Complaints Against the Lokpal Itself, and the Money

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.