Maharashtra's Act of 1971: What It May Investigate, and How

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.