Benches, Transfer of Cases, and Decision by Majority

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.