The Commission and the Lokpal

What only the Commission can do. Everything that is not a complaint against a person: superintendence over the Delhi Special Police Establishment's corruption investigations under section 8(1)(a), superintendence over vigilance administration under section 8(1)(h), review of pending sanction applications under section 8(1)(f), advice on departmental proceedings under section 17, consultation on vigilance rules under section 19, and the whole of chapters 690 and 700.

Write this as the organising sentence of the answer. The Lokpal is a complaint body with a political jurisdiction. The Commission is a supervisory and advisory body with an administrative jurisdiction. They meet over the services, and only there.

How the overlap is managed

The referral, and it is mandatory. The first proviso to section 20(1) of the Lokpal Act: the Lokpal, if it has decided to proceed with the preliminary inquiry, shall, by a general or special order, refer the complaints or a category of complaints or a complaint received by it in respect of public servants belonging to Group A or Group B or Group C or Group D to the Central Vigilance Commission.

The return, and it splits. The second proviso: 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, the Commission proceeds in accordance with the 2003 Act, which is sections 8A and 8B, worked in chapter 640.

The enabling amendments. The same Act of 2013 inserted section 8(2)(c) into the 2003 Act, so that on a Lokpal reference the Commission's clause (d) jurisdiction extends to Groups B, C and D as well, which it otherwise does not; and inserted sections 8A, 8B and 11A, giving the Commission the procedure, the timetable and the Director of Inquiry for that work.

So the relationship is not a boundary line but a pipe. Complaints against the services enter at the Lokpal and are piped down to the Commission. The seniors come back up; the juniors are finished below. Parliament's design was that one institution should receive the complaints and the other should do the inquiry work, and it amended both statutes on the same day to make that work.

Where the design is criticised

The Lokpal became a post office for the services. Section 20(1) says the Lokpal may order a preliminary inquiry by its Inquiry Wing or any agency; the first proviso then says that having decided to proceed it shall refer service complaints to the Commission. Since the great majority of complaints against public servants are against the services, the practical effect is that the Lokpal's own Inquiry Wing under section 11 handles the small minority, and the Commission does the volume.

The Commission gained work without gaining strength. Chapter 640 noted that the Director of Inquiry under section 11A is appointed by the Central Government, and chapter 620 that the Commission does not control its own staffing under section 7. It received a statutory duty to inquire on the Lokpal's references and no corresponding control over the means.

And the two are differently protected. The Lokpal's Chairperson and Members have five years or seventy under section 6, removal under section 37 on a reference that one hundred Members of Parliament or a citizen's petition can start, an Inquiry Wing of its own under section 11 and a Prosecution Wing under section 12. The Commission has four years or sixty-five, removal on a reference the President alone can make, no wing of its own and no prosecution arm outside section 8B(3). The junior institution in the pipeline is the better protected one, and the volume of the work sits with the weaker.

The one thing the Commission has that the Lokpal does not

Section 25 of the 2003 Act. Chapter 680 read it: the Director of Enforcement is appointed on the recommendation of a Committee chaired by the Central Vigilance Commissioner. And section 26 of the same Act put the superintendence of the Delhi Special Police Establishment's corruption investigations in the Commission.

So the Commission sits above the two Union investigating agencies and the Lokpal does not. Section 25 of the Lokpal Act allows the Lokpal to give direction and control to an agency, including the Delhi Special Police Establishment, in respect of cases referred by it, and the agency must report back to it; but that is case-specific, and the general superintendence remains with the Commission under section 4(1) of the 1946 Act.

Which produces the oddity worth naming in an answer. In a case referred by the Lokpal, the agency answers to the Lokpal. In every other corruption case it answers to the Commission. The Central Bureau of Investigation therefore has two supervisors, and which one applies depends on how the case arrived.

A worked example

A complaint alleges that a Union Minister took a payment to influence the award of a contract, and that the Joint Secretary and a Section Officer in the Ministry executed it.

The Minister. Only the Lokpal can inquire: section 14(1)(b). The Commission has no jurisdiction over him at any stage.

The Joint Secretary. He is a Group 'A' officer, so both bodies have jurisdiction. The complaint is before the Lokpal, and having decided to proceed with a preliminary inquiry it must refer it to the Commission under the first proviso to section 20(1). The Commission inquires through the Director of Inquiry under section 11A within the ninety days of section 8A(2), and reports back to the Lokpal under the second proviso, because he is Group A.

The Section Officer. He is Group C, ordinarily outside the Commission's jurisdiction altogether, but section 8(2)(c) brings him in on this reference. The Commission inquires; and because he is Group C it does not report to the Lokpal but proceeds itself under section 8A, and may cause an investigation under section 8B, ending in its own decision on a charge-sheet or closure report before the Special Court.

Three officers, one incident, three routes, and the differences are of tier and not of gravity. That is the point to make in the closing paragraph of an answer.

Now suppose the same allegation had come to the Commission directly, without a Lokpal complaint. It could inquire into the Joint Secretary under section 8(1)(d) with section 8(2)(a). It could not touch the Section Officer, because section 8(2)(c) operates only on a reference made by the Lokpal. And it could not touch the Minister at all.

What beginners get wrong

That the Lokpal replaced the Commission. It did not. The Act of 2013 amended the Act of 2003 and gave the Commission more work.

That the two have concurrent jurisdiction over everybody. They overlap only over the services. The political executive is the Lokpal's alone; vigilance supervision, advice and the agencies are the Commission's alone.

That the Lokpal may keep a service complaint. The first proviso to section 20(1) says shall refer, once it has decided to proceed with a preliminary inquiry.

That the Commission reports to the Lokpal in every referred case. Only for Group A and Group B. Group C and D stay with it.

That the Lokpal supervises the Central Bureau of Investigation. It directs and controls the agency in cases it has referred, under section 25 of its Act. The general superintendence in corruption matters is the Commission's, under section 4(1) of the 1946 Act as substituted by section 26 of the 2003 Act.

Quick revision

Only the Lokpal: the Prime Minister ( excluding international relations, external and internal security, public order, atomic energy and space; full bench and two-thirds approval; in camera; records not published if dismissed), Ministers of the Union, members of either House.

Both: the services, Groups A to D under s.14(1)(d) and (e) of the Lokpal Act; All-India Services under the Union, Group 'A' and notified public sector levels under s.8(2) of the 2003 Act.

Only the Commission: superintendence over the Delhi Special Police Establishment's corruption investigations, superintendence over vigilance administration, review of sanction pendency, advice in departmental proceedings, consultation on vigilance rules, the Chief Vigilance Officer system, and the appointment Committee for the Director of Enforcement under s.25.

The pipe: first proviso to s.20(1), the Lokpal shall refer service complaints to the Commission; second proviso, A and B come back up, C and D stay down under ss.8A and 8B; s.8(2)(c) widens the Commission's jurisdiction for the referred case; s.11A gives it a Director of Inquiry.

The criticism: the volume of service complaints sits with the less protected institution, which does not control its own inquiry staff.

Test yourself

1. Compare the jurisdiction of the Lokpal with that of the Central Vigilance Commission. The Lokpal's jurisdiction under section 14 of the Lokpal and Lokayuktas Act 2013 covers the Prime Minister, subject to the exclusions and the full bench and two-thirds approval required by the proviso, Ministers of the Union, members of either House of Parliament, Group A, B, C and D officers serving in connection with the affairs of the Union, and office holders in the bodies described in clause (f). The Commission's jurisdiction to inquire under section 8(1)(d) with section 8(2) of the Central Vigilance Commission Act 2003 covers members of the All-India Services serving in connection with the affairs of the Union, Group 'A' officers of the Central Government, and notified levels in Central public sector bodies, with Groups B, C and D added only on a Lokpal reference. The political executive is therefore exclusive to the Lokpal, the services are shared, and the Commission's supervisory, advisory and rule-consultation functions have no counterpart in the Lokpal Act.

2. How is the overlap between the two managed? By the first proviso to section 20(1) of the Lokpal Act, which obliges the Lokpal, once it has decided to proceed with a preliminary inquiry, to refer complaints against public servants of Groups A, B, C and D to the Commission by a general or special order; and by the second proviso, which requires the Commission to report to the Lokpal in the case of Group A and Group B and to proceed under its own Act in the case of Group C and Group D. To make this work the Lokpal Act inserted section 8(2)(c) into the 2003 Act, extending the Commission's inquiry jurisdiction to Groups B, C and D on such a reference, and inserted sections 8A, 8B and 11A giving the Commission the procedure, the timetable and a Director of Inquiry.

3. Criticise the arrangement. Three criticisms are available. First, the referral is mandatory and the services constitute the great bulk of complaints, so the Lokpal's own Inquiry Wing under section 11 does comparatively little and the Commission does the volume, which makes the Lokpal something close to a post office for service complaints. Second, the Commission received the duty without the means: the Director of Inquiry under section 11A is appointed by the Central Government, and the Commission's staff strength is fixed by rules that Government makes under section 7. Third, the protections are inverted. The Lokpal's Chairperson and Members have a longer term, a removal process that a hundred Members of Parliament or a citizen's petition can set in motion, an Inquiry Wing and a Prosecution Wing of their own; the Commission has a shorter term, removal on a reference the President alone can make, and no wing of its own. The heavier work sits with the weaker institution.

4. Which of the two supervises the Central Bureau of Investigation? Ordinarily the Commission. Section 4(1) of the Delhi Special Police Establishment Act 1946, as substituted by section 26 of the 2003 Act, vests the superintendence of the Establishment, so far as it relates to investigation of offences under the Prevention of Corruption Act 1988, in the Commission, and section 8(1)(a) and (b) of the 2003 Act confer the corresponding functions on it. But in a case referred by the Lokpal, section 25 of the Lokpal Act gives the Lokpal direction and control over the agency for that case and requires it to report back. The agency therefore has two supervisors, and which applies depends on the route by which the case came to it.

5. Did the Lokpal and Lokayuktas Act 2013 weaken the Central Vigilance Commission? It did not weaken its powers and it did not strengthen its position. The Act enlarged the Commission's inquiry jurisdiction by inserting section 8(2)(c), gave it a statutory procedure and timetable in sections 8A and 8B, gave it for the first time a power to decide on a charge-sheet or closure report before the Special Court in section 8B(3)(a), and gave it a Director of Inquiry in section 11A. What it did not do was give the Commission any greater control over its own staff, any longer tenure, any wider removal safeguard, or any share in the political jurisdiction it reserved to the Lokpal. The net result is a Commission doing more work from the same institutional position, which is a fair way to state the effect in an answer.