The Lokpal and Lokayuktas Act 2013: the Architecture

PART III, ESTABLISHMENT OF THE LOKAYUKTA: section 63.

THE SCHEDULE.

Three things to notice about that table, because each is examinable.

The Inquiry Wing, the Prosecution Wing and the charge on the Consolidated Fund each get a whole chapter to themselves, for one section apiece. A drafter gives a single section its own chapter when he wants it to be conspicuous, and these three are the features that mark this institution off from a classical ombudsman: it inquires with its own wing, prosecutes with its own wing, and is paid without an annual vote.

Chapter VI is called jurisdiction and contains the benches. Sections 16 to 19 constitute benches, distribute business, allow the Chairperson to transfer cases and provide for decision by majority. A body that sits in benches and decides by majority is being built to look like a court, and the drafter has put that fact inside the jurisdiction chapter rather than in a separate one.

Chapter X is about complaints against the Lokpal itself. The institution that inquires into everybody has a chapter about who inquires into it, which is the point chapter 180 develops.

Section 1: extent, application and commencement

Section 1(1) gives the short title. Section 1(2) provides that the Act extends to the whole of India. Section 1(3) provides that it shall apply to public servants in and outside India. Section 1(4) provides that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

The footnote to section 1(4) records the notification: 16 January 2014, by S.O. 119(E) of that date. That is the date to remember. It is the date from which the five-year wait in chapter 230 is measured, and it is what the Supreme Court relied on in 2017 when it held that a law duly enacted and brought into force must be given effect to.

Section 1(3) is easy to skip and worth a sentence in an answer. A public servant does not escape the Act by being posted abroad. The Convention the preamble recites requires exactly that reach, and section 36's letter of request to a contracting State is the machinery that makes it usable.

A note on the title. The Act is called the Lokpal and Lokayuktas Act although it establishes only the Lokpal. Part III, one section long, requires the States to establish Lokayuktas by law. A student who notices this has read the Act rather than a summary of it.

Section 2: the definitions that decide the Act's reach

"Competent authority" is defined at length and is the authority whose sanction or permission is needed at various points: for the Prime Minister the House of the People, for a Minister of the Union the Prime Minister, for a member of either House the Chairman or the Speaker, and for other public servants the Government or the authority prescribed. The definition matters because the Act repeatedly requires a competent authority to act, and the identity of that authority is where political control over the process actually sits.

"Complaint" means a complaint alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act 1988. That definition alone tells you what kind of institution this is: an anti-corruption body, not a grievance body.

"Public servant" is defined by reference to the classes in section 14, which is why chapter 140 has to be long: the Act does not carry a self-contained definition of who may be inquired into, it puts the whole of it in the jurisdiction section.

"Preliminary inquiry" and "investigation" are kept apart throughout. A preliminary inquiry asks whether a prima facie case exists; an investigation is investigation in the sense of the Code of Criminal Procedure. Chapter 150 works out the difference and why it decides the shape of Chapter VII.

"Special Court" means the court of a special judge appointed under the Prevention of Corruption Act 1988, which is where a prosecution the Lokpal sanctions is tried.

A worked example: placing a section without the contents page

A question mentions "the Lokpal's power to attach property provisionally". Where is it?

Step one, ask what kind of provision it is. It is a power exercised in aid of an inquiry, and it concerns property.

Step two, use the map. Powers of the Lokpal are Chapter VIII, sections 25 to 34. Special Courts are Chapter IX.

Step three, narrow inside Chapter VIII. The chapter runs from supervisory powers through search and seizure and the powers of a civil court to provisional attachment, confirmation of attachment, confiscation, the recommendation of transfer or suspension, directions to prevent the destruction of records, and delegation.

Step four, check. Section 29 is provisional attachment of assets, section 30 is confirmation of attachment and section 31 is confiscation. Chapter 170 reads them.

Why this matters in an examination. A three-hour paper with seven questions rewards a candidate who can navigate. A candidate who has memorised a dozen section numbers and lost the shape will misplace the thirteenth; a candidate who holds the shape will place a section they have half forgotten.

Distinctions: the Act against its two neighbours

What beginners get wrong about this Act

That the Lokpal is a court. It is not. It inquires and sanctions prosecution; the trial is before a Special Court under the Prevention of Corruption Act 1988. That it sits in benches and decides by majority makes it look judicial and does not make it a court.

That the Lokpal handles complaints about bad service. It does not. A complaint under the Act is an allegation of an offence under the Prevention of Corruption Act.

That the Act created Lokayuktas. It did not. Part III requires the States to establish them by law.

That the Act is confined to India. Section 1(3) applies it to public servants in and outside India, and section 36 provides for a letter of request to a contracting State.

Quick revision

Act 1 of 2014. Assent 1 January 2014. In force 16 January 2014, by S.O. 119(E).

Preamble recites the United Nations Convention Against Corruption, which India has ratified.

Section 1: (1) short title, (2) extends to the whole of India, (3) applies to public servants in and outside India, (4) commencement by notification.

Structure: Part I preliminary, s.1. Part II, Lokpal for the Union, ss.2 to 62 in fifteen chapters. Part III, establishment of the Lokayukta, s.63. Plus the Schedule.

Chapters to remember: II establishment ss.3 to 10; III Inquiry Wing s.11; IV Prosecution Wing s.12; V expenses charged on the Consolidated Fund s.13; VI jurisdiction and benches ss.14 to 19; VII procedure ss.20 to 24; VIII powers ss.25 to 34; IX Special Courts ss.35 and 36; X complaints against the Lokpal's own people ss.37 and 38; XIII declaration of assets ss.44 and 45; XV miscellaneous ss.48 to 62.

Definitions that decide the reach: competent authority; complaint, meaning an allegation of an offence under the Prevention of Corruption Act 1988; public servant, defined through section 14; and the preliminary inquiry against investigation distinction.

Test yourself

1. Give the Act's number, the date of assent and the date it came into force. Act 1 of 2014. Assent on 1 January 2014. It came into force on 16 January 2014, on a notification under section 1(4), S.O. 119(E) of that date.

2. Set out the Act's three Parts and say what is in each. Part I, Preliminary, is section 1 alone. Part II, Lokpal for the Union, runs from section 2 to section 62 in fifteen chapters, covering definitions, establishment, the Inquiry Wing, the Prosecution Wing, the charge on the Consolidated Fund, jurisdiction and benches, procedure, powers, Special Courts, complaints against the Lokpal's own people, assessment of loss, finance and audit, declaration of assets, offences and penalties, and miscellaneous. Part III is section 63, requiring the States to establish Lokayuktas.

3. Why do the Inquiry Wing, the Prosecution Wing and the charge on the Consolidated Fund each have a chapter of their own for a single section? Because a drafter gives one section its own chapter to make it conspicuous, and these three are precisely the features that distinguish this institution from a classical ombudsman: an inquiring arm of its own, a prosecuting arm of its own, and money that does not depend on an annual vote and so cannot be withheld by the executive it investigates.

4. What does the preamble's reference to the United Nations Convention Against Corruption explain? It supplies part of the Act's justification and accounts for features that look excessive by classical ombudsman standards. The Convention requires States to maintain preventive anti-corruption bodies, to criminalise bribery and to provide for the freezing, seizure and confiscation of proceeds of corruption, and Chapter VIII's attachment and confiscation provisions and section 36's letter of request to a contracting State are India giving effect to those requirements.

5. What does the definition of "complaint" tell you about the character of the institution? That it is an anti-corruption body and not a grievance body. A complaint under the Act alleges an offence punishable under the Prevention of Corruption Act 1988, so a citizen aggrieved by delay, discourtesy or unfairness has no complaint to make under this Act at all, and the grievance half of the 1966 design has no home.