, to attach proceeds of corruption provisionally for up to ninety days, with confirmation and confiscation following before the Special Court under sections 30 and 31. The three provisions work as one mechanism.

5. What does the proviso to section 45 achieve? It prevents the presumption from operating over trifles. The competent authority may condone or exempt a public servant from furnishing information about assets not exceeding a prescribed minimum value, so a small omission does not expose an officer to a presumption that his property was bought with corrupt money.

The case against it, and it is strong.

The State pays for the prosecution and the complainant pays for the defence. Section 46(4) puts the expenses of prosecuting the complainant on the Central Government. There is no corresponding provision funding a complainant who is prosecuted and acquitted. The asymmetry is stark.

The threshold words are elastic. "False and frivolous or vexatious" invites argument about whether "false" and "frivolous" are conjunctive and "vexatious" alternative, and a complaint that fails for want of evidence is easily characterised as frivolous after the event.

Section 20(3)(c) makes the coupling automatic. When a bench closes proceedings against a public servant it may in the same breath proceed against the complainant. The person who reported wrongdoing learns the outcome and the threat together.

The whistleblower is unprotected. The Whistle Blowers Protection Act 2011, Act 17 of 2014, which was to provide safeguards against victimisation of a person who discloses corruption, received assent on 9 May 2014 and has never been brought into force beyond its first section. So an Indian complainant faces section 46 with no statutory protection on the other side. That is the single most useful fact to bring into an evaluative answer on the Lokpal, and chapter 320 develops it.

A balanced conclusion for an answer. The provision is not wrong in principle and is unbalanced in design. What it lacks is not a lower penalty but a counterweight: a functioning whistleblower statute, and a rule that costs follow the event both ways.

Section 47: complaints by societies and trusts

Section 47(1). Where an offence under section 46(1) has been committed by a society, association of persons or trust, whether registered or not, every person who at the time was directly in charge of, and responsible to, it for the conduct of its business, affairs or activities, as well as the body itself, shall be deemed guilty and liable to be proceeded against and punished.

The proviso exempts such a person if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent it.

Section 47(2). Notwithstanding sub-section (1), where the offence is proved to have been committed with the consent or connivance of, or attributable to any neglect on the part of, any director, manager, secretary or other officer, that person shall also be deemed guilty.

This is the standard vicarious liability formula in Indian regulatory statutes, and a student who has met section 141 of the Negotiable Instruments Act 1881 or section 27 of the Consumer Protection legislation will recognise it. Two limbs: the person in charge and responsible, with a due diligence defence; and separately the officer with consent, connivance or neglect.

Why it is here. Because section 14(1)(g) brought societies and trusts receiving donations above the prescribed limits within the Lokpal's jurisdiction. Having made such bodies liable to be complained against, the Act makes them liable for complaining falsely. Whether that even-handedness is real, given that such bodies are precisely the organisations that make corruption complaints, is a fair question.

Section 48: the annual report

It shall be the duty of the Lokpal to present annually to the President a report on the work done. On receipt, the President shall cause a copy to be laid before each House of Parliament, together with a memorandum explaining, in respect of the cases where the advice of the Lokpal was not accepted, the reasons for such non-acceptance.

This is the classical ombudsman's sanction, and it is worth recognising it as such. Chapter 20 traced it to the Swedish Justitieombudsman's duty to report to the Riksdag in 1809 and chapter 30 found it in every version of the institution since. Publicity is what makes a recommendation effective in a body that cannot order.

The memorandum is the sharp part. It is not enough to lay the report. Where the Lokpal advised something and the Government did not accept the advice, the Government must explain itself in writing, in a document laid before both Houses. A refusal that must be justified in public is a very different thing from a refusal recorded in a file.

Compare section 14 of the Central Vigilance Commission Act 2003, which requires the same memorandum for advice the Commission gave and the Government did not take. Chapter 660 reads it. The device is the same in both statutes because it works in both.

Section 49: the Lokpal as appellate authority

The Lokpal shall function as the final appellate authority in respect of appeals arising out of any other law for the time being in force providing for the delivery of public services and redressal of public grievances by any public authority, in cases where the decision contains findings of corruption under the Prevention of Corruption Act 1988.

This is the ghost of the grievance half of the 1966 design. Chapter 70 recorded that the Administrative Reforms Commission proposed an institution covering allegations and grievances both, and chapter 90 recorded that grievances were split into a separate Bill which lapsed. Section 49 is what survived: the Lokpal sits at the top of whatever grievance redress law exists, but only where the decision below contains a finding of corruption.

And that is why the section does very little. There is no central law providing for time bound delivery of public services and redressal of grievances; the Bill of 2011 died. Several States have such Acts. So section 49 is an appellate jurisdiction waiting for a statute below it, and chapter 330 is about the hole.

A worked example

A non-governmental organisation complains that a Joint Secretary took money to clear a licence.

The bench closes the case under section 20(3) for want of a prima facie case, and directs that the complainant be proceeded against under section 46.

Section 46(3). The Special Court may take cognizance only on the complaint of the Joint Secretary, or of an officer authorised by the Lokpal. The organisation cannot be prosecuted on anybody else's initiative.

Section 47(1). If the organisation is convicted, so are the persons who at the time were directly in charge of and responsible to it, unless a particular person proves that the offence was committed without his knowledge or that he exercised all due diligence.

Section 46(1). The punishment is up to one year and up to one lakh rupees.

Section 46(5). The organisation must in addition pay the Joint Secretary compensation and his legal expenses, as the Special Court determines.

Section 46(4). The Central Government pays for the prosecution of the organisation. Nobody pays for its defence.

Now change the outcome. Suppose the Lokpal had advised the Ministry to take departmental action against the Joint Secretary and the Ministry had refused. Section 48 requires the refusal to be explained in a memorandum laid before both Houses with the Lokpal's annual report.

What beginners get wrong

That any complaint that fails is a false complaint. The offence requires a false and frivolous or vexatious complaint, and a complaint that fails for want of evidence is not automatically within it.

That anyone may prosecute a false complainant. Only the person complained against or an officer authorised by the Lokpal may set section 46 in motion, and only a Special Court may take cognizance.

That section 48 merely requires a report. It requires the report and a memorandum explaining every case where the Lokpal's advice was not accepted.

That section 49 gives the Lokpal a general grievance jurisdiction. It applies only where the decision appealed from contains findings of corruption, and it needs a service delivery law below it to operate on.

Quick revision

s.46: a false and frivolous or vexatious complaint, on conviction, one year and one lakh rupees; cognizance only by a Special Court, only on the complaint of the person complained against or an officer authorised by the Lokpal; prosecution by the public prosecutor at the Central Government's expense; compensation and legal expenses to the public servant.

s.47: liability of a society, association or trust and of the person in charge and responsible, with a knowledge and due diligence defence; and separately of a director, manager, secretary or officer on consent, connivance or neglect.

s.48: annual report to the President, laid before each House, with a memorandum explaining non-acceptance of the Lokpal's advice.

s.49: the Lokpal as final appellate authority under other laws on delivery of public services and grievance redress, only where the decision contains findings of corruption.

The criticism of s.46: the State funds the prosecution and not the defence; the threshold words are elastic; section 20(3)(c) couples closure with prosecution of the complainant; and the Whistle Blowers Protection Act 2011 has never been brought into force, so there is no counterweight.

Test yourself

1. Set out the offence in section 46 and the safeguards around it. Making a false and frivolous or vexatious complaint under the Act, punishable on conviction with imprisonment up to one year and fine up to one lakh rupees. The safeguards are that only a Special Court may take cognizance, and only on the complaint of the person against whom the false complaint was made or of an officer authorised by the Lokpal, so a third party cannot set the prosecution in motion. On conviction the complainant must also pay the public servant compensation and legal expenses as the Special Court determines.

2. Give the case for and against section 46. For: a body that can attach property, recommend suspension and sanction prosecution can be used as a weapon against an officer who refuses a favour, and a deterrent against malicious complaints is necessary if officials are to take hard decisions. Against: section 46(4) puts the cost of prosecuting the complainant on the Central Government with no corresponding funding for his defence; the words false and frivolous or vexatious are elastic and a complaint that fails for want of evidence is easily characterised after the event; section 20(3)(c) allows closure and prosecution of the complainant in the same breath; and the Whistle Blowers Protection Act 2011 has never been brought into force, so there is no protection on the other side.

3. Explain the two limbs of liability in section 47. Under sub-section (1), where a society, association of persons or trust commits the offence, both the body and every person who at the time was directly in charge of and responsible to it for the conduct of its business are deemed guilty, subject to a defence that the offence was committed without his knowledge or that he exercised all due diligence. Under sub-section (2), independently, any director, manager, secretary or other officer with whose consent or connivance the offence was committed, or to whose neglect it is attributable, is also deemed guilty.

4. What must the President do with the Lokpal's annual report? Cause a copy to be laid before each House of Parliament, together with a memorandum explaining, for every case in which the Lokpal's advice was not accepted, the reasons for the non-acceptance. The requirement of a written public explanation for refusing advice is what gives a recommending body its force, and the same device appears in section 14 of the Central Vigilance Commission Act 2003.

5. What does section 49 do, and why does it do so little? It makes the Lokpal the final appellate authority for appeals arising out of any other law providing for the delivery of public services and redressal of public grievances, but only in cases where the decision contains findings of corruption under the Prevention of Corruption Act 1988. It does little because there is no central law providing for time bound delivery of public services and grievance redress; the Bill of 2011 lapsed. It is an appellate jurisdiction waiting for a statute beneath it, and it is the only surviving trace of the grievance half of the 1966 design.

Section 52: the Lokpal's people are public servants

The Chairperson, Members, officers and other employees of the Lokpal shall be deemed, when acting or purporting to act in pursuance of any provision of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code.

Why a body that investigates public servants must be one. Two consequences follow, and both cut in the same direction.

They are protected. Offences against a public servant in the discharge of his duty, such as obstructing him or assaulting him, apply.

They are liable. The Penal Code's offences by public servants apply to them, and so, more importantly, does the Prevention of Corruption Act, which defines public servant in section 2(c) partly by reference to the Penal Code idea. So a Member of the Lokpal who takes a bribe commits the same offence as the Secretary he was investigating. Read section 52 with section 38, which is the machinery for complaints against the Lokpal's officers, and the picture is complete.

Section 53: seven years

The Lokpal shall not inquire or investigate into any complaint if the complaint is made after the expiry of seven years from the date on which the offence alleged in it is alleged to have been committed.

This is a limitation provision and it is absolute on its face. There is no power to condone delay, no proviso for sufficient cause, and no exception for a continuing offence or for concealment. Compare section 5 of the Limitation Act 1963, which allows an appeal or application to be admitted after the prescribed period on sufficient cause, and which has no counterpart here.

Why a limitation at all. Evidence decays, witnesses die, and a person should not be answerable indefinitely. Those are the ordinary reasons for limitation in any legal system.

Why seven years is contestable. Corruption is concealed by design, and it is frequently discovered only when the concealment fails, which may be a decade later. A rigid seven year bar therefore protects precisely the successful concealer. This is a fair and examinable criticism, and it should be put alongside the observation that section 53 speaks of the date on which the offence is alleged to have been committed, which for a continuing course of conduct is itself a question capable of argument.

Section 54: bar of jurisdiction

No civil court shall have jurisdiction in respect of any matter which the Lokpal is empowered by or under this Act to determine.

What this bars and what it does not. It bars the civil court. It does not, and constitutionally cannot, bar the High Court under article 226 or the Supreme Court under article 32, because the power of judicial review under those articles is part of the basic structure and an ordinary statute cannot take it away. Chapter 830 makes the same point about section 6 of the Delhi Special Police Establishment Act, where the Supreme Court held that a restriction on the executive is not a fetter on the constitutional courts.

So a student asked whether the Lokpal's decisions are subject to judicial review should answer: yes, under articles 226 and 32, notwithstanding section 54, and the whole history of litigation about the Lokpal, from the appointment cases onwards, has proceeded on exactly that basis.

Section 55: legal assistance

The Lokpal shall provide to every person against whom a complaint has been made before it, legal assistance to defend his case before the Lokpal, if such assistance is requested for.

Read that twice. The body conducting the inquiry must, on request, fund the defence of the person it is inquiring into.

Why this is remarkable. No comparable Indian statute does it. The Commissions of Inquiry Act 1952 gives a person likely to be prejudicially affected a right to be represented by a legal practitioner under section 8C, but at his own cost. Article 39A of the Constitution and the Legal Services Authorities Act 1987 provide free legal aid on a means test. Section 55 has no means test at all: the right belongs to every person against whom a complaint has been made, and the only condition is that he asks.

Why it is defensible. The inquiry can lead to attachment of property, a recommendation of suspension, sanction for prosecution and a trial. A person facing that, on a complaint anyone may make, is entitled to be heard properly, and a hearing without representation against an institution with an Inquiry Wing and a Prosecution Wing is not a real hearing.

Read section 55 against section 46 and the Act's shape becomes clear. The person complained against gets funded representation; the complainant, if his complaint fails and is characterised as frivolous, gets prosecuted at the State's expense with no funding for his own defence. Whatever one thinks of each provision alone, the pair tells you which way the Act leans.

A worked example

A complaint is made in 2026 alleging that a Secretary took a bribe in 2016.

Section 53. Ten years have passed since the offence is alleged to have been committed. The Lokpal shall not inquire or investigate. There is no power to condone the delay.

Change the year of the offence to 2021. Five years, so the complaint is within time.

Section 55. The Secretary requests legal assistance. The Lokpal must provide it, and no means test applies.

Section 50. The Secretary contends that the clearance he gave was a bona fide administrative decision. If it was done in good faith in the discharge of his official functions, no proceeding under this Act lies against him for it. Whether it was in good faith is the very question the inquiry must decide.

He sues in the City Civil Court for a declaration that the Lokpal has no jurisdiction. Section 54 bars the civil court.

He then petitions the High Court under article 226. Section 54 does not touch that, and the High Court will hear him, though on the limited grounds on which the decisions of a statutory authority are reviewed.

And suppose a Member of the Lokpal is himself alleged to have taken money to close the file. Section 52 makes him a public servant for the Penal Code, so the corruption law applies to him; section 37 puts his removal in the hands of the Supreme Court; and section 38 governs complaints against the officers below him.

What beginners get wrong

That section 51 protects the Lokpal absolutely. It protects what is done in good faith, and whether an act was in good faith is justiciable.

That section 54 makes the Lokpal's decisions final. It bars civil courts only. Articles 226 and 32 remain.

That section 53 is a rule of procedure that can be relaxed. It is a bar in absolute terms, with no provision for condonation.

That legal assistance under section 55 depends on means. It does not. The only condition is a request.

Quick revision

s.50 protects a public servant for anything done in good faith in the discharge of his functions, against proceedings under this Act.

s.51 protects the Lokpal, its officers, employees, agencies and any person for anything done in good faith under the Act, rules or regulations, against any proceeding.

Good faith, s.3(22) of the General Clauses Act 1897: honestly done, whether negligently or not.

s.52: the Lokpal's people are public servants under section 21 of the Indian Penal Code when acting or purporting to act under the Act.

s.53: seven years from the date the offence is alleged to have been committed. No condonation.

s.54: no civil court has jurisdiction over a matter the Lokpal may determine. Articles 226 and 32 are untouched.

s.55: legal assistance to every person complained against, on request, with no means test.

Test yourself

1. Distinguish the protection in section 50 from that in section 51. Section 50 protects a public servant against a suit, prosecution or other legal proceeding under this Act for anything done or intended to be done in good faith in the discharge of his official functions or the exercise of his powers; it is confined to proceedings under this Act and leaves the ordinary law untouched. Section 51 protects the Lokpal, its officers, employees, agencies and any person against any suit, prosecution or legal proceeding for anything done or intended to be done in good faith under the Act, the rules or the regulations, and is not confined to proceedings under the Act.

2. Does section 54 make the Lokpal's decisions unchallengeable? No. It bars only the jurisdiction of civil courts over matters the Lokpal is empowered to determine. It cannot bar the High Court under article 226 or the Supreme Court under article 32, because judicial review under those articles is part of the basic structure and an ordinary statute cannot take it away. The litigation over the appointment of the Lokpal proceeded on that footing.

3. State the limitation in section 53 and give the argument against it. No inquiry or investigation into a complaint made more than seven years after the date on which the offence is alleged to have been committed, with no power to condone delay. The argument against it is that corruption is concealed by design and is often discovered only when the concealment fails, which may take longer than seven years, so an absolute bar protects the successful concealer; and that the section fixes the period from the date the offence is alleged to have been committed, which for a continuing course of conduct is itself uncertain.

4. What does section 55 provide and why is it unusual? It requires the Lokpal to provide legal assistance to every person against whom a complaint has been made before it, to defend his case before the Lokpal, if he requests it. It is unusual because the investigating body funds the defence of the person it is investigating, and because there is no means test: the Commissions of Inquiry Act allows representation at the person's own cost, and legal aid under the Legal Services Authorities Act 1987 is means tested, whereas section 55 attaches only the condition of a request.

5. Why does section 52 deem the Lokpal's people to be public servants? So that the criminal law applies to them in both directions. They receive the protection the Penal Code gives a public servant in the discharge of his duty, and they are subject to the offences the Penal Code and the Prevention of Corruption Act create for public servants, so a Member who takes a bribe commits the same offence as the officer he was inquiring into. It is read with section 38, which is the machinery for complaints against the Lokpal's officers and associated agencies.

Section 58 and the Schedule

The enactments specified in the Schedule shall be amended in the manner specified therein.

The Schedule amends four statutes, and each amendment tells you something about the design of the anti-corruption architecture.

The Commission of Inquiry Act 1952 is amended, which is why chapter 380 finds that Act on the amending list.

The Delhi Special Police Establishment Act 1946 is amended, most importantly by reconstituting the committee that recommends the Director of the Central Bureau of Investigation. Chapter 800 reads the result, and the decision of January 2019 relied on precisely this: the status of that committee had been raised by the Lokpal Act, which showed Parliament's intent to insulate the office.

The Central Vigilance Commission Act 2003 is amended by inserting sections 8A, 8B and 11A, which is where those three lettered sections come from. Chapter 640 reads them.

The Prevention of Corruption Act 1988 is amended, including by raising the punishment in its section 15.

The point to take from section 58 into an answer. The Lokpal Act did not create a new institution beside the old ones and leave them alone. It reached into the CVC Act, the DSPE Act and the Prevention of Corruption Act and rewired them. That is why the eight labels of this syllabus cannot be studied in isolation, and it is the single best piece of evidence for saying so.

Sections 59 and 60: rules and regulations

Section 59. The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of the Act; and in particular for the form of complaint under section 2(1)(e), the term, fees and allowances of the Search Committee and the manner of selecting the panel under section 4(5), the posts to be filled after consultation with the Union Public Service Commission under the proviso to section 10(3), and other enumerated matters.

Section 60. Subject to the Act and the rules, the Lokpal may, by notification in the Official Gazette, make regulations to carry out the provisions of the Act; and in particular for the conditions of service of the Secretary, officers and staff, the salary parts of which require the approval of the Central Government.

The distinction between a rule and a regulation is one students meet constantly and rarely have explained. Rules are made by the Government under a power the Act confers on it. Regulations are made by the statutory body itself for its own working. Both are delegated legislation; both are subordinate to the Act; and here the regulations are additionally subordinate to the rules, because section 60 opens with "subject to the provisions of this Act and the rules made thereunder".

Which is why the split matters. The Central Government's rules can constrain the Lokpal's regulations. Put that beside section 10's panels and section 40's budget "for information", and the picture of a body independent in its decisions and dependent in its housekeeping is complete.

Section 61: the laying requirement

Every rule and regulation shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions. If, before the expiry of the session immediately following, both Houses agree in making any modification, or both Houses agree that the rule or regulation should not be made, it shall thereafter have effect only in the modified form or be of no effect, without prejudice to the validity of anything previously done under it.

This is Module III inside Module I, and it is worth pausing on. Chapter 1230 sets out the three forms of the laying procedure, and this is the commonest: laying subject to negative resolution in its Indian form, thirty days, modification or annulment by agreement of both Houses, and past acts saved.

Two features to notice for the later chapter. The period is a total of thirty days and may be spread across sessions, so a Government cannot defeat scrutiny by laying a rule at the end of a session. And both Houses must agree, so either House can prevent an annulment by inaction, which is why annulments are almost unknown in practice. Chapter 1240 asks whether laying is mandatory or directory, and the answer there turns on precisely how a section like this is worded.

Section 62: removing difficulties

Section 62(1). If any difficulty arises in giving effect to the Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the Act as appear necessary for removing the difficulty. The proviso forbids such an order after the expiry of two years from the commencement of the Act.

Section 62(2). Every such order shall be laid before each House as soon as may be after it is made.

What a removal of difficulties clause is, and why it is watched. A new statute meets situations its drafter did not foresee, and a power to make bridging provision saves a return to Parliament for every gap. Such clauses are sometimes called Henry VIII clauses when they allow the executive to modify the parent Act itself.

This one is carefully limited, and the limits are the answer to the objection. The order must be not inconsistent with the Act, so it may fill gaps and not rewrite. It must be published. It must be laid before each House. And it expires: no order after two years from 16 January 2014, that is after 16 January 2016. The power is therefore spent, which is a fact worth knowing when a question asks what tools remain for making the Act work.

A worked example

A rule is made under section 59 prescribing the form in which a public servant declares his assets under section 44.

Section 59. The Central Government makes it by notification in the Official Gazette.

Section 61. It is laid before each House for a total of thirty days, which may run across two sessions.

Suppose the Lok Sabha resolves to modify it and the Rajya Sabha does not. Nothing happens: section 61 requires that both Houses agree.

Suppose both agree that it should not be made. It is of no effect from then on, but anything previously done under it stands.

Now suppose the Lokpal makes a regulation under section 60 on the conditions of service of its staff. The salary provisions need the approval of the Central Government, and the regulation is subordinate to any rule the Government has made under section 59 on the same subject.

And suppose in 2015 a difficulty arose because the Act referred to a body that had been renamed. Section 62 allowed a removal of difficulties order, not inconsistent with the Act, laid before both Houses. The same difficulty arising in 2026 could not be met that way, because the power expired on 16 January 2016.

What beginners get wrong

That sections 56 and 57 contradict each other. Section 56 governs inconsistency; section 57 governs everything else.

That the Lokpal makes the rules. The Central Government makes rules under section 59; the Lokpal makes regulations under section 60, subject to the Act and to those rules.

That laying means Parliament must approve. Under section 61 the rule takes effect when made; Parliament may modify or annul it, and only if both Houses agree.

That the power to remove difficulties is still available. It expired two years after commencement, on 16 January 2016.

Quick revision

s.56 overriding effect where inconsistent. s.57 in addition to and not in derogation of other law. Read together: s.57 saves, s.56 resolves collisions.

s.58 and the Schedule amend the Commission of Inquiry Act 1952, the Delhi Special Police Establishment Act 1946, the Central Vigilance Commission Act 2003 and the Prevention of Corruption Act 1988.

s.59 rules by the Central Government. s.60 regulations by the Lokpal, subject to the Act and the rules, salary provisions needing Government approval.

s.61 laying before each House for a total of thirty days, modification or annulment only if both Houses agree, past acts saved.

s.62 removal of difficulties, not inconsistent with the Act, laid before each House, expired two years after commencement, on 16 January 2016.

Test yourself

1. Reconcile sections 56 and 57. Section 56 is a non obstante clause and operates only where a provision of this Act is inconsistent with another enactment or an instrument made under one, in which case this Act prevails. Section 57 is a saving clause and operates where there is no inconsistency, preserving other laws and remedies so that the Act supplements rather than replaces them. They are complementary: section 57 keeps the rest of the legal order intact and section 56 decides which provision wins where two cannot both be obeyed.

2. Which enactments does the Schedule amend, and why does that matter? The Commission of Inquiry Act 1952, the Delhi Special Police Establishment Act 1946, the Central Vigilance Commission Act 2003 and the Prevention of Corruption Act 1988. It matters because it shows that the Lokpal Act did not simply add an institution beside the existing ones but rewired them: it reconstituted the committee that recommends the Director of the Central Bureau of Investigation and inserted sections 8A, 8B and 11A into the CVC Act, which is why the institutions in this syllabus have to be studied together.

3. Distinguish rules from regulations under this Act. Rules are made by the Central Government under section 59 by notification in the Official Gazette to carry out the provisions of the Act. Regulations are made by the Lokpal itself under section 60 for its own working, and are expressly subject to the Act and to the rules, with the salary and allowance provisions requiring the approval of the Central Government. Both are delegated legislation and both must be laid under section 61.

4. Set out the laying procedure in section 61 and identify the two features that weaken it. Every rule and regulation is laid before each House as soon as may be after it is made, while the House is in session, for a total of thirty days which may be spread over one or more sessions; if before the expiry of the session immediately following both Houses agree on a modification, or agree that it should not be made, it has effect only as modified or ceases to have effect, without prejudice to anything previously done. It is weak because the rule operates from the moment it is made rather than waiting for approval, and because both Houses must agree, so inaction by either House defeats an annulment.

5. What is a removal of difficulties clause, and what limits does section 62 place on this one? It is a power for the executive to make bridging provision where a difficulty arises in giving effect to a new Act, so that a return to Parliament is not needed for every unforeseen gap. Section 62 limits it four ways: the order must not be inconsistent with the Act, so it may fill gaps and not rewrite; it must be published in the Official Gazette; it must be laid before each House; and no order may be made after two years from commencement, so the power expired on 16 January 2016.

The obvious objection. What happens if a State does not comply? The section provides no consequence, no default provision, no power in the Centre to establish a Lokayukta for a defaulting State, and no sanction. It is a statutory obligation without a remedy attached, and the honest answer to an examination question about it says so.

What the States actually did

Many States already had Lokayuktas, some for four decades. Odisha legislated in 1970, Maharashtra in 1971, Rajasthan in 1973, Bihar in 1974, Uttar Pradesh in 1975, Madhya Pradesh in 1981, Andhra Pradesh in 1983, Himachal Pradesh in 1983, Karnataka in 1984, Assam in 1985, Gujarat in 1986, Delhi in 1995, Punjab in 1996, Kerala in 1999, Haryana in 2002 and others since.

Several legislated after 2013, and the new Acts are visibly modelled on the Lokpal Act rather than on the older Lokayukta pattern: multi-member bodies with judicial members, selection committees, inquiry and prosecution wings, and powers of attachment. The Maharashtra Lokayukta Act 2023 is exactly such a statute and chapter 270 reads it.

And the resulting position is uneven, which is chapter 240's subject. The name is uniform because section 63 fixed it; almost nothing else is.

Why section 63 matters more than its length suggests

It is the only place where the two-tier design of 1966 becomes law. Chapter 70 recorded the First Administrative Reforms Commission's proposal for a Lokpal at the Centre and a Lokayukta in every State. The Centre took forty-seven years to build the upper tier, and section 63 is the moment it required the lower tier to exist everywhere.

It is the recital in the preambles of the new State Acts. The Maharashtra Act of 2023 opens by reciting that section 63 of the Lokpal and Lokayuktas Act provides that every State shall establish a Lokayukta, and that it is necessary to enact a new law on the lines of that Act. So the section is doing work: States that legislate now say in their own preambles that they are doing it because Parliament told them to.

And it fixes the subject matter of the State institution as corruption. A State that wanted a grievance ombudsman is not prevented from having one, because section 57 preserves other laws, but what section 63 obliges it to establish is a corruption body.

A worked example

Take two States on 16 January 2015, the day the year expired.

State A has had a Lokayukta since 1975 under its own Act, dealing with allegations of corruption and with grievances. Section 63's opening words, "if not so established, constituted or appointed", mean the obligation does not bite. Its existing body satisfies the section.

State B has no Lokayukta. It is in breach of a statutory obligation. Nothing in the Act says what follows. A citizen might petition the High Court under article 226 for a direction to the State to legislate, and the Court would meet the objection that it cannot compel a legislature to make a law. Chapter 230 shows the Supreme Court declining to interfere with a pending legislative exercise for precisely that reason.

Now move forward to 2025 and take Maharashtra. It had a Lokayukta from 1971 and so was never in breach. It nonetheless enacted a new Act in 2023, published in 2025, whose preamble recites section 63 and says the object is to enact a law on the lines of the Lokpal and Lokayuktas Act 2013 and to enlarge the scope of the 1971 Act and entrust more powers to the Lokayukta. So section 63 operated on a State that did not need it, as a model rather than as a command.

What beginners get wrong

That section 63 created the Lokayuktas. It did not. It obliges the States to create them by their own law, and most States already had one.

That the Act applies to State public servants. It does not, except through section 14(3)'s proviso for a person serving in connection with the affairs of a State, which needs the State Government's consent.

That a State may satisfy section 63 by executive order. The section requires a law made by the State Legislature.

That there is a sanction for non-compliance. There is none in the Act.

Quick revision

s.63, the whole of Part III: every State shall establish a body called the Lokayukta for the State, if not already established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within one year of commencement, that is by 15 January 2015.

Why not direct legislation: public order, police and State services are State subjects under the Seventh Schedule, so Parliament obliged the States to legislate rather than legislating for them.

No consequence is provided for a State that does not comply.

Effect in practice: the section is recited in the preambles of the new State Acts, including the Maharashtra Lokayukta Act 2023, which says its object is to enact a law on the lines of the Lokpal Act and to enlarge the scope of the Act of 1971.

Test yourself

1. State section 63 and identify each of its requirements. Every State shall establish a body to be known as the Lokayukta for the State, if not already 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 one year of the commencement of the Act. The requirements are therefore: a body, bearing the name Lokayukta, created by State legislation rather than executive order, with a jurisdiction over corruption, established by 15 January 2015 unless one already existed.

2. Why did Parliament oblige the States to legislate instead of legislating for them? Because public order and police are entries 1 and 2 of the State List and the State services are entry 41, so the machinery for investigating a State's own Ministers and officers is substantially a State subject. Parliament could create the central institution under the Union List and could legislate on criminal law under the Concurrent List, but establishing a State's anti-corruption body was not open to it, so it imposed an obligation to legislate.

3. What happens if a State does not comply? Nothing is provided by the Act. Section 63 contains no default provision, no power in the Centre to establish a Lokayukta for a defaulting State and no sanction. It is a statutory obligation without a remedy attached, and a petition to compel a State legislature to enact a law meets the objection that a court will not direct a legislature to legislate.

4. Did section 63 apply to Maharashtra? Not as a command, because Maharashtra had had a Lokayukta under the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 since before the Lokpal Act commenced, and the words "if not so established, constituted or appointed" exempt such a State. It nonetheless operated as a model: the preamble of the Maharashtra Lokayukta Act 2023 recites section 63 and states that the object is to enact a new law on the lines of the Lokpal and Lokayuktas Act 2013, to enlarge the scope of the 1971 Act and to entrust more powers to the Lokayukta.

Held on the amendment. The Court declined to interfere. The introduction of a Bill, its consideration by the Standing Committee, the report and the further steps and their timing are essential legislative functions which should not ordinarily be subjected to interference by the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdictions of the Executive, the Legislature and the Judiciary meant that the amendment exercise then under way must be allowed to be completed without intervention. Any other view would negate the basic constitutional principle that the Legislature is supreme in the sphere of law making, and reading down a statute to make it workable while an amendment of the law is pending would not be justified either.

Held on the Act as it stands. That was not the end of the matter. The further question was whether the Act as it exists, without the proposed amendment, is so unworkable that the Court should refuse enforcement notwithstanding that it had been brought into force by notification of 16 January 2014 under section 1(4). If the Act is otherwise workable and the amendment is aimed only at more efficient working of some of its provisions, the wholesome principle that a law duly enacted and enforced must be given effect to will have to prevail, and appropriate directions must be issued. The Court concluded, quoting Krishna Iyer J in the Special Courts Bill reference, by holding that the Act as it stands today is an eminently workable piece of legislation and that there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out.

Why it matters. It settles that the absence of a Leader of the Opposition does not disable the Selection Committee, because section 4(2) provides that a vacancy does not invalidate an appointment; and it states the more general principle that a Government may not decline to work an Act it has itself brought into force on the ground that it would prefer to amend it. It is also a careful statement of the limits of judicial intervention in the legislative process, and can be cited for both propositions.

What happened afterwards

The Amendment Act came in 2016, but it did not touch section 4. Act 37 of 2016 substituted section 44, the declaration of assets, and amended section 2(1)(k), and chapter 190 reads that. The section 4 amendments the Court was told were pending were not carried.

The Selection Committee met and constituted a Search Committee. Justice Pinaki Chandra Ghose was appointed the first Chairperson of the Lokpal and was sworn in on 23 March 2019, with eight Members appointed at the same time, four judicial and four non-judicial.

Five years and two months separate the commencement of the Act from the swearing in of the institution it created.

What the episode shows, and how to use it in an answer

On the Act. Section 4(2) was drafted for exactly this situation and was ignored for three years. A statute can contain its own answer to an objection and still be stalled by the objection, because a provision only works when somebody acts on it.

On the institution. The delay is the strongest single piece of evidence for the argument in chapter 320: an ombudsman depends on the goodwill of the executive it exists to check, and the appointment stage is where that dependence is sharpest. Compare the Central Vigilance Commission, which existed from 1964 and was working within a year of the Santhanam Committee's report, and the difference is that nobody in Government was reluctant to have it.

On judicial review. The Court's two holdings sit in tension and it is worth saying so. It would not direct Parliament on the amendment, and it did direct that the existing Act be worked. The line it drew is between the making of a law, which is the legislature's, and the enforcement of a law already made, which is the executive's duty and reviewable. That distinction is worth carrying into any question about the separation of powers.

On section 63. The Centre took five years over its own Lokpal. It is difficult for a Union that missed its own appointment by five years to press States that missed the section 63 deadline of 15 January 2015, and the practical uniformity of State compliance has been correspondingly patchy. Chapter 240 sets out where the States stand.

A worked example

A student is asked in an examination: "The Lokpal and Lokayuktas Act 2013 is a dead letter. Discuss."

Do not simply agree. Set out the sequence.

Step one, the facts. In force 16 January 2014. First Lokpal sworn in 23 March 2019. Five years and two months.

Step two, the reason offered. No recognised Leader of the Opposition in the Sixteenth Lok Sabha, and a pending amendment Bill.

Step three, the answer in the Act itself. Section 4(2): no appointment invalid merely by reason of any vacancy in the Selection Committee.

Step four, the authority. Common Cause v. Union of India (2017), (2017) 7 SCC 158: the Act as it stands is an eminently workable piece of legislation and there is no justification for keeping its enforcement under suspension pending amendment; but the Court will not interfere with the legislative process of amendment itself.

Step five, the assessment. The delay is evidence of institutional reluctance and not of a defect in the statute, because the statute anticipated the difficulty. The genuine structural criticisms lie elsewhere: no investigating force of its own, no jurisdiction over grievances, section 46 without a whistleblower statute beside it, and a body dependent on Government panels for its staff. Chapters 130, 330 and 200 supply those.

Quick revision

In force: 16 January 2014, by S.O. 119(E). First Lokpal sworn in: 23 March 2019, Justice Pinaki Chandra Ghose, with eight Members.

The obstacle asserted: no recognised Leader of the Opposition in the Sixteenth Lok Sabha, so section 4(1)(c) could not be satisfied; and a pending amendment Bill substituting the leader of the single largest opposition party.

The answer in the Act: section 4(2), a vacancy in the Selection Committee does not invalidate an appointment.

Common Cause v. Union of India (2017), (2017) 7 SCC 158: the Court would not interfere with the pending amendment, the making of a law being an essential legislative function; but the Act as it stands is an eminently workable piece of legislation and there is no justification to keep its enforcement under suspension pending amendment.

The section 4 amendments were never carried. Act 37 of 2016 substituted section 44 instead.

Test yourself

1. Why was no Lokpal appointed between 2014 and 2019? The Government's position was that the Selection Committee under section 4(1) could not be completed because the Sixteenth Lok Sabha had no recognised Leader of the Opposition, no opposition party having reached the one tenth of the total strength by which recognition is given, and that a Bill to amend section 4 so as to substitute the leader of the single largest opposition party was pending before Parliament.

2. State the two holdings in Common Cause v. Union of India (2017), (2017) 7 SCC 158. First, that the Court would not interfere with the pending exercise of amending the Act, because the introduction of a Bill, its consideration and the steps and timing thereafter are essential legislative functions and the doctrine of separation of powers requires that the legislature be supreme in the sphere of law making, so that reading the statute down while an amendment was pending would not be justified. Second, that the Act as it stands is an eminently workable piece of legislation and that there is no justification for keeping its enforcement under suspension until the proposed amendments are carried out, because a law duly enacted and brought into force must be given effect to.

3. Which provision of the Act answered the objection, and how? Section 4(2), which provides that no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. The absence of a Leader of the Opposition is a vacancy in the Committee, so the Committee could constitute the Search Committee, nominate the eminent jurist and recommend appointments notwithstanding it.

4. What line does the case draw on judicial intervention? Between the making of a law and the enforcement of one already made. The Court will not direct a legislature on whether or when to amend a statute, because that is an essential legislative function. It will require that a statute already enacted and brought into force be given effect to, because that is the executive's duty and is reviewable.

5. Is the delay evidence that the Act is defective? Answer with reasons. No. The Act anticipated the very difficulty asserted, in section 4(2), and the Supreme Court so held. The delay is evidence of institutional reluctance to work the Act rather than of a defect in its drafting. The genuine structural criticisms are elsewhere: the absence of an investigating force of its own, the exclusion of grievances, the coupling of closure with prosecution of the complainant under sections 20(3)(c) and 46 without a whistleblower statute in force, and dependence on Central Government panels for the Lokpal's own staff under section 10.

An investigating wing. Karnataka's Lokayukta famously had a police wing and used it, which is why its Lokayukta was for a period the most visible in the country. Most States gave theirs no investigators at all, which reduces the office to correspondence.

What follows a report. In most of the older Acts the report goes to the competent authority, which must inform the Lokayukta of the action taken; the Lokayukta may then make a special report to the Governor, which is laid before the House. That is the classical publicity sanction and nothing more. The newer Acts add prosecution and attachment powers taken from the Lokpal Act.

Appointment. The older pattern is appointment by the Governor after consultation with the Chief Justice of the High Court and the Leader of the Opposition. The newer pattern is a selection committee on the Lokpal model. The difference matters, because consultation and selection are not the same thing: consultation can be formal, and chapter 320 records a decision holding that a formal consultation is no consultation at all.

The case on appointment

Facts. Justice Chandrashekaraiah v. Janekere C. Krishna, (2013) 3 SCC 117, decided on 11 January 2013 by K.S. Radhakrishnan and Madan B. Lokur JJ, concerned the appointment of an Upa-Lokayukta in Karnataka. The Karnataka Lokayukta Act 1984 required the appointment to be made by the Governor after consultation with the Chief Justice of the High Court, the Chairman of each House, the Leader of the Opposition in each House and the Chief Minister. The appointment was challenged on the ground that the consultation had not been genuine, the consultees not having been given the material on which to form a view.

Held. The appointment was set aside. Consultation under a Lokayukta Act must be effective and meaningful, made on full and identical material placed before every consultee, so that each has a real opportunity to apply his mind. A formal reference which does not supply the material or the opportunity is not consultation at all. The office being one whose whole value depends on public confidence, the selection process must be, and be seen to be, independent of the executive it is to scrutinise.

Why it matters. It is the leading case on the appointment of a State ombudsman, and it is the natural companion to the decision on the appointment of the Central Vigilance Commissioner in chapter 610. Both say the same thing under different statutes: the composition of the appointing body is the safeguard, and the courts will enforce the safeguard rather than accept a formality.

A second case: a State Lokayukta at work

Facts. Ripusudan Dayal v. State of Madhya Pradesh, (2014) 4 SCC 473, decided on 25 February 2014 by P. Sathasivam CJ, Ranjan Gogoi and Shiva Kirti Singh JJ, arose from a complaint to the Madhya Pradesh Lokayukt that a road connecting the Vidhan Sabha with Vallabh Bhawan, costing about two crore rupees, had been constructed without inviting tenders and without complying with the prescribed procedure; that officers had misused their official position to get the work regularised by the Capital Project Administration in violation of the rules, amounting to serious financial irregularity and misuse of office; and that a hundred trees had been felled without permission. The officers challenged the Lokayukt's jurisdiction to inquire.

Held. The Court examined the scheme of the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam 1981 and upheld the Lokayukt's jurisdiction to inquire into the allegations against the public servants concerned, the complaint disclosing allegations of the kind the State Act commits to the Lokayukt.

Why it matters. It is a worked example of a State Lokayukta actually functioning, on facts a student can picture: a road, a tender that was not called, and trees. Most writing on the subject is about the Lokpal and about institutions on paper; this is the institution at work.

The uneven picture, stated honestly

The name is uniform, because section 63 fixed it. Beyond the name, a citizen's ombudsman in one State may have a police wing, jurisdiction over the Chief Minister and a power to prosecute, and in the next State may be a retired judge with a small office who writes letters.

Vacancies are the commonest failure. An office lying vacant for a year does not have to be defended by anyone, and chapter 230 showed the same technique at the Centre.

And the Union is poorly placed to press the States. It missed its own appointment by five years and two months. Section 63 has no sanction, as chapter 220 explained.

What would fix it. Three things are usually proposed and all three are defensible in an answer: a model State law annexed to the central Act; a fixed selection committee composition prescribed centrally; and a statutory investigating wing so that the office does not depend on the State police it is investigating.

A worked example

A citizen of Maharashtra and a citizen of a neighbouring State each complain that a Public Works Department officer awarded a contract without tender.

In Maharashtra the complaint may be an allegation, that the officer abused his position, or a grievance, that the complainant suffered injustice or undue hardship. Both are within the 1971 Act, and chapter 260 reads the provisions.

In a State whose Act follows the Lokpal model, only the allegation is within jurisdiction. A grievance about how the citizen was treated has no forum.

If the officer is a Minister, the answer depends on the State Act. Where the Chief Minister is excluded, an allegation against him goes nowhere.

If nobody complains but the Lokayukta reads about it, the answer depends on whether the Act confers a suo motu power.

And if the Lokayukta reports against the officer, the answer depends on whether the Act stops at a report to the competent authority and a special report to the Governor, or gives a power to sanction prosecution.

Five questions, five different answers depending on which side of a State boundary the citizen lives. That is the honest description of the Indian ombudsman system at State level, and it is what an examiner wants to see recognised.

Quick revision

Origin: the two-tier design of the First Administrative Reforms Commission, 1966. The lower tier was built first: Odisha 1970, Maharashtra 1971, then most other States over three decades.

Section 63 of the Lokpal Act requires every State to establish a Lokayukta by State law within one year of 16 January 2014, and provides no sanction.

The axes of difference: the Chief Minister in or out; grievances as well as allegations; suo motu power; an investigating wing; what follows the report; and consultation against a selection committee.

Justice Chandrashekaraiah v. Janekere C. Krishna, (2013) 3 SCC 117: consultation must be effective and meaningful, on full and identical material; a formal reference is not consultation.

Ripusudan Dayal v. State of Madhya Pradesh, (2014) 4 SCC 473: jurisdiction of the Madhya Pradesh Lokayukt upheld over allegations of a road built without tender and trees felled without permission.

Test yourself

1. Did India have an ombudsman before 2013? At the Centre, no: eight Lokpal Bills failed between 1968 and 2001 and the Lokpal and Lokayuktas Act was passed only in 2013. In the States, yes: Odisha legislated in 1970 and Maharashtra in 1971, and most States had a Lokayukta by the end of the 1990s. The two-tier design of 1966 was therefore built from the bottom up, with the lower tier operating for four decades while the upper tier did not exist.

2. Name five respects in which State Lokayukta Acts differ. Whether the Chief Minister is within jurisdiction; whether grievances of maladministration are covered as well as allegations of corruption; whether there is a power to act on the Lokayukta's own motion; whether the institution has an investigating wing of its own; and what follows a report, whether only a report to the competent authority and a special report to the Governor or a power to sanction prosecution and attach property.

3. What did Justice Chandrashekaraiah v. Janekere C. Krishna decide? That consultation required by a Lokayukta Act before appointment must be effective and meaningful, made on full and identical material placed before every consultee so that each may apply his mind, and that a formal reference which does not supply the material or the opportunity is not consultation at all. The appointment of the Upa-Lokayukta in that case was set aside. The reasoning is that the office depends on public confidence, so the selection process must be and be seen to be independent of the executive it scrutinises.

4. Why is section 63 an incomplete solution to the unevenness? Because it fixes only the name, the requirement of State legislation and the subject matter of corruption, and prescribes nothing about jurisdiction, powers, appointment or machinery; and because it provides no consequence for non-compliance. A State may satisfy it with an Act that creates an office with no investigators, no suo motu power and no jurisdiction over the Chief Minister.

"Allegation", in relation to a public servant, means any affirmation that he has abused his position to obtain gain or favour for himself or another or to cause undue harm or hardship to another; or was actuated by personal interest or improper or corrupt motives in discharging his functions; or is guilty of corruption or lack of integrity in his capacity as such.

"Grievance" is the companion, and the Act's coverage of both is what distinguishes it from the Lokpal Act. Chapter 260 reads the sections that use it.

"Competent authority", in relation to a public servant, means the Chief Minister in the case of a Minister or Secretary, and such authority as may be prescribed in the case of any other public servant. So the person who must act on a report about a Minister is the Chief Minister.

Section 3: appointment

Section 3(1). For the purpose of conducting investigations under the Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-Lokayukta or Upa-Lokayuktas.

Proviso (a). The Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly; or, if there is no such Leader, a person elected in that behalf by the members of the Opposition in that House in such manner as the Speaker may direct.

Notice what proviso (a) does that the Lokpal Act did not. It anticipates the absence of a Leader of the Opposition and provides a substitute. Chapter 230 recorded five years lost at the Centre on exactly that difficulty; a State statute of 1971 had already solved it.

Proviso (b). The Upa-Lokayuktas shall be appointed after consultation with the Lokayukta.

Section 3(2). Every appointee shall, before entering upon office, make and subscribe an oath or affirmation before the Governor in the form set out in the First Schedule.

Consultation, not selection. The 1971 pattern is consultation by the Governor with two named persons. The Lokpal pattern is a Selection Committee that recommends. Chapter 240 explained why the difference matters and cited the decision holding that a consultation which supplies no material is no consultation.

Section 4: no other office

The Lokayukta or an Upa-Lokayukta shall not be a Member of Parliament or of the Legislature of any State, and shall not hold any office of trust or profit other than his own, be connected with any political party, carry on any business or practise any profession. Before entering office he must accordingly resign such membership, resign such office, sever his connection with a political party, sever his connection with the conduct and management of a business short of divesting himself of ownership, or suspend practice of his profession.

Two details worth noticing, because they show careful drafting. A person carrying on a business need not sell it; he must sever his connection with its conduct and management. And a professional need not give up his qualification; he suspends practice. Compare section 3(4) of the Lokpal Act, which requires a person practising a profession to cease to practise, which is stricter.

Section 5: term, and who acts in a vacancy

Section 5(1). A term of five years from the date of entering office.

The proviso allows resignation by writing addressed to the Governor, and removal under section 6.

Section 5(2). If the office becomes vacant, or the holder is unable to perform his duties by reason of absence or any other reason, those duties are performed by the person the sub-section designates until a new appointment is made or the holder resumes.

Compare the Lokpal Act. Section 6 there fixes five years or age seventy, whichever is earlier. The 1971 Act fixes five years without an age cap in that sub-section.

Section 6: removal

Section 6(1). Subject to the provisions of article 311 of the Constitution, the Lokayukta or an Upa-Lokayukta may be removed from office by the Governor on the ground of misbehaviour or incapacity, and on no other ground.

The proviso requires that the inquiry which article 311(2) demands before removal shall be held:

1. in respect of the Lokayukta, only by a person appointed by the Governor who is or has been a Judge of the Supreme Court or a Chief Justice of a High Court;
2. in respect of an Upa-Lokayukta, by a person appointed by the Governor who is or has been a Judge of the Supreme Court or is or has been a Judge of a High Court.

Section 6(2). The person so appointed submits his report to the Governor, who shall as soon as may be cause it to be laid before each House of the State Legislature.

Section 6(3) places a further restriction on the Governor's power to remove.

Why article 311 appears in an ombudsman statute. Article 311 protects a person in the civil service of a State against dismissal, removal or reduction in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. By making the Lokayukta's removal subject to article 311 and requiring the inquiry to be held by a judge, the Act gives the office a protection built out of service law rather than out of the constitutional-office model.

Compare the three patterns in this book. The Lokpal is removed by the President after the Supreme Court reports on a reference made on a petition of a hundred Members of Parliament. The Central Vigilance Commissioner is removed by the President after a reference to the Supreme Court. The Maharashtra Lokayukta is removed by the Governor after an inquiry by a judge appointed by the Governor, with the report laid before the House. The third is the weakest of the three, because the inquiring judge is chosen by the very authority that will decide, and a good answer says so.

A worked example

The Governor proposes to appoint a Lokayukta in a year when the Legislative Assembly has no Leader of the Opposition.

Section 3(1) proviso (a). The consultation is with the Chief Justice of the High Court and, in place of the Leader of the Opposition, with a person elected by the members of the Opposition in the Assembly in such manner as the Speaker directs. The appointment can proceed.

Section 3(2). The appointee takes the oath in the First Schedule before the Governor.

Section 4. He is a practising senior advocate. He suspends practice; he need not surrender his enrolment. He also holds shares in a family firm; he severs his connection with its conduct and management but need not sell his shares.

Section 5(1). He holds office for five years.

Three years in, a complaint is made against him personally. Section 6(1): he may be removed by the Governor only for misbehaviour or incapacity and on no other ground, subject to article 311, and the inquiry must be held by a person who is or has been a Judge of the Supreme Court or a Chief Justice of a High Court. Section 6(2): the report goes to the Governor and must be laid before each House.

And notice the asymmetry with the Lokpal. At the Centre the Supreme Court itself inquires, on a reference the President makes only after a hundred Members of Parliament have signed a petition. In Maharashtra the Governor appoints the inquiring judge and the Governor decides.

Distinctions: the 1971 Act against the Lokpal Act

What beginners get wrong

That the Governor appoints at his discretion. He appoints after consultation with two named persons, and the consultation must be real.

That there is no answer to a missing Leader of the Opposition. Proviso (a) to section 3(1) supplies one.

That the Lokayukta must give up his profession permanently. Section 4(e) requires him to suspend practice.

That removal is by the House. It is by the Governor, after an inquiry by a judge, with the report laid before each House. The House is informed, not the deciding body.

Quick revision

Act: Maharashtra Lokayukta and Upa-Lokayuktas Act 1971, Mah. XLVI of 1971.

s.2: action includes a failure to act; allegation covers abuse of position, personal interest or improper or corrupt motives, and corruption or lack of integrity; competent authority for a Minister or Secretary is the Chief Minister.

s.3: appointment by the Governor by warrant; Lokayukta after consultation with the Chief Justice of the High Court and the Leader of the Opposition, or, if none, a person elected by the Opposition members as the Speaker directs; Upa-Lokayuktas after consultation with the Lokayukta; oath in the First Schedule.

s.4: no other office, no political party, no business management, profession suspended.

s.5: five years; resignation to the Governor; removal under section 6.

s.6: removal by the Governor for misbehaviour or incapacity and on no other ground, subject to article 311, after inquiry by a serving or former Judge of the Supreme Court or Chief Justice of a High Court for the Lokayukta; report laid before each House.

Test yourself

1. How is the Maharashtra Lokayukta appointed? By the Governor, by warrant under his hand and seal, after consultation with the Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly, or, where there is no such Leader, with a person elected in that behalf by the members of the Opposition in that House in such manner as the Speaker may direct. Upa-Lokayuktas are appointed by the Governor after consultation with the Lokayukta, and each appointee takes an oath before the Governor in the form in the First Schedule.

2. What does the 1971 Act do about a missing Leader of the Opposition, and why is that notable? Proviso (a) to section 3(1) provides that where there is no such Leader, the consultation is with a person elected in that behalf by the members of the Opposition in the Assembly as the Speaker directs. It is notable because the absence of a recognised Leader of the Opposition was the reason given at the Centre for appointing no Lokpal for five years after the Act of 2013 came into force, a difficulty a State statute of 1971 had already anticipated and solved.

3. State the removal procedure and compare it with the Lokpal's. The Governor may remove the Lokayukta or an Upa-Lokayukta on the ground of misbehaviour or incapacity and on no other ground, subject to article 311, and the inquiry article 311(2) requires must be held by a person appointed by the Governor who is or has been a Judge of the Supreme Court or a Chief Justice of a High Court; the report goes to the Governor and is laid before each House. The Lokpal's Chairperson or Member is removed by the President only after the Supreme Court itself has inquired and reported, on a reference the President makes on a petition signed by at least a hundred Members of Parliament. The Maharashtra route is weaker because the inquiring judge is chosen by the authority that will decide.

4. What restrictions does section 4 place, and how do they differ from the Lokpal Act's? The Lokayukta may not be a member of Parliament or of any State legislature, hold any office of trust or profit, be connected with a political party, carry on business or practise a profession; before entering office he must resign the membership or office, sever his political connection, sever his connection with the conduct and management of a business short of divesting ownership, and suspend practice of his profession. The Lokpal Act is stricter on the last point: section 3(4) requires a person practising a profession to cease to practise.

The remedy exclusion is the classical ombudsman rule, and chapter 40 met it in the British Act of 1967: an ombudsman is not a substitute for a court, so where the citizen has a legal remedy he is generally sent to it. The qualification, in the British Act and in the Indian ones, is that the ombudsman may still act where it is not reasonable to expect him to use it.

Section 9: who may complain

Section 9(1)(a), a grievance: by the person aggrieved. A grievance is a personal complaint of injustice or undue hardship, so only the person who suffered it may bring it.

Section 9(1)(b), an allegation: by any person other than a public servant. An allegation is about the integrity of the administration and anybody has an interest in it.

The proviso: where the person aggrieved is dead or unable for any reason to act for himself, the complaint may be made by his legal representative or by a person he authorises.

Section 9(2) requires the complaint to be in the prescribed form and accompanied by the prescribed affidavits.

Why "any person other than a public servant" for an allegation. It prevents the Act being used as a weapon inside the service, where one officer settles scores with another through the Lokayukta. Whether that exclusion is wise is arguable, since public servants are the people most likely to know of corruption, and it is a fair point to make in an answer.

Section 10: the procedure

Section 10(1). Where the Lokayukta or an Upa-Lokayukta proposes, after such preliminary inquiry as he deems fit, to conduct an investigation, he:

1. (a) shall forward a copy of the complaint, or, where he acts on his own motion, a statement of the grounds, to the public servant concerned and the competent authority;
2. (b) shall afford the public servant an opportunity to offer his comments on the complaint or statement.

Section 10(2) provides for the conduct of the investigation, in private, with a proviso governing disclosure.

Two features are the classical model exactly. The public servant is told and heard before the investigation, not after; and the investigation is conducted in private, so that a person against whom nothing is found is not damaged by the process. Chapter 30 identified both as features of the Danish office of 1955.

Section 11: evidence and the powers of a civil court

Section 11(1). For the purpose of any investigation, including any preliminary inquiry, the Lokayukta or an Upa-Lokayukta may require any public servant or any other person who in his opinion can furnish information or produce relevant documents to do so.

Section 11(2). For the same purpose he shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure 1908 in respect of the enumerated matters, which are the familiar five: summoning and enforcing attendance and examining on oath, discovery and production of documents, evidence on affidavit, requisitioning public records, and issuing commissions.

This is the power chapter 50 called the signature of the institution: he can see the file. Compare section 27 of the Lokpal Act and section 5 of the Commissions of Inquiry Act 1952, which use the same drafting device.

Section 12: the report, and what follows

Section 12(1), a grievance. If after investigating an action complained of as a grievance the Lokayukta or Upa-Lokayukta is satisfied that the action has resulted in injustice or undue hardship to the complainant or any other person, he shall by a report in writing recommend to the public servant and the competent authority that the injustice or undue hardship be remedied or redressed in such manner and within such time as the report specifies.

Section 12(2). The competent authority to whom such a report is sent shall within one month inform the Lokayukta or Upa-Lokayukta of the action taken.

And where the recommendation is not accepted, the Act provides for a special report to the Governor, which the Governor causes to be laid before each House of the State Legislature together with an explanatory memorandum.

That chain is the classical ombudsman sanction and nothing more. No order, no execution, no contempt. A recommendation, a one month clock, and if the recommendation is refused, publicity in the House. Chapter 320 asks whether that is enough.

Sections 13 to 22: the rest of the Act

Section 13, staff. The Lokayukta may appoint, or authorise an Upa-Lokayukta or a subordinate officer to appoint, officers and employees; their categories, salaries and conditions are prescribed after consultation with the Lokayukta.

Section 14, secrecy. Information obtained in the course of an investigation is confidential, and notwithstanding the Indian Evidence Act 1872 no court may compel the Lokayukta, an Upa-Lokayukta or a public servant to give evidence about it or produce it, subject to the exceptions in sub-section (2). This is what makes a private investigation genuinely private, and it is the counterpart of section 6 of the Commissions of Inquiry Act 1952 that chapter 420 reads.

Section 15, insult and disrepute. Intentionally offering insult to, or causing interruption of, the Lokayukta or an Upa-Lokayukta while conducting an investigation is punishable with simple imprisonment up to six months, or fine, or both; and so is publishing a statement or doing an act calculated to bring him into disrepute.

Section 16, protection. No suit, prosecution or other legal proceeding lies against the Lokayukta, the Upa-Lokayuktas or their officers for anything done in good faith under the Act; and no proceeding is bad for want of form, nor, except on the ground of jurisdiction, is any proceeding or decision liable to be challenged.

Section 17, additional functions. The Governor may, by notification and after consultation with the Lokayukta, confer additional functions relating to the redress of grievances and eradication of corruption; and by order, powers of a supervisory nature over agencies set up by the State Government for the redress of grievances. Section 17 is how the office could grow without amendment, and it is worth pointing at when a question asks whether a State ombudsman can be strengthened administratively.

Section 18, exclusions. The State Government may, on the recommendation of the Lokayukta and on being satisfied that it is necessary in the public interest, exclude by notification complaints against a specified class of public servants, with a proviso protecting posts above a stated salary. Note that the exclusion needs the Lokayukta's own recommendation, so the Government cannot narrow his jurisdiction unilaterally.

Section 19, delegation. Powers and duties may be delegated to officers and agencies, except the power to make reports to the Governor under section 12. The one thing that cannot be delegated is the report, which is the institution's whole output.

Section 20, rules. The Governor may make rules.

Section 21, removal of doubts. Nothing in the Act authorises the Lokayukta or an Upa-Lokayukta to investigate any action taken by or with the approval of a judge as defined in section 19 of the Indian Penal Code, among other excluded authorities. The judiciary is outside the State ombudsman, exactly as it is outside the Lokpal, which is why MU's eighth label needs a wholly separate answer.

Section 22, saving. The provisions of the Act are in addition to the provisions of any other law.

A worked example

Mrs Kulkarni's application for a shop licence has been pending with a municipal officer for fourteen months. Separately she believes a Minister approved a land exemption for a relative.

The licence delay. That is a grievance: injustice or undue hardship from maladministration. Under section 9(1)(a) only she, the person aggrieved, may complain. The officer is not a Minister or Secretary, so under section 7(2) the complaint goes to an Upa-Lokayukta.

Section 8(1)(b). If she has or had a remedy before a tribunal or court, the complaint may be excluded. A delay of this kind usually has no effective tribunal remedy, which is why the exclusion does not bite in practice for grievances of delay.

Section 10(1). Before investigating, the Upa-Lokayukta forwards a copy of her complaint to the officer and to his competent authority, and gives the officer an opportunity to comment.

Section 11. He calls for the file, summons the officer and examines him on oath.

Section 12(1). Satisfied that the delay caused undue hardship, he reports in writing recommending that the licence be decided within a stated time.

Section 12(2). The competent authority must inform him within one month of the action taken. If it does not act, a special report goes to the Governor and is laid before each House.

The Minister and the land exemption. That is an allegation. Under section 9(1)(b) any person other than a public servant may complain, so Mrs Kulkarni may bring it even though she is not personally aggrieved. Under section 7(1) it is for the Lokayukta, because the person complained against is a Minister. Under section 2(c)(i) the competent authority for a Minister is the Chief Minister.

And notice what is missing at the end. The Lokayukta reports; the Chief Minister answers within a month; if he does not act, the Governor lays a special report before the House. There is no prosecution, no attachment and no sanction. That is the classical model and it is precisely what the Act of 2023 was passed to change.

What beginners get wrong

That anyone may complain of anything. A grievance may be complained of only by the person aggrieved; an allegation only by a person who is not a public servant.

That the Lokayukta handles all complaints. He takes Ministers, Secretaries and notified classes; the Upa-Lokayukta takes the rest.

That the report binds. It recommends. The competent authority must respond within a month, and refusal leads to a special report laid before the House.

That the Act reaches judges. Section 21 puts action taken by or with the approval of a judge outside it.

Quick revision

s.7: Lokayukta for Ministers, Secretaries and notified classes; Upa-Lokayukta for other public servants; both on a grievance or an allegation, and on actions that could have been the subject of one.

s.8: exclusions, including matters in the Third Schedule and matters for which a tribunal or court remedy exists.

s.9: a grievance by the person aggrieved; an allegation by any person other than a public servant; prescribed form and affidavits.

s.10: copy of the complaint to the public servant and the competent authority, opportunity to comment, investigation in private.

s.11: power to require information from any person; powers of a civil court.

s.12: report recommending redress within a specified time; competent authority to respond within one month; then a special report to the Governor, laid before each House.

s.14 secrecy, s.15 insult and disrepute, six months; s.16 good faith protection and no challenge except on jurisdiction; s.17 additional functions by the Governor; s.18 exclusion of classes on the Lokayukta's recommendation; s.19 delegation except the report; s.21 judges excluded; s.22 in addition to other law.

Test yourself

1. Who may complain, and of what? A grievance may be complained of only by the person aggrieved, or where he is dead or unable to act, by his legal representative or a person he authorises. An allegation may be complained of by any person other than a public servant. In each case the complaint must be in the prescribed form with the prescribed affidavits.

2. How is jurisdiction divided between the Lokayukta and the Upa-Lokayukta? By the rank of the person complained against. The Lokayukta investigates action taken by or with the approval of a Minister, a Secretary, a public servant within section 2(k)(iii), or a class notified by the State Government in consultation with him. The Upa-Lokayukta investigates action taken by or with the approval of any other public servant.

3. What happens after a report on a grievance? The Lokayukta or Upa-Lokayukta reports in writing to the public servant and the competent authority recommending that the injustice or undue hardship be remedied in the manner and within the time specified. The competent authority must inform him within one month of the action taken. Where the recommendation is not accepted, a special report goes to the Governor, who causes it to be laid before each House of the State Legislature with an explanatory memorandum. There is no power to order, to attach or to prosecute.

4. Why is the investigation conducted in private, and what protects that privacy? So that a person against whom nothing is ultimately found is not damaged by the fact of the investigation, which is a feature of the classical ombudsman since the Danish office of 1955. Section 14 protects it: information obtained in the course of an investigation is confidential, and notwithstanding the Indian Evidence Act 1872 no court may compel the Lokayukta, an Upa-Lokayukta or a public servant to give evidence about it or produce it, subject to the exceptions in sub-section (2).

5. What is the one power the Lokayukta may not delegate, and why is that significant? The power to make reports to the Governor under section 12. It is significant because the report is the institution's entire output: an ombudsman who cannot order can only report, so the report is the exercise of the office itself and must be the holder's own act.

That it is necessary to enact a new law on the lines of the Lokpal and Lokayuktas Act 2013 for the State of Maharashtra, and to enlarge the scope of the existing Act of 1971 and to entrust more powers to the Lokayukta.

That it is expedient to provide for a body of Lokayukta for inquiry of administrative actions taken by or on behalf of the Government of Maharashtra or certain public authorities, in certain cases, and to inquire into and investigate allegations of corruption against them.

The word "enlarge" is the key to the whole Act. The 1971 Act gave the Lokayukta a report and nothing more. The 2023 Act gives him benches, a jurisdiction over the Chief Minister, a bar on sanction, search and seizure, attachment and confiscation, and Special Courts. It is the Lokpal Act rewritten for a State.

Section 3: the body

Section 3(1). As and from the commencement of the Act there shall be established, by notification in the Official Gazette, a body to be called the "Lokayukta, Maharashtra State".

Section 3(2). It shall consist of:

1. a Chairperson, who is or has been the Chief Justice of a High Court, or a Judge of the Supreme Court, or a Judge of the Bombay High Court; and
2. such number of Members, not exceeding four, of whom two shall be Judicial Members.

Section 3(3)(a), Judicial Member. A person who is or has been a Judge of a High Court. The proviso allows a person who is or has been a Judge not below the rank of Principal District Judge to be appointed if a High Court Judge is not available.

Section 3(3)(b), other Member. A person of impeccable integrity and outstanding ability with special knowledge and expertise of not less than twenty-five years in anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.

Compare the 1971 Act and the difference is structural. There, a Lokayukta and one or more Upa-Lokayuktas, dividing work by the rank of the person complained against. Here, a Chairperson and four Members sitting in benches, dividing work by allocation. The second is the Lokpal's design, and chapter 145 explained why a body with a large jurisdiction needs it.

Compare the Chairperson's qualification with the Lokpal's. The Lokpal's Chairperson may be an eminent person who is not a judge at all. The Maharashtra Chairperson must be a judge, and specifically a Chief Justice of a High Court, a Judge of the Supreme Court or a Judge of the Bombay High Court. The State Act is the more judicial of the two.

Section 4: the Selection Committee, and the criticism it invites

The Chairperson and Members are appointed by the Governor after obtaining the recommendations of a Selection Committee of seven:

1. the Chief Minister, Chairperson;
2. the Deputy Chief Minister, Vice-Chairperson;
3. the Chairman of the Maharashtra Legislative Council, Member;
4. the Speaker of the Maharashtra Legislative Assembly, Member;
5. the Leader of Opposition in the Maharashtra Legislative Council, Member;
6. the Leader of Opposition in the Maharashtra Legislative Assembly, Member;
7. the Chief Justice of the Bombay High Court or a Judge of the Bombay High Court nominated by him, Member.

Section 4(2). No appointment shall be invalid merely by reason of any vacancy in the Selection Committee. That is section 4(2) of the Lokpal Act copied across, and chapter 230 showed why it matters.

Section 4(3). The Selection Committee shall regulate its own procedure for selecting, which shall be transparent.

Now count the votes, as chapter 110 did for the Lokpal. The Chief Minister and the Deputy Chief Minister are of the Government. The Speaker of the Assembly and the Chairman of the Council come from the ruling side in the ordinary course. That is four of seven. The two Leaders of the Opposition and the judicial member are three.

So the ruling side has a majority on this Selection Committee, and it does not have one on the Lokpal's. The Lokpal's committee of five gives the Government the Prime Minister and the Speaker against the Leader of Opposition, the Chief Justice of India or his nominee, and an eminent jurist chosen by all four. That is two of five. Maharashtra's is four of seven.

This is the sharpest single criticism a student can make of the 2023 Act, and it is a criticism about arithmetic rather than about opinion. Chapter 610's doctrine of institutional integrity and chapter 240's requirement of effective consultation both proceed from the premise that the composition of the appointing body is the safeguard. Here the safeguard is thinner than the model the Act says it follows.

Sections 5 to 10: the office

Section 5, filling of vacancies of Chairperson or Members. Section 6, term of office. Section 7, salary, allowances and conditions of service. Section 8, restriction on employment after ceasing to hold office. Section 9, a Member acting as Chairperson or discharging his functions in certain circumstances. Section 10, the Secretary, other officers and staff.

The pattern will be familiar because it is sections 5 to 10 of the Lokpal Act transposed, and chapter 120 read those. The independence devices are the same four: anticipated vacancies, a fixed term, a salary that cannot be varied to the holder's disadvantage, and a bar on employment afterwards.

Section 11 charges the expenses of the Lokayukta on the Consolidated Fund of the State, which is the State counterpart of section 13 of the Lokpal Act and of article 148(6) for the Comptroller and Auditor-General. Chapter 1320 explains what charging on the Consolidated Fund means and why it matters.

A worked example: which Act governs a complaint made today

A citizen of Nagpur wishes to complain in 2026 that a Deputy Collector demanded money.

Step one, which Act. Sections 1, 3 and 4 of the 2023 Act are in force. Section 12, jurisdiction, and section 21, complaints under the Prevention of Corruption Act, are not. Section 66, the repeal, is not.

So the complaint is made under the Act of 1971, to the Upa-Lokayukta if the Deputy Collector is not a Minister or Secretary, as an allegation under section 9(1)(b) of that Act, by any person other than a public servant. Chapter 260 sets out what follows.

Step two, what changes when the rest is notified. The complaint will go to the Lokayukta, Maharashtra State, a body of five sitting in benches; it will be dealt with under Chapter V of the 2023 Act; and the Lokayukta will have powers of search and seizure, attachment and confiscation, and a bar on the requirement of sanction, none of which exists under the 1971 Act.

Step three, and this is the examinable point. Until that notification, Maharashtra has an ombudsman with the powers of 1971 and a statute with the powers of 2023 sitting unused beside it.

What beginners get wrong

That the 2023 Act is in force. Sections 1, 3 and 4 are. The rest is not, and section 66 has therefore not repealed the Act of 1971.

That it is called the Act of 2025. Its short title is the Maharashtra Lokayukta Act, 2023, from the year of the Bill; it was enacted as Maharashtra Act No. XLVI of 2025.

That the Chairperson may be a non-judge. Section 3(2)(a) requires a serving or former Chief Justice of a High Court, Judge of the Supreme Court or Judge of the Bombay High Court, unlike the Lokpal Act, which allows an eminent person.

That the Selection Committee mirrors the Lokpal's. It has seven members, four of whom come from the ruling side in the ordinary course.

Quick revision

Maharashtra Act No. XLVI of 2025, short title the Maharashtra Lokayukta Act, 2023. Governor's assent 14 November 2025; assent first published 8 December 2025.

Commencement, s.1(3) as substituted by Mah. 50 of 2025 w.e.f. 8 December 2025: sections 1, 3 and 4 in force on publication; the rest on a date the State Government notifies. So s.66, the repeal of the 1971 Act, is not yet in force and the 1971 Act still governs.

Preamble recites section 63 of the Lokpal and Lokayuktas Act 2013, and the object of enacting a law on the lines of that Act and enlarging the scope of the 1971 Act.

s.3: the Lokayukta, Maharashtra State, a Chairperson who is or has been Chief Justice of a High Court, a Judge of the Supreme Court or a Judge of the Bombay High Court, plus not more than four Members, two of them Judicial; a Judicial Member is a serving or former High Court Judge, or, if none is available, a serving or former Judge not below Principal District Judge.

s.4: a seven member Selection Committee: Chief Minister, Deputy Chief Minister, Chairman of the Council, Speaker of the Assembly, both Leaders of the Opposition, and the Chief Justice of the Bombay High Court or his nominee. A vacancy does not invalidate an appointment; procedure to be transparent.

s.11: expenses charged on the Consolidated Fund of the State.

Test yourself

1. Is the Maharashtra Lokayukta Act 2023 in force? Answer precisely. Only in part. Section 1(3), as substituted by Mah. 50 of 2025 with effect from 8 December 2025, brought sections 1, 3 and 4 into force on the date of publication of the Act in the Official Gazette, and left the remaining sections to come into force on such date as the State Government may notify, with different dates permitted for different provisions. Section 66, which repeals the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 on the commencement of the Act, is among the sections not yet in force, so the 1971 Act remains the operative law.

2. Set out the composition of the new body and how it differs from the 1971 arrangement. The Lokayukta, Maharashtra State, consists of a Chairperson who is or has been the Chief Justice of a High Court, a Judge of the Supreme Court or a Judge of the Bombay High Court, and not more than four Members of whom two must be Judicial Members. The 1971 Act provided instead for a Lokayukta and one or more Upa-Lokayuktas, dividing work by the rank of the person complained against; the new body is collegiate, sits in benches and divides work by allocation, following the Lokpal's design.

3. Give the composition of the Selection Committee and the criticism it invites. The Chief Minister as Chairperson, the Deputy Chief Minister as Vice-Chairperson, the Chairman of the Legislative Council, the Speaker of the Legislative Assembly, the Leaders of the Opposition in both Houses, and the Chief Justice of the Bombay High Court or a Judge nominated by him. The criticism is arithmetical: the Chief Minister, the Deputy Chief Minister, the Speaker and the Chairman ordinarily come from the ruling side, which is four of seven, so the Government commands a majority on the body that selects the officer meant to investigate it. The Lokpal's committee of five gives the Government only two.

4. What does the preamble tell you about why the Act was passed? That it was passed to give effect to section 63 of the Lokpal and Lokayuktas Act 2013, which requires every State to establish a Lokayukta by State law; that the intention was to enact a law on the lines of that central Act; and that the object was to enlarge the scope of the Maharashtra Act of 1971 and to entrust more powers to the Lokayukta. The word enlarge is the key to the Act: the 1971 Lokayukta could only report, and the 2023 Lokayukta has benches, jurisdiction over the Chief Minister, search and seizure, attachment and confiscation and Special Courts.

Section 12(2) allows an inquiry into any person outside sub-section (1) who is involved in abetting, bribe giving or bribe taking, or conspiracy, relating to an allegation against a person inside it. That is section 14(3) of the Lokpal Act transposed.

The four provisos on the Chief Minister, and why they matter

1. Before initiating any inquiry against the Chief Minister, the prior approval of the Maharashtra Legislative Assembly shall be obtained, and the motion shall be placed before the next immediate Session of the Assembly.
2. Such motion shall be passed by not less than two-thirds of the total Members of the Assembly.
3. No inquiry into an allegation against the Chief Minister in so far as it relates to internal security or public order in the State.
4. Any such inquiry shall be held in camera, and if the Lokayukta concludes that the complaint deserves to be dismissed, the records shall not be published or made available to anyone.

Compare the Lokpal Act, section 14(1)(a), and the difference is the whole point. There the safeguard is internal to the institution: a full bench of the Lokpal must consider initiating the inquiry and at least two-thirds of its Members must approve. Here the safeguard is external and political: two-thirds of the Legislative Assembly must approve.

Work out what that means in practice. A Chief Minister commands a majority in the Assembly by definition; that is what makes him Chief Minister. A requirement that two-thirds of that Assembly vote to permit an inquiry into him is, on any realistic view, a requirement that will very rarely be satisfied. A student should say so plainly, and should also give the argument on the other side: that a Chief Minister paralysed by an inquiry is a State paralysed, and that the elected House is a legitimate place to locate the decision.

The third proviso is narrower than the Lokpal's. The Lokpal Act excludes international relations, external and internal security, public order, atomic energy and space. The Maharashtra Act excludes internal security or public order in the State, which is all a State is responsible for, so the narrowing is a consequence of the subject matter rather than a concession.

Section 13: when the Lokayukta must stand back

Section 13(1) provides that notwithstanding anything in any Act, the Lokayukta shall not inquire or investigate:

1. (i) where the same or similar issues of complaint are pending before any court;
2. (ii) in respect of anything said or a vote given by a Member of the State Legislature in the Legislature or any committee thereof, covered by article 194(2) of the Constitution;
3. (iii) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act 1952; provided that the Lokayukta may investigate the matter if the State Government has not taken any action against corruption as held by the inquiry Commission within two years from the date of submission of the report;
4. (iv) in the case of a complaint involving a grievance, the actions the sub-clause specifies.

Clause (iii) is the best single provision in this book for showing that the eight labels are one subject

MU prints "Ombudsman" as label 1 and "Commission of Inquiry" as label 2, in different lines, as though they were separate topics. Section 13(1)(iii) makes them one.

Read the two directions and the contrast is instructive.

Section 14(4) of the Lokpal Act says that a matter complained of to the Lokpal may not be referred to a Commission of Inquiry. It stops the Government moving a case out of the ombudsman into a body whose report binds nobody. Chapter 140 read it.

Section 13(1)(iii) of the Maharashtra Act says the Lokayukta shall not inquire into a matter already referred to a Commission of Inquiry, but may do so if the Government has done nothing about the Commission's findings for two years.

So the two statutes deal with the same overlap from opposite ends, and the Maharashtra provision is the more interesting. It recognises exactly what chapters 480 and 510 will say about Commissions of Inquiry: the report is recommendatory, and reports are frequently not acted on. It then does something about it. A Commission's findings that the Government ignores for two years cease to be a shield, and the Lokayukta may take the matter up with the powers a Commission does not have.

That is a genuinely well-designed provision and a student who can explain it has understood both labels.

Clause (ii) is the State counterpart of section 14(2) of the Lokpal Act, and the same currency point arises: article 194(2) is the State twin of article 105(2), and the immunity it confers on a member who took a bribe was removed by the seven-judge decision of 4 March 2024. Chapter 1100 works that decision, and it applies to article 194(2) in terms.

Sections 14 to 22: complaint, functions and benches

Section 14, the procedure for making a complaint under the Act.

Section 15, conferment of additional functions on the Lokayukta, the counterpart of section 17 of the 1971 Act.

Section 16, matters pending before any court, committee or statutory authority for inquiry not to be affected: section 15 of the Lokpal Act transposed.

Sections 17 to 20, the bench provisions: constitution of benches, distribution of business among them, the Chairperson's power to transfer cases, and decision by majority. These are sections 16 to 19 of the Lokpal Act transposed, and chapter 145 read them.

Section 21, provisions relating to complaints under the Prevention of Corruption Act 1988, which chapter 290 reads.

Section 22, consideration of views.

Section 11, which belongs with this group though it sits in the previous chapter, charges the expenses of the Lokayukta on the Consolidated Fund of the State.

A worked example

Allegations are made that a State Minister and a Chief Minister approved a contract corruptly, and that the contractor paid.

The contractor: section 12(2), a bribe giver outside sub-section (1), inside the jurisdiction.

The Minister: inside sub-section (1) without any special safeguard.

The Chief Minister: inside clause (a), but the Lokayukta may not initiate an inquiry until a motion is placed before the next immediate Session of the Legislative Assembly and passed by not less than two-thirds of the total Members. If the allegation relates to internal security or public order in the State, it is excluded altogether. Any inquiry is in camera, and a dismissal seals the record.

Now suppose the State Government had, a year earlier, appointed a Commission of Inquiry into the same contract. Section 13(1)(iii) bars the Lokayukta.

And suppose the Commission reported two and a half years ago, finding corruption, and the Government has done nothing. The proviso opens the door: the Lokayukta may investigate, because no action has been taken on the Commission's findings within two years of the report.

And suppose the allegation is that the Minister said something corrupt in the Legislative Assembly. Section 13(1)(ii) with article 194(2) keeps the Lokayukta out of anything said or any vote given, but the reach of that immunity is narrower after March 2024 than it was when the Bill was drafted.

What beginners get wrong

That the Chief Minister is excluded. He is included, subject to a two-thirds motion of the Assembly.

That the two-thirds vote is of the Lokayukta's Members. In the Lokpal Act it is; here it is of the total Members of the Legislative Assembly.

That a Commission of Inquiry permanently ousts the Lokayukta. It does not. The proviso to section 13(1)(iii) restores jurisdiction if the Government has not acted within two years of the report.

That only Government servants are covered. The Explanation to section 12 reaches any entity that has received any assistance from the State or a local authority in the form of land, grant-in-aid, loan, share capital or guarantee.

Quick revision

s.12(1): allegations of corruption under the Prevention of Corruption Act 1988 against a present or former Chief Minister (with four provisos), Ministers, members of the State Legislature, State public servants, and bodies financed or aided by the State; the Explanation deems a body aided if it received any assistance in the form of land, grant-in-aid, loan, share capital or guarantee.

Chief Minister provisos: prior approval of the Legislative Assembly, motion at the next immediate Session, passed by not less than two-thirds of the total Members; exclusion of internal security or public order; inquiry in camera; records sealed on dismissal.

s.12(2): abettors, bribe givers, bribe takers and conspirators outside sub-section (1).

s.13(1): no inquiry where the same or similar issues are pending before a court; where article 194(2) protects what was said or voted; or where the matter is before a Commission of Inquiry, unless the State Government has taken no action on the Commission's findings for two years.

ss.17 to 20: benches, distribution of business, transfer, decision by majority, on the Lokpal Act's model.

s.11: expenses charged on the Consolidated Fund of the State.

Test yourself

1. Is the Chief Minister within the jurisdiction of the Maharashtra Lokayukta? Answer fully. Yes, under section 12(1)(a), whether serving or former, but subject to four provisos. No inquiry may be initiated without the prior approval of the Maharashtra Legislative Assembly, the motion being placed before its next immediate Session and passed by not less than two-thirds of its total Members. No inquiry may be made into an allegation in so far as it relates to internal security or public order in the State. Any inquiry must be held in camera. And if the Lokayukta concludes that the complaint deserves to be dismissed, the records may not be published or made available to anyone.

2. Compare the safeguard for the Chief Minister with the Lokpal Act's safeguard for the Prime Minister. Under section 14(1)(a) of the Lokpal Act the safeguard is internal: a full bench of the Lokpal consisting of the Chairperson and all Members must consider initiating the inquiry and at least two-thirds of the Members must approve. Under section 12(1)(a) of the Maharashtra Act the safeguard is external and political: two-thirds of the total Members of the Legislative Assembly must pass a motion approving it. Since a Chief Minister by definition commands a majority in that Assembly, the Maharashtra safeguard is much harder to satisfy, though the argument for it is that the elected House is a legitimate place to locate so grave a decision.

3. Explain section 13(1)(iii) and its proviso, and contrast it with section 14(4) of the Lokpal Act. Section 13(1)(iii) bars the Lokayukta from inquiring into a matter that has been referred for inquiry under the Commissions of Inquiry Act 1952, but the proviso permits him to investigate if the State Government has taken no action against corruption as held by the Commission within two years of the report. Section 14(4) of the Lokpal Act works from the other end: it forbids a matter complained of to the Lokpal from being referred to a Commission of Inquiry at all. The Lokpal provision prevents a case being moved out of an institution with teeth into one without; the Maharashtra provision recognises that a Commission's report binds nobody and restores the Lokayukta's jurisdiction when the report is ignored.

4. How wide is the Act's reach over non-governmental bodies? Very wide. Clauses (g) and (i) of section 12(1) cover office bearers and employees of any body, society, association or trust wholly or partly financed or aided by the State Government, a local authority or a Government company, corporation, association or trust; the Explanation covers any entity by whatever name called, registered or not, including a partnership or a sole proprietorship; and a body is deemed aided if it has received any assistance in the form of land, grant-in-aid, loan, share capital or Government guarantee. A person so covered is deemed a public servant under section 2(c) of the Prevention of Corruption Act 1988.

Section 26, power to require any public servant or other person to furnish information. Section 27, secrecy of information.

Sections 28 and 29: sanction, and not asking twice

Section 28. Where previous approval has been obtained, no other approval is necessary.

Section 29, bar of sanction for prosecution. Notwithstanding anything in any Act, in the same or similar issues of complaint against any person:

1. (a) where a sanctioning authority has either accorded or refused sanction under any Act, the Lokayukta shall be barred from taking a decision on the question;
2. (b) where the competent authority or the Lokayukta has either accorded or refused sanction under this Act, any other authority under any Act shall be barred from taking a decision on it.

What section 29 is doing. It is a rule against two authorities deciding the same sanction question, in either direction. Whoever decides first, decides. It prevents the forum shopping that would otherwise follow from having two sanctioning routes for the same offence, and it also means that a refusal by the ordinary sanctioning authority forecloses the Lokayukta.

Read (a) carefully and the weakness appears. If the Government, as sanctioning authority under section 19 of the Prevention of Corruption Act, refuses sanction first, the Lokayukta is barred from taking any decision on it. The provision that was meant to prevent duplication also hands the Government a way to close the door before the Lokayukta reaches it.

Section 30: the provision that undoes the Act's own model

Where after the investigation the findings disclose an offence under the Prevention of Corruption Act 1988 by a public servant within section 12(1), the Lokayukta may, after obtaining sanction for prosecution of the competent authority, instruct the investigating authority to file a case in the Special Court, and shall send a copy of the report and findings to the competent authority.

First proviso. The competent authority shall convey its decision within three months, extendable by one month for reasons recorded in writing by that authority.

Second proviso. If the competent authority fails to convey its decision within that time, the Lokayukta may take action as he deems fit.

Now set this beside section 23 of the Lokpal Act, which chapter 155 read.

The point to make, and it is the central criticism of this Act. Chapter 155 explained that sanction had been the standing obstacle to Indian corruption prosecutions since 1947, that the Santhanam Committee identified it in 1964, and that section 23 of the Lokpal Act finally moved the decision away from the accused's own Government. The Maharashtra Act, whose preamble says it is enacted on the lines of the Lokpal Act, does not do that. It leaves the sanction with the competent authority, which for a Minister is a political authority, and answers the problem with a clock instead.

The counter-argument, which a fair answer should give. The clock is not nothing. Three months plus one, with reasons required for the extension, is a real discipline compared with the indefinite delays the Santhanam Committee described. And the second proviso, "the Lokayukta may take action as he deems fit", is capable of being read as permitting him to proceed without the sanction once the time has run. How that phrase is construed will decide how much of the Lokpal model this Act actually adopts, and until it is construed a student should say exactly that.

Chapter VI: grievances, which the Lokpal Act does not have

Section 31(1). On receipt of a complaint against a public servant regarding a grievance, the Lokayukta shall first decide whether to proceed or to close the matter.

Section 31(2). He may refuse an inquiry on the grounds in section 21(2), that is frivolousness, insufficient grounds or the availability of other remedies.

Section 31(3). If he decides to proceed, he shall ascertain whether a prima facie case exists, and shall forward the complaint to the public servant for his say and to the Secretary of the department, the head of the office or the competent authority for a report.

Section 31(4). The public servant and the Secretary or head of office shall respond within ninety days of receipt of the reference.

Section 31(5). On receiving them, if there is no prima facie case, the Lokayukta may close the matter after recording reasons and communicate that to the complainant and the public servant; and if there is a prima facie case, he may proceed further.

Section 32, report of the Lokayukta on a grievance.

This is the most important thing the Maharashtra Act does that the central Act does not. Chapter 10 set out the distinction between an allegation and a grievance, and chapter 330 is about the hole the Lokpal Act left by covering only allegations. The 2023 Act keeps both, in separate chapters, with a separate procedure for each. A citizen of Maharashtra with a complaint of delay or unfairness will, when the Act is fully in force, have somewhere to take it. A citizen with the same complaint against a Union department will not.

Chapter VII: the powers

Section 33, supervisory powers of the Lokayukta. Section 34, search and seizure. Section 35, powers of a civil court in certain cases. Section 36, power to use the services of officers of the State Government. Section 37, procedure for prohibition of alienation of assets. Section 38, confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances. Section 39, power to recommend transfer or suspension of a public servant connected with an allegation of corruption. Section 40, power to give directions to prevent destruction of records during a preliminary inquiry.

Every one of these is a section of the Lokpal Act transposed, and chapters 160 and 170 read them there. Section 37 corresponds to section 29, section 38 to section 31, section 39 to section 32 and section 40 to section 33.

The significance is not the detail but the fact. The 1971 Act gave the Lokayukta a report and nothing else. The 2023 Act gives him the power to freeze property, to have it confiscated, to have an officer moved out of the way and to stop a file being destroyed. That is what the preamble means by enlarging the scope and entrusting more powers.

A currency note the Act itself records

The footnotes to the print record two substitutions made by Mah. 50 of 2025, section 6: references to the Indian Evidence Act 1872 were replaced, and references to the Indian Penal Code were replaced. Those replacements are the new criminal laws of 2023 reaching a State ombudsman statute, and they are a small but exact illustration of why a book written from a bare Act and dated to a print, rather than from a textbook, is worth having.

A worked example

A citizen complains that a Tahsildar demanded money to issue a certificate, and separately that his own application has been pending for two years.

The demand for money. A complaint under the Prevention of Corruption Act, so Chapter V. Section 21(1): the Lokayukta decides whether to proceed. Section 21(2): he could refuse if the complaint were frivolous, unsupported or better pursued elsewhere, but none applies. He orders a preliminary inquiry.

Section 25. If the inquiry may damage the reputation of the Tahsildar's clerk, who is not the person complained against, the clerk must be heard.

Section 34 and 37. Material emerges that the Tahsildar has bought a shop. The Lokayukta may search and seize, and may prohibit alienation of the asset.

Section 30. After investigation the findings disclose an offence. The Lokayukta must now obtain sanction from the competent authority, which has three months, extendable by one for written reasons. If it does not decide, the Lokayukta may take such action as he deems fit.

The two year delay on the certificate. That is a grievance, and it goes to Chapter VI. Section 31(3): the complaint is sent to the Tahsildar for his say and to the head of office for a report, both due within ninety days. Section 31(5): if a prima facie case appears, the Lokayukta proceeds, and section 32 governs his report.

Notice the two tracks. One complaint, two chapters, two procedures, because the Act treats a corruption allegation and a maladministration grievance as different things needing different treatment. That is the 1966 design, and this is the first Maharashtra statute to carry it with real powers attached.

What beginners get wrong

That the Maharashtra Act follows the Lokpal Act on sanction. It does not. Section 30 leaves the sanction with the competent authority; section 23 of the Lokpal Act takes it away from the Government.

That the Act covers only corruption. Chapter VI preserves a separate grievance jurisdiction.

That a refusal of sanction by another authority is irrelevant. Section 29(a) bars the Lokayukta from taking a decision where a sanctioning authority has already accorded or refused sanction under any Act.

That section 21(2) is a duty to refuse. It is a discretion, in his opinion, on three stated grounds.

Quick revision

Ch V, ss.21 to 30: complaints under the Prevention of Corruption Act; s.21(2) discretion to refuse where frivolous, unsupported, or other remedies available; ss.23 and 24 preliminary inquiry and investigation; s.25 persons likely to be prejudicially affected to be heard; s.29 bar of sanction, whoever decides first decides; s.30 sanction from the competent authority, three months plus one, and if it does not decide the Lokayukta may take action as he deems fit.

Ch VI, ss.31 and 32: complaints of grievance, kept as a separate jurisdiction with a ninety day response from the public servant and the head of office; the Lokpal Act has no equivalent.

Ch VII, ss.33 to 40: supervisory powers, search and seizure, powers of a civil court, use of State officers, prohibition of alienation, confiscation, recommendation of transfer or suspension, and directions to prevent destruction of records.

Currency: Mah. 50 of 2025, s.6 replaced the references to the Indian Evidence Act 1872 and the Indian Penal Code.

Test yourself

1. How does section 30 differ from section 23 of the Lokpal Act, and why does it matter? Section 23 of the Lokpal Act gives the power to grant sanction for prosecution to the Lokpal itself, notwithstanding 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. Section 30 of the Maharashtra Act requires the Lokayukta to obtain sanction from the competent authority before instructing the filing of a case, subject to a time limit of three months extendable by one, after which he may take such action as he deems fit. It matters because sanction resting with the accused's own Government was the standing obstacle to corruption prosecutions identified by the Santhanam Committee in 1964, and the central Act removed it while the State Act, said to be on its lines, retains it and answers it with a clock.

2. What jurisdiction does the Maharashtra Act keep that the Lokpal Act abandoned? Grievances. Chapter VI, sections 31 and 32, provides a separate procedure for a complaint of grievance against a public servant, with the complaint sent to the public servant for his say and to the Secretary of the department or head of office for a report, both due within ninety days, and with power to close the matter for recorded reasons where no prima facie case appears. The Lokpal Act deals only with allegations of offences under the Prevention of Corruption Act.

3. Explain section 29. It prevents two authorities deciding the same sanction question. Where a sanctioning authority under any Act has accorded or refused sanction on the same or similar issues, the Lokayukta is barred from deciding; and where the competent authority or the Lokayukta has accorded or refused sanction under this Act, any other authority under any Act is barred. Whoever decides first decides. Its weakness is that a Government which refuses sanction first forecloses the Lokayukta.

4. On what grounds may the Lokayukta refuse to inquire? Under section 21(2), in his discretion, if in his opinion the complaint is frivolous or vexatious or not made in good faith, there are no sufficient grounds for inquiry or investigation, or other remedies are available to the complainant and it would in the circumstances be more proper for him to avail of them. Section 31(2) applies the same grounds to a complaint of grievance.

Read these with section 11, which charges the expenses of the Lokayukta on the Consolidated Fund of the State. The pattern is sections 13 and 40 to 43 of the Lokpal Act, and chapters 130 and 180 explained what charging on the Consolidated Fund achieves and why a budget forwarded "for information" is different from one submitted for approval.

Chapter XI: offences and penalties

Section 50, intentional insult or interruption to, or bringing into disrepute, the Lokayukta. This is section 15 of the 1971 Act carried forward, and it has no counterpart in the Lokpal Act. Chapter 260 read the older provision: six months' simple imprisonment, or fine, or both.

Section 51, prosecution for a false complaint and payment of compensation to the public servant. Section 46 of the Lokpal Act transposed, and every criticism chapter 200 made of that section applies here.

Section 52, false complaint made by a society, association of persons or trust. Section 47 of the Lokpal Act transposed, with the same two limbs of vicarious liability.

Chapter XII: miscellaneous

Section 53, returns and particulars to the State Government.

Section 54, annual report of the Lokayukta. The classical ombudsman sanction, which chapter 20 traced to 1809 and chapter 200 found in section 48 of the Lokpal Act.

Section 55, protection of action taken in good faith by a public servant.

Section 56, the Chairperson, Members, officers and employees to be public servants. Section 52 of the Lokpal Act, and chapter 205 explained why a body that investigates public servants must be composed of them.

Section 57, bar of jurisdiction. Section 54 of the Lokpal Act, and the same limitation applies: it cannot and does not oust articles 226 and 32.

Section 58, legal assistance. Section 55 of the Lokpal Act, the remarkable provision under which the investigating body funds the defence of the person investigated. Chapter 205 set out why it matters.

Sections 59 and 60, overriding effect and the saving of other laws, the pair chapter 210 reconciled: section 59 governs inconsistency, section 60 governs everything else.

Sections 61 and 62, rules by the State Government and regulations by the Lokayukta.

Section 63, laying of rules and regulations before each House of the State Legislature. This is Module III's laying procedure again, and chapter 1230 sets out its three forms.

Section 64, power to remove difficulties.

Section 65, removal of doubts. The counterpart of section 21 of the 1971 Act, which excluded action taken by or with the approval of a judge. Chapter 260 noted that exclusion and why MU's eighth label consequently needs an answer of its own.

Section 66: the repeal, and its present state

Section 66(1). On the commencement of this Act, the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971 (Mah. XLVI of 1971), shall, from such commencement, stand repealed.

Section 66(2), the savings. Notwithstanding the repeal:

1. (a) all applications, suits and other proceedings under the 1971 Act pending on the date of commencement before any court, competent authority, office or authority shall be continued and disposed of in accordance with the repealed Act, as if it had continued in force and this Act had not been passed;
2. (b) any appointment made or rules, notifications or orders issued under the repealed Act and in force on that date shall, in so far as they are not inconsistent with this Act, be deemed to have been made or issued under this Act and shall continue until superseded or modified;
3. (c) all prosecutions instituted under the repealed Act shall be effective and be disposed of in accordance with law.

And the point on which everything in this chapter turns. Section 66 is among the sections not yet brought into force. Section 1(3), as substituted by Mah. 50 of 2025 with effect from 8 December 2025, brought only sections 1, 3 and 4 into force on publication. So:

The Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 is not repealed. It is the operative law of the State.

Read section 66(2) as a picture of what will happen when it is notified. Pending matters finish under the old Act. Appointments, rules and orders under the old Act carry over so far as they are consistent, so the institution does not have to be rebuilt from nothing. Prosecutions already instituted are unaffected. It is a careful transition, and its careful drafting is a reason to expect the notification rather than to doubt it.

A worked example

A complaint is filed with the Maharashtra Lokayukta on 1 March 2026. Six months later the State Government notifies the remaining sections of the 2023 Act.

Before the notification. The complaint is under the 1971 Act. Chapter 260 sets out the procedure: a copy to the public servant and the competent authority, an opportunity to comment, the powers of a civil court, and a report recommending redress with a one month clock on the competent authority.

On the notification. Section 66(1) repeals the 1971 Act from that date. But section 66(2)(a) provides that proceedings pending under it on the date of commencement shall be continued and disposed of in accordance with the repealed Act. So this complaint finishes under the old law, with the old powers.

A complaint filed the next day goes to the Lokayukta, Maharashtra State, under the 2023 Act, with benches, search and seizure, attachment, confiscation and the section 30 sanction procedure.

And the Lokayukta in office on that date. Section 66(2)(b) deems his appointment, so far as it is not inconsistent with the new Act, to have been made under the new Act.

What beginners get wrong

That the 1971 Act is repealed. It is not, because section 66 is not in force.

That pending complaints will be transferred to the new machinery. Section 66(2)(a) says the opposite: they are continued and disposed of under the repealed Act.

That the new Act has no offence of insulting the Lokayukta. Section 50 carries it forward from section 15 of the 1971 Act; the Lokpal Act has no such provision.

That section 57 makes the Lokayukta's decisions final. It bars courts in the same terms as section 54 of the Lokpal Act, and cannot oust articles 226 and 32.

Quick revision

s.41 delegation; s.42 power to review, which the Lokpal Act does not have.

s.43 Special Courts; s.44 assessment of loss and recovery.

s.45 removal of the Chairperson and Members; s.46 complaints against the Lokayukta's officials.

ss.47 to 49 budget, grants, accounts, read with s.11, expenses charged on the Consolidated Fund of the State.

s.50 insult or disrepute, carried from s.15 of the 1971 Act; s.51 false complaint; s.52 false complaint by a society or trust.

s.54 annual report; s.56 public servants; s.57 bar of jurisdiction; s.58 legal assistance; ss.59 and 60 overriding effect and saving; ss.61 to 63 rules, regulations and laying; s.64 removal of difficulties; s.65 removal of doubts.

s.66: repeals the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 on commencement, saving pending proceedings under the old Act, carrying over consistent appointments and rules, and preserving prosecutions. Not yet in force.

Test yourself

1. What does section 66 provide, and what is its present effect? Section 66(1) repeals the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 on the commencement of the 2023 Act. Section 66(2) saves pending applications, suits and proceedings, which are to be continued and disposed of under the repealed Act; deems appointments, rules, notifications and orders under the repealed Act, so far as they are not inconsistent, to have been made under the new Act; and preserves prosecutions already instituted. Its present effect is none, because section 66 has not been brought into force: only sections 1, 3 and 4 are, so the Act of 1971 remains the operative law.

2. Name two provisions the 2023 Act has that the Lokpal Act does not, and one it carries from the 1971 Act. The power to review its own decisions under section 42, and the separate grievance jurisdiction in Chapter VI, sections 31 and 32. From the 1971 Act it carries the offence of intentionally insulting or interrupting the Lokayukta or bringing him into disrepute, which was section 15 of that Act and is section 50 of this one.

3. A complaint is pending under the 1971 Act when the 2023 Act is fully notified. What happens to it? It is continued and disposed of in accordance with the repealed Act, as if that Act had continued in force and the new Act had not been passed, by virtue of section 66(2)(a). The powers available in it therefore remain the 1971 powers, that is investigation and a report recommending redress, and not the search, attachment and confiscation powers of the new Act.

4. Where in this Act does the laying procedure appear, and why is it worth noticing here? In section 63, which requires rules made by the State Government under section 61 and regulations made by the Lokayukta under section 62 to be laid before each House of the State Legislature. It is worth noticing because laying is the classical instrument of legislative control over delegated legislation, which is the sixth label of this syllabus, and it appears inside an ombudsman statute; the same provision appears as section 61 of the Lokpal Act.

Six, free, direct, informal access with a suo motu power. Fails on the first half. A citizen may complain to the Commission, and complaints are received; but the institution is not built round the aggrieved citizen. Its ordinary work comes from Chief Vigilance Officers, from departments seeking advice and from references, and chapter 690 explains that machinery. There is no procedure by which an aggrieved person obtains a decision on his own complaint.

Seven, powers of investigation and no power of decision. Half passes, and the half it fails is the wrong half. It has the powers of a civil court under section 11, which is the ombudsman's investigative power. But it has no investigating force of its own, and chapter 750 sets that out as its central weakness. On the other side it has superintendence over the Delhi Special Police Establishment in corruption cases, which is a power over an agency that no classical ombudsman has.

Eight, publicity through a report to the legislature. Passes. Section 14 of the 2003 Act requires an annual report to the President, laid before both Houses with a memorandum explaining any advice not accepted. Chapter 660 reads it, and it is the same device as section 48 of the Lokpal Act.

The verdict, and how to write it

Four passes, three fails, one split. But an answer that stops at counting has missed the point, because the three failures are not incidental. They go to what the institution is for.

An ombudsman exists for the citizen. He is approached by an aggrieved person, he asks whether that person was properly treated, and his output is a recommendation that the person's grievance be put right. Every one of the eight tests is a way of protecting that relationship.

The Central Vigilance Commission exists for the administration. It is approached by departments, it asks whether a public servant has been honest, and its output is advice on what should be done about that servant. The citizen who reported the matter is not a party to any of it.

So the right answer is not "no, because it fails tests five, six and seven". It is: no, because it is a different kind of institution, built for a different relationship, and the tests fail in the places where the difference shows.

What this explains about Indian history

Why 1964 and 2013 are so far apart. India built the vigilance institution quickly because the Government wanted it: a body that helps a Government discipline its own officers is useful to that Government. It took forty-nine more years to build the ombudsman because an institution that inquires into Ministers on a citizen's complaint is not useful to a Government in the same way. Chapter 80's eight failed Bills are that difference expressed as legislative history.

Why the Lokpal Act had to say what it did about the Commission. Chapter 150 read the first and second provisos to section 20(1), which make the Commission the Lokpal's inquiring arm for Groups A to D. The two are not rivals; the Act made the older, administration-facing institution serve the newer, citizen-facing one.

And why the grievance hole in chapter 330 is a real hole. If the Commission were an ombudsman, the absence of grievance jurisdiction in the Lokpal Act would matter less, because a citizen would have somewhere else to go. It is not, and he does not.

A worked example

Two complaints reach different bodies on the same day.

Complaint one. A citizen says a Deputy Secretary took ten thousand rupees to move a file. This is an allegation of an offence under the Prevention of Corruption Act. It is squarely within the Central Vigilance Commission's function under section 8 of the 2003 Act, and it is also within the Lokpal's jurisdiction under section 14(1)(d), which is why section 20(1)'s first proviso routes it to the Commission.

Complaint two. The same citizen says that the same Deputy Secretary has never taken a rupee from anybody, has decided his case honestly, and has taken two years to do it, during which the citizen's business failed.

Where does complaint two go? Not to the Central Vigilance Commission: no vigilance angle, no offence, no integrity question. Not to the Lokpal: not a complaint of an offence under the Prevention of Corruption Act, which is what section 2 defines a complaint as. Not to a court, in any practical sense.

In Maharashtra it would go to the Lokayukta as a grievance, under section 9(1)(a) of the 1971 Act, and after the 2023 Act is fully notified under Chapter VI of that Act.

Against a Union department it goes nowhere. That single contrast is the best argument this chapter can offer, and it is the argument chapter 330 takes up.

What beginners get wrong

That the Commission became an ombudsman in 2003. The Act cured the defect of creation, tenure and removal. It did not give the Commission a citizen's jurisdiction, and those are different things.

That having the powers of a civil court makes a body an ombudsman. Every inquiring body in this syllabus has them, including a Commission of Inquiry and the Lokpal.

That superintendence over the CBI makes it more than an ombudsman. It makes it something else: an ombudsman does not command a police force, and a body that does is not being measured on the same scale.

Quick revision

Apply the eight tests of chapter 50. Created by law: fails to 2003, passes after. Appointment: partly, a Committee of two Ministers and the Leader of the Opposition. Tenure and salary: passes. Independence: passes formally. Jurisdiction over administrative action: fails, it is vigilance and corruption only. Free direct access for the aggrieved citizen: fails. Investigative powers without decision: half, it has civil court powers and no investigating force of its own but does hold superintendence over the Delhi Special Police Establishment. Publicity: passes, section 14 annual report with a memorandum.

The verdict: not an ombudsman, and not because of a defect but because it is a different kind of institution, facing the administration rather than the citizen.

What it explains: why the vigilance body came in 1964 and the ombudsman in 2013; why the Lokpal Act makes the Commission its inquiring arm under the provisos to section 20(1); and why the absence of grievance jurisdiction leaves a real hole.

Test yourself

1. Apply the classical tests: is the Central Vigilance Commission an ombudsman? No. It satisfies statutory creation since the Act of 2003, security of tenure and salary, formal independence and publicity through the annual report under section 14. It fails on jurisdiction, because its subject is vigilance and offences under the Prevention of Corruption Act rather than maladministration generally; on access, because it is approached by departments and vigilance officers rather than built round the aggrieved citizen; and on output, because its advice concerns what should be done about a public servant and not how a citizen's grievance should be redressed.

2. Why is the answer better expressed as a difference of kind than as a list of failures? Because an ombudsman exists for the citizen, is approached by an aggrieved person, asks whether that person was properly treated and recommends that his grievance be put right, whereas the Central Vigilance Commission exists for the administration, is approached by departments, asks whether a public servant has been honest and advises on what should be done about him. The tests fail precisely where that difference shows, so the failures are a symptom of the different purpose rather than defects in an attempted ombudsman.

3. What did the Act of 2003 change, and what did it not change? It changed the Commission's legal foundation: a body created by a Government resolution of 1964 became a statutory body, with a selection committee, a four year term, removal only on a reference to the Supreme Court, a salary charged on the Consolidated Fund and a statutory annual report. It did not change what the Commission is for. It gave it no jurisdiction over maladministration, no procedure for deciding a citizen's complaint and no remedy for a citizen's grievance.

4. Use the two-complaint example to show the gap in Indian law. A complaint that a Deputy Secretary took a bribe goes to the Central Vigilance Commission, and to the Lokpal, which routes it back to the Commission under the first proviso to section 20(1). A complaint that the same officer was honest but took two years and ruined the complainant's business goes to neither: it is not vigilance, and it is not a complaint of an offence under the Prevention of Corruption Act, which is what the Lokpal Act's definition of complaint requires. In Maharashtra it would be a grievance under section 9(1)(a) of the 1971 Act. Against a Union department it has no forum at all.

That is not recommendation without power. It is an ombudsman with the armoury of a prosecuting agency, and it exists because the preamble commits India to the United Nations Convention Against Corruption and because the agitation of 2011 demanded it.

And what happened

Five years and two months between the Act coming into force and the first Lokpal being sworn in. Chapter 230 works that episode and the decision that ended it.

The Inquiry Wing was not constituted at once, so the proviso to section 11 operated: inquiries conducted by officers lent by the Central Government. Chapter 130 set that out.

The staff are appointed by the Chairperson from panels the Central Government sends, under section 10. Chapter 120 read it.

Investigation is not the Lokpal's own; it is directed to an agency, and the Lokpal's superintendence over that agency stops short of directing the outcome by the proviso to section 25(1). Chapter 160 read it.

The argument this chapter exists to make

The formal powers were never the binding constraint. An institution is constrained first by whether it exists, then by who staffs it, then by what it is paid, and only then by what its statute permits it to do.

Test the proposition against the four institutions in this module.

The Swedish Justitieombudsman of 1809 could prosecute. It worked because the Riksdag appointed it and wanted it to work.

The Danish office of 1955 could only recommend. It worked, and travelled to a hundred countries, because the Folketing appointed it and wanted it to work.

The Central Vigilance Commission from 1964 had no statute at all for thirty-nine years and was influential throughout, because Government wanted a vigilance body.

The Lokpal from 2014 has every power on the list above and did not exist for five years, because nobody in a position to constitute it was in a hurry.

So the honest conclusion, and it is one a student can defend in either direction: the classical criticism identifies a real limitation of the model, and the Indian remedy shows that the limitation was not where everyone thought it was. Powers can be legislated. Willingness cannot.

The three constraints that actually bind

Appointment. An office nobody fills has no powers at all. Section 5 of the Lokpal Act and section 4(2) both exist to prevent this, and both were ignored for years.

Staffing. An institution that inquires through officers lent by the body it is inquiring into, and appoints its own people from panels that body sends, is dependent in a way no statute can cure by adding powers.

Money. Charging expenses on the Consolidated Fund, as section 13 of the Lokpal Act and section 11 of the Maharashtra Act of 2023 do, is the single most effective protection, because it removes the annual opportunity to starve the body. It is also the one most often absent from State Lokayukta Acts.

A fourth, which is not in any statute: the complainant. Chapter 200 set out section 46, prosecution for a false complaint, funded by the State, with no whistleblower statute in force on the other side. An institution that depends on complaints and deters complainants has a structural problem that no power of attachment fixes.

A worked example: what would strengthen a State Lokayukta

A State proposes to amend its Lokayukta Act. Three proposals are on the table.

Proposal one: give the Lokayukta the power to attach property. Impressive, and largely beside the point if the office has been vacant for two years.

Proposal two: charge the Lokayukta's expenses on the Consolidated Fund of the State, and require the Selection Committee to meet within three months of a vacancy. Unimpressive, and it addresses two of the three constraints that actually bind.

Proposal three: give the Lokayukta an investigating wing of his own, staffed by officers on deputation whose confidential reports he writes. This addresses the third, and it is what made the Karnataka Lokayukta effective for a period, as chapter 240 noted.

Which two should the State pass? Two and three. That answer, with the reasoning, is worth more marks than a list of the Lokpal Act's powers.

Quick revision

The classical criticism: the output is a report and a recommendation binding nobody; the sanction is publicity.

The classical defence: most recommendations are accepted because refusal must be explained in a report laid before the legislature. It depends on a legislature that reads them.

India's departure: Inquiry Wing, Prosecution Wing, sanction for prosecution taken from the Government, search and seizure, attachment and confiscation, transfer or suspension, Special Courts, recovery of loss, and money charged on the Consolidated Fund.

And the experience: five years and two months to constitute; inquiries by lent officers; staff from Government panels; investigation by an agency it may not direct as to outcome.

The conclusion: the binding constraints are appointment, staffing and money, not formal powers; and a fourth, the treatment of the complainant.

Test yourself

1. State the classical criticism of the ombudsman and the classical answer to it. The criticism is that the institution's output is a report and a recommendation which bind nobody, so a department may ignore it and the sanction is publicity alone. The answer is that in practice the great majority of recommendations are accepted, because a refusal must be explained in a report laid before the legislature, and that the recommendatory character is what allowed the institution to spread, since a body that threatened no existing jurisdiction met no resistance and could be given wide access to official files.

2. List the powers by which the Lokpal Act departs from the classical model. An Inquiry Wing under section 11 and a Prosecution Wing under section 12 whose filing is deemed a report under section 173 of the Code; the power to grant sanction for prosecution under section 23; search and seizure under section 26; provisional attachment under section 29 with confirmation and confiscation by the Special Court under sections 30 and 31; a recommendation of transfer or suspension which the Central Government shall ordinarily accept under section 32; directions to prevent destruction of records under section 33; Special Courts with a statutory timetable under section 35; assessment and recovery of loss under section 39; and expenses charged on the Consolidated Fund under section 13.

3. Did those powers solve the problem? Argue your answer. Not by themselves. The Act came into force on 16 January 2014 and the first Lokpal was sworn in on 23 March 2019; the Inquiry Wing was not constituted at once so inquiries were conducted by officers lent by the Central Government under the proviso to section 11; the Lokpal's own staff are appointed from panels the Central Government sends under section 10; and investigation is directed to an agency whose conclusions the Lokpal may not direct, by the proviso to section 25(1). The experience suggests the binding constraints are whether the office is filled, who staffs it and how it is paid, rather than the formal powers a statute confers.

4. Which reforms would most strengthen a weak State Lokayukta, and why? Charging its expenses on the Consolidated Fund of the State, so that its budget cannot be reduced by a vote; a duty on the Selection Committee to meet within a fixed period of a vacancy, so that the office cannot be disabled by being left empty; and an investigating wing of its own, so that it does not depend on the State police it is investigating. Conferring powers of attachment on an office that is vacant, unfunded and without investigators addresses none of the constraints that actually bind.

Several States have such Acts. Madhya Pradesh's Public Services Guarantee Act of 2010 was the first, and Bihar, Delhi, Rajasthan, Punjab, Uttar Pradesh, Kerala, Karnataka, Jharkhand and Maharashtra followed with legislation on the same pattern.

Maharashtra's is the Maharashtra Right to Public Services Act 2015, and a student of this University should know it exists. It obliges notified public services to be delivered within notified time limits, provides for designated officers and appellate authorities, and establishes a Right to Service Commission.

The consequence for the Lokpal Act

Section 49 was drafted for a world that did not arrive. Chapter 200 read it: the Lokpal is the final appellate authority for appeals arising out of any other law providing for the delivery of public services and the redressal of public grievances, where the decision contains findings of corruption.

Two conditions, and both bite. There must be a law below providing for service delivery and grievance redress, and the decision must contain a finding of corruption. There is no such central law, and a decision on a delayed certificate does not ordinarily contain a finding of corruption. So section 49 is an appellate jurisdiction with almost nothing to hear.

The gap, stated as a citizen would meet it

Against a State department in Maharashtra. The citizen has two routes. Under the Maharashtra Right to Public Services Act 2015 he may complain that a notified service was not delivered in time and appeal. Under the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 he may complain of a grievance, that is injustice or undue hardship from maladministration, and the Lokayukta may report recommending redress within a stated time. When the 2023 Act is fully notified, Chapter VI preserves the second route.

Against a Union department. He has neither. There is no central right to services statute and the Lokpal Act does not take grievances. What remains is the Centralised Public Grievance Redress and Monitoring System, an administrative mechanism and not a statutory right, and a writ petition, which chapter 10 explained is disproportionate to the wrong.

That asymmetry is the finding of this chapter, and it is the sort of concrete point that lifts an answer above a summary of the Act.

Why the grievance half is harder to legislate

An answer that simply says the Government did not want it is incomplete. Three genuine difficulties explain the failure and are worth stating.

Volume. Allegations of corruption against senior public servants are counted in thousands. Grievances about delay are counted in millions. An institution that takes both must be built quite differently, which is why the 1966 design put grievances with the lower tier.

Federalism. Most services a citizen deals with are delivered by State and local authorities. A central statute guaranteeing time bound delivery runs into the same objection chapter 220 recorded about section 63, and the fact that eleven or more States legislated while the Centre did not is the same pattern as the Lokayuktas.

Remedy. A finding of corruption leads to prosecution. A finding of delay leads to what? Compensation costs money and requires assessment; a penalty on the officer requires a disciplinary process; a direction to decide within a time is what a mandamus already gives. Designing an effective remedy for maladministration is genuinely hard, and the ombudsman's answer, publicity, works less well for a wrong that is repeated a million times.

A worked example

Mr Fernandes waits fourteen months for a Union pension and eleven months for a State land record correction.

The land record. A notified service under the Maharashtra Right to Public Services Act 2015, so he applies, the time limit runs, and he appeals to the designated officer and then to the appellate authority. Separately he may complain to the Lokayukta of a grievance under section 9(1)(a) of the 1971 Act, and the Lokayukta may report recommending redress within a stated time, with the competent authority obliged to respond within one month.

The pension. No central right to services Act. Not a complaint under the Lokpal Act, because it alleges no offence under the Prevention of Corruption Act. Not within the Central Vigilance Commission's function, because there is no vigilance angle. He may lodge a grievance on the central portal, which is administrative, or file a writ petition, which costs more than the pension.

Same citizen, same kind of wrong, two entirely different answers depending on which Government kept him waiting.

What beginners get wrong

That the Lokpal handles citizens' grievances. It does not; section 2's definition of complaint confines it to offences under the Prevention of Corruption Act.

That the grievances Bill was rejected. It lapsed, which chapter 80 explained is the ordinary way an Indian Bill dies.

That section 49 gives the Lokpal a grievance jurisdiction. It gives an appellate jurisdiction that requires both a service delivery law below and a finding of corruption in the decision appealed from.

That the States have the same gap. Many do not. Maharashtra has both a right to services Act and a Lokayukta with grievance jurisdiction.

Quick revision

1966: the Administrative Reforms Commission proposed an institution for allegations and grievances both.

2011: two Bills. The Lokpal Bill and the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill. The second lapsed.

2013: the Lokpal Act covers allegations only; section 2 defines a complaint as one alleging an offence under the Prevention of Corruption Act 1988.

s.49 makes the Lokpal the final appellate authority under any other service delivery law where the decision contains findings of corruption. There is no central law beneath it.

The States: right to public services Acts from Madhya Pradesh 2010 onwards, including the Maharashtra Right to Public Services Act 2015; and the older Lokayukta Acts, including Maharashtra's of 1971 and Chapter VI of the 2023 Act, keep a grievance jurisdiction.

Three reasons the grievance half is hard: volume, federalism and the difficulty of designing a remedy.

Test yourself

1. What was the grievance half of the 1966 design, and what happened to it? The Administrative Reforms Commission proposed that the Lokpal and Lokayukta deal not only with allegations of abuse of position and corruption but with grievances, meaning injustice or undue hardship suffered in consequence of maladministration. In 2011 the grievance half was placed in a separate Bill, the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, together with citizens' charters and grievance redress officers. That Bill lapsed, and the Lokpal and Lokayuktas Act 2013 was enacted covering allegations alone.

2. Why does section 49 of the Lokpal Act do so little? Because it makes the Lokpal the final appellate authority for appeals arising out of any other law providing for the delivery of public services and the redressal of public grievances, and only where the decision appealed from contains findings of corruption under the Prevention of Corruption Act 1988. There is no central law of that kind, the Bill of 2011 having lapsed; and a decision about a delayed service ordinarily contains no finding of corruption. It is an appellate jurisdiction with nothing beneath it.

3. Compare the position of a citizen aggrieved by a State department in Maharashtra with that of one aggrieved by a Union department. In Maharashtra he has two routes: the Maharashtra Right to Public Services Act 2015 for a notified service not delivered within the notified time, with a designated officer and appellate authorities; and a complaint of grievance to the Lokayukta under section 9(1)(a) of the 1971 Act, on which the Lokayukta may report recommending redress within a stated time, the competent authority being bound to respond within one month. Against a Union department he has neither, because there is no central right to services statute and the Lokpal Act takes only complaints of offences under the Prevention of Corruption Act.

4. Give three genuine difficulties in legislating a central grievance statute. Volume, because grievances about delay are counted in millions while allegations against senior public servants are counted in thousands, so the institution must be built quite differently. Federalism, because most services a citizen deals with are delivered by State and local authorities, so a central guarantee of time bound delivery runs into the same objection that led section 63 to oblige the States to legislate rather than legislating for them. And remedy, because a finding of delay does not lead anywhere obvious: compensation costs money and needs assessment, a penalty needs a disciplinary process, and a direction to decide within a time is what a writ of mandamus already provides.

Four: on sanction, the State Act went backwards from the central one. Chapter 290 made this point and it deserves repeating in a comparison. Section 23 of the Lokpal Act took the sanction decision from the Government; section 30 of the Maharashtra Act of 2023, whose preamble says it follows the Lokpal Act, gives it back to the competent authority with a three month clock. Of everything in the table, that is the row on which the newest statute is furthest from its own stated model.

The evolution, in six sentences

1809. Sweden creates an officer of the Riksdag to supervise officials and judges, with power to prosecute and a duty to report publicly.

1955 and 1962. Denmark drops the courts from the jurisdiction and prosecution from the powers, and New Zealand shows the result can work in a Westminster system.

1966. India's Administrative Reforms Commission proposes a Lokpal for Ministers and Secretaries and a Lokayukta for everybody else, covering allegations and grievances.

1970 to 2002. The States build the lower tier while eight Lokpal Bills fail at the Centre.

2013. After the agitation of 2011 the Lokpal Act is passed, with an Inquiry Wing, a Prosecution Wing, attachment, confiscation and the power to sanction its own prosecutions, and without any jurisdiction over grievances.

2014 to 2026. The Act comes into force on 16 January 2014; the first Lokpal is sworn in on 23 March 2019; and Maharashtra enacts a new Lokayukta statute on the Lokpal's model, assented on 14 November 2025 and so far only partly in force.

The assessment, which is what the question actually wants

What India got right. It refused the British filter, so a citizen may complain directly. It put the Prime Minister inside. It took the sanction decision away from the Government, which no other reform since 1947 had managed. It charged the institution's money on the Consolidated Fund. And it required every State to have a Lokayukta by law.

What India got wrong, or has not yet got right. It dropped grievances, and did not pass the statute that was to carry them. It gave the institution no investigating force of its own. It coupled closure of a complaint with prosecution of the complainant, under sections 20(3)(c) and 46, while the Whistle Blowers Protection Act 2011 has never been brought into force. And it took five years and two months to appoint anybody, which chapter 230 shows was not the statute's fault.

And the sentence to end an answer on. The Indian ombudsman is not weak because its powers are weak. Its powers are the strongest in the comparison. It is weak where every Indian institution in this syllabus is weak: in whether it is filled, who staffs it, and whether the person who complains is safe afterwards.

A worked example

A citizen is refused a pension for four years by a Central Government department. Nobody has taken a bribe; the file has simply not moved.

In Sweden, Denmark or Britain. This is the paradigm ombudsman complaint: injustice in consequence of maladministration. The Swedish and Danish officers take it directly; the British Parliamentary Commissioner takes it only through a Member of the House of Commons, which is the filter India refused.

Before the Lokpal. It fails at the door. Section 14 of the Lokpal and Lokayuktas Act 2013 gives jurisdiction over an allegation of corruption, and the complaint discloses none. The most powerful ombudsman in the comparison cannot look at the commonest grievance a citizen has.

Before the Maharashtra Lokayukta. It is entertained. The Act of 1971 covers a complaint involving a grievance as well as an allegation, so the State institution takes the case the national one cannot.

Where else the citizen can go. To the department's own grievance machinery, and to the High Court under article 226 for a mandamus; and chapter 330 records that the statute intended to carry grievances, the Bill for the time bound delivery of goods and services and the redressal of grievances, was never passed.

Now change the facts: the officer demanded a payment to move the file. The Lokpal has jurisdiction, and with it an Inquiry Wing, a Prosecution Wing, the power to grant its own sanction under section 23 and powers of attachment and confiscation, none of which any other institution in the table possesses.

That pair of facts is the whole chapter. The same citizen, the same department, the same four years: outside the jurisdiction if the officer was merely idle, and inside it with the strongest machinery in the comparison if he was paid.

Quick revision

The table's six columns: Sweden 1809, Denmark 1955, Britain 1967, Lokpal 2013, Maharashtra 1971, Maharashtra 2023.

What India refused: the British Member of Parliament filter; access is direct.

What India dropped: grievances. The Lokpal takes allegations of corruption only.

What India added: an Inquiry Wing and a Prosecution Wing, its own sanction to prosecute under s.23, and attachment and confiscation.

What India kept from the classical model: money charged on the Consolidated Fund, and a report to the legislature. Where it is weak: not in its powers, which are the strongest in the table, but in whether the office is filled, who staffs it, and whether the complainant is safe afterwards.

Test yourself

1. Give four differences between the Lokpal and the British Parliamentary Commissioner. Access: the Lokpal takes a direct complaint, the Commissioner only through a Member of the House of Commons. Subject matter: the Lokpal takes allegations of offences under the Prevention of Corruption Act, the Commissioner takes injustice from maladministration. Powers: the Lokpal has an Inquiry Wing, a Prosecution Wing, the power to sanction prosecution and powers of attachment and confiscation, while the Commissioner reports and recommends. Appointment: the Lokpal is appointed by the President on the recommendation of a five member Selection Committee in which the Government does not have a majority, while the Commissioner is appointed by the Crown on the Prime Minister's advice.

2. Which is the more protective appointment mechanism, the Lokpal's or the Maharashtra Act of 2023's, and why? The Lokpal's. Its Selection Committee of five gives the Government the Prime Minister and, in the ordinary course, the Speaker, so two of five, against the Leader of the Opposition, the Chief Justice of India or his nominee and an eminent jurist chosen by all four. The Maharashtra Committee of seven includes the Chief Minister, the Deputy Chief Minister, the Speaker of the Assembly and the Chairman of the Council, who ordinarily come from the ruling side, so four of seven, against the two Leaders of the Opposition and the judicial member.

3. Trace the evolution of the ombudsman in six stages. Sweden 1809, an officer of the Riksdag with jurisdiction over officials and judges, power to prosecute and a public annual report. Denmark 1955 and New Zealand 1962, the courts dropped from jurisdiction and prosecution replaced by recommendation, and the model shown to work in a Westminster system. India 1966, the Administrative Reforms Commission's two-tier proposal covering allegations and grievances. 1970 to 2002, the States build Lokayuktas while eight Lokpal Bills fail. 2013, the Lokpal Act with prosecution, attachment and confiscation powers and no grievance jurisdiction. 2014 to 2026, five years to the first appointment, and Maharashtra's new Act of 2023 partly in force.

4. "The Indian ombudsman is toothless." Do you agree? No, if by teeth are meant powers: the Lokpal has an Inquiry Wing, a Prosecution Wing, the power to grant its own sanction for prosecution under section 23, search and seizure, provisional attachment, confiscation through the Special Court, a recommendation of transfer or suspension the Government shall ordinarily accept, and money charged on the Consolidated Fund. It is the most powerful institution in any comparison. Its weaknesses lie elsewhere: it was not constituted for five years and two months, its inquiries were conducted by officers lent by the Government under the proviso to section 11, its staff come from Government panels under section 10, it has no grievance jurisdiction, and a complainant whose complaint fails may be prosecuted under section 46 with no whistleblower statute in force to protect him.

Held. The Central notification was valid. Comparing the two notifications, the State's was meant only to see whether the veil worn by certain transactions was correct in form, while the Central one was meant to tear down the veil of apparent legality; because the two inquiries were substantially different in nature and object they were not into "the same matter" and the proviso did not bar the second. On the purpose of the Act the Court held that the obvious intention behind it is to enable the machinery of democratic government to function more efficiently and effectively, and that it can hardly be construed as an Act meant to thwart democratic methods of government; that in all democratic countries when allegations and rumours circulate causing a crisis of confidence in the integrity of public life or about other matters of public importance, it is essential that public confidence should be restored, and this can be done only by thoroughly investigating and probing the rumours and allegations; and that such an inquiry might reveal either that the evil exists or that there is no force in the rumours, and in either case confidence is restored.

Why it matters. It supplies the purpose from which every criticism in this label is measured, and it disposes of the objection that an inquiry is an attack on a State Government. The last sentence is the one to carry into an answer: the institution succeeds whichever way the facts turn out, because its product is knowledge and not punishment.

The four things a Commission is for, and the one it is not for

One, to establish facts that are disputed. This is the primary function and everything else follows from it.

Two, to restore public confidence. Whether by confirming the allegation or by dispelling it.

Three, to produce recommendations for the future. Chapter 480 will show that this is what the Supreme Court held a Commission may properly do: recommend legislative or administrative measures so that the thing does not happen again.

Four, to create a public record. A report is published, laid before the House and read. It is history written with the power to compel witnesses.

And what it is not for: punishment. A Commission cannot convict, cannot fine, cannot order compensation and cannot dismiss anybody. Chapter 480 works the case that settles this. The consequence is the central tension of the label and the subject of MU's third question: a body powerful enough to find that a Minister behaved corruptly, and powerless to do anything about it.

Why India uses this instrument so much

Because the alternative institutions are weak in exactly the places a Commission is strong. A Commission can be appointed in a week, given any terms of reference the Government chooses, headed by a retired Supreme Court judge and empowered to summon anybody in India.

Because it is politically useful. An inquiry answers a demand for action without taking any. That is a criticism and it is also a fact about why the instrument survives, and chapter 540 puts numbers to it.

And because it fills the gap the ombudsman does not. Chapter 330 showed that a citizen with a grievance against a Union department has nowhere to go. A Commission is not for individual grievances either, but where a failure is systemic and public, it is the only Indian institution that can look at the whole of it.

A worked example

A pedestrian bridge collapses in a city, killing fourteen people. The bridge was inspected eight months earlier and certified fit. Two contractors, a municipal engineer and a State department are involved.

A criminal court will try whoever is charged, on the evidence the police collect, for the offences the police name. It will decide their guilt and nothing else. It will not ask why the inspection regime allowed a fit certificate, and it will take years.

A departmental inquiry by the same State department will be believed by nobody, because the department is implicated.

A writ petition may get directions for compensation and for a status report. It cannot find facts.

A Commission of Inquiry under section 3 can be appointed within days, with terms of reference covering the collapse, the inspection, the contract and the systemic failure; can summon the engineer, the contractors and the Secretary; can require the file; and can report publicly, with recommendations for the inspection regime.

What it cannot do. Convict anybody. Order compensation. Dismiss the engineer. Its findings are not evidence in the criminal trial, because section 6 makes a statement to the Commission inadmissible against its maker, and chapter 420 reads that section.

So the two run in parallel and answer different questions. The court asks who is guilty. The Commission asks what happened and what should change. A student who can state that division has the label's central idea.

What a Commission of Inquiry is NOT

Not a court. Chapter 470 works the two cases that settle it.

Not a trial. Nobody is accused, there is no charge, and there is no verdict.

Not binding. Chapter 480 works the case and the Latin phrase the Court used.

Not permanent. It exists for the matter in the notification and ceases under section 7. This is the sharpest contrast with the Lokpal and the Lokayukta, which are standing bodies.

And not a substitute for the ombudsman or for the vigilance machinery. Section 14(4) of the Lokpal Act forbids moving a matter from the Lokpal to a Commission, and chapter 140 explained why.

Quick revision

A Commission of Inquiry is appointed by the appropriate Government under section 3 of the Commissions of Inquiry Act 1952 to inquire into a definite matter of public importance.

Purpose, from State of Karnataka v. Union of India, (1977) 4 SCC 608: to enable the machinery of democratic government to function more efficiently, and to restore public confidence where rumours and allegations cause a crisis of confidence, whichever way the facts turn out.

Four functions: establish disputed facts; restore confidence; recommend for the future; create a public record.

What it cannot do: convict, fine, compensate or dismiss. The report is recommendatory.

Why India uses it: quick to appoint, wide terms of reference, a credible head, power to compel evidence, and politically useful because it answers a demand for action without taking any.

Test yourself

1. What is a Commission of Inquiry and what is it for? A body appointed by the appropriate Government under section 3 of the Commissions of Inquiry Act 1952 to inquire into a definite matter of public importance and perform such functions within such time as the notification specifies. It exists to establish disputed facts, to restore public confidence, to recommend measures for the future and to create a public record, in situations too large for a court, too contested for a departmental inquiry and too partisan for a parliamentary committee.

2. State the purpose of the Act as the Supreme Court described it in 1977. That the obvious intention behind the Act is to enable the machinery of democratic government to function more efficiently and effectively and that it can hardly be construed as meant to thwart democratic methods of government; and that in all democratic countries where allegations and rumours cause a crisis of confidence in the integrity of public life it is essential that confidence be restored, which can be done only by thoroughly probing them, an inquiry revealing either that the evil exists or that there is no force in the rumours, and in either case restoring confidence.

3. Why can a court not do the work of a Commission of Inquiry? Because a court decides a case: it needs parties, an issue between them, admissible evidence and a judgment binding those parties. A riot, a structural collapse, the working of a licensing system or the conduct of a Government over years is not a case, has no two parties and could not be exhausted by any judgment. A court also asks who is guilty of a named offence, whereas the question a Commission answers is what happened and what should change.

4. Distinguish the Commission from the ombudsman on four grounds. Existence: a Commission is appointed for one matter and ceases under section 7, while a Lokpal or Lokayukta is a standing body. Trigger: a Commission is appointed by the Government or on a resolution of the House, while an ombudsman acts on a citizen's complaint. Output: a Commission reports and recommends with no legal consequence, while the Lokpal may sanction prosecution, attach and confiscate. And subject: a Commission may inquire into any definite matter of public importance, while the Lokpal is confined to offences under the Prevention of Corruption Act 1988.

Held. The conviction was set aside. A Commissioner holding an inquiry under the 1850 Act is not a court. Taking the definitions of "Judge" and "Court of Justice" in sections 19 and 20 of the Indian Penal Code, the Court held that the pronouncement of a definitive judgment is the essential sine qua non of a court, and that unless and until a binding and authoritative judgment can be pronounced by a person or body, it cannot be predicated that he or they constitute a court. The Commissioner could only report; his findings bound nobody.

Why it matters, and why it survives the repeal. The reasoning is about what makes a body a court, not about the 1850 Act. It applies unchanged to a Commission under the 1952 Act, to a departmental inquiry officer and to any other inquiring authority, and chapter 470 uses it for exactly that purpose. Sine qua non is Latin for something without which a thing cannot be: the indispensable condition.

The repeal, verified

India Code's own catalogue title for the Act reads "The Public Servants (Inquiries) Act, 1850, 37 of 1850 (Rep., Act 02 of 2018)." A catalogue line is not authority, so the repealing Act was fetched and read.

The Repealing and Amending Act, 2017, Act No. 2 of 2018, assented on 5 January 2018, is an Act to repeal certain enactments and to amend certain other enactments. Its section 2 gives effect to the First Schedule, headed REPEALS, which lists the year, number, short title and extent of repeal of each enactment. Two rows matter here:

1850, XXXVII, The Public Servants (Inquiries) Act, 1850. Extent of repeal: the whole.

1897, I, The Public Servants (Inquiries) Amendment Act, 1897. Extent of repeal: the whole.

So the Act and its amending Act are both gone, in their entirety, from 5 January 2018.

Why this needs saying loudly. Standard treatments of this subject, including material a student is likely to be given, still describe the 1850 Act as the statute governing formal inquiries against public servants. A candidate who writes that in April 2027 is stating as current a law that has been repealed for over nine years. Chapter 470's reasoning is safe; the statute is not.

What a Repealing and Amending Act is

A Repealing and Amending Act is a periodic tidying statute. It does not change the law. It removes from the statute book enactments that have become obsolete, spent, unnecessary or superseded, and corrects minor errors in others. India has passed them regularly since the nineteenth century.

What that tells you about the 1850 Act. Parliament did not repeal it because it disapproved of it. It repealed it because the field had been occupied by other law and the Act had become unnecessary. Which is the next question.

What stands in its place

Article 311, the constitutional protection. No person who is a member of a civil service of the Union or of a State, or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed; and no such person shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso excludes the inquiry in three situations, including where the person is dismissed on the ground of conduct which has led to his conviction on a criminal charge.

Article 309, the source of the rules. Subject to the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts; and until such an Act is made, the President or the Governor may make rules. The disciplinary rules under which every departmental inquiry in India is actually conducted, such as the Central Civil Services (Classification, Control and Appeal) Rules 1965 and the All India Services (Discipline and Appeal) Rules 1969, are made under that power.

Article 310, the doctrine of pleasure. Every person in the defence services or the civil service of the Union holds office during the pleasure of the President, and every person in the civil service of a State during the pleasure of the Governor, except as the Constitution expressly provides. Article 311 is the principal express exception, and the two must be read together: pleasure is the rule and article 311 is the safeguard on it.

So the modern architecture is this. Article 310 states the tenure. Article 311 requires a charge and a hearing before dismissal, removal or reduction in rank. Rules under article 309 supply the procedure. The Commissions of Inquiry Act 1952 supplies a public inquiry where the matter is one of public importance. The Lokpal and Lokayuktas Act 2013 supplies a corruption inquiry with prosecution at the end. Nothing is missing that the 1850 Act supplied.

A worked example

A Deputy Secretary is alleged in 1960, and again in 2026, to have falsified a tender record.

In 1960. The Government could direct a formal inquiry by commissioners under the Public Servants (Inquiries) Act 1850, on articles of charge, with a report; and article 311 already required a charge and a hearing before dismissal. The 1850 procedure was one way of satisfying that requirement.

In 2026. The 1850 Act does not exist. The disciplinary authority proceeds under the service rules made under article 309: a charge sheet with articles of charge and a statement of imputations, an inquiring authority, an opportunity to cross-examine and to lead evidence, an inquiry report, and a decision by the disciplinary authority, all satisfying article 311(2). If the matter is one of public importance, a Commission of Inquiry may be appointed under section 3 of the 1952 Act in addition, though its statements are inadmissible against the maker under section 6. If the allegation is of an offence under the Prevention of Corruption Act, the Lokpal route in Chapter V of the 2013 Act is available.

Notice that the officer is better protected in 2026, not worse. Article 311's inquiry is a constitutional right; the 1850 Act's inquiry was a statutory procedure the Government could choose to use.

What beginners get wrong

That the 1850 Act still governs departmental inquiries. It was repealed in whole on 5 January 2018.

That the repeal changed the law. A Repealing and Amending Act removes what has become unnecessary; the field had already been occupied by article 311 and the rules under article 309.

That Brajnandan Sinha fell with the Act. It did not. Its reasoning is about what makes a body a court and applies to every inquiring authority.

That article 311 protects everybody. It protects members of a civil service of the Union or a State and holders of a civil post, against dismissal, removal or reduction in rank. It does not protect a Minister, and it does not cover every adverse action.

Quick revision

The Public Servants (Inquiries) Act 1850, Act XXXVII of 1850, provided a formal inquiry by commissioners on articles of charge into a public servant not removable without the sanction of Government.

REPEALED IN WHOLE by the Repealing and Amending Act 2017, Act 2 of 2018, assented 5 January 2018, First Schedule, together with the Public Servants (Inquiries) Amendment Act 1897.

Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66: a Commissioner under the 1850 Act is not a court, because the pronouncement of a definitive judgment is the sine qua non of a court. The reasoning survives the repeal.

What replaced it: article 310 pleasure, article 311 charge and hearing before dismissal, removal or reduction in rank, article 309 rules supplying the procedure, the Commissions of Inquiry Act 1952 for a public inquiry, and the Lokpal and Lokayuktas Act 2013 for corruption.

Test yourself

1. What did the Public Servants (Inquiries) Act 1850 provide, and what is its present status? It provided that where the Government considered a public servant not removable without its sanction should be formally inquired into on charges of misconduct, an inquiry could be directed before commissioners, on articles of charge furnished to the officer, with evidence taken and a report made. It was repealed in its entirety, along with the Public Servants (Inquiries) Amendment Act 1897, by the First Schedule to the Repealing and Amending Act 2017, Act 2 of 2018, which received assent on 5 January 2018.

2. State the holding in Brajnandan Sinha v. Jyoti Narain and explain why it still matters. That a Commissioner holding an inquiry under the 1850 Act is not a court, and therefore not a court subordinate to the High Court for the purposes of the Contempt of Courts Act, because the pronouncement of a definitive judgment is the essential sine qua non of a court and unless a binding and authoritative judgment can be pronounced the body is not one. It still matters because the reasoning is about what makes a body a court rather than about the repealed Act, so it applies to a Commission of Inquiry under the 1952 Act, to a departmental inquiry officer and to any other inquiring authority.

3. What stands in the place of the 1850 Act today? Article 310 states that civil servants hold office during pleasure. Article 311 requires that no such person be dismissed or removed by an authority subordinate to the appointing authority, and that none be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. Rules made under article 309, such as the Central Civil Services (Classification, Control and Appeal) Rules 1965, supply the procedure. Where the matter is one of public importance a Commission may be appointed under section 3 of the Commissions of Inquiry Act 1952, and where an offence under the Prevention of Corruption Act is alleged the Lokpal and Lokayuktas Act 2013 applies.

4. What is a Repealing and Amending Act, and what does its use here tell you? It is a periodic tidying statute that removes from the statute book enactments which have become obsolete, spent, unnecessary or superseded, and corrects minor errors, without changing the substantive law. Its use here tells you that Parliament regarded the 1850 Act as unnecessary rather than objectionable, the field it occupied having been taken over by article 311 with the rules made under article 309.

Reporting to Parliament, and thence to the public.

No power to determine liability. The tribunal finds facts. Punishment, if any, follows elsewhere. This is the same limitation Indian law expresses through the recommendatory character of the report, which chapter 480 works.

The Salmon principles, 1966

The Royal Commission on Tribunals of Inquiry under Lord Justice Salmon was appointed after criticism of the procedure of several inquiries, and reported in 1966. Its six principles concern the treatment of a person whose conduct is in question, and they are the foundation of modern inquiry procedure in the common law world.

1. Before a person is involved in an inquiry, the tribunal must be satisfied that there are circumstances which affect him and which the tribunal proposes to investigate.
2. He should be informed of any allegations against him and of the substance of the evidence in support of them.
3. He should be given an adequate opportunity to prepare his case, and of being assisted by legal advisers, and his legal expenses should normally be met out of public funds.
4. He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry.
5. Any material witness he wishes called at the inquiry should, if reasonably practicable, be heard.
6. He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.

Why these matter for an Indian answer. Because sections 8B and 8C of the Indian Act, inserted by the amendment of 1971 and read in chapter 440, are the Salmon principles in Indian statutory form: the right of a person likely to be prejudicially affected to be heard, and the right of cross-examination and legal representation. India did not have them in 1952 and State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, which chapter 490 works, was decided before they existed.

And the third principle is the one India has not adopted. Salmon said legal expenses should normally be met out of public funds. Section 8C gives a right to be represented; it does not fund the representation. Compare section 55 of the Lokpal Act, which chapter 205 read: there the institution must provide legal assistance on request. So Indian law funds a defence before the Lokpal and not before a Commission of Inquiry, which is an inconsistency worth naming in an answer about reform.

What India took, and what it changed

The first row is the important one. In Britain the initiative is Parliament's, and a Government that does not want an inquiry must persuade both Houses to refuse one. In India the initiative is ordinarily the Government's, with a resolution of the House as an alternative that obliges the Government to appoint. Chapter 390 reads section 3 and shows how much turns on that difference.

The second row matters too. The Indian Act dropped "urgent". That widens the section, and it is one reason India appoints so many more Commissions than Britain appoints tribunals.

The sixth row is India's own contribution and a large one. Section 6, which chapter 420 reads, makes a statement to the Commission inadmissible against its maker in any civil or criminal proceeding. Britain has no such general rule. It is why an Indian Commission can get people to talk, and it is also why its findings so rarely lead to a conviction.

A worked example

Suppose the Kuthuparamba firing of chapter 520 had happened in England in 1930.

Both Houses would have to resolve that the matter was one of urgent public importance. A Government with a majority could prevent it; a Government under pressure would find it hard to.

The tribunal would have the powers of the High Court, so a witness who refused to attend could be dealt with as for contempt.

It would sit in public. The evidence would be given openly and reported.

A person whose conduct was in question would, after 1966, be entitled to the six Salmon protections, including publicly funded legal representation.

And the statements made to it would be usable. There is no equivalent of the Indian section 6, so the evidence could feed a prosecution.

Now put the same facts in India in 1997. The State Government appoints, or the Assembly resolves. The Commission has the civil court powers of section 4, and the additional powers of section 5 only if the Government notifies them. It decides for itself whether to sit in public, under section 8. The person whose conduct is in question has the section 8B and 8C rights but pays for his own lawyer. And under section 6 nothing he says can be used against him.

The comparison shows both the strength and the weakness of the Indian design in one place: easier to appoint, safer for witnesses, and much harder to convert into consequences.

What beginners get wrong

That the 1921 Act is still the English law. It was replaced by the Inquiries Act 2005, under which a Minister rather than Parliament causes an inquiry to be held. The 1921 Act is the model the Indian Act follows and the reference point for the Salmon principles.

That the Salmon principles are Indian law. Sections 8B and 8C give effect to two of them. The principle about public funding of legal expenses has not been adopted.

That an Indian Commission must sit in public. Section 8 lets the Commission decide.

That India simply copied the 1921 Act. It moved the power of appointment to the Government, dropped the requirement of urgency, and added the inadmissibility rule in section 6.

Quick revision

Tribunals of Inquiry (Evidence) Act 1921, passed after a Select Committee of the House of Commons found it could not investigate the Ministry of Munitions allegations. Tribunal established on a resolution of both Houses on a definite matter of urgent public importance, with the powers of the High Court, sitting in public unless it decides otherwise.

Salmon Commission 1966, six principles: the tribunal must be satisfied that circumstances affect the person; he must be told the allegations and the substance of the evidence; he must have time and legal advice, normally at public expense; he must be able to give his case in public through his own lawyer; his material witnesses should be heard; and he must be able to cross-examine evidence affecting him.

India took: the tribunal idea, the compellable evidence, the one matter design, the report.

India changed: appointment by the Government; urgency dropped; powers enumerated in section 4 with more available by notification under section 5; sitting in public at the Commission's choice; and section 6, statements inadmissible against the maker.

Sections 8B and 8C are Salmon principles one, two, four and six in Indian statutory form. Principle three, public funding, was not adopted.

Test yourself

1. Why did Britain pass the Tribunals of Inquiry (Evidence) Act 1921? Because a Select Committee of the House of Commons appointed in 1921 to inquire into allegations of bribery of officials of the Ministry of Munitions found that it could not do the work: it could not effectively compel evidence, its members were partisan, and its procedure was unsuited to determining whether named individuals had behaved improperly. Parliament concluded that a House is a poor tribunal of fact in such a case and created a statutory tribunal instead.

2. State the Salmon principles and say which India has adopted. That the tribunal must be satisfied there are circumstances affecting the person which it proposes to investigate; that he be informed of the allegations and the substance of the evidence; that he have adequate opportunity to prepare and legal assistance, normally at public expense; that he be able to be examined by his own lawyer and state his case in public; that his material witnesses be heard if reasonably practicable; and that he be able to cross-examine evidence affecting him. India gave effect to the first, second, fourth and sixth through sections 8B and 8C of the Commissions of Inquiry Act, inserted in 1971. The principle of public funding of legal expenses has not been adopted, although section 55 of the Lokpal Act does exactly that for proceedings before the Lokpal.

3. Give three differences between the 1921 model and the Indian Act of 1952. Appointment: in Britain on a resolution of both Houses, in India ordinarily by the appropriate Government, with a resolution of the House as an alternative that obliges it to appoint. Trigger: a definite matter of urgent public importance in Britain, a definite matter of public importance in India, urgency having been dropped. Evidence: in Britain a statement to the tribunal may be used, whereas section 6 of the Indian Act makes a statement inadmissible against its maker in any civil or criminal proceeding, which is why Indian inquiries elicit evidence readily and convert into convictions rarely.

4. Why does the difference in who appoints matter? Because it decides who controls whether an inquiry happens. Where both Houses must resolve, a Government that does not want an inquiry must persuade the legislature to refuse one, which is politically costly. Where the Government appoints, an inquiry into the Government's own conduct depends on the Government deciding to order it, and the alternative route by resolution requires the House to act against the majority that sustains the Government.

Section 2(a): "appropriate Government", the definition that decides jurisdiction

"Appropriate Government" means:

1. the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and
2. the State Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III.

Read the two limbs side by side and the asymmetry is deliberate and enormous.

The Central Government may inquire into a matter relatable to any entry in any of the three Lists, including the State List.

A State Government may inquire only into matters relatable to the State List and the Concurrent List, and not into a matter relatable to the Union List.

So the Union may inquire into a subject exclusively within a State's legislative competence. That is the provision on which State of Karnataka v. Union of India turned, and chapter 500 works it in full. The Karnataka Government's objection was precisely that the Union was reaching into its government; the Court's answer was that the Act permits it, and that an inquiry is not an exercise of executive power over the State but a fact-finding exercise directed at restoring public confidence.

A worked illustration of the asymmetry. Police is entry 2 of the State List. So a State may appoint a Commission into a police firing, and so may the Union. Defence is entry 1 of the Union List. A State may not appoint a Commission into a defence procurement, because the matter is not relatable to List II or List III.

Note the words "relatable to". Not "falling under" or "within". Relatable is a wider connection, and it is the word that lets a Commission inquire into a matter with several aspects touching different entries.

Section 2(b) and (c): the other two definitions

"Commission" means a Commission of Inquiry appointed under section 3. Short, and it does real work: everything in the Act keyed to "the Commission" is keyed to a body appointed under section 3, which is why section 11, read in chapter 450, has to deem other inquiring authorities to be Commissions before the Act can apply to them.

"Prescribed" means prescribed by rules made under this Act. The standard definition, pointing to section 12.

Why the definition section is short and the Act is still workable

A student comparing this Act with the Lokpal Act will notice that this one defines almost nothing. There is no definition of "public importance", none of "inquiry", none of "report", none of "member".

That is a drafting choice with consequences in both directions.

In favour. The instrument is meant to be usable for any kind of public failure, from a riot to a bank collapse, and definitions would narrow it. Chapter 40 recorded that Crossman refused to define maladministration for the same reason.

Against. Almost every contested question about the Act has therefore been about the meaning of an undefined phrase: what is a definite matter of public importance under section 3, what is the same matter under the proviso, when is a person likely to be prejudicially affected under section 8B. Chapters 390, 500 and 440 are those questions.

A worked example

A large private bank in a State fails, and depositors lose money. There are allegations that the State's cooperation department ignored warnings and that a Union regulator did nothing.

Can the State appoint a Commission? Banking is entry 45 of the Union List. Cooperative societies are entry 32 of the State List. If the terms of reference are drawn to inquire into the conduct of the State cooperation department, the matter is relatable to entry 32 and the State may appoint. If they are drawn to inquire into the regulation of the bank, the matter is relatable to entry 45 and the State may not.

Can the Union appoint? Yes, on either framing, because section 2(a)(i) allows it to inquire into a matter relatable to an entry in any of the three Lists.

And if both appoint? The proviso to section 3(1) governs, and chapter 390 reads it: where the Central Government has appointed, no State may appoint another Commission into the same matter without the Central Government's approval while the Central Commission is functioning; and where a State has appointed, the Central Government shall not appoint another into the same matter while the State's Commission functions.

Which is precisely how the litigation in 1977 arose, and chapter 500 shows how the Court decided whether two notifications were into "the same matter".

What beginners get wrong

That a State can inquire into anything happening in the State. It can inquire into matters relatable to List II or List III. A matter relatable only to the Union List is outside it, however local the facts.

That the Union can only inquire into Union subjects. Section 2(a)(i) expressly allows List II as well.

That the Act defines "public importance". It does not, and chapter 390 shows the courts filling the gap.

That the Act applies to every inquiry. It applies to a Commission appointed under section 3, and to another authority only if the Government notifies under section 11 that it shall apply.

Quick revision

Act 60 of 1952, in force 1 October 1952, extends to the whole of India since the omission of the Jammu and Kashmir exception in 2019.

Twelve numbered sections, plus 5A, 5B, 6A, 8A, 8B, 8C and 10A inserted by amendment.

s.2(a) "appropriate Government": the Central Government for a Commission appointed by it into a matter relatable to List I, II or III; the State Government for one appointed by it into a matter relatable to List II or III only.

The asymmetry: the Union may inquire into a State List matter; a State may not inquire into a Union List matter.

s.2(b) "Commission" means one appointed under section 3. s.2(c) "prescribed" means by rules under the Act.

Almost nothing else is defined, which keeps the instrument wide and puts the contested questions on undefined phrases: definite matter of public importance, the same matter, likely to be prejudicially affected.

Test yourself

1. Who is the appropriate Government under the Act, and what is the asymmetry between the two limbs? The Central Government in relation to a Commission appointed by it to inquire into a matter relatable to any entry in List I, List II or List III of the Seventh Schedule; and the State Government in relation to a Commission appointed by it to inquire into a matter relatable to any entry in List II or List III. The asymmetry is that the Union may inquire into a matter relatable to the State List, whereas a State may not inquire into a matter relatable only to the Union List.

2. Why does the asymmetry matter, and which case turned on it? Because it allows the Union to appoint a Commission into the conduct of a State's own Ministers and administration, on subjects exclusively within the State's legislative competence. State of Karnataka v. Union of India, (1977) 4 SCC 608, was a suit under article 131 by a State contending that a Central Commission into allegations against its Chief Minister and Ministers was an interference with its government and barred by the proviso to section 3(1); the Court upheld the Central notification.

3. How much does the Act define, and what follows from that? Very little: the appropriate Government, the Commission and the expression prescribed, and nothing else. It defines neither a definite matter of public importance, nor an inquiry, nor a report. The consequence is that the instrument remains usable for any kind of public failure, but that almost every contested question under the Act has been about the meaning of an undefined phrase, and has had to be settled by the courts.

4. May a State Government appoint a Commission to inquire into the regulation of a bank? Explain. Not if the matter is relatable only to entry 45 of the Union List, banking. Section 2(a)(ii) confines a State's Commission to matters relatable to List II or List III. If the terms of reference are instead drawn to inquire into the conduct of the State's own cooperation department, the matter becomes relatable to entry 32 of the State List and the State may appoint. The drafting of the terms of reference therefore decides competence.

"A definite matter of public importance"

The Act does not define it, and two decisions supply the meaning.

Facts. Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, [1959] SCR 279, decided on 28 March 1958 by B.P. Sinha, S.K. Das and A.K. Sarkar JJ, arose when the Central Government appointed a Commission under section 3, with Justice S.R. Tendolkar as its member, to inquire into the administration of nine companies and firms connected with Ram Krishna Dalmia. Dalmia challenged both the Act and the notification: the Act, he said, offended article 14 by giving an unguided power to pick individuals for inquiry, and the notification exceeded section 3 because the conduct of named private persons is not a definite matter of public importance.

Held. Both were upheld. The Act does not delegate an arbitrary power, because the discretion is guided by the policy laid down in the Act itself, that a Commission may be appointed only where there exists a definite matter of public importance into which an inquiry is necessary. The conduct of an individual person or company, or of a group of them, may in certain circumstances become a definite matter of public importance within section 3(1) and call for an inquiry. The Court also held that a Commission is merely to investigate, record its findings and make recommendations which are not enforceable proprio vigore, so the inquiry is not a judicial inquiry and neither Parliament nor the Government usurps the judicial function by ordering one; and it struck out of the terms of reference the direction to recommend action by way of securing redress or punishment for wrongs already done, because redress and punishment must come from a court of law.

Why it matters. It is the foundation case of the whole label. It settles that private conduct can be a matter of public importance, that the discretion in section 3 is guided and therefore not arbitrary, and, most importantly, that the report is recommendatory. Chapters 470 and 480 develop the last two propositions.

Facts. P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215, [1968] 3 SCR 789, decided on 16 April 1968 by V. Ramaswami, J.C. Shah, V. Bhargava, G.K. Mitter and C.A. Vaidialingam JJ, arose when Orissa appointed a Commission into allegations against Ministers of the previous government. They challenged it as outside section 3, as a mala fide device to destroy political rivals by character assassination, and as a contempt of court because some referred matters were the subject of a pending appeal.

Held. The notification was upheld on all three grounds. Its preamble showed that the object was to take legislative or administrative measures for maintaining high standards of public conduct and purity of political administration in the State in future, which falls within section 3. On mala fides the Court accepted that the appointment may have been partly on account of political rivalry between the party in power and those inquired into, but held that the dominant purpose was to promote purity and integrity in the political life of the State and not the character assassination of rivals, so the notification was bona fide. And ordering an inquiry into matters also before a court is not contempt unless something is done calculated to bring the court into contempt or to obstruct the course of justice.

Why it matters. It supplies the dominant purpose test, which is what a court applies when a Commission is attacked as politically motivated, and chapter 500 uses it.

The provisos: two Commissions on the same matter

Proviso (a). Where a Commission has been appointed by the Central Government to inquire into a matter, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Central Commission is functioning.

Proviso (b). Where a Commission has been appointed by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the State's Commission is functioning.

The two are not symmetrical. A State may appoint a second Commission with the Central Government's approval; the Central Government has no corresponding route while a State Commission functions.

And everything turns on "the same matter", which the Act does not define. That is the question State of Karnataka v. Union of India decided, and chapter 500 works it: two notifications are not into the same matter where they are substantially different in nature and object, even if central areas of fact and law are common. The Court's image was that one notification was meant to see whether the veil worn by certain transactions was correct in form and the other to tear that veil down.

The opening words, and what they prove

Section 3(1) now begins: "Save as otherwise provided in the Lokpal and Lokayuktas Act, 2013, the appropriate Government may..."

The footnote records the source: substituted by Act 1 of 2014, section 58 and the Schedule, for "The appropriate Government may", with effect from 16 January 2014.

Read that with chapter 210 and with section 14(4) of the Lokpal Act, which chapter 140 read. Section 58 of the Lokpal Act gives effect to a Schedule that amends four statutes, and this is one of them. Section 14(4) provides that a matter complained of to the Lokpal shall not be referred for inquiry under this Act. The amendment to section 3(1) is the same rule written into the other statute, so that a person reading the Commissions of Inquiry Act alone is told about it.

Why this is the best single illustration in Module I that the labels are one subject. MU prints "Ombudsman" and "Commission of Inquiry" as two labels. Parliament, legislating the first, reached into the statute governing the second and altered its opening words. The two institutions are not neighbours; they are parts of one anti-corruption architecture, and the sequence of chapters in this book follows MU's order while the law does not respect the boundary.

A worked example

Allegations are made in a State that a Minister awarded contracts corruptly.

Route one. The State Government forms the opinion that an inquiry is necessary and appoints a Commission under section 3(1) by notification, specifying the matter, the functions and the time.

Route two. The State Legislature passes a resolution. The Government now shall appoint. This route is available and, because the Government commands the House, is rarely taken against it.

Route three. The Central Government appoints, the matter being relatable to an entry in List II and section 2(a)(i) permitting it. Proviso (a) then prevents the State from appointing another Commission into the same matter without Central approval while the Central Commission functions, which is the situation of the 1977 litigation.

Now change one fact. Suppose a complaint on the same allegations has already been made to the Lokpal under the Lokpal and Lokayuktas Act 2013. Section 14(4) of that Act, and the opening words of section 3(1) of this one, prevent the matter being referred for inquiry under this Act at all.

And suppose the allegations are also the subject of a pending appeal in the High Court. P.V. Jagannath Rao answers it: appointing a Commission is not contempt unless something is done calculated to bring the court into contempt or to obstruct the course of justice.

What beginners get wrong

That the Government must always appoint when asked. It must appoint only when each House resolves.

That a Commission can only inquire into official conduct. Ram Krishna Dalmia holds that the conduct of a private person or company may in certain circumstances be a definite matter of public importance.

That political motivation invalidates a notification. P.V. Jagannath Rao applies a dominant purpose test and accepts that rivalry may be part of the motive.

That two Commissions can never inquire into related facts. The bar is on the same matter, and 1977 shows how differently two notifications may be characterised.

Quick revision

s.3(1): save as otherwise provided in the Lokpal and Lokayuktas Act 2013 (substituted by Act 1 of 2014, s.58 and the Schedule, w.e.f. 16 January 2014), the appropriate Government may if of opinion that it is necessary, and shall if each House of Parliament or the State Legislature resolves, by notification in the Official Gazette appoint a Commission into any definite matter of public importance, with the functions and time specified.

Proviso (a): no State Commission into the same matter while a Central one functions, except with Central approval. Proviso (b): no Central Commission into the same matter while a State one functions.

Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538: the discretion is guided by the Act's own policy and does not offend article 14; the conduct of a private person or company may be a definite matter of public importance; the report is recommendatory; a direction to recommend redress or punishment for past wrongs was struck out.

P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215: the dominant purpose test; political rivalry may be part of the motive without making the notification mala fide; appointing a Commission into matters also before a court is not contempt without more.

Test yourself

1. When may and when must the appropriate Government appoint a Commission? It may appoint if it is of opinion that it is necessary to do so, which is the ordinary route and gives the Government a discretion. It must appoint if a resolution in that behalf is passed by each House of Parliament or, as the case may be, by the Legislature of the State. The compulsory route is rarely used because the Government commands a majority in the House.

2. Can a Commission inquire into the conduct of a private company? Give authority. Yes. In Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, the Supreme Court upheld a notification appointing a Commission into the administration of nine companies and firms, holding that the conduct of an individual person or company, or of a group of them, may in certain circumstances become a definite matter of public importance within section 3(1) and call for an inquiry, and that the Act's own policy guides the discretion so that article 14 is not offended.

3. What is the dominant purpose test and where does it come from? It comes from P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215. Where a notification appointing a Commission is attacked as a mala fide device against political rivals, the court asks what the dominant purpose of the appointment was. Political rivalry may be part of the motive without invalidating the notification, provided the dominant purpose is a legitimate one such as promoting purity and integrity in public administration for the future, which the preamble to the notification in that case disclosed.

4. Explain the two provisos to section 3(1) and what turns on them. Where the Central Government has appointed a Commission into a matter, no State Government may appoint another into the same matter while the Central Commission is functioning, except with the Central Government's approval; and where a State has appointed one, the Central Government shall not appoint another into the same matter while the State's Commission functions. Everything turns on the meaning of "the same matter", which the Act does not define and which was decided in State of Karnataka v. Union of India, (1977) 4 SCC 608: two inquiries substantially different in nature and object are not into the same matter even where central areas of fact are common.

5. What do the opening words of section 3(1) tell you about the relationship between the two institutions in Module I? That they are one system rather than two subjects. The words "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013" were substituted into this Act by section 58 and the Schedule of the Lokpal Act with effect from 16 January 2014, and they correspond to section 14(4) of that Act, which forbids a matter complained of to the Lokpal from being referred for inquiry under this Act. Parliament, in creating the ombudsman, reached into the statute governing Commissions of Inquiry and altered its opening words.