CONTENTS

Introduction ..................................................................................................................................... 1
Chapter 1 ......................................................................................................................................... 2
Interpretation of Statutes ............................................................................................................. 2
Lokpal ......................................................................................................................................... 2
Different Indian Versions of Ombudsman .................................................................................. 3
Growth of Lokpal in States: ........................................................................................................ 3
Lokpal and Lokayuktas Bill 2011 ............................................................................................... 3
Comparison between Janlokpal Bill with Lokpal and Lokayuktas Bill 2011 ............................ 4
Chapter 2- Analysis of Bill ............................................................................................................. 6
Whether the Definition of Complaint exhaustive?................................................................... 6
Whether the reservation for Members of Lokpal constitutionally valid? ................................... 7
Whether the set up of Selection Committee fair? ....................................................................... 7
Whether there is Jurisdictional overlaps between the Lokpal, the CVC & the CBI? ................. 8
Interpretation of Powers of Lokpal ............................................................................................. 9
Whether change in offences investigated by the Lokpal require amendment in section provided
for special courts? ..................................................................................................................... 10
Whether the Final Appellate Authority section constitutionally valid?.................................... 11
Whether Selection procedure of lokayuktas has any discrepancy? .......................................... 11
Conclusion .................................................................................................................................... 13
Bibliography ................................................................................................................................. 14

Electronic copy available at: http://ssrn.com/abstract=2343535

INTRODUCTION

The project Interpretation of provisions of Lokpal and Lokayuktas Bill, 2011 deals
comprehensively on various provisions which legislature intends to create to curb corruption and
mal administration prevailing in India. The aim of the project is to look whether provision
provided in bill if become enforcing legislation have any discrepancy or ambiguity. Whether the
provision constitutionally valid, and do they overlap provision of any other act already enforced.
Chapter 1 of project deals with how interpretation of statute is done, what is lokpal, what are the
different Indian versions of ombudsman, how growth of lokpal took place in different states,
compared janlokpal bill with lokpal and lokayuktas bill 2011 and emphasis on lokpal and
lokayuktas bill 2011.
Chapter 2 deals with the issue whether the definition of complaint exhaustive, reservation for
members of lokpal constitutionally valid, set up of selection committee fair, is there
jurisdictional overlaps between the lokpal, the cvc & the cbi, any change in offences investigated
by the lokpal require amendment in section provided for special courts, is the final appellate
authority section constitutionally valid, selection procedure of lokpal has any discrepancy.

1|Page

Electronic copy available at: http://ssrn.com/abstract=2343535

CHAPTER 1

INTERPRETATION OF STATUTES
The term statute has been defined as the will of the legislature.1 If the language of statute is
clear and explicit, the court must give effect to it, for in that case the words of the statute speak
the intention of the legislature.2 And in doing so it must bear in mind that its function is jus
dicere, not jus dare, the words of a statute must not be overruled by the judges, but reform of the
law must be left in the hands of the parliament.3
LOKPAL
The word Lokpal etymologically, means the "protector of the people". Adopting the famous
Lincolnian phrase, it can also be seen as a protector "of the people, by the people, for the
people". The word 'Ombudsman', on the other hand, is rooted in the Old Norse language,
essentially meaning "representative", which is an official charged with representing the interests
of the public by investigating and addressing complaints reported by individual citizens.
The modern use of word Ombudsman began in Sweden and that stands for "an officer appointed
by the legislature to handle complaints against administrative and judicial action. Traditionally
the ombudsman is appointed based on unanimity among all political parties supporting the
proposal. The incumbent, though appointed by the legislature, is an independent functionary independent of all the three organs of the state, but reports to the legislature. The Ombudsman
can act both on the basis of complaints made by citizens, or suo moto. They can look into
allegations of corruption as well as mal-administration.

P.ST.J. Langan, ed., Maxwell on the Interpretation of Statues, p. 1 (12th ed., 1969 ed./2010 reprint, LexisNexis
Butterworths Wadhwa Nagpur)
2
Warburton v. Loveland (1832) 2 D. & Cl. 480, per Tindal C.J. at p. 489.
3
Cheney v. Conn [1968] W.L.R. 242

2|Page

DIFFERENT INDIAN VERSIONS OF OMBUDSMAN

The first Indian version of Ombudsman Bill 1968 was presented by in the fourth Lok Sabha.
Unfortunately, it got lapsed before its being approved by the Rajya Sabha to become law due to
dissolution of the Lok Sabha. The Bill was known as The Lokpal and Lokyuktas, 1968.It
envisaged a Lokpal to monitor the actions of the Ministers and the Secretaries, and a Lokayuktas
to consider complaints against the actions of administrative cadres below the rank of Secretary.
Subsequently, 'lokpal bills' were introduced in the years 1971, 1977, 1985, and again in 1989,
1996, 1998, 2001, 2005 and in 2008, yet they were never passed.
GROWTH OF LOKPAL IN STATES:
Despite the fact that the Lokpal Bill could not be created as a national institution, interest
generated in the concept of Ombudsman throughout the country made its manifestation felt in the
enactment of various State Legislations. Orissa was the first State that enacted legislation in 1970
on the institution, Lokpal. This was soon followed by Maharashtra in 1971, Rajasthan and Bihar
in 1973, Madhya Pradesh in 1974 and Uttar Pradesh in 1975; Kerala adopted a policy to institute
a Commissioner to expose corruption in 1976, the Jammu and Kashmir as Prevention of
Corruption Statute in 1975, Tamil Nadu as Administrative Criminal Misconduct in 1974,
Karnataka in 1973.
LOKPAL AND LOKAYUKTAS BILL 2011
The Lokpal and Lokayuktas Bill, 2011 is a proposed anti-corruption bill to provide for the
establishment of a body of Lokpal for the Union and Lokayuktas for States to inquire into
allegations of corruption against certain public functionaries and for matters connected therewith
or incidental thereto.

3|Page

COMPARISON BETWEEN JANLOKPAL BILL WITH LOKPAL AND LOKAYUKTAS BILL 2011
Features of Janlokpal Bill:

Janlokpal Bill intends to have zero interference by the government.

The authority established under this bill will get funds from the Annual Budget which
means independence of funds to some extent.

Power of expansion will also lie with the Lokpal and the office of Lokpal can make
recommendations regarding this to the Government and these recommendations shall be
binding on the Government.

The quantum of punishment will be same for the officers committing same offence,
irrespective of their ranks.

It is also recommended to make CBI an independent investigating body which will report
to the Lopkals office. This will give the Lokpal, both the power to investigate as well as
prosecute.

Judiciary will also come under the ambit of Lokpal along with executive and legislative.

The Highest Appellate body for Lokpal Courts is to be Supreme Court of India.

Also all the states to have Lokayuktass, who will have powers similar to that of Lokpal at
the state-level.

The highest punishment prescribed under this bill is life imprisonment.

This bill also covers the parliamentary proceedings as well as the statements made the
MPs inside the Parliament.

Features of Lokpal and Lokayuktas Bill:

This authority set-up under this bill will work under the governments supervision.
4|Page

Even the appointments will be made by the government.

It exempts Prime Minister of India from its ambit. The reason given is that Prime
Minister is the head of the council of ministers and for efficient functioning Prime
Minister must remain free of pressure.

Lokpal can make recommendations regarding increasing the number of courts or judges
but such recommendation will not be binding on the government.

CBI to remain as a government investigating body and will make investigations for
Lokpal as well. Thus, it will only be a prosecuting body. Higher Judiciary to also remain
outside the ambit of Lokpal the reason being given is that it may infringe the
independence of judiciary. Instead a National Judicial Commission is recommended to be
set-up for this purpose.

The governments bill includes all the NGOs, government funded as well as nongovernment funded.

Parliamentary proceedings are excluded from the ambit of Lokpal.

5|Page

CHAPTER 2- ANALYSIS OF BILL

WHETHER THE DEFINITION OF COMPLAINT EXHAUSTIVE?

The subject-matter jurisdiction of the proposed Lokpal is determined by the definition of the
term complaint in of the Bill. It is defined as means a complaint, made in such form as may be
prescribed, alleging that a public servant has committed an offence punishable under the
Prevention of Corruption Act, 1988. 4
According to the Bill, the Lokpal can investigate any complaints under the act.5 The issue that
arises is whether such the definition of complaint is wide enough to would adequately cover all
acts of corruption. For instance the Jan Lokpal Bill recommended that the definition be
expanded to include offences committed under the Foreign Exchange Management Act (FEMA),
1999 and the Prevention of Money Laundering Act (PMLA), 2002. The reason behind this
suggestion was that the Prevention of Corruption Act, 1988 (POCA) is possibly too narrow to
cover all possible acts associated with corruption.

However the mere addition of offences under FEMA and PMLA may not suffice, since certain
acts of corruption may also be associated with crimes under other legislations such as the Indian
Penal Code (IPC), 1860. Hence, ambit of this definition should expand to cover more corrupt
activities within it else the purpose of the whole bill will fail to a great extent.

4
5

S. 2(e), Lokpal and Lokayuktas Bill, 2011

S. 12(1), Lokpal and Lokayuktas Bill, 2011

6|Page

WHETHER THE RESERVATION FOR MEMBERS OF LOKPAL CONSTITUTIONALLY VALID?

According to the bill at least 50 per cent of the seats will be reserved for the persons belonging to
the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.6
According to the judgment of Indira Sawhney & Ors v. Union of India7 there cannot be
reservation more than 50 per cent in any government body. To proviso given in this section goes
directly against this judgment and hence is infringement of the fundamental rights. Therefore,
this proviso is capable of being called null and void.

WHETHER THE SET UP OF SELECTION COMMITTEE FAIR?

Section 4 of the Bill gives the set-up of the Selection Committee empowered to select the
Chairperson and the members of the Lokpal. The Selection Committee will comprise of five
members, the Prime Minister, the Speaker of the Lok Sabha, Leader of the Opposition, Chief
Justice of India and an eminent jurist. In the Selection Committee, the Prime Minister and the
Speaker of the Lok Sabha are all likely to be from the ruling party. The jurist to be appointed by
the President by the recommendation of the Central Governmet and the eminent jurist is
expected to fall in the line with the Central Government. Therefore, there are chances that out of
five members three will be pro-government.

Section 4(2) of the Bill gives opportunity to the committee to continue its functioning even if
there is vacancy in the Selection Committee. This clause is not clear how many positions can
remain vacant and hence, politicians can use this clause in their favor to elect any member of
lokpal or consider recommendations of Search Committee in absence of jurists.

6
7

S. 3(2), Lokpal and Lokayuktas Bill,2011

Indira Sawhney & Ors v. Union of India , AIR 1993 SC 477

7|Page

Therefore, this section of the bill has to be further clarified on relation to conditions in which
vacancy can remain and number of vacancy that the committee can have.

WHETHER
CBI?

THERE IS

JURISDICTIONAL

OVERLAPS BETWEEN THE

LOKPAL,

THE

CVC &

THE

In the case of Vineet Narain v. Union India8 the Supreme Court for the first time ordered the
Central Government to ensure that the CVC was given a statutory status by Parliament. This Bill
was finally debated and passed by Parliament only in 2003.

There is an overlap between the jurisdiction of the CVC & the Lokpal. In the bill it is proposed
that the Lokpal will have the jurisdiction to investigate all allegations of corruptions against
Members of Parliament, Union Ministers, Group A or Group B or Group C or Group D officers
and the equivalent officers employed at corporations controlled by the Central Government.9 As
per the CVC Act, 2003 the CVC has suo moto powers of investigation with regards to Group A
officers and equivalent officers employed at corporations controlled by the Central
Government10.

This led to the rise of question whether the CVC can institute an inquiry on Group A officers on
its own or will it be able to institute an inquiry only on the recommendations of the Lokpal.

The Central Bureau of Investigation (CBI) whose actual name is the Delhi Special Police
Establishment (DPSE) was setup under the Delhi Special Police Establishment Act. In 1988
when POCA was enacted by Parliament, the CBI was nominated as the agency authorized to
investigate all offences of corruption under the Act. The CBI underwent its first major reform in
8

Vineet Narain v. Union India , (1998) 1 SCC 226

S. 14(1), Lokpal and Lokayuktas Bill, 2011
10
S. 8(2)(a), CVC Act 2003
9

8|Page

the year 2008 when all investigations related to terrorism, were transferred to the National
Investigation Agency (NIA) which was setup under the NIA Act, 2008. With the creation of the
NIA the CBIs focus returned exclusively to corruption and other crimes as referred to it by
Central or State Governments.

The issue therefore is the overlapping jurisdiction between the proposed jurisdiction of the
Lokpal and the CBI. It makes little administrative logic to give two different agencies the power
to investigate the same offence. It is therefore necessary for the Committee to recommend an
amendment to either in the Lokpal and Lokayuktas Bill, 201111 or in the POCA 198812.

INTERPRETATION OF POWERS OF LOKPAL

Lokpal will have the powers of superintendence and direction, over the Delhi Special Police
Establishment in respect of the matters referred by the Lokpal for preliminary inquiry or
investigation to the Delhi Special Police Establishment under this Act,13 it is provided that
while exercising powers of superintendence or giving direction under this sub-section, the
Lokpal shall not exercise powers in such a manner so as to require any agency (including the
Delhi Special Police Establishment) to whom the investigation has been given, to investigate
and dispose of any case in a particular manner. Hence the provision is clear about the
superintendence or directing powers of the Lokpal.
The bill also direct the Central Vigilance Commission to send a statement, at such interval as
the Lokpal may direct, to the Lokpal in regard of the actions taken on complaints referred to
it and on receipt of such statement, the Lokpal may issue guidelines for effective and

11

S, 20(3)(a), Lokpal and Lokayuktas Bill, 2011

S. 17(a), POCA 1988
13
Section 25(1), Lokpal and Lokayuktas Bill, 2011
12

9|Page

expeditious disposal of such cases.14 The language of this proviso is plain and simple, the
legislature from this provision intends to give supervisory power to the Lokpal.
The provision of this bill also gives the Inquiry Wing of Lokpal to have all the powers of a
civil court, under the Code of Civil Procedure, 1908, for the purpose of any preliminary
inquiry, while trying a suit in respect summoning, requiring the discovery and production of
any document15 and also the proceeding before the Lokpal should be deemed to be a judicial
proceeding16 within the meaning of Indian Penal Code.17
Chapter X of the bill includes the issues related to complaints against the Chairperson,
members and officials of the Lokpal. It provides that the chairperson or members can be
removed from the office by the order of the President on grounds of misbehaviour after the
Supreme Court, on a reference being made to it by president. It is intended to strengthen the
independence and autonomy of the Lokpal by not making it easy to initiate complaints
against Lokpal for the Lokpals removal.
WHETHER

CHANGE IN OFFENCES INVESTIGATED BY THE

LOKPAL

REQUIRE AMENDMENT IN

SECTION PROVIDED FOR SPECIAL COURTS?

According to the Bill the Central Government shall notify any number of Special Courts as
recommended by the Lokpal to hear and decide cases arising out of POCA or under the proposed
Act18. If at any point of time the parliament decides to amend Section 2(e) to expand the ambit of
Lokpal then in that case even Section 35(1) will have to be amended. The reason for this being

14

S. 25(2), Lokpal and Lokayuktas Bill, 2011

Section 27(1), Lokpal and Lokayuktas Bill, 2011
16
Section 193, Indian Penal Code, 1860
17
S. 27(2), Lokpal and Lokayuktas Bill, 2011
18
S. 35(1), Lokpal and Lokayuktas Bill, 2011
15

10 | P a g e

that is that it has been explicitly mentioned in this section that the Special Court will have
jurisdiction over the cases arising out of POCA or under the proposed Act.

Therefore, it should be always remembered that Section 35(1) has to be always read with Section
2(e) to overcome any ambiguity that may arise in future.

WHETHER THE FINAL APPELLATE AUTHORITY SECTION CONSTITUTIONALLY VALID?

In the bill it is provided that The Lokpal shall function as the final appellate authority in respect
of appeals arising out of any other law for the time being in force providing for delivery of public
services and redressal of public grievances by any public authority in cases where the decision
contains findings of corruption under the Prevention of Corruption Act, 1988.19 This section is
directly against an article of the Constitution of India20 which says that Supreme Court will be
the final appellate authority for any judgment, decree, determination, sentence or order passed by
any court or tribunal in the territory of India.
Therefore, this section restricts the rights of appellant and so, is void.
WHETHER SELECTION PROCEDURE OF LOKAYUKTAS HAS ANY DISCREPANCY?
Sec 65. (1) states that The Chairperson and Members shall be appointed by the Governor after
obtaining the recommendations of a Selection Committee
In State of Gujarat and Anr. v. Hon'ble Mr. Justice (Retd.) Ramesh Amritlal Mehta and Ors21 the
supreme court said Order shall be passed after following relevant provisions of Act it looked
into Section 3(2)(a) and 3(2)(b) of Karnataka Lokayuktas Act, 1984 and Section 3(1) of Gujarat
Lokayuktas Act, 1986 which has differentiated consultation and advice. The wording of the

19

S. 49, Lokpal and Lokayuktas Bill, 2011

Art. 136(1), the Constitution of India
21
State of Gujarat and Anr. v. Hon'ble Mr. Justice (Retd.) Ramesh Amritlal Mehta and Ors , AIR 2013 SC 1563
20

11 | P a g e

bill states recommendation which must be strictly followed22. Thus chairperson and members
recommendation is binding on Governor to appoint them.

22

Samsher Singh v. State of Punjab, AIR 1974 SC 2192

12 | P a g e

CONCLUSION

There are a number of problems with regard to jurisdiction, authority and power. These sections
have to be again looked into by the government for an effective functioning of the Lokpal. Also,
if these anomalies prevail it will pose problems to common people. Also, chances are that these
sections will be challenged in court of law and some of them are liable to be stuck down as they
go against the basic essence of the constitution of India and even infringes fundamental rights.
Ambit of Lokpal is also restricted by legislature. Because of this the Lokpal can look into a
limited number of corruption charges. This to a certain extent led to the failure of legislative
intention to curb corruption. The scope of increasing the authority of Lokpal is very wide and as
it is to a great extent an independent body it can be a good option.
Therefore, as we read the Lokpal we realize it is a commendable effort of the legislature to check
corruption in India. If properly implemented it will surely control corruption to a great extent
although due to its limitations it will not be a one stop solution to all the problems a common
man faces.

13 | P a g e

BIBLIOGRAPHY

Articles
Vinod Bhanu, Politics of Lokpal: a way beyond, CLRA Research Paper Series: No.1,
April2011
Books
P.ST.J. Langan, ed., Maxwell on the Interpretation of Statues, (12th ed., 1969 ed./2010 reprint,
LexisNexis Butterworths Wadhwa Nagpur)
D.D. Basu, Commentary on the Constitution of India, (LexisNexis Butterworths Wadwa,
Nagpur, 2007)
G.P. Singh, Principles of Statutory Interpretation, (13th ed. 2012, LexisNexis Butterworths
Wadwa, Nagpur)
Legislations
Indian Penal Code, 1860
Code of Civil Procedure, 1908
Lokpal and Lokayuktas Bill, 2011
Prevention of Corruption Act, 1988
Central Vigilance Commission Act, 2003
The Constitution of India

14 | P a g e