Offences, Penalties, and the Reports

The case against it, and it is strong.

The State pays for the prosecution and the complainant pays for the defence. Section 46(4) puts the expenses of prosecuting the complainant on the Central Government. There is no corresponding provision funding a complainant who is prosecuted and acquitted. The asymmetry is stark.

The threshold words are elastic. "False and frivolous or vexatious" invites argument about whether "false" and "frivolous" are conjunctive and "vexatious" alternative, and a complaint that fails for want of evidence is easily characterised as frivolous after the event.

Section 20(3)(c) makes the coupling automatic. When a bench closes proceedings against a public servant it may in the same breath proceed against the complainant. The person who reported wrongdoing learns the outcome and the threat together.

The whistleblower is unprotected. The Whistle Blowers Protection Act 2011, Act 17 of 2014, which was to provide safeguards against victimisation of a person who discloses corruption, received assent on 9 May 2014 and has never been brought into force beyond its first section. So an Indian complainant faces section 46 with no statutory protection on the other side. That is the single most useful fact to bring into an evaluative answer on the Lokpal, and chapter 320 develops it.

A balanced conclusion for an answer. The provision is not wrong in principle and is unbalanced in design. What it lacks is not a lower penalty but a counterweight: a functioning whistleblower statute, and a rule that costs follow the event both ways.

Section 47: complaints by societies and trusts

Section 47(1). Where an offence under section 46(1) has been committed by a society, association of persons or trust, whether registered or not, every person who at the time was directly in charge of, and responsible to, it for the conduct of its business, affairs or activities, as well as the body itself, shall be deemed guilty and liable to be proceeded against and punished.

The proviso exempts such a person if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent it.

Section 47(2). Notwithstanding sub-section (1), where the offence is proved to have been committed with the consent or connivance of, or attributable to any neglect on the part of, any director, manager, secretary or other officer, that person shall also be deemed guilty.

This is the standard vicarious liability formula in Indian regulatory statutes, and a student who has met section 141 of the Negotiable Instruments Act 1881 or section 27 of the Consumer Protection legislation will recognise it. Two limbs: the person in charge and responsible, with a due diligence defence; and separately the officer with consent, connivance or neglect.

Why it is here. Because section 14(1)(g) brought societies and trusts receiving donations above the prescribed limits within the Lokpal's jurisdiction. Having made such bodies liable to be complained against, the Act makes them liable for complaining falsely. Whether that even-handedness is real, given that such bodies are precisely the organisations that make corruption complaints, is a fair question.

Section 48: the annual report

It shall be the duty of the Lokpal to present annually to the President a report on the work done. On receipt, the President shall cause a copy to be laid before each House of Parliament, together with a memorandum explaining, in respect of the cases where the advice of the Lokpal was not accepted, the reasons for such non-acceptance.

This is the classical ombudsman's sanction, and it is worth recognising it as such. Chapter 20 traced it to the Swedish Justitieombudsman's duty to report to the Riksdag in 1809 and chapter 30 found it in every version of the institution since. Publicity is what makes a recommendation effective in a body that cannot order.

The memorandum is the sharp part. It is not enough to lay the report. Where the Lokpal advised something and the Government did not accept the advice, the Government must explain itself in writing, in a document laid before both Houses. A refusal that must be justified in public is a very different thing from a refusal recorded in a file.

Compare section 14 of the Central Vigilance Commission Act 2003, which requires the same memorandum for advice the Commission gave and the Government did not take. Chapter 660 reads it. The device is the same in both statutes because it works in both.

Section 49: the Lokpal as appellate authority

The Lokpal shall function as the final appellate authority in respect of appeals arising out of any other law for the time being in force providing for the delivery of public services and redressal of public grievances by any public authority, in cases where the decision contains findings of corruption under the Prevention of Corruption Act 1988.

This is the ghost of the grievance half of the 1966 design. Chapter 70 recorded that the Administrative Reforms Commission proposed an institution covering allegations and grievances both, and chapter 90 recorded that grievances were split into a separate Bill which lapsed. Section 49 is what survived: the Lokpal sits at the top of whatever grievance redress law exists, but only where the decision below contains a finding of corruption.

And that is why the section does very little. There is no central law providing for time bound delivery of public services and redressal of grievances; the Bill of 2011 died. Several States have such Acts. So section 49 is an appellate jurisdiction waiting for a statute below it, and chapter 330 is about the hole.

A worked example

A non-governmental organisation complains that a Joint Secretary took money to clear a licence.

The bench closes the case under section 20(3) for want of a prima facie case, and directs that the complainant be proceeded against under section 46.

Section 46(3). The Special Court may take cognizance only on the complaint of the Joint Secretary, or of an officer authorised by the Lokpal. The organisation cannot be prosecuted on anybody else's initiative.

Section 47(1). If the organisation is convicted, so are the persons who at the time were directly in charge of and responsible to it, unless a particular person proves that the offence was committed without his knowledge or that he exercised all due diligence.

Section 46(1). The punishment is up to one year and up to one lakh rupees.

Section 46(5). The organisation must in addition pay the Joint Secretary compensation and his legal expenses, as the Special Court determines.

Section 46(4). The Central Government pays for the prosecution of the organisation. Nobody pays for its defence.

Now change the outcome. Suppose the Lokpal had advised the Ministry to take departmental action against the Joint Secretary and the Ministry had refused. Section 48 requires the refusal to be explained in a memorandum laid before both Houses with the Lokpal's annual report.

What beginners get wrong

That any complaint that fails is a false complaint. The offence requires a false and frivolous or vexatious complaint, and a complaint that fails for want of evidence is not automatically within it.

That anyone may prosecute a false complainant. Only the person complained against or an officer authorised by the Lokpal may set section 46 in motion, and only a Special Court may take cognizance.

That section 48 merely requires a report. It requires the report and a memorandum explaining every case where the Lokpal's advice was not accepted.

That section 49 gives the Lokpal a general grievance jurisdiction. It applies only where the decision appealed from contains findings of corruption, and it needs a service delivery law below it to operate on.

Quick revision

s.46: a false and frivolous or vexatious complaint, on conviction, one year and one lakh rupees; cognizance only by a Special Court, only on the complaint of the person complained against or an officer authorised by the Lokpal; prosecution by the public prosecutor at the Central Government's expense; compensation and legal expenses to the public servant.

s.47: liability of a society, association or trust and of the person in charge and responsible, with a knowledge and due diligence defence; and separately of a director, manager, secretary or officer on consent, connivance or neglect.

s.48: annual report to the President, laid before each House, with a memorandum explaining non-acceptance of the Lokpal's advice.

s.49: the Lokpal as final appellate authority under other laws on delivery of public services and grievance redress, only where the decision contains findings of corruption.

The criticism of s.46: the State funds the prosecution and not the defence; the threshold words are elastic; section 20(3)(c) couples closure with prosecution of the complainant; and the Whistle Blowers Protection Act 2011 has never been brought into force, so there is no counterweight.

Test yourself

1. Set out the offence in section 46 and the safeguards around it. Making a false and frivolous or vexatious complaint under the Act, punishable on conviction with imprisonment up to one year and fine up to one lakh rupees. The safeguards are that only a Special Court may take cognizance, and only on the complaint of the person against whom the false complaint was made or of an officer authorised by the Lokpal, so a third party cannot set the prosecution in motion. On conviction the complainant must also pay the public servant compensation and legal expenses as the Special Court determines.

2. Give the case for and against section 46. For: a body that can attach property, recommend suspension and sanction prosecution can be used as a weapon against an officer who refuses a favour, and a deterrent against malicious complaints is necessary if officials are to take hard decisions. Against: section 46(4) puts the cost of prosecuting the complainant on the Central Government with no corresponding funding for his defence; the words false and frivolous or vexatious are elastic and a complaint that fails for want of evidence is easily characterised after the event; section 20(3)(c) allows closure and prosecution of the complainant in the same breath; and the Whistle Blowers Protection Act 2011 has never been brought into force, so there is no protection on the other side.

3. Explain the two limbs of liability in section 47. Under sub-section (1), where a society, association of persons or trust commits the offence, both the body and every person who at the time was directly in charge of and responsible to it for the conduct of its business are deemed guilty, subject to a defence that the offence was committed without his knowledge or that he exercised all due diligence. Under sub-section (2), independently, any director, manager, secretary or other officer with whose consent or connivance the offence was committed, or to whose neglect it is attributable, is also deemed guilty.

4. What must the President do with the Lokpal's annual report? Cause a copy to be laid before each House of Parliament, together with a memorandum explaining, for every case in which the Lokpal's advice was not accepted, the reasons for the non-acceptance. The requirement of a written public explanation for refusing advice is what gives a recommending body its force, and the same device appears in section 14 of the Central Vigilance Commission Act 2003.

5. What does section 49 do, and why does it do so little? It makes the Lokpal the final appellate authority for appeals arising out of any other law providing for the delivery of public services and redressal of public grievances, but only in cases where the decision contains findings of corruption under the Prevention of Corruption Act 1988. It does little because there is no central law providing for time bound delivery of public services and grievance redress; the Bill of 2011 lapsed. It is an appellate jurisdiction waiting for a statute beneath it, and it is the only surviving trace of the grievance half of the 1966 design.