Lokpal (Administrative Law)

LOKPAL

NAME: Soumit Ganguli

Roll number: 57
COURSE: B.A., LL.B. (Hons.)
ͭͪͭͭͭͪͭͭ
YEAR, SEMESTER &Section: iiird, 6ͭͪͭͭTH, s/f
SUBMITTED TO: Mr. vinod chauhan
Subject: Administrative LAW
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 Lokpal (Administrative Law)

ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my

teacher and mentor, Mr. Vinod Chauhan, for his exemplary guidance and
constant encouragement throughout the course of this assignment. The blessing,
help, and guidance extended by him from time to time shall carry me a long way in
the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my family and
friends for cordial support, valuable information and guidance, which helped me in
completing this task through exhaustive research.

Sincerely,

SOUMIT GANGULI

(Student, 3rd Yr., B.A., LL.B. (Hons.) S/F)

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 Lokpal (Administrative Law)

TABLE OF CONTENTS

S.NO. TITLE PAGE NO.

1. Acknowledgement 1

2. Introduction 3-4

3. An Analysis of Lokpal 4-9

4. Lokpal & Judiciary 9-14

5. Recommendation 14-15

6. Conclusion 15

7. Bibliography 16

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 Lokpal (Administrative Law)

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.

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,

1
Suyash Verma, The Concept of Lokpal, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018205.
2
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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 Lokpal (Administrative Law)

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 & Lokayuktas Act, 20134 in India.

AN ANALYSIS OF LOKPAL

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.

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 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.

3
Supra note 3.
4
The Lokpal and Lokayuktas Act, 2013 (Act 134-C of 2011).

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 Lokpal (Administrative Law)

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 shortcomings 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), 20028. 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 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), 186010. Further, few
of the points which are always under the scanner or ambiguous in nature in the Lokpal are as
follows: -

1. WHETHER THE RESERVATION FOR MEMBERS OF LOKPAL

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.11 But later in the judgment of Indira Sawhney & Ors v. Union of
India12, 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

5
Supra note 3.
6
The Lokpal and Lokayuktas Act, 2013 (Act 134-C of 2011).
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).
10
Indian Penal Code, 1860 (Act 45 of 1860).
11
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 3(2).
12
Indira Sawhney & Ors v. Union of India, AIR 1993 SC 477.

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infringement of the fundamental rights. Therefore, this proviso is capable of being called null
and void.

2. WHETHER THE SET UP OF SELECTION COMMITTEE FAIR?

Section 413 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 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.

3. WHETHER THERE ARE JURISDICTIONAL OVERLAPS BETWEEN THE

LOKPAL, THE CVC & THE CBI?

In the case of Vineet Narain v. Union of India14, 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)15 and
Section 14 (1) (e)16 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.17

13
Lokpal and Lokayuktas Bill, 2011, (Bill No. 134-C of 2011), s. 4.
14
Vineet Narain v. Union India, (1998) 1 SCC 226.
15
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 14(1)(d).
16
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 14(1)(e).
17
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011), s. 14(1).

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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.18 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. 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 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, 200819.20 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.21
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 25222 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 the 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:

18
The Central Vigilance Act, 2003 (Act 45 of 2003), s. 8(2)(a).
19
NIA Act, 2008 (Act 34 of 2008).
20
Shivam Garg, Interpretation of Provisions of Lokpal & Lokayuktas Bill, 2011, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343535.
21
Id.
22
The Constitution of India, art. 252.

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PARAMETER LOKPAL LOKAYUKTA

The central governing body that has State level governing bodies that has
Description jurisdiction over all Members of jurisdiction over state government
Parliament and central government employees in cases of corruption.
employees in cases of corruption.

To address complaints of To address complaints of corruption,

Function corruption, to make inquiries, to make inquiries, investigations, and
investigations, and to conduct trials to conduct trials for the cases.
for the cases.

Scope On a national government level On a state level basis

basis.

Responsibility Corruption in the central Corruption in the state government.

government.

A chairperson and a maximum of Proposal: three-member body, headed

eight members, of which 50% will by a retired Supreme Court judge or
Committee be judicial members 50% members high court chief justice and
of Lokpal shall be from comprising the state vigilance
SC/ST/OBCs, minorities and commissioner and a jurist or an
women. eminent administrator as other
members.

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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.

LOKPAL & 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 Act23 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.24 The underlying
rationale for this principle is the need to prevent concentrations of political power, a rationale
accepted by the drafters of the Constitution.25

Judicial independence has been held to be part of the basic structure of the Constitution.26 It
is a cardinal principle that posits that both judges, as well as the institution of the judiciary,

23
Lokpal and Lokayuktas Bill, 2011, (Act 134-C of 2011).
24
A. K. Roy v. Union of India, AIR 1982 SC 710.
25
Constituent Assembly Proceedings on 10.12.48 available at:
http://parliamentofindia.nic.in/ls/debates/vol7p24.htm (last visited April 16, 2019)
26
Indira Gandhi v. Raj Narain, 1975 (2) SCC 159.

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must be sufficiently independent, especially from executive government, so that 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.27 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.28 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.29

However, including the higher judiciary within the jurisdiction of the Lokpal will be
superfluous in light of the judgment of the Court in Veeraswami.30 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 Section 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)

27
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 April 19, 2019).
28
Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice,
47th. Report on the Judicial Standards and Accountability Bill, 2010 (August 2011).
29
Id.
30
K. Veeraswami v. Union of India, 1991 SCC (3) 655.

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(exemption to the grant of sanction) with regard to those who hold constitutional offices with
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.31 Further, in the case of Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and
Ors.32, 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 & 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
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

31
Common Cause, A Registered Society v. Union of India & Ors., (1999) 6 SCC 667.
32
Justice K. P. Mohapatra v. Sri Ram Chandra Nayak & Ors ., (2002) 8 SCC 1.

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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.33, 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 & 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 & 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 & 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 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

33
Sri Justice S. K. Ray v. State of Orissa and Ors, (2003) 1 SCR 434.

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the allegations against Dr. H.B. Mirdha, Chairman, Orissa Public Service Commission34.
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 & 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, 198635, 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.36

Later, in the case of Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna & Ors. etc.37,
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, 198438
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
34
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.
35
Gujarat Lokayukta Act, 1986 (Act 31 of 1986)
36
State of Gujarat and Anr. v. Hon’ble Mr. Justice R .A. Mehta (Retd.) & Ors., AIR 2013 SC 693.
37
Mr. Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna & Ors.., AIR 2013 SC 726.
38
Karnataka Lokayukta Act, 1984 (Act 4 of 1985).

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 Lokpal (Administrative Law)

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.

RECOMMENDATION

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 Section 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. Report39 of the Hon’ble Standing Committee on the
Judicial Standards and Accountability Bill, also recommended the accountability
provisions must be strengthened.

39
Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice,
47th. Report on the Judicial Standards and Accountability Bill, 2010 (August 2011).

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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 re-
establish 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.

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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 Lokpal (Administrative Law)

BIBLIOGRAPHY

BOOKS

 I.P. Massey, Administrative Law (7th ed. Eastern Book Company, 2008).
 C.K. Takwani, Lectures on Administrative Law (6th ed. Eastern Book Company,
2017).

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=yes.
 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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