FACULTY OF LAW

JAMIA MILLIA ISLAMIA

SESSION 2018-19
SEMESTER VI

TOPIC AN ANALYSIS OF LOKPAL

 Table of Contents

I. INTRODUCTION..............................................................................................................................................3
II. AN ANALYSIS OF LOKPAL.............................................................................................................................4
II.1 HOW WILL A COMPLAINT BE LODGED?...............................................................................................4
II.2 FUNCTIONS OF LOKPAL:...........................................................................................................................4
III. WHETHER THE RESERVATION FOR MEMBERS OF LOKPAL IS
CONSTITUTIONALLY VALID?.............................................................................................................................6
IV. WHETHER THE SET UP OF SELECTION COMMITTEE FAIR?................................................................6
V. WHETHER THERE ARE JURISDICTIONAL OVERLAPS BETWEEN THE LOKPAL, THE CVC &
THE CBI?...................................................................................................................................................................7
VI. LOKPAL AND JUDICIARY......................................................................................................................11
VII. RECOMMENDATION............................................................................................................................17
VIII. CONCLUSION..........................................................................................................................................18
IX. BIBLIOGRAPHY.............................................................................................................................................19

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AN ANALYSIS OF LOKPAL

I. INTRODUCTION

The concept of Lokpal owes its origin to the Scandinavian countries. 1 Countries like
Sweden have ombudsmen which is a kind of supervisory body to oversee the functioning of
the government and various other organs of the state. Also, it has been regarded as an
important body since it ensures that all the organs of the state function effectively and free of
any kind of corruption. A lot of people feel that existence of such an institution is very
necessary for a country like India where corruption is rampant and there needs to be a check
on the arrogance of the government officials. At the time of 1960-70, a comprehensive
examination of India's public administration was conducted and dissatisfaction with the
country's administrative system was escalating and becoming more articulate as well as the
wind was blowing in favour of a wide-ranging enquiry into the public administration of the
country. In November 1965, the Government of India headed by Lal Bahadur Shastri
announced its intention of setting up an Administrative Reforms Commission to conduct a
comprehensive examination of public administration in India. The Commission was
formally constituted in January 1966 with Morarji Desai as its chairman. He himself left
the Commission in March 1967 on his becoming Deputy Prime Minister of India and the
Minister of Finance in the Central Government K. Hanumanthaiya, a member of the
Commission, was appointed as chairman in his place. In 1970, at the end of the prescribed
term of the Commission, the Commission consisted to K. Hanumanthaiya and four other
members, three of them were serving members of Parliament and one a retired civil
servant. Originally, the composition of the Commission was one chairman and five
members but H.C. Mathur, a member, died in the third year of the Commission‟s
functioning.

1
Suyash Verma, The Concept of Lokpal, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018205

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 The first Indian version of Ombudsman Bill 1968 was presented by in the fourth Lok
Sabha.2 Unfortunately, it got lapsed before its being approved by the Rajya Sabha to become
law due to the 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, but none got
passed3 and it is only in the year 2013 the Lokpal was enacted as the Lokpal and Lokayuktas
Act, 20134 in India.

II. AN ANALYSIS OF LOKPAL

II.1 HOW WILL A COMPLAINT BE LODGED?

A complaint involving a grievance will be made by the aggrieved person. However,

in case, the aggrieved person is dead or incapacitated, then the complaint will be lodged by a
person who legally represents the estate of the aggrieved person or any other person
authorized by the former. A complaint involving an allegation can be lodged by any person
other than a public servant. Moreover, every complaint has to be made in such a form
and is to be accompanied by such affidavits as prescribed from time to time. Letters
addressed to Lokpal by persons in police custody or in jail or in an asylum for insane persons
will be forwarded unopened and without delay by the concerned authorities to Lokpal who
may treat such letters as bona fide complaints.

II.2 FUNCTIONS OF LOKPAL:

He will be able to initiate an investigation on receipt of a complaint properly filed

before him. However, before starting any investigation, he has been required to forward a
copy of the complaint or a statement laying down the grounds for an investigation to the

2
Shivam Garg, Interpretation of Provisions of Lokpal & Lokayuktas Bill, 2011
3
Supra
4
The Lokpal and Lokayuktas Act, 2013 (Act 134-C of 2011)

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 concerned and to the competent authority and afford the concerned an opportunity to
make comments. The investigation is to be carried on secretly. The identity of the
complainant and the concerned is not to be disclosed to the public or the press, before,
during or after the investigation. He may conduct a public investigation in a case involving
public interest if he deems fit to do so. He has, in fact, the discretionary powers to investigate
the cases and to determine whether there are enough grounds for investigation. If he decides
not to entertain a complaint or discontinue investigation after starting it, he is expected to
convey the reasons for the same to the complain- ant and also the concerned official. In the
course of the investigation, he can ask any public servant or any other person to produce
documents or furnish any information.

According to the Act of 20135, the Lokpal can investigate any ‘complaints’ as
defined under the Cl. 2 (e) of the Act. The subject-matter jurisdiction of the Lokpal is
determined by the definition of the term ‘complaint’ in the Act. 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
”

Although this Act is in the interest and welfare of the citizens' but in the recent years,
there have been various shortcoming which has been analysed in the Lokpal and Lokayuktas
Act, 20136 which will be dealt further. The first and the foremost issue that arises is whether
such the definition of a complaint is wide enough to would adequately cover all acts
of corruption. For instance, the ‘Jan Lokpal' Bill recommended that the definition is
expanded to include offences committed under the Foreign Exchange Management Act
(FEMA), 19997 and the Prevention of Money Laundering Act (PMLA), 2002. 8 The reason
behind this suggestion was that the Prevention of Corruption Act, 19889 (POCA) is possibly
too narrow to cover all possible acts associated with corruption. However, the mere addition
5
Supra
6
Indian Penal Code, 1860 (Act 45 of 1860)
7
Foreign Exchange Management Act (FEMA), 1999 (Act 42 of 1999)
8
Prevention of Money Laundering Act (PMLA), 2002 (Act 15 of 2003)
9
Prevention of Corruption Act, 1988 (Act 49 of 1988)

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 of offences under FEMA and PMLA may not suffice, since certain acts of corruption may
also be associated with crimes under other legislation such as the Indian Penal Code (IPC),
1860. Further, few of the points which are always under the scanner or ambiguous in nature
in the Lokpal are as follows: -

III. WHETHER THE RESERVATION FOR MEMBERS OF

LOKPAL IS CONSTITUTIONALLY VALID?
According to the 2011 Bill at least 50% of the seats will be reserved for the persons
belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes,
Minorities and women.10 But later in the judgment of Indira Sawhney & Ors v.
Union of India11, it was held that there cannot be reservation more than 50%
in any
government body. To proviso given in this section goes directly against this
judgment
and hence is an infringement of the fundamental rights. Therefore, this proviso
is capable of being called null and void.

IV. WHETHER THE SET UP OF SELECTION COMMITTEE FAIR?

Section 412 of the Act 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 Government 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
10
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 3(2).
11
Indira Sawhney & Ors v. Union of India, AIR 1993 SC 477
12
Lokpal and Lokayuktas Bill, 2011, (Bill No. 134-C of 2011), s. 4

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 4(2) of the Act gives the opportunity to the committee to continue its functioning
even if there is a 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
favour to elect any member of Lokpal or consider recommendations of Search
Committee in absence of jurists.
Therefore, this section of the bill has to be further clarified in relation to conditions in
which vacancy can remain and a number of vacancies that the committee can have.

V. WHETHER THERE ARE JURISDICTIONAL OVERLAPS

BETWEEN THE LOKPAL, THE CVC & THE CBI?
In the case of Vineet Narain v. Union India13 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 Act, under Section 14(1)(d)14 and Section 14 (1) (e)15 it is mentioned that the
Act 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.16
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 Government.17 This led to the rise of the 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. 18 The
Central Bureau of Investigation (CBI) whose actual name is the Delhi Special
Police Establishment (DPSE) was set up 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

13
Vineet Narain v. Union India, (1998) 1 SCC 226
14
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 14(1)(d)
15
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 14(1)(e)
16
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), S. 14(1)
17
The Central Vigilance Act, 2003 (Act 45 of 2003), s. 8(2)(a)
18
Shivam Garg, Interpretation of Provisions of Lokpal & Lokayuktas Bill, 2011, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343535

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 Act. The CBI underwent its first major reform in the year 2008 when all
investigations related to terrorism, were transferred to the National Investigation
Agency (NIA) which was set up under the NIA Act, 200819
With the creation of the NIA, the CBI's focus returned exclusively to corruption and
other crimes as referred to it by Central or State Governments. 20 The issue, therefore,
is the overlapping jurisdiction between the 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 of the Act.

The other issues which the controversial about the Lokpal is that the State legislatures
was the one that led to the rejection of a previous Bill which in turn brought a revised Bill
providing an option of Article 25221 of the Constitution are to be invoked an option was
given to the States to have their own Lokpal Act. Further, in the present Act mandates the
setting up of Lokayuktas in each state within one year along with the provision that State
legislatures shall have the authority to determine the powers and jurisdiction of the
Lokayukta. This makes the situation crystal clear and gives rise to the apprehension of
inefficient Lokayuktas with restricted jurisdiction in the fetters of the state government’s
stewards adversely affecting the poor and marginalized through raging corruption. The
Comparison of Lokpal and Lokayukta are as follows: -

19
NIA Act, 2008 (Act 34 of 2008
20
Id.
21
The Constitution of India, Article 252

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 Lokpal
Description The central governing body
that has jurisdiction over all
Members of Parliament and
central government
employees in cases of
corruption.
Function To address complaints of
corruption, to make inquiries,
investigations, and to conduct
trials for the cases.
Scope On a national government
level basis
Responsibility Corruption in the central
government
Committee A chairperson and a
maximum of eight members,
of which 50% will be judicial
members 50% members of
Lokpal shall be from
SC/ST/OBCs, minorities and
women
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Lokayukta
State level governing bodies
that has jurisdiction over state
government employees in
cases of corruption
To address complaints of
corruption, to make
inquiries, investigations,
and to conduct trials
for the cases.
On a state level basis.
Corruption in the state
government
Proposal: three-member
body, headed by a retired
Supreme Court judge or high
court chief justice and
comprising the state vigilance
commissioner and a jurist or
an eminent administrator as
other members
 Another limitation of the Lokpal is envisaged in the following words that,
the Lokpal “shall not inquire or investigate into any complaint, if the complaint is
made after the expiry of a period of seven years from the date on which the offence
mentioned in such complaint is alleged to have been committed.”

Although the unreasonable delay by the complainant in instituting a suit or filing a

complaint is a ground for dismissal but the gist of the matter is that cases concerned with
lokpal are usually high-profile scams of the government bringing under its garb the highest
office bearers which are discovered with proper evidence only after one regime ends (five
years or even seven years) and a proposal is made that in the presence of concrete and
corroborative evidence, complaints should be entertained and worked upon by the Lokpal to
ensure justice and so that the purpose of the Act is served.

VI. LOKPAL AND JUDICIARY

An equally significant legal controversy pertaining to the jurisdiction of the Lokpal is
whether it extends to the judges of the higher judiciary, i.e. the Supreme Court and the High
Courts. The Lokpal Act22 does not expressly exclude such jurisdiction but instead excludes it
by implication since the scope of the Lokpal’s jurisdiction does not specifically include the
higher judiciary. On the other hand, the Jan Lokpal Bill, makes it evident, albeit obtusely, in
Clause 17(1)(ii) that it is intended that judges of the higher judiciary be within the ambit of
the Lokpal’s jurisdiction, though with a specialized procedure for investigation. On grounds
of both constitutional theory as well as constitutional law, we believe that inclusion of the
higher judiciary within the jurisdiction of the Lokpal is unsound. The principle of separation
of powers has been held to be part of the basic structure of the Constitution. 23 The underlying
rationale for this principle is the need to prevent concentrations of political power, a rationale
accepted by the drafters of the Constitution.24

Judicial independence has been held to be part of the basic structure of the
Constitution.25 It is a cardinal principle that posits that both judges, as well as the institution of
the judiciary, must be sufficiently independent, especially from executive government, so that
22
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011)
23
A. K. Roy v. Union of India, AIR 1982 SC 710
24
Constituent Assembly Proceedings on 10.12.48 available at:
http://parliamentofindia.nic.in/ls/debates/vol7p24.htm (last visited March 21, 2018)
25
Indira Gandhi v. Raj Narain, 1975 (2) SCC 159

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 it can make its decisions impartially. It has thus been argued, that having another institution
such as the Lokpal perform the task of overseeing the judiciary and prosecuting corrupt
judges, could be a violation of judicial independence. 26 However we believe that merely
having an external institution overseeing investigation and prosecution of allegedly corrupt
judges cannot be seen as a violation of judicial independence, but a necessary attribute
of judicial accountability. Even the Judicial Standards and Accountability Bill propose a
National Judicial Oversight Committee that comprises persons from outside the
judiciary. Further, this Honourable Committee in its report further suggested that a nominee
each of the Speaker and the Chairman of the Rajya Sabha having legal expertise is
made part of the Oversight Committee.27 Thus it is clear that the proposition of having
an institution external to the judiciary supervising investigation and prosecution (in
several respects analogous to the Oversight Committee which will hear complaints
against sitting judges) violating judicial independence per se is a simplistic notion and
ought to be rejected. In fact, it may be seen instead as a measure designed to promote judicial
accountability, and as this Committee itself has noted, a balance between judicial
independence and accountability in the functioning of the higher judiciary must be sought.28

However including the higher judiciary within the jurisdiction of the Lokpal will be
superfluous in light of the judgment of the Court in Veeraswami. 29 In this case, in order to
protect the independence of the judiciary, the Court, by majority held that sanction for
prosecuting a judge under the Prevention of Corruption Act, would have to be taken from the
President (deemed the ‘authority competent to remove him’ under S. 19 of the Act)
in consultation with the Chief Justice of India, whose opinion, the President must ordinarily
agree with. Thus all cases of prosecution of a judge of the higher judiciary under the
Prevention of Corruption Act (which is the substantive law underpinning the Lokpal’s
jurisdiction) by the Lokpal can only proceed after the sanction is given by the President after
consultation with the Chief Justice of India. Such consultation was deemed necessary to
prevent vexatious prosecutions and ensure judicial independence. This reading is further
fortified by Sec. 27(3) of the Lokpal Act which specifically excludes Sec. 27(1) and (2)
(exemption to the grant of sanction) with regard to those who hold constitutional offices with
26
Weighing the Scales: A caveat: Is the Lokpal the right authority to investigate judges? Legal luminaries think
otherwise, available at: http://www.outlookindia.com/article.aspx?272113 (last visited March 21, 2018)
27
Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 47th.
Report on the Judicial Standards and Accountability Bill, 2010 (August 2011)
28
Id
29
K. Veeraswami v. Union of India, 1991 SCC (3) 655

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 established procedures for removal, a category which clearly includes judges of the higher
judiciary. Thus vesting the jurisdiction for investigating corruption cases with the Lokpal
is per se contrary to the precedent of the Supreme Court. Even if it is argued that a new
legislation overturning Supreme Court precedent based on an older legislation is not illegal,
it is still superfluous, since no investigation by the Lokpal can proceed without sanction
being granted by the Chief Justice of India, bypassing which was a key intention in bringing
the higher judiciary within the ambit of the Lokpal in the first place.

The Supreme Court has pronounced several decisions regarding the institution
of Ombudsman. In one of the case 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.30
Further, in the case of Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and Ors.31, a
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, the 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. Further, after applying the principle enunciated in the aforesaid

30
Common Cause, A Registered Society v. Union of India & Ors., (1999) 6 SCC 667
31
Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and Ors ., (2002) 8 SCC 1

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 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.

Another case named Sri Justice S. K. Ray v. State of Orissa and Ors. 32, the facts of the
case were that 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, 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 remaining 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 remaining period of his tenure as Lokpal
32
Sri Justice S. K. Ray v. State of Orissa and Ors, (2003) 1 SCR 434

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 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 the amount of pension
during the period from 17.8.1989 to 16.7.1992 were concerned, appropriate reliefs were
given. Further, 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 Commission33. 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, 1985, the Lokpal was not authorised to investigate into the
actions taken by the Chairman or a member of the OPSC.

Further, in the year 2013, a Writ Petition was referred by two Judges challenging the
appointment of Respondent No. 1 to the post of Lokayukta. Contention rose whether
the appointment of Respondent No. 1 could be held to be illegal. In the State of Gujarat, the
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 34,
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 was 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.35

Later, in the case of Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and

33
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.
34
Gujarat Lokayukta Act, 1986 (Act 31 of 1986)
35
State of Gujarat and Anr. v. Hon’ble Mr. Justice R .A. Mehta (Retd.) and Ors.,AIR 2013 SC 693

14 | P a g e
 Ors. etc.36, 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 37 consultation is mandatory, Section 3(2)(a) and (b) when reading 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 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 as the Chief
Justice of the High Court was not consulted nor was the name deliberated upon before
advising or appointing him as an 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. The appointment was declared invalid as the authority did not
follow mandatory provisions.

VII. RECOMMENDATION

36
Mr. Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and Ors. etc., AIR 2013 SC
37
Karnataka Lokayukta Act, 1984 (Act 4 of 1985)

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 1. EXPANSION OF THE AMBIT TO AVOID OVERLAPPING: - There is a dire need
to expand the definition of Clause 2(d) to bring into the ambit of the Lokpal all
offences related to corruption. Further, to curb the problem of overlapping there needs
to be an amendment in either S. 17 of POCA or Cl. 12 of Lokpal Bill. Moreover, in
case the recommendation on Clause 2(d) is accepted, the Committee will also have to
amend Clause 38 of the Bill in order to streamline the adjudication process as there
would be an overlap of authorities.
2. NEED TO STRENGTHEN THE JUDICIAL STANDARDS AND
ACCOUNTABILITY BILL: - Inclusion of the judiciary within the ambit of the
Lokpal’s jurisdiction as Clause 17 of the Jan Lokpal Bill does by implication is

misguided. Further, in the 47th. Report38 of the Hon’ble Standing Committee on the
Judicial Standards and Accountability Bill, also recommended the accountability
provisions must be strengthened.

3. Need of 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.

38
40 Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice,
47th Report

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VIII. CONCLUSION
Through the Lokpal intend to bringing transparency and promoting of good
governance but 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 a court of law and some of
them are liable to be struck down as they go against the basic essence of the constitution of
India and even infringes fundamental rights. In order to make sure that a nation should
prosper it becomes very important that the administrative wing of the nation is functioning
properly and efficiently and at the same time one key point to be noted is that there is no
corruption in the administrative department of the nation. Corruption is actually the deep-
rooted cause which is the biggest obstacle to the development of a nation. In order to
tackle this problem of corruption the institution of ombudsman plays the most important
role and in the Indian context this role is played by the Lokpal.

The ambit of Lokpal is also restricted by legislature due to which it can crack down 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.

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IX. BIBLIOGRAPHY

➢ BOOKS
 Massey, I.P. Administrative Law. Eastern Book Company
 Takwani, C.K. Lectures on Administrative Law. Eastern Book Company
 Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol.
II, Wadhwa Nagpur.

 Internet /Web Resources

 www.legalservicesindia.com/article Doctrine Of Permissible Limits under
Delegated Legislation under the Indian Constitution: of India
 books.google.co.in/books/about/Delegated_legislation Delegated Legislation in
India, US and England
 aclawresearch.blogspot.com Development of delegated legislation in India
 www.lawyersclubindia.com/articles Delegated Legislation in India
 elearning.vtu.ac.in/P3/CIP71/3.pdf Delegated Legislation
 www.napsipag.org/pdf/Dr.M.shamsur_rahman.pdf. The delegated legislation

➢ ONLINE ARTICLES
 Prashant Reddy, Sanhita Ambast, Subramanian Natarajan, Arghya Sengupta,
Simi George, A Briefing Document on the Lokpal Bill, 2011: Issues of
Constitutionality & Legality, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1963899&download=ye s
 Suyash Verma, The Concept of Lokpal, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018205
 Shivam Garg, Interpretation of Provisions of Lokpal & Lokayuktas Bill,2011,
available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343535

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