[IV] THE LOKPAL AND LOKAYUKTAS ACT, 2013

The Lokpal and Lokayukta Act, 2013 seeks to provide for the establishment of Lokpal for the
Union and Lokayukta for States to inquire into allegations of corruption against certain public
functionaries and for related matters. The act extends to whole of India, including Jammu &
Kashmir and is applicable to “public servants” within and outside India.
The act mandates for creation of
 Lokpal for Union

 Lokayukta for states

Composition of Lokpal
The institution of Lokpal is a statutory body without any constitutional backing. Lokpal is a
multimember body, made up of one chairperson and maximum of 8 members.
Who can become the Chairperson?
The person who is to be appointed as the chairperson of the Lokpal should be either of the
following:
 Either the former Chief Justice of India

 Or the former Judge of Supreme Court

 Or an eminent person with impeccable integrity and outstanding ability, having special
knowledge and expertise of minimum 25 years in the matters relating to anti-corruption
policy, public administration, vigilance, finance including insurance and banking, law and
management.
Who can become a member?
Out of the maximum eight members, half will be judicial members. Minimum fifty per cent of
the Members will be from SC / ST / OBC / Minorities and women.
Judicial Member
The judicial member of the Lokpal should be__
 either a former Judge of the Supreme Court

 or a former Chief Justice of a High Court

Non-Judicial Member
The non-judicial member should be an eminent person with impeccable integrity and
outstanding ability, having special knowledge and expertise of minimum 25 years in the
 matters relating to anti-corruption policy, public administration, vigilance, finance including
insurance and banking, law and management.
Who cannot become the chairperson?
The following persons cannot become chairperson of Lokpal:
 MPs and MLAs

 Persons convicted of any offense involving moral turpitude

 Less than 45 years of age

 Members of Panchayats or Municipality

 A person who was removed or dismissed from the public service

 A person who holds any office of trust / profit; if so, he would need to resign from Lokpal

 A person who is affiliated to a political party

 Carries on some business / profession; if so, he would need to quit some business
Appointment of Chairperson and members
The members are to be appointed by President on the recommendations of a selection
committee. This selection committee is made up of_:
 Prime Minister—Chairperson;

 Speaker of Lok Sabha

 Leader of Opposition in Lok Sabha

 Chief Justice of India or a Judge nominated by him / her

 One eminent jurist

Term of Office:
 The term of office for Lokpal Chairman and Members is 5 years or till attaining age of 70
years.

 The salary, allowances and other conditions of service of chairperson are equivalent to Chief
Justice of India and members is equivalent to Judge of Supreme Court.

 If the person is already getting the pension (for being a former judge), the equivalent pension
amount will be deducted from the salary.

 The source of salary for Lokpal and Members is Consolidated Fund of India.
 If the chairperson dies in office or has resigned from the post, President can authorise the
senior-most Member to act as the Chairperson until new chairperson is appointed. If
chairperson is not available for certain functions due to leave, his job will be done by senior
most member.
Post retirement jobs:
Once a Lokpal chairperson / member has ceased to be so, he cannot take up the following jobs:
 He cannot be reappointed as chairperson / member of Lokpal

 Cannot take any diplomatic assignment

 Cannot be appointed as administrator to a Union Territory

 Any constitutional / statutory post in which appointment is made by President

 Any other office under the government of India

 He cannot contest any of the elections such as President / Vice President / MLA / MLC/ Local
bodies for 5 years after relinquishing the post.
Officials of Lokpal
There are three important officers of Lokpal. They are appointed by Lokpal Chairperson.
1. Secretary to Lokpal

2. Director of Inquiry

3. Director of Prosecution
There is one secretary appointed by the chairperson from a panel of names sent by central
government.
The Director of Inquiry and Director of Prosecution cannot be below the rank of Additional
Secretary to the Government of India. These officials will also be appointed by chairperson.
Inquiry Wing of Lokpal
According to the act, the Lokpal would constitute an Inquiry Wing, which is to be headed by
Director of Inquiry. Its function is to conduct the preliminary inquiry into any offence alleged
to have been committed by a public servant punishable under the Prevention of Corruption Act,
1988.
Prosecution Wing
According to the act, the Lokpal by notification would constitute a Prosecution Wing. This
wing will be headed by the Director of Prosecution for the purpose of prosecution of public
servants.
 Jurisdiction of Lokpal
The following come under the jurisdiction of Lokpal:
 Prime Minister of India, under certain conditions as stipulated in the adjacent box.

 All ministers of the Union

 Members of Parliament except for matters related to article 105 of constitution. (that is
anything said or a vote given by him in Parliament)

 Group ‘A’ or Group ‘B’ officers

 Group ‘C’ or Group ‘D’ officials

 Any person who is or has been in-charge (director / manager/ secretary) of anybody / society
set up by central act or any other body financed / controlled by central government.

 Any other person involved in act of abetting, bribe giving or bribe taking
Lokpal Benches
A Lokpal Bench will be constituted by the Chairperson with two or more members. Every
Lokpal Bench has to have at least half members as judicial members. If bench consists of
Chairperson, it will be headed by him. If the bench does not consist of chairperson, it will be
headed by a judicial member only. The Lokpal benches will sit in New Delhi or any other
places as decided by Lokpal. The benches can be constituted and reconstituted by Chairperson
time to time.
How Lokpal works?
Here is a simple account of how Lokpal works. Lokpal first of all receives a complaint. On
receiving the complaint, it needs to decide if it would proceed further. Once it decides to
proceed further, it would order a preliminary inquiry by either its own Inquiry Wing or other
agency such as Delhi Special Police Establishment (CBI).
The Preliminary enquiry has to be done within ninety (90) days of receiving complaint. It can
be increased to further 90 days for reasons recorded in writing. Thus, preliminary enquiry has
to be done in 6 months.
The preliminary inquiry would ascertain if there is prima facie a case to proceed further. Now,
here is a loop. If the complaint is related to Group A to Group D officers, Lokpal would refer
the complaint to CVC. CVC will inquire and do as follows:
 In case of Group A and B officers, it would make a report and submit it to Lokpal

 In case of Group C and D Officers, it would itself proceed as per CVC act 2003.
 The Inquiry Wing or CBI can do the search and seizure operations etc. They would make a
report and this report will be taken up by a Lokpal bench of minimum 3 members. This bench
will give an opportunity to the allegedly corrupt officer to be heard of. After this, the following
three alternatives will be there to proceed for:
 If the officer is guilty, Lokpal will grant sanction to its Prosecution Wing or CBI to file charge
sheet against him. It can also direct initiation of departmental proceedings.

 If the officer is found innocent, Lokpal would direct the closure of report before the Special
Court against the public servant and now would proceed against the complainant for making
false complaints.
Powers of Lokpal
The Lokpal has following powers:
 It has powers to superintendence over, and to give direction to CBI.

 If it has referred a case to CBI, the investigating officer in such case cannot be transferred
without approval of Lokpal.

 Powers to authorize CBI for search and seizure operations connected to such case.

 The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.

 Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured
by means of corruption in special circumstances

 Lokpal has powers to recommend transfer or suspension of public servant connected with
allegation of corruption.

 Lokpal has power to give directions to prevent destruction of records during preliminary
inquiry.
Special Courts
On the recommendation of the Lokpal, the Central Government shall constitute Special Courts
to hear and decide the cases arising out of the Prevention of Corruption Act, 1988 or under
Lokpal Act. Such courts are required to finish each trial within a period of one year from the
date of filing of the case in the Court. This one year period may be extended for 3 months by
recording in writing.
Complaints against the Lokpal
According to section 37 of the act, the Lokpal shall not inquire into any complaint made against
the Chairperson or any Member of its own institution. The chairperson or member can be
 removed from his office by President on grounds of misbehaviour after a Presidential
referenceto Supreme Court on a petition signed by 100 MPs.
However, President can also remove the chairperson / members under exceptional
circumstances such as if they are adjudged insolvent; or take a paid job or is / are unfit because
if infirm mind or body in the opinion of president.
Other Important Notes
 Lokpal will prepare its budget and forward it to central government. All charges related to
expenses of Chairperson / members/ Director of Inquiry / Director of Prosecution will be
charged on Consolidated Fund of India.

 The accounts of Lokpal will be audited by CAG.

 Each member / officer of Lokpal will need to declare his assets on taking up Lokpal Offices.

 Lokpal will prepare an annual report which it would submit to President who in turn will get
the report laid to each House of Parliament.

 Lokpal is to function as appellate authority for appeals arising out of any other law for the
time being in force.

 Public officials have been given immunity against anything which is done in good faith or
intended to be done in the discharge of his official functions or in exercise of his powers.

 Chairperson, Members, officers and other employees of the Lokpal are deemed to be public
servants.

 Lokpal will not entertain any complaint, if the complaint is related to an offense that dates as
back as 7 years or more.

 Civil Courts have been barred in respect jurisdiction of any matter under Lokpal.
Lokayukta
 Every State shall establish a Lokayukta by an state act, if it has not done so as of now.
What is not there in our Lokpal act?
The Lokpal and Lokayuktas Act is perhaps the only legislation in the history of independent
India, which has been so widely discussed, both inside and outside Parliament and has, thus
generated so much awareness in the public mind about the need to have an effective institution
of Lokpal to tackle corruption. However, the act passed hitherto is verbose, full of negatives
and has numerous cross references. Still, here are a few things which are absent from this law:
 No protection to whistleblowers: This was one of the main demands in the Janlokpal Bill.
The recently passed act has not at all provisions for whistleblower protection. We have to
have a separate law for that.

 There is only one section on Lokayukta in the act which says that within one year, the states
shall enact the Lokayukta act. However, there is nothing regarding their composition, powers
etc. In fact, states are free to define how their own Lokayuktas would be appointed, how they
would work and under what circumstances they would serve.

 The Lokpal act brings the PM under its jurisdiction, yet the Judiciary has been left. Judiciary
is NOT subject to Lokpal jurisdiction.

 The provisions of the act have become anomalous because of Lokpal’s relations with the CBI.
Under the provisions of the act, Lokpal has been vested with all powers related to only tose
cases which it refers to CBI. Instead, there was a long demand that CBI should be merged
with Lokpal. The current provisions are open to misuse.

 There are no provisions related to Citizen’s charter.

 There are no adequate provisions to appeal against the Lokpal. Lokpal cannot conduct inquiry
against itself.
Additional Notes: Prime Minister under Lokpal
According to the Lokpal and Lokayukta Act 2013, the PM comes within the jurisdiction of
Lokpal but Lokpal will not inquire the PM if the allegation of corruption is related to
international relations, external and internal security, public order, atomic energy and space.
Further, allegation against Prime Minister can be taken up for inquiry only when the two
conditions as follows are satisfied:
 Full bench of the Lokpal consisting of its Chairperson and all Members considers the
initiation of inquiry

 At least two-thirds of its members approves of such inquiry

Such inquiry against the Prime Minister will be done in camera. If the Lokpal concludes that
the allegation is false and the inquiry should be dismissed, the records of the inquiry shall not
be published or made available to anyone.

[V] SUPREME COURT ON LOKPAL AND LOKAYUKTA

Supreme Court has pronounced several decisions regarding the institution of Ombudsman. This
heading analyses various case laws related to the institution.

1. Common Cause, A Registered Society v. Union of India & Ors.1

This case is a review petition to provide relief to pass an appropriate writ, order or orders to
direct the Parliament to draft a Bill for the enactment of a legislation to establish the institution
of Lokpal, or an alternative system similar to Ombudsman for checking and controlling
corruption at public, political and bureaucratic levels. The Solicitor General brings to notice
that efforts were made with no consensus on the proposed bill. It is a matter which concerns
the Parliament and the Court cannot do anything substantial in this matter.

2. Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and Ors.2

Retired Judge of the High Court of Orissa was appointed as the Lokpal by the Governor of
Orissa by issuing a notification. By a notification dated 26.11.1996, the Government of Orissa
appointed the appellant as the Lokpal with effect from the date on which he was sworn in as
such. After hearing the parties, the PIL was allowed and it was held that there was no effective
consultation with the Leader of the Opposition and that the consultation under Section 3(1) of
the Orissa Lokpal and Lokayukta Act was effective on reference to the Governor, Chief Justice
and Leader of the Opposition. The Court observed that there was no consultation with the Chief
Justice with regard to the name suggested by the Leader of the Opposition. Therefore,
appointment of the appellant as the Lokpal was void. That order is under challenge in this
appeal.

In the context of the aforesaid functions of the Lokpal and the required qualification of a person
who is to be appointed to hold such office, the word ‘consultation’ used in Section 3 is required
to be interpreted. As

“(i) Consultation is a process which requires the meeting of minds between the parties involved
in the process of consultation on the material facts and points involved to evolve a correct or
at least satisfactory solution. There should be meeting of minds between the proposer and the
persons to be consulted on the subject of consultation. There must be definite facts which

1
Common Cause, A Registered Society v. Union of India & Ors., (1999) 6 SCC 667
2
Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and Ors ., (2002) 8 SCC 1.
constitute the foundation and source for final decision. The object of the consultation is to
render consultation meaningful to serve the intended purpose. Prior consultation in that behalf
is mandatory.

(ii) When the offending action affects fundamental rights or is to effectuate built-in insulation
as fair procedure, consultation is mandatory and non-consultation renders the action ultra
vires or invalid or void.

(iii) When the opinion or advice binds the proposer, consultation is mandatory and its
infraction renders the action or order illegal.

(iv) When the opinion or advice or view does not bind the person or the authority, any action
or decision taken contrary to the advice is not illegal, nor does it become void.

(v) When the object of consultation is only to apprise of the proposed action and when the
opinion or advice is not binding on the authorities or person and is not bound to be accepted,
the prior consultation is only directory. The authority proposing to take action should make
known the general scheme or outlines of the actions proposed to be taken be put to the notice
of the authority or the persons to be consulted; have the views or objections, take them into
consideration, and thereafter, the authority or person would be entitled or has/have authority
to pass appropriate orders or take decisions thereon. In such circumstances it amounts to an
action ‘after consultation’.”

Applying the principle enunciated in the aforesaid judgment, it is apparent that the consultation
with the Chief Justice is mandatory and his opinion would have primacy. The nature of the
consultation with the Leader of the Opposition is to apprise him about the proposal of selecting
a person for the post and also to take his views on the said proposal. However, the opinion
rendered by the Leader of the Opposition is not binding on the State Government and the
Leader of the Opposition would have no power to recommend someone else for the said post.

3. Sri Justice S. K. Ray v. State of Orissa and Ors.3

The appellant was the Chief Justice of the Orissa High Court and retired on 5.11.1980. He was
appointed as the Lokpal on 17.8.1989 under Section 3 of the Orissa Lokpal and Lokayukta Act,

3
Sri Justice S. K. Ray v. State of Orissa and Ors, 2003 (1) SCR 434
1970. Prior to his appointment as Lokpal, he had also functioned as the Chairman of the
Commission of Enquiry into certain disputes involving the States of Tamil Nadu, Kerala and
some of their Ministers. Pursuant to the repeal of the Act by the Orissa Lokpal and Lokayuktas
[Repeal] Ordinance, 1992, which came into effect on 16.7.1992, he ceased to hold the office
of Lokpal. The said Ordinance was subsequently replaced by the Orissa Lokpal and Lokayuktas
[Repeal] Act, 1995. The appellant filed a writ petition before the High Court contending that
he had incurred certain liabilities in ceasing to hold the office being ineligible for further
employment under the State Government or for any other employment under an office in any
such local authority, corporation, Government Company or society registered under the
Societies Registration Act, 1860, which is subject to the control of the State Government and
which is notified by the Government in that behalf. He claimed-

 Compensation for loss of salary for the remainder period of his tenure as Lokpal.
 Pension with effect from 16.7.1992 as per Rule 7 of the Orissa Lokpal (Conditions of
Service) Rules, 1984.
 Refund of the amount of pension deducted from his salary during the period 17.8.1989
to 16.7.1992, and
 Payment of encashment value of unutilised leave which accrued to him during the
period 17.8.1989 to 16.7.1992.

Of the four claims made by the appellant, the High Court held that the appellant was not entitled
to compensation for loss of salary for the remainder period of his tenure as Lokpal as well as
for payment of pension with effect from 16.7.1992. However, insofar as the encashment of
value of unutilised leave and the deduction of amount of pension during the period from
17.8.1989 to 16.7.1992 were concerned, appropriate reliefs were given.

4. In Re: Under Article 317 (1) of the Constitution of India for enquiry and report on the
allegations against Dr. H.B. Mirdha, Chairman, Orissa Public Service Commission4

Reference was made by the State Government to the Lokpal, Orissa. The Lokpal in his order
observed that in view of the provisions of Section 21 of the Orissa Lokpal and Lokayuktas Act,

4
In Re: Under Article 317 (1) of the Constitution of India for enquiry and report on the allegations against Dr.
H. B.Mirdha , Chairman , Orissa Public Service Commission, 2009 (I) OLR (SC) 995.
1985, the Lokpal was not authorised to investigate into the actions taken by the Chairman or a
member of the OPSC.

5. State of Gujarat and Anr. v. Hon’ble Mr. Justice R .A. Mehta (Retd.) and Ors.5

Writ Petition was referred by two Judges challenging appointment of Respondent No. 1 to the
post of Lokayukta. Contention rose whether appointment of Respondent No. 1 could be held
to be illegal. In the State of Gujarat, post of Lokayukta had been lying vacant for a period of
more than nine years. The Governor had misjudged her role and had insisted that under Gujarat
Lokayukta Act, 1986, Council of Ministers had no role to play in the appointment of Lokayukta
and that she could so fill it up in consultation with the Chief Justice of Gujarat High Court and
the Leader of Opposition. Appointment of Lokayukta could be made by Governor as Head of
State only with the aid and advice of the Council of Ministers and not independently as a
statutory authority.

The recommendation of the Chief Justice suggested only one name in place of the panel of
names and was in consonance with the law laid down by the Court and there was no cogent
reason to not give effect to said recommendation. Objections raised by the Chief Minister have
been duly considered by the Chief Justice as well as by the Court and none of them were tenable
to the extent that any of them might be labelled as cogent reasons for the purpose of discarding
the recommendation of a name for appointment to the post of Lokayukta. Thus, the process of
consultation stood complete and in such a situation, the appointment could not be held to be
illegal and the appointment of the candidate was held to be legal, so that the process of
consultation for appointment was completed.

6. Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and Ors. etc.6

The matter in dispute was the appointment of Upa-Lokayukta. In the matter of appointment of
Upa-Lokayukta the advice tendered by the Chief Minister will have primacy and not that of
the Chief Justice of High Court and others. Under Karnataka Lokayukta Act, 1984 consultation
is mandatory, Section 3(2)(a) and (b) when read literally and contextually admits no doubt that
the Governor of the State can appoint Lokayukta or Upa-Lokayukta only on the advice tendered
by the Chief Minister and that the Chief Justice of the High Court is only one of the consultees

5
State of Gujarat and Anr. v. Hon’ble Mr. Justice R .A. Mehta (Retd.) and Ors.,AIR 2013 SC 693
6
Mr. Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and Ors. etc., AIR 2013 SC 726.
and his views have no primacy. The Chief Minister is legally obliged to consult the Chief
Justice of the High Court and other four consultees, which is a mandatory requirement. The
various directions given by the High Court, is beyond the scope of the Act and the High Court
has indulged in a legislative exercise which is impermissible in law. The Chief Minister
committed an error in not consulting the Chief Justice of the High Court in the matter of the
appointment of Upa-Lokayukta. The appointment of Upa-Lokayukta is in violation of Section
3(2)(b) of the Act since the Chief Justice of the High Court was not consulted nor was the name
deliberated upon before advising or appointing him as a Upa-Lokayukta, consequently, the
appointment as Upa-Lokayukta cannot stand in the eye of law and he has no authority to
continue to hold the post of Upa-Lokayukta of the State. Appointment was declared invalid as
the authority did not follow mandatory provisions.

LOKPAL OR OMBUDSMAN

The Lokpal will not end corruption and in fact, as Arundhati Roy has pointed in a recent article,
the parallel administrative structure set up by the Lokpal may in fact compound corruption.
What India needs is an Ombudsman, or Parliamentary Commissioner for Administration.
Corruption is a criminal offence under Indian Penal Code and Prevention of Corruption Act.
The scheme of criminal justice in India is that investigation of offences is to be done by the
police, including a special anti corruption unit. We need to strengthen the police and ensure
that police officers, in investigating offences, work strictly according to the procedures laid
down in Chapter XII of the Code of Criminal Procedure. There should be absolutely no
intervention or interference with such investigation. What is needed is strict supervision by
superior officers to ensure that investigating officers do their work honestly and diligently and
do not deviate on account of pressure, bribes and other inducements. Surely we can insulate
the police from undue pressure in doing their duty. If the police machinery is properly
restructured, supervised and goaded to do its duty we do not need a Lokpal or a Lokayukt for
investigation of offences of corruption. What we need is a watchdog who will keep an eye on
how government is functioning and then ensure that it functions strictly in accordance with
rules and regulations. Every case of delay, unnecessary file pushing, raising of objections only
for the sake of objections, passing orders which are biased and favour a particular individual
or group, directions from Ministers which are willful and contrary to rules are all matters which
must be within the purview of the Ombudsman, who should have sufficient powers to give
suitable directions to the department concerned. The Chief Election Commissioner and the
Commission he heads act as an Ombudsman in all election matters. During an election the
entire machinery of government which might have anything to do with the conduct of elections
comes directly under the control of the Election Commission. We need an Ombudsman who is
as powerful as the Election Commission in the matter of directing government in administrative
matters. The minute we are able to reestablish good government in which there is clearly
determined accountability and a chain of command which is charged with ensuring proper
discharge of this accountability, corruption will come under control. The present agitation is
misguided and misdirected, completely misses out the need for good government and the end
result will be a big fat zero.

The Government of India has designated several ombudsmen (sometimes called Chief
Vigilance Officer or CVO) for the redressal of grievances and complaints from individuals in
the banking, insurance and other sectors being serviced by both private and public bodies and
corporations. In India, Ombudsman is called as Lokpal or Lokayukta.