The Lokpal Established: Composition and Qualifications

Section 3(4) disqualifies. The Chairperson or a Member shall not be a member of Parliament or of a State or Union territory legislature; a person convicted of an offence involving moral turpitude; a person under forty-five years of age on the date of assuming office; a member of a Panchayat or Municipality; or a person who has been removed or dismissed from the service of the Union or a State.

And section 3(4) goes on to require that the Chairperson or a Member shall not hold any office of trust or profit other than his office, be affiliated with any political party, carry on any business or practise any profession. Before entering office he must resign any office of trust or profit, sever his connection with the management of any business, and cease to practise any profession.

Reading section 3 as a design

Nine at most, and at least half of them judges. The multi-member design came from the Standing Committee, and it is what allows the Lokpal to sit in benches under section 16. A single officer, which is the classical ombudsman, could not have carried the volume of a jurisdiction that reaches every Group A, B, C and D public servant.

Half judicial is the compromise. It answers the objection that a body with prosecution and attachment powers should have judicial minds in it, and it stops short of making the Lokpal a court.

Twenty-five years for a non-judicial Member is a high bar deliberately set, and it means the non-judicial Members are in practice retired civil servants, auditors and bankers.

The reservation proviso is unusual in a statute creating a constitutional-style office and is worth noticing in an answer, because it is one of the few provisions in this book that treats the composition of a watchdog as a question of representation as well as of competence.

The bar on practising a profession matters for a retired judge, who would otherwise arbitrate. It is a real financial sacrifice and it is part of what makes recruitment to these offices difficult.

Section 4: how they are chosen

Section 4(1) provides that the Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of:

1. The Prime Minister, Chairperson of the Committee.
2. The Speaker of the House of the People, Member.
3. The Leader of Opposition in the House of the People, Member.
4. The Chief Justice of India or a Judge of the Supreme Court nominated by him, Member.
5. One eminent jurist, recommended by the four above and nominated by the President, Member.

Count the votes and the design is visible. The Government of the day has the Prime Minister. The Speaker comes from the majority party. That is two. The Leader of Opposition, the Chief Justice or his nominee and the eminent jurist are three, and the eminent jurist is chosen by all four of the others. No Government commands this committee, and that is the whole point.

Section 4(2) provides that no appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. Nine words that decided the most important Lokpal case there has been, because for years the Government's answer to why no Lokpal had been appointed was that there was no Leader of Opposition. Chapter 230 works it.

Section 4(3) requires the Selection Committee to constitute a Search Committee of at least seven persons of standing with special knowledge and expertise in anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management, or any other matter useful in making the selection. The first proviso requires that not less than fifty per cent of the Search Committee be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women. The second proviso allows the Selection Committee to consider a person other than those the Search Committee recommends.

Section 4(4) requires the Selection Committee to regulate its own procedure in a transparent manner for selecting the Chairperson and Members.

Section 4(5) leaves the term of the Search Committee, the fees and allowances of its members and the manner of selecting the panel to be prescribed by rules.

A worked example

Suppose a vacancy arises in the office of a Judicial Member.

Step one, section 5. The President must take, or cause to be taken, all necessary steps for the appointment at least three months before the term expires. Chapter 120 reads that section.

Step two, section 4(3). The Selection Committee constitutes a Search Committee of at least seven, half of them from the categories the proviso names.

Step three. The Search Committee prepares a panel. Under the second proviso the Selection Committee may look outside that panel, so the Search Committee filters without binding.

Step four, section 4(1) and 4(4). The Selection Committee, five members, regulates its own procedure transparently and recommends a name.

Step five, section 3(3)(a). The candidate must be, or have been, a Judge of the Supreme Court or a Chief Justice of a High Court. Nothing else will do for a Judicial Member.

Step six, section 3(4). Before entering office the appointee resigns any office of profit, severs business connections and stops practising.

Step seven, section 6. The President appoints by warrant under his hand and seal. Chapter 120 takes it from there.

Now change one fact. Suppose the House of the People has no recognised Leader of Opposition, because no party in opposition has a tenth of the seats. Does the process stop? Section 4(2) says it does not: a vacancy in the Selection Committee does not invalidate an appointment. That sentence is the answer to five years of delay.

Distinctions: three selection committees compared

The row that matters is the fourth. The Central Vigilance Commissioner is chosen by a committee with no judicial member at all, two of whose three members are Ministers. That is the weakest of the three, and it is worth saying so when a question asks you to compare these institutions.

What beginners get wrong

That the Lokpal must have a judge as Chairperson. Section 3(2)(a) allows an eminent person meeting the section 3(3)(b) qualification. In practice the Chairpersons have been judges, but the Act does not require it.

That the Selection Committee appoints. It recommends. The President appoints, on that recommendation, by warrant under his hand and seal.

That the Search Committee's panel binds. The second proviso to section 4(3) says the Selection Committee may consider a person outside it.

That fifty per cent judicial means four of eight. It means fifty per cent of the Members, and the Members are "not exceeding eight". If six Members are appointed, three must be Judicial Members.

Quick revision

Section 3(1): establishes the Lokpal.

Section 3(2): a Chairperson plus not more than eight Members, of whom fifty per cent are Judicial Members; proviso, not less than fifty per cent of Members from SC, ST, OBC, Minorities and women.

Section 3(3): Chairperson, a serving or former Chief Justice of India or Judge of the Supreme Court, or an eminent person; Judicial Member, a serving or former Judge of the Supreme Court or Chief Justice of a High Court; other Member, impeccable integrity and twenty-five years in anti-corruption policy, public administration, vigilance, finance, law or management.

Section 3(4): disqualifications, including under forty-five years of age, and the bar on office of profit, political affiliation, business and practice.

Section 4(1): appointment by the President on the recommendation of a Selection Committee of five: Prime Minister as Chairperson, Speaker of the House of the People, Leader of Opposition in the House of the People, Chief Justice of India or his nominee, and one eminent jurist.

Section 4(2): a vacancy in the Selection Committee does not invalidate an appointment.

Section 4(3): a Search Committee of at least seven, whose panel does not bind. Section 4(4): transparent procedure.

Test yourself

1. Set out the composition of the Lokpal. A Chairperson and not more than eight Members. The Chairperson is or has been a Chief Justice of India or a Judge of the Supreme Court, or is an eminent person qualified under section 3(3)(b). Fifty per cent of the Members must be Judicial Members, that is serving or former Judges of the Supreme Court or Chief Justices of High Courts. Not less than fifty per cent of the Members must be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.

2. Name the five members of the Selection Committee and explain what the composition is designed to achieve. The Prime Minister as Chairperson, the Speaker of the House of the People, the Leader of Opposition in the House of the People, the Chief Justice of India or a Judge of the Supreme Court nominated by him, and one eminent jurist recommended by those four and nominated by the President. The design denies the Government of the day a majority: it holds the Prime Minister and, in practice, the Speaker, while the Leader of Opposition, the judicial member and the jurist are outside its control and the jurist is chosen by all four.

3. What does section 4(2) provide, and why has it mattered so much? That no appointment of a Chairperson or Member shall be invalid merely by reason of any vacancy in the Selection Committee. It mattered because between 2014 and 2019 the Government's explanation for appointing no Lokpal was that the House of the People had no recognised Leader of Opposition, and section 4(2) is the answer to that: a vacancy does not stop the Committee acting.

4. Does the Search Committee's panel bind the Selection Committee? No. The second proviso to section 4(3) expressly allows the Selection Committee to consider a person other than those recommended by the Search Committee, so the Search Committee filters and advises but does not confine the choice.

5. What must a person do before entering office as Chairperson or Member? Under section 3(4) he must resign any office of trust or profit he holds, sever his connection with the conduct and management of any business he carries on, and cease to practise any profession. He must also not be affiliated with any political party. The restrictions exist because the office is meant to be free of any interest that could be worked on.