Maharashtra's Act of 1971: the Office

"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.