The Maharashtra Act of 2023: Jurisdiction and Benches

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shall be held in camera, and if the Lokayukta concludes that the complaint deserves to be dismissed, the records shall not be published or made available to anyone.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.