LOKPAL ACT

Raghuraman K
 THE ORIGINAL DICEY FORMULATION OF RULE
OF LAW
1. Absolute supremacy of Law
Law is the supreme authority and opposes the influence of any kind of arbitrary and discretionary power on
the part of the Government. It lays down that a person could be penalized only if he breached an
established legal rule which has been proved in the Court of Law
2. Equality before law
It establishes the principle that all are equal in the eyes of Law and are equally subject to the law of the
land. Dicey opposed the enjoying of privileges and immunities by any kind of officials. He also denies the
requirement for various tribunals or special courts to deal with cases of Government and citizens as
propounded in the Droit Administratif
3. Predominance of legal spirit. ( the ordinary law of the land )
It means that the rights of the individual are not only ensured by the guarantees set down in a formal
document but by the ordinary remedies available against those who unlawfully interfere with someone's
liberty

Albert Venn Dicey , An Introduction to the Study of the Law of the Constitution (1885)
 THE UNITED NATIONS DEFINITION OF RULE OF
LAW
• For the United Nations, the rule of law refers to
• a principle of governance in which
• all persons, institutions and entities, public and private, including the State itself, are accountable to laws that
are publicly promulgated, equally enforced and independently adjudicated, and
• which are consistent with international human rights norms and standards.
• It requires, as well, measures to ensure
• adherence to the principles of supremacy of law,
• equality before the law,
• accountability to the law,
• fairness in the application of the law,
• separation of powers,
• participation in decision-making,
• legal certainty,
• avoidance of arbitrariness and
• procedural and legal transparency
The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the SecretaryGeneral, UN SC, UN Doc. S/2004/616 at 4
 MODERN DEFINITION OF RULE OF LAW –DELHI
DECLARATION
• Rule of Law is
• a dynamic concept for the expansion and fulfilment of which jurists are primarily
responsible and
• which should be employed not only to safeguard and advance the civil and political
rights of the individual in a free society, but also
• to establish social, economic, educational and cultural conditions under which his
legitimate aspirations and dignity may be realized

“Rule of law in a free society,” A report on International Congress of Jurists, International Commission of Jurists, New Delhi, 1959, page 3
https://www.icj.org/wp-content/uploads/1959/01/Rule-of-law-in-a-free-society-conference-report-1959-eng.pdf
 EVOLUTION OF LAW
Thinner theory ========
Formal theory Rule of law Formal legality
- Supremacy of the sovereign - Laws set forth in advance
- Limitation of governmental power - permissible range of free action
- Different laws for administrative and - Generalities of generality,
for citizens (droit administratif) - Equality of application and
certainty,
- Predictability of market
transactions allow people to
calculate likely costs and benefits
of anticipated transactions
Substantive theory Individual rights and Freedom Dignity, and Benefits, Universal
Rights
- Property rights - Environmental protection
- Contractual rights - Economic Benefit
- Personal rights - Conciliation, Mediation, Arbitration
- Absolute equality
https://law1.nus.edu.sg/sjls/articles/SJLS-Dec-12-232.pdf
Thicker theory
System of justice
- Legislative body for making law
- Independent judiciary
- Separate institutions for regulation and
application of law
- Limitation of power of administration
through courts
- Judiciary is guardian of rule of law.
Social Welfare, Social Justice
- Collective Bargaining
- Equal treatment
- Protective discrimination
LOKPAL AND LOKAYUKTAS ACT, 2013
ASSIGNMENT : K.RAGHURAMAN
SEM : III SEM, 3YR LLB
REG NO. : 38
THEORY OF SEPARATION OF POWERS
• Montesquieu
• “When the legislative and executive powers are united in the same person, or in the
same body or magistrates, there can be no liberty.
• If judicial power is joined with the legislative power, the life and liberty of the subject
would be exposed to arbitrary control; for the Judge would then be the legislator.
• Where Judicial power joined with the executive power, the Judge might behave with
violence and oppression.
There would be an end of everything were the same man or the same body to exercise these
three powers.”
SITUATIONS WHERE STRICT RULE OF LAW DOES
NOT WORK
• Due to evolution of laws from “Supremacy of the Sovereign” to “Welfare state”, administrative machinery
having vast discretionary powers has come into existence (1)
• Today’s State is a ‘Welfare State.’ Under the concept of ‘Welfare State’, state has assumed the role of a
facilitator, enabler and regulator . As a result the burden on each of the organ of the State has increased
tremendously necessitating delegation of functions by one organ to another(2)
• There are situations in which officials must gather information, apply expertise, exercise discretion, and
make judgments
• Much of the core decision-making made by government agencies aimed at achieving social policies is
not strictly rule-governed
• Situations where rules in strict accordance with law might be harmful and leave the community
unsettled
• Where coming to a compromise or discretionary power of administrative officers may better achieve
the goal than strict rule application of law.
• In matters of social welfare like labour disputes, compromise settlements where strict rule of law
SITUATIONS LEADING TO MISUSE OF POWER
• Discretionary powers
• Worldwide there has been a tremendous increase in powers and functions of administrative authorities. Now they
discharge not only the administrative functions but also quasi-legislative and quasi-judicial functions. Such
tremendous increase in their powers has also at the same time increased the opportunities to misuse such
powers
• Thus such concentration of powers with the administration has multiplied the occasions of individual grievances and
now there are more and more complaints of
• mal-administration,
• corruption,
• nepotism,
• administrative inefficiency,
• delay,
• negligence,
• bias,
• unfair preferences or dishonesty.
EXAMPLES
• section 14 (3) of the Arms A ct, 1959, the licensing authority shall refuse to issue a
licence, if it believes the person “ to be for any reason unfit for a licence” under the A ct.
ADMINISTRATIVE DISCRETION
• What is discretion?
• discretion is merely the administration's own idea of expediency, incapable of being declared wrong in law by any higher
authority
• A statute confers discretion when it refers an official for the use of his power to beliefs, expectations, or tendencies
instead of facts, or to such terms as 'adequate” , “ advisable” , “ appropriate"', “ beneficial” , “ competent” , ‘‘ convenient” ,
“ detrimental’’, “ expedient” , “ equitable” , “fair’ “ fit” , “necessary” , “ practicable’’, “proper”, “reasonable” , “reputable” , “
safe” , “ sufficient,” “ w ho^- some>” or their opposites.
• Where the SC upheld discretion
• The Supreme Court in Pratap Singh v. State of Punjab has stated that the court is not an appellate forum where the
correctness of the order of the Government can be canvassed and it has no jurisdiction to substitute its own view for the
entirety of the power, jurisdiction and discretion is vested by law in the Government
• Judicial review does not comprehend the merits of the administrative decisions.
• It is not always easy to get the relief sought for and has the administrative action quashed as the courts generally refused
to examine the government records to find out the real reasons underlying an administrative action
• Where SC applied rules for discretion
• Cf. H.S.Kohli vs Union of India, the court held that “ Any decision that affects the rights of persons must contain reasons”
• Govt Branch Press vs Belliappa the SC held that “Giving of reasons is one of the fundamentals of good
administration.Fairness founded on reason is the essence of guarantee epitomised under Art 14 and Art 16(1)”
DEFINITIONS
• Definition of “good governance”
• The 4 pillars on which the edifice of good governance rests, in essence are
• Ethos (of service to the citizen),
• Ethics (honesty, integrity and transparency),
• Equity (treating all citizens alike with empathy for the weaker sections), and
• Efficiency (speedy and effective delivery of service without harassment and using ICT increasingly).
• Definition of Mal- Administration as a. decision, process, recommendation, act of omission or commission
which is:
• Contrary to law, rules, regulations, or is a departure from established practice or procedure, unless it is
benefiting and has a valid reason
• Is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory
• Is based on irrelevant grounds; or involves the exercise of powers or the failure or refusal to do so for
reasons of corrupt or improper motives such as bribery, jobbery, favouritism nepotism, and administrative
excesses, Neglect, inattention, delay, incompetence, inefficiency and ineptitude in the administration or
discharge of duties and responsibilities.
DEFINITIONS
• Lord Acton - Power tends to corrupt and absolute power corrupts absolutely
• Corruption
• the abuse of public power for private gain
• corruption is payment for services or material which the recipient is not due, under
law
• Corruption discriminates in the delivery of government services and thus violates the
rights of the people, the poor in particular.
• Nations have gone to war, governments have been toppled, companies have been
made bankrupt and whole kingdoms lost due to corruption scandals
TYPES OF SUPERVISION
• Parliamentary supervision
• Establishment of commissions (Sarkaria Commission, SC/ST Commission )
• Judicial supervision
• Small courts, writs
• Internal administrative supervision
• Administrative Tribunals, Office of Government Ethics (US)
• Joint Secretary under Each Ministry for Citizen grievances
• Ombudsman
• Banking ombudsman
• Lokpal, Lokayukta
• Vigilance Commission
• Human Rights Commission
OMBUDSMAN
• An indigenous Danish, Norwegian, and Swedish term,
• The Office of the Ombudsman was introduced in 1809 A.D in Sweden
• Ombudsman Is etymologically rooted in the Old Norse word umbodsman, essentially
meaning "representative"
• an agent or representative, public official to deal with individual complaints against
government acts.
• As a government agent serving as an intermediary between citizens and the government
bureaucracy,
• An independent, impartial, and universally accessible and empowered only to
recommend
FEATURES OF OMBUDSMAN
• Ombudsman's supervision primarily consists of conducting investigations in response to complaints from the
public or initiating investigations of its own, and resolving problem based on its findings
• The Ombudsman, can act suo moto. Judiciary acts only on complaint.
• Supervision by the Ombudsman more often involves ‘minor offences’ that do not imply legal liability or those that
are simply administrative improprieties
• Ombudsman does not follow any elaborate procedure
• Ombudsman does not have power to quash or reverse an administrative decision
• Ombudsman can deal with many aspects of administration with which the courts may not concern themselves,
like,
• delay,
• no answer to application,
• tardiness,
• bias in decision making,
• not giving sufficient information or reasons for a decision
HISTORY OF ANTI CORRUPTION LEGISLATIONS
IN INDIA
• A single word or expression is sufficient to bring vivid, though gloomy, memories to mind – Bofors, Fodder, CWG, Hawala,
IPL, Koda, Provident Fund, Recruitment, Security, Sugar, Sukhna, Telgi, Telecom, Urea, to name only a few.
• the Prevention of Corruption Act, 1947 (now replaced by P.C. Act, 1988) (PCA) makes certain provisions for anti-
corruption measures against public servants
• The Central Vigilance Commission (CVC) is the nodal statutory body that supervises investigation of corruption (under the
Prevention of Corruption Act 1988 and the Penal Code 1860)
• CBI shall investigate in central government departments, government companies and local government bodies, and
among public servants.
• The CVC can refer cases to either the central vigilance officer of the relevant government department or the Central
Bureau of Investigation (CBI) for investigation.
• While the CBI’s jurisdiction covers the central government and union territories, the Anti Corruption Bureau (ACB)
investigates cases within the states.
• was created in February, 1964, by a resolution of the Government of India. The commission was established after a
report by the Santhanam Committee, 1962.
• The disciplinary proceedings against Government servants can also be taken under the Service Rules framed by the
Government under Art. 309 of the Constitution.
• In some cases, formal enquiry commissions under the Commissions of Enquiry Act were instituted such as Shah
Commission.
HISTORY OF LOKPAL
• In its report, dated October 20, 1966, the Administrative Reforms Commission, after carefully
evaluating the pros and cons, advocated the adoption of the Ombudsman-type institution in India.
• The second definitive step was taken towards the creation of the Ombudsman system in India
when in 1969;
• the Lok Sabha enacted the Lokpal and Lokayukta Bill, 1968. Before the said bill could be
passed by the Rajya Sabha, the Lok Sabha was dissolved and, consequently, the bill lapsed
• A second attempt to enact the legislation to establish the system was made in 1971 when
another bill was introduced in the Lok Sabha, but again the bill aborted owing to the dissolution
of the Lok Sabha.
• A third attempt was made in 1977, when a new Bill, entitled the Lokpal Bill, 1977, was
introduced in the Lok Sabha. The bill was referred to the Joint Select Committee of the two
Houses of Parliament which presented its report to the Houses in July, 1978. But the bill lapsed
again with the dissolution of the Lok Sabha
 HISTORY OF LOKPAL IN INDIA
1963 The idea of an ombudsman first came up in parliament during a discussion on budget allocation for the Law
Ministry.
1966 a high powered “Hoover-type” Administrative Reforms Commission(ARC) in January 1966 and assigned to it the
task of considering problems of redress of citizen’s grievances
1966 The First ARC recommended the setting up of two independent authorities- at the central and state level, to look
into complaints against public functionaries, including MPs.
1968 - 2011 The Lokpal Bill was introduced in parliament 8 times but was not passed.

2002 The Commission to Review the Working of the Constitution (headed by Shri M.N. Venkatachaliah) recommended
the appointment of the Lokpal and Lokayukta; also recommended that PM be kept out of the ambit of the authority.

2011 Again introduced Lokpal Bill in Lok Sabha but could not be passed in Rajya Sabha. At the same time Annna
Hazare under a social activist group called ‘India Against Corruption’ heavily campaigned to get the Bill passed and
also prepared a model Bill under the title ‘Jan Lokpal Bill’.
2013 The Lokpal Act, 2013, officially The Lokpal and Lokayukta Act, 2013 was passed in the Rajya Sabha on 17
December 2013 after making certain amendments to the earlier Bill and in the Lok Sabha on 18 December
2013259. The Act came into force from 16 January 2014
ACTS UNDER THE UMBRELLA OF LOKPAL
• Acts covered under Lokpal Act, 2013
• Lokpal and Lokayuktas Act, 2013
• Prevention of Corruption Act, 1988
• The Delhi Police Special Establishments Act, 1946
• The Central Vigilance Commission Act, 2003
• CrPC, 1973
• CpC, 1908
• IPC, 1860
• Indian Evidence Act
• Prevention of Money Laundering Act, 2002
OBJECT OF THE LOKPAL ACT
• Lokpal Act includes in its purview, all public servants, including cabinet ministers, chief
ministers, and members of Parliament and employees of state-funded organizations,
proposes to set up an independent ombudsman at the national level with parallel anti-
graft agencies in states.
• Fasttracking investigations against allegedly corrupt government officials, is the primary
objective of this bill, which is an attempt to crack down on unrestrained corruption in
India’s bureaucracy
• The processing of complaints, causing investigation to be done in respect of the
complaints, and initiation of prosecution are all contemplated under the Act to be
completed in a time-bound manner.
SALIENT FEATURES OF THE ACT
• Lokpal at the Centre and Lokayukta at the States
• The Lokpal consists of a Chairperson and a maximum of eight members of which 50% shall be judicial members
• The Lokpal Chairperson or member shall not be connected with any political party and one member will be an eminent
jurist nominated by the President.
• The Chairperson and the Members are appointed by the President of India for a term of five years from the date on
which they enter upon the office or until they attain the age of 70 years, whichever is earlier.
• The selection of Chairperson and members of Lokpal shall be through a Selection committee consisting of
• Prime Minister
• Speaker of Lok Sabha
• Leader of Opposition in the Lok Sabha
• Chief Justice of India or sitting Supreme Court judge nominated by CJI
• Eminent jurist to be nominated by the President of India on the basis of recommendations of the four members of
the Selection Committee.
• All ministers including Prime Minister with some safeguards and senior public servants are covered by the ombudsman,
excluding the public servants under Army, Navy and Coastal guard.
• All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in
SALIENT FEATURES OF THE ACT
• Provides adequate protection for honest and upright Public Servants.
• Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases
referred to them by Lokpal.
• A high powered Committee chaired by the Prime Minister will recommend selection of the Director, CBI.
• Directorate of Prosecution headed by a Director of Prosecution under the overall control of Director
• The appointment of the Director of Prosecution, CBI will be made on the recommendation of the Central
Vigilance Commission.
• Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal.
• The Bill also incorporates provisions for attachment and confiscation of property acquired by corrupt means,
even while prosecution is pending.
• The Bill lays down clear time lines for Preliminary enquiry & investigation and trial and towards this end, the
Bill provides for setting up of Special Courts.
• A mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature
within a period of 365 days from the date of commencement of the Act.
ESTABLISHMENT AND COMPOSITION
• Section 3
• Not exceeding 8 members ( judicial , non judicial and 50% members from SC/ST, OBC,
MBC or women) + a Chairman
• Eligibility & Composition
• Chairperson – ex or sitting CJI or Senior Judge of Supreme Court or eminent person
• Judical members – ex or sitting Judge of SC or CJ of HC
• Non-Judicial members – any person with outstanding ability, integrity, special knowledge
• Disqualifications
• Cannot be less than 45 yrs
• Cannot be sitting MP, MLA or hold office of profit.
APPOINTMENT
• Under Section 4
• Chairpersons and members appointed by President
• Tenure : 5 yrs or till 70 yrs of age
• The selection of Chairperson and members of Lokpal shall be through a Selection committee consisting
of
• Prime Minister
• Speaker of Lok Sabha
• Leader of Opposition in the Lok Sabha
• Chief Justice of India or sitting Supreme Court judge nominated by CJI
• Eminent jurist to be nominated by the President of India on the basis of recommendations of the
four members of the Selection Committee.
JURISDICTION OF LOKPAL
• Following persons within scope of inquiry. (Section 14)
• Ex or sitting PM and Minister of Union, MPs.
• Any group A or Group B officer equivalent to those Public Servant. under S.2 (c) (i) & (ii)
of Prevention of Corruption Act. and Group C & D
• Chairperson, officer or employee of Board, Company or Society or AoP or Trust
(includes those in receipt of foreign contribution exceeding Rs.10 lakhs a yr or higher)
established by Act of Parliament or wholly or partly financed or controlled,
• Allegations of corruption by MPs in respect of anything said or vote given covered under
Art.105(2) excluded.
• Persons engaging in abetment, bribe giving or taking or conspiracy included
WINGS OF LOKPAL
• INQUIRY WING ( SECTION 11)
• Inquiry Wing to be headed by Director of Inquiry
• Purpose : Conduct preliminary enquiry into the allegations as per the complaint,
against a public servant
• PROSECUTION WING (SECTION 12)
• Headed by Director of Prosecution
• Prosecution of public servant based on Investigation Report tabled by the Inquiry
Wing.
• DoP to file Chargesheet and file case in Special Court
CRITICAL ISSUES IN LOKPAL
• Inquiry into Allegations and complaints against Prime Minister require support of 2/3 rd majority of Lokpal members
• Prime Minister is first among equals in Cabinet Ministers. So, special status for PM does not have any
constitutional basis
• But protection may be necessary to prevent an avalanche of complaints given the political stature of the post.
• Lokpal excludes MPs from any action under Lokpal Act for conduct inside Parliament, as granted under Article 105 of
Constitution.
• But, any horse trading or voting for gratification also gets excluded from Lokpal
• Lower bureaucracy excluded from Lokpal ( below Grade D), as the number of employees in that grade would exceed
tens of lakhs
• False complaints attract punitive punishments under Section 46, are a deterrent for filing complaints
• SC is entrusted with inquiry into misconduct by Lokpal members. So, Lokpal cannot enquire into conduct by judiciary.
• The appointment of Lokayuktas has been left to the discretion of the states, which weakens the State level Ombuds
process
• The time limit of 180 days for inquiry, 12 months for Investigation Report, and 2 year for Special Court ( including
extensions). The Act is silent on provisions, if case is delayed beyond the prescribed time limit.
WORKING OF LOKPAL – PRELIMINARY INQUIRY
• Lokpal acts only on a complaint. It cannot take suo moto action
• After receiving a complaint, the Lokpal can do one of the following
1. Can call for a preliminary enquiry under Section 20(1)(a) to ascertain if there exists a prima facie case
for proceeding in the matter
2. shall call for the explanation of the public servant so as to determine whether there exists a prima
facie case for investigation:
3. There can be any search and seizure, if any be, undertaken by any agency (including the Delhi Special
Police Establishment) under this Act
4. after obtaining the comments of the concerned public servant and the competent authority, submit, within
sixty days from the date of receipt of the reference, a report to the Lokpal.
• Complaint received by Lokpal in respect of public servants belonging to
• after making preliminary inquiry in respect of public servants belonging to Group A and Group B,
shall submit its report to the Lokpal in accordance with the provisions contained in sub-sections (2)
and (4) of Section 3 of Central Vigilance Commission Act, 2003 (45 of 2003):
• in case of public servants belonging to Group C and Group D, the Commission shall proceed in
WORKING OF LOKPAL – PRELIMINARY ENQUIRY
• Under Section 20(2), a bench consisting of not less than three Members of the Lokpal
shall consider every report received under sub-section (2) from the Inquiry Wing or any
agency shall proceed with any of the following
• investigation by any agency or the Delhi Special Police Establishment
• initiation of the departmental proceedings or any other appropriate action against the
concerned public servants by the competent authority;
• closure of the proceedings against the public servant and to proceed against the
complainant under section 46.
• Preliminary enquiry shall be completed in 90 days and extended by another 90 days with
sufficient cause.
WORKING OF LOKPAL – INVESTIGATION
• Investigation report
• Under Section 20(6) of Lokpal Act, the Lokpal shall investigate into the complaint, it
shall direct any agency (including the Delhi Special Police Establishment) to carry
out the investigation
• Investigation shall be completed in 6 months and extended by another 6 months with
sufficient reason
• The CBI or any other agency shall submit the investigation report under CrPC
section 173 to the court having jurisdiction and forward a copy thereof to the Lokpal.
WORKING OF LOKPAL - PROSECUTION
• Prosecution Wing
• Under Section 20(7), a bench consisting of not less than three Members of the Lokpal shall
consider every report received by it under sub-section (6) from any agency (including the Delhi
Special Police Establishment)
• grant sanction to its Prosecution Wing or investigating agency to file charge-sheet or direct the
closure of report before the Special Court against the public servant;
• direct the competent authority to initiate the departmental proceedings or any other
appropriate action against the concerned public servant.
• Under Section 20(8), the Prosecution Wing initiates prosecution in the Special Court in respect of
the cases investigated by the agency.
• Under Section 12 (2), the Director of Prosecution shall file a case in accordance with the findings of
investigation report, before the Special Court and take all necessary steps in respect of the
prosecution of public servants in relation to any offence punishable under the Prevention of
Corruption Act, 1988 (49 of 1988).