Sections 8A, 8B and 11A: What the Lokpal Act Put Into This Act

Learn the split as a rule, because it is the commonest confusion in this part of the paper. Seniors go back up to the Lokpal. Juniors stay with the Commission. Sections 8A and 8B are what "stay with the Commission" means.

Section 8A: what happens after the preliminary inquiry

Section 8A(1). Where, after the conclusion of the preliminary inquiry relating to corruption of public servants belonging to Group C and Group D officials of the Central Government, the findings of the Commission disclose, after giving an opportunity of being heard to the public servant, a prima facie violation of conduct rules relating to corruption under the Prevention of Corruption Act 1988, the Commission shall proceed with one or more of the following actions:

(a) cause an investigation by any agency or the Delhi Special Police Establishment, as the case may be;

(b) initiation of the disciplinary proceedings or any other appropriate action against the concerned public servant by the competent authority;

(c) closure of the proceedings against the public servant, and to proceed against the complainant under section 46 of the Lokpal and Lokayuktas Act 2013.

Section 8A(2): the clock. Every such preliminary inquiry shall ordinarily be completed within ninety days, and, for reasons to be recorded in writing, within a further period of ninety days from the date of receipt of the complaint.

Three things in section 8A are worth marks on their own.

The hearing. The findings must be reached after giving an opportunity of being heard to the public servant. A preliminary inquiry is not ordinarily an adversarial proceeding, and Parliament nevertheless wrote audi alteram partem into the section. Chapter 190 read the same requirement in section 20(3) of the Lokpal Act and chapter 490 will read the third proviso to section 8B of the Commissions of Inquiry Act; the principle recurs across this whole paper.

The words "one or more". The three actions are not alternatives in the strict sense. The Commission may cause an investigation and have disciplinary proceedings started, which is how a criminal case and a departmental case ordinarily run together.

Clause (c) has two limbs and students routinely quote only the first. Closure is not the end: the section directs the Commission to proceed against the complainant under section 46 of the Lokpal Act, which punishes a false and frivolous or vexatious complaint with imprisonment up to one year and fine up to one lakh rupees, cognizable only by a Special Court and only on a complaint by the person defamed or an officer authorised by the Lokpal.

And that is the single most criticised sentence in this amendment. Chapter 200 made the argument in the Lokpal Act's own context; it is stronger here. Read literally, closure of an inquiry triggers action against the complainant, as though every unproved complaint were a false one. Section 46 itself requires the complaint to have been false and frivolous or vexatious, and a Special Court will have to find that before convicting, so the practical protection survives. But the drafting invites a chilling reading, and a candidate who notices it is doing what the paper asks when it says to be critical.

Section 8B: the investigation, and a departure from the Code

Section 8B(1). Where the Commission decides to investigate under section 8A(1)(a), it shall direct any agency, including the Delhi Special Police Establishment, to carry out the investigation as expeditiously as possible, to complete it within six months from the date of its order, and to submit the investigation report containing its findings to the Commission. The proviso allows the Commission to extend that period by a further six months for reasons to be recorded in writing.

Section 8B(2), and this is the provision to notice. Notwithstanding anything contained in section 173 of the Code of Criminal Procedure 1973, any agency, including the Delhi Special Police Establishment, shall, in respect of cases referred to it by the Commission, submit the investigation report to the Commission.

Why the non obstante clause is necessary. Section 173 of the Code requires the officer in charge of a police station to forward his report on completing an investigation to the Magistrate empowered to take cognizance. Without section 8B(2) an agency could not lawfully route its report anywhere else. The sub-section redirects the report to the Commission first, so that the Commission and not the investigating agency decides what becomes of the case.

Section 8B(3): the decision. The Commission shall consider every report received under sub-section (2) and may decide as to:

(a) file charge-sheet or closure report before the Special Court against the public servant;

(b) initiate the departmental proceedings or any other appropriate action against the public servant by the competent authority.

Stop and notice what section 8B(3)(a) does, because it contradicts the sentence every textbook uses about this institution. Chapters 630 and 750 describe the Commission as an advisory body with no power to prosecute. On this narrow track it has one. For a Group C or Group D public servant on a Lokpal reference, the Commission itself decides whether a charge-sheet or a closure report goes before the Special Court.

Keep the limits in view when you write it. The power exists only where the Lokpal has referred; only for Group C and Group D; and only after a section 8A inquiry and a section 8B investigation. It is a channel, not a general power. But it is real, and an answer that says the Commission can never prosecute is inaccurate after 16 January 2014.

Section 11A: the Director of Inquiry

Section 11A(1). There shall be a Director of Inquiry, not below the rank of Joint Secretary to the Government of India, appointed by the Central Government, for conducting preliminary inquiries referred to the Commission by the Lokpal.

Section 11A(2). The Central Government shall provide the Director of Inquiry such officers and employees as may be required for the discharge of his functions under this Act.

This is the answer to a question chapter 630 left open: with what hands does the Commission inquire? For the Lokpal's references, with a Director of Inquiry of Joint Secretary rank and a staff.

And the same weakness as section 7 runs through it. The Director is appointed by the Central Government, not by the Commission, and the staff are provided by the Central Government. Compare the Lokpal Act: chapter 150 read section 11, which gives the Lokpal an Inquiry Wing headed by a Director of Inquiry as part of the institution itself. The Lokpal owns its inquiry arm. The Commission is given one.

The whole route, in order

1. A complaint reaches the Lokpal.

2. The Lokpal decides to proceed and orders a preliminary inquiry under section 20(1)(a) of its Act.

3. The first proviso obliges it to refer complaints against public servants of Groups A, B, C and D to the Commission.

4. The Commission holds the preliminary inquiry, through the Director of Inquiry under section 11A, within ninety days, extendable by ninety under section 8A(2), and gives the public servant an opportunity of being heard.

5. Then the route forks. Group A and Group B: report to the Lokpal under the second proviso to section 20(1). Group C and Group D: the Commission proceeds itself under section 8A.

6. Under section 8A(1) it causes an investigation, or has disciplinary proceedings initiated by the competent authority, or closes and proceeds against the complainant under section 46.

7. If it causes an investigation, section 8B(1) gives the agency six months, extendable by six, and the report comes to the Commission under section 8B(2) despite section 173 of the Code.

8. Under section 8B(3) the Commission decides on a charge-sheet or closure report before the Special Court, or departmental proceedings, or both.

A worked example

A citizen complains to the Lokpal that a Group C clerk in a Central Ministry demanded a payment to release a file.

The Lokpal decides to proceed and orders a preliminary inquiry. Because the public servant is in Group C, the first proviso to section 20(1) obliges it to refer the complaint to the Commission.

The Commission inquires through the Director of Inquiry under section 11A, hears the clerk, and completes the inquiry in eighty days, within the ninety of section 8A(2).

The findings disclose a prima facie violation. Because the clerk is Group C, the Commission does not report to the Lokpal; it proceeds under section 8A and decides on clause (a) and clause (b) together, causing an investigation by the Delhi Special Police Establishment and asking the competent authority to start disciplinary proceedings.

The investigation. Section 8B(1) gives the agency six months from the date of the order. It asks for more time; the Commission extends by six months for reasons recorded in writing. The report comes to the Commission, not to the Magistrate, because of section 8B(2).

The decision. Under section 8B(3) the Commission directs that a charge-sheet be filed before the Special Court, and lets the departmental proceedings continue.

Change one fact: the officer is Group A. Everything up to the inquiry is the same, and then the second proviso to section 20(1) takes over: the Commission submits its report to the Lokpal under sections 20(2) and 20(4), and the Lokpal, not the Commission, decides what follows. Sections 8A and 8B never engage.

Change another: the inquiry finds nothing. The Commission closes under section 8A(1)(c), and the section in terms directs it to proceed against the complainant under section 46 of the Lokpal Act. In practice the Special Court must still find the complaint to have been false and frivolous or vexatious before anyone is convicted, and mere failure of proof is not that.

What beginners get wrong

That the Lokpal may choose whether to refer. The first proviso says shall, once it has decided to proceed with a preliminary inquiry.

That sections 8A and 8B apply to every complaint before the Commission. They apply on the Lokpal track, and section 8A in terms to Group C and Group D officials.

That the Commission reports to the Lokpal in every case. Only for Group A and Group B.

That the Commission can never prosecute. Section 8B(3)(a) lets it decide on a charge-sheet or closure report before the Special Court on this track.

That the Director of Inquiry belongs to the Commission. He is appointed by the Central Government under section 11A(1), which is exactly the difference between this arrangement and the Lokpal's own Inquiry Wing under section 11 of its Act.

That the ninety and six month periods are directory nothings. They are the only statutory time limits in this Act, and their extension needs reasons recorded in writing.

Quick revision

Inserted by Act 1 of 2014, s.58 and the Schedule, w.e.f. 16 January 2014.

Lokpal Act s.20(1), first proviso: the Lokpal shall refer complaints against Group A, B, C and D public servants to the Commission for preliminary inquiry. Second proviso: A and B, report to the Lokpal; C and D, the Commission proceeds under this Act.

s.8A(1): after the preliminary inquiry into Group C and D officials, after hearing the public servant, on a prima facie violation the Commission takes one or more of: (a) cause an investigation, (b) initiation of disciplinary proceedings by the competent authority, (c) closure, and proceed against the complainant under s.46 of the Lokpal Act.

s.8A(2): preliminary inquiry ordinarily within ninety days, extendable by ninety, reasons in writing.

s.8B(1): investigation within six months, extendable by six, reasons in writing; report to the Commission.

s.8B(2): notwithstanding s.173 of the Code of Criminal Procedure, the agency submits its report to the Commission.

s.8B(3): the Commission may decide to file a charge-sheet or closure report before the Special Court, or initiate departmental proceedings by the competent authority.

s.11A: a Director of Inquiry not below the rank of Joint Secretary, appointed by the Central Government, for the preliminary inquiries referred by the Lokpal, with staff provided by that Government.

Test yourself

1. How does a complaint before the Lokpal reach the Central Vigilance Commission, and what does the Commission then do? Under section 20(1)(a) of the Lokpal and Lokayuktas Act 2013 the Lokpal may order a preliminary inquiry, and the first proviso obliges it, by general or special order, to refer complaints against public servants of Groups A, B, C and D to the Commission constituted under section 3(1) of the 2003 Act. The Commission holds the inquiry, through the Director of Inquiry appointed under section 11A. The second proviso then splits the route: for Group A and Group B the Commission submits its report to the Lokpal under sections 20(2) and 20(4); for Group C and Group D it proceeds in accordance with the 2003 Act, which means sections 8A and 8B.

2. State the three courses open to the Commission under section 8A(1) and the condition precedent to any of them. The condition precedent is that after concluding the preliminary inquiry and after giving the public servant an opportunity of being heard, the Commission's findings disclose a prima facie violation of conduct rules relating to corruption under the Prevention of Corruption Act 1988. It may then take one or more of three actions: cause an investigation by any agency or the Delhi Special Police Establishment; have disciplinary proceedings or other appropriate action initiated against the public servant by the competent authority; or close the proceedings and proceed against the complainant under section 46 of the Lokpal and Lokayuktas Act 2013.

3. What is the significance of the non obstante clause in section 8B(2)? Section 173 of the Code of Criminal Procedure 1973 requires an investigating officer to forward his report on completion of the investigation to the Magistrate empowered to take cognizance. Section 8B(2) overrides that requirement for cases referred by the Commission, so that the agency, including the Delhi Special Police Establishment, submits its report to the Commission instead. Its significance is that it puts the decision on what follows an investigation with the Commission rather than with the agency or the Magistrate, which is what makes section 8B(3) workable.

4. Is it accurate to say that the Central Vigilance Commission has no power to prosecute? It is accurate as a general description and inaccurate as an absolute statement. The Commission's functions under section 8 are supervisory, inquisitorial, reviewing and advisory, and it does not ordinarily prosecute. But on the Lokpal track, that is where a complaint against a Group C or Group D public servant has been referred to it under the first proviso to section 20(1) of the Lokpal Act, and where it has held a preliminary inquiry under section 8A and caused an investigation under section 8B, section 8B(3)(a) empowers it to decide to file a charge-sheet or a closure report before the Special Court. The power is confined to that channel, and it has existed only since 16 January 2014.

5. Criticise section 8A(1)(c). Read literally it links closure of the proceedings against the public servant with proceeding against the complainant under section 46 of the Lokpal Act, as though an allegation that could not be established were for that reason a false one. Since section 46 punishes a false and frivolous or vexatious complaint with imprisonment up to one year and a fine up to one lakh rupees, the reading has an obvious chilling effect on the very complaints the machinery depends upon, and it sits oddly with the whole design of an anti-corruption statute that must attract information from inside the administration. The practical protection is that a Special Court can convict only on finding the complaint to have been false and frivolous or vexatious, and that cognizance is confined by section 46(3) to a complaint by the aggrieved person or an officer authorised by the Lokpal; but the answer is that the clause should have said that the Commission may proceed under section 46 where it finds the complaint to have been false, and not that closure is itself the occasion for it.