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ACKNOWLEDGEMENT

Retake this opportunity to express my profound gratitude for


the personal involvement and constructive thinking provided
beyond the practical knowledge during the project by Dr. ASAD
MALIK who channelized my raw ideas and gave me the
encouragement. Without his help it would have been difficult
for me to reach the position which I have accomplished.

REGARDS

MOHAMMAD YOUNIS
TABLE OF CONTENTS

INTRODUCTION………………
……………………………………
…………...........................11-12

BRIEF HISTORY OF
CORRUPTION AFTER
INDEPENDENCE..........................
..........
13-14
SUPREME COURT’S VIEWS
ON
CORRUPTION…………………
……………………….....
14-18

LAWS AND PROVISIONS IN


INDIA TO TACKLE
CORRUPTION………….
………….......18-20

Indian Penal Code,


1860……………………………
……..
……………………………..18

The Prevention of Corruption


Act, 1988
……………………………………
……..18-19
The Benami Transactions
(Prohibition) Act, 1988
……................................................
.....19

The Foreign Exchange


Management Act
1999………………………………
……………19

The Prevention of Money


Laundering Act, 2002
……………………………………...
19-20

The Right to Information Act,


2005……………………………
………………………20

UNITED NATIONS
CONVENTION AGAINST
CORRUPTION AND INDIA….
……………20-21

LOKPAL-HOPE FOR ‘WE THE


PEOPLE OF INDIA
……………………………………
……..21

INSTITUTION OF LOKPAL AND


ITS HISTORY IN INDIA………..
………………………..22-25

GROWTH OF LOKPAL IN
STATES…………………………
………………………………..…
25
IMPORTANCE OF LOKPAL IN
THE ERA OF
CORRUPTION……………………
…………26-27

RECOMMENDATIONS OF
VARIOUS EXPERTS
COMMITTEES ON THE
QUESTIONS

FRAMED BY THE
GOVERNMENT ON THE
LOKPAL…………………………
……………..28

THE LOKPAL AND


LOKAYUKTAS ACT, 2013-
DREAM HAS COME
TRUE………………..29

SALIENT FEATURES OF THE


LOKPAL AND LOKAYUKTAS
ACT, 2013………………..29-39

Establishment and composition


of the
Lokpal……………………………
…………….30

Selection And Appointment of


the Members of the
Lokpal…………………………
30-31

Public Functionaries Against


Whom Complaints of
Corruption Can Be Entertained
By
Lokpal……………………………
……………………………………
……………………..31

Page | 1
Public Functionaries Against Whom Complaints of Corruption Cannot Be Made to
Lokpal…………………………………………………………………………………….31-32

Establishment of the Inquiry And The Prosecution Wing………………………………32

Jurisdiction of the Lokpal……………………………………………………………….32-33

Inquiry, Investigation and Trial under the Lokpal Act…………………………………33

Additional Powers Granted To Lokpal………………………………………………..34-37

Special Courts……………………………………………………………………………..37

Processes are time-bound……………………………………………………………….37-38

Impact of the Lokpal Act on the CBI and Central Vigilance Commission…………….38

Time Limit For Filing Complaints……………………………………………………...38-39

PITFALLS IN THE LOKPAL AND LOKAYUKTAS ACT, 2013……………………………..39-42

Lokpal Cannot suo moto Proceed Against Any Public Servant……………………….39

Emphasis on Form of Complaint Rather Than Substance……………………………….39

Heavy Punishment For False And Frivolous Complaints Against Public Servants May Deter
Complaints Being Filed To Lokpal………………………………………………39-40
Anonymous Complaints Not Allowed- Can’t Just Make A Complaint On Plain Paper

And Drop It In A Box With Supporting Documents…………………………………40

Legal Assistance To Public Servant Against Whom Complaint Is Filed……………40

Limitation Period of 7 Years To File Complaints………………………………..41

Very Non-Transparent Procedure For Dealing with Complaints Against the PM…41

Selection Process Ensuring Control to Political Rulers……………………………..41-42

Reservation: Courting a Controversy…………………………………………………..42

CRITICAL ANALYSIS OF THE LOKPAL AND LOKAYUKTAS ACT, 2013………………43-45

Whether The Definition of ‘Complaint’ Exhaustive……………………………………43

Whether There Is Jurisdictional Overlaps Between The Lokpal, The CVC & The
CBI………………………………………………………………………………………….44

Page | 2
Whether change in offences investigated by the lokpal require amendment in section provided
for special courts……………………………………………………………….45

Whether The Final Appellate Authority Section Constitutionally valid……………….45

CAN LOKPAL BE A MAGIC BULLET AGAINST CORRUPTION………………………….46-47

CONCLUSION……………………………………………………………………………………49-50
Page | 3
LIST OF ABBREVIATIONS

AC Appeal Cases

AIR All India Reporter

All Allahabad

Art/Arts Article/Articles

AWC Allahabad Weekly Cases

BCIJ Bar Council of India Journal

Bom Bombay
Cl/Cls Clause/Clauses

CONST Constitution

Del Delhi

edn Edition

IESC Irish Supreme Court

Ir Irish

ITR Income Tax Reporter

LLC Limited Liability Company

p/pp Page/Pages

POC Prevention of Corruption


S/Ss Section/Sections

Page | 4
SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

v Versus

Vol Volume

CVC Central Vigilance Commission

UNCAC UN Convention Against Corruption


Page | 5
INDEX OF AUTHORITIES

S.

COMMON LAW PRECEDENTS

P.

FOOTNOTE

NO.

NO.

NO.
1.
Attorney General For India vs Amratlal Prajivandas 1994
29

51

AIR 2179
2.

Common Cause, A Registered Society vs. Union of India


18

20

AIR 1996 SC 3539


3.

Delhi Development Authority v. Skipper Construction Co.


16

13
(P) Ltd AIR 1996 SC 2005
4.

J. Jayalalitha v. Union of India & another (1999) 5 SCC


16,40

21,66

138
5.

Justice Nirmal Yadav (Retd.) vs. CBI Criminal Revision


18

18

No.2639 of 2013
6.

Mahendra Lal Das vs. State of Bihar (2002) 1 SCC 149


41
68

7.

Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC


18

21

394
8.

Sanjiv Kumar v. State of Haryana & ors., (2005) 5 SCC


18
21

517
9.

Santosh Dev vs. Archna Guha and Others (1994) Supp.3

SCC 735
41

69
10.

Shobha Suresh Jumani v. Appellate Tribunal Forfeited


18

21
Property & another, (2001) 5 SCC 755
11.

State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319


18

21

12.

State of M.P. & ors. v. Ram Singh, (2000) 5 SCC 88


18

21
13.

State vs. S. Bangarappa 2001 Cri.L.J. SC 111


17

17

14.

Subharmaniam Swamy v. Manmohan Singh (2012) 3 SCC


15,38
11,64

64
15.

Vineet Narain vs. Union of India 1998 (1) SCC 226


16,29

14, 75
Page | 6

S.

LIST OF ACTS AND STATUTES

NO.
1.

THE CONSTITUTION OF INDIA, 1950

2.

THE PREVENTION OF CORRUPTION ACT, 1988

3.

THE LOKPAL AND LOKAYUKTAS ACT, 2013

4.
CENTRAL VIGILANCE ACT, 2003

5.

CRIMINAL PROCEDURE CODE, 1973

6.

CODE OF CIVIL PROCEDURE, 1908

7.
THE INDIAN PENAL CODE, 1860

8.

THE BENAMI TRANSACTIONS (PROHIBITION)

ACT, 1988

9.

THE FOREIGN EXCHANGE MANAGEMENT ACT


1999

10.

THE PREVENTION OF MONEY LAUNDERING ACT,

2002

11.

THE RIGHT TO INFORMATION ACT 2005


TABLE OF BOOKS/ MANUALS/ DIGESTS AND OTHER RECOGNISED TEXTS

S.

LIST OF BOOKS

P.

FOOTNOTE

NO.

NO.
NO.

1.
Taxmann’s Guide to Lokpal and Lokayuktas Act,
20
34

2013

2.
M.P Jain & S.N Jain, Principles of Administrative Law,

13
24

th
2011 (7 Edition)

3.
Wade & Forsyth, Administrative Law, ( Oxford

12
22

University Press, Oxford Eighth Edition, 2000) p. 88


Page | 7
TABLE OF ARTICLES & JOURNALS

S.

LIST OF ARTICLES AND JOURNAL

P.

FOOTNOTE

NO.

NO.

NO.
1.
Legislative Measures for Prevention of Corruption: A

Study in the Special Reference of Lokpal Institution by

Chandra Shekhar Joshi, Research Scholar(Law), Faculty


13

10
of Law, Kumaun University, S.S.J.Campus, Almora

(Published in ChotaNagpur Law Journal, 2012-13 )


2.

Can Corruption be Checked by A Lokpal Act Only? by


23

33

Madhubrata Mohanty, Odisha Review (November - 2012)


3.

Need of Lokpal Bill in Present Democratic System: A


Present Need by DR. RAJESH S. VYAS Principal, Shri
22

27

N. S. Patel Law College, Modasa, Dist. Sabarkantha


Gujarat (India), Vol. 2, Issue:2, February 2013
4.

Dhavan, Rajeev (2011):


“Lokpal
is
not wanted
by
26

36

anyone”, India Today, January, 17


5.

Politics of Lokpal: a way beyond by Vinod Bhanu, CLRA


22

28
Research Paper Series: No.1 April 2011
6.

An Article,
“Lokpal in
India-
An
Analysis”
by
44

71
rd
“Triloknath Mishra”, 3 October 2011
7.

AnArticle,“Instilling public confidence in

administration:
The need
for an
Ombudsman
like
27

38
institution in India”,
TABLE OF NEWSPAPER ARTICLES
S.

LIST OF NEWSPAPER ARTICLES

P.

FOOTNOTE

NO.

NO.
NO.
1.

“Historic Lokpal Bill passed” - The Hindu, Dec 18, 2013


30

47

2.

Salient features of Lokpal, Lokayuktas Bill - The Hindu,


31
51

Dec 18, 2013


Page | 8

3.

“I completely accept draft Lokpal, says Hazare” - The


29

45

Hindu, Dec 14, 2013


5.

“Govt clears 14 major changes to Lokpal Bill - Indian


39

67
Express”, Fri Feb 01 2013
TABLE OF REPORTS

S.
LIST OF REPORTS

P.

FOOTNOTE

NO.

NO.

NO.
1.

Transparency International: “Corruption Perception Index


5

12
2012”, International Secretariat, Berlin, Germany.
2.

Second Administrative Reforms Commission (ARC),


29

44

Ethics in Governance (Rep No 4, 2007) para 2.9.12


3.

National Commission to Review the Working of the


29

44

Constitution, 2002
4.

First Administrative Reforms Commission, 1966


29

44
5.

Second Administrative Reforms Commission, 2007


29

44

6.
The Report of the Standing Committee on Home Affairs
29

46

on the Lok Pal Bill, 1996


7.

The Report of the Standing Committee on Home Affairs


29

46

on the Lok Pal Bill, 1998


8.

The Report of the Standing Committee on Home Affairs


29

46
on the Lok Pal Bill, 2001
9.

The Report of the National Commission to Review the

Working of the Constitution, 2002 (NCRWC)


29

46
TABLE OF WEB REFERENCES

Page | 9

S.

LIST OF INTERNET REFERENCES


P.

FOOTNOTE

NO.

NO.

NO.
1.

corruptioninindia.org
2

11
2.

www.socialissuesindia.wordpress.comX
16

16

3.

www.annahazare.orgX
13

8
4.

http://ssrn.com/abstract=2343535X
45

74
Page | 10
INTRODUCTION

“Corruption is an insidious plague that has a wide range of corrosive effects on societies. It
undermines democracy and the rule of law, leads to violations of human rights. Corruption
hurts the poor disproportionately by diverting funds intended for development, undermining a
government's ability to provide basic services, feeding inequality and injustice, and
discouraging foreign investment and aid. Corruption is a key element in economic under-
performance, and a major obstacle to poverty alleviation and development.”

-Kofi Annan1

What is Corruption? In spite of its prominence through the ages, corruption remains
difficult to define. In India, even in 4th century B.C. ‘Corruption’ had been a key theme as
reflected in Kautilya’s Arthashastra. There is no universally accepted definition of

‘corruption’ and there has been disagreement as to what specific acts constitute corruption as
a construct. it is to be said that corruption is like an elephant – though it may be difficult to
describe, it is generally not difficult to recognize when observed.

Corruption is a form of behavior which departs from ethics, morality, tradition, law, and civic
virtue. Etymologically, the word corruption comes from the Latin verb ‘corruptus’. Literally
it means broken object. Corruption is being perceived differently from country to country. It
tends to include conflict of interest, embezzlement, fraud, bribery, political corruption,
2
nepotism, sectarianism, and extortion.

In simple terms corruption can be defined as “misuse of public money for private
purposes”. Corruption can also be defined as nepotism patronage and a variety of acts of
omissions/commissions which may or may not involve direct or immediate financial
considerations. The prevention of corruption Act 1988 which applies to public servants
describes corruption basically in terms of “taking gratification other than legal remuneration
3
in respect of an official act”.

The word was first used by Aristotle and later by Cicero who added the terms bribe and
4
abandonment of good habits. Corruption is defined by the World Bank and Transparency
1
Kofi Annan, The Secretary-General of UN Statement On The Adoption By The General Assembly Of The

United Nations Convention Against Corruption New York, 31 October 2003

corruptioninindia.org visited on 13 April 2014

Section 7 of the Prevention of Corruption Act, 1988

Llaca, E.G. (2005), La Corrupcion: Patologia Colectiva [Corruption: Collective Pathology],


INAP/CNDH/FCPSUAM Ciudad de México

Page | 11
5
International as “The misuse of public office for private gain.” India is rated as one of the
most corrupt countries in the world. Transparency international has put India on 94th rank out
6
of 176 nations this year. Such is the pervasiveness of corruption that all departments of
public life, right from schools to playground have been tainted by corruption today.
According to Shri V.N Vittal, former CVC, black money in India accounts for 40% of GDP
and the film and real estate industries are areas where lot of black money circulates.

The former Prime Minister Rajiv Gandhi stated that out of every rupee allotted for
development activities, only fifteen paise actually reach the target.

Corruption is a relic of the past. It has always existed in human society in one form or
another. It is a universal phenomenon and no society is free from it. All religious laws
depreciate it make it drastically punishable. The holy Quran says:

“Do not consume one another’s property by unjust means, nor offer it as a bribe to the
authorities, so that you may deliberately and wrongfully devour a part of other people’s
7
wealth.”

Further Bible also says-

“You shall not take bribe for a bribe Blinds the eyes of the Wise and Subverts the cause of the

Righteous”

Ex-President Dr. Radhakrishna once remarked, “corruption is an evil which has to be


fought on all fronts, at all levels.”

Corruption is an abuse of public resources or position in public life for private gain. The
scope for corruption increases when control on the public administrators is fragile and the
division of power between political, executive and bureaucracy is ambiguous. Political
corruption which is sometimes inseparable from bureaucratic corruption tends to be more
widespread in authoritarian regimes where the public opinion and the Press are unable to
denounce corruption. The paradox of India, however, is that in spite of a vigilant press and
public opinion, the level of corruption is exceptionally high. This may be attributed to the
utter insensitivity, lack of shame and the absence of any sense of public morality among the
bribe-takers.
Transparency International: “Corruption Perception Index 2012”, International Secretariat, Berlin, Germany.

The Indian Express “India ranked 94th in Corruption Perception Index ratings says Transparency International”
Dec 05 2012

(2:189)

Page | 12
BRIEF HISTORY OF CORRUPTION AFTER INDEPENDENCE

Corruption is not a discovery of Anna Hazare, neither it is discovery of 2011 or 2012 but it
8
has long back history. There have been many cases of corruption, maladministration, and
9
misuse of authority that has come to light in the recent years. For instance, “2G Spectrum
Financial Scandal in the Telecommunications and IT Ministry under A. Raja which is
considered one of the largest political corruption case in the history of modern India, still
10
remains unsolved; “CWG Scam” etc.

Kautilya visualized various forms of corruption in public services. He writes, “Just as it is


impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is
impossible for a government servant not to eat up, at least, a bit of king’s revenue.” Kautilya
also mentions corruption in the judiciary. He also recommended severe punishment for
corrupt judges.

Probably the first high profile scandal after independence was the Jeep scam in 1948, when
jeeps were required for the army operation in Kashmir. V. K. Krishna Menon, the then High
Commissioner for India in London entered into a deal with a foreign firm without following
the normal procedure. Rather than initiating a judicial inquiry, as suggested by the Inquiry
Committee led by Ananthsayanam Ayyangar, the then Government announced in 1955 that
the Jeep scandal case was closed. Union Minister G.B.Pant made a funny announcement
"that as far as Government was concerned it has made up its mind to close the matter. If the
opposition was not satisfied they can make it an election issue.” Soon thereafter in 1956,
Krishna Menon was inducted into the Nehru cabinet as minister without portfolio.

The governing climate in those days can be gauged from the following observations:

“A one man committee of A. D. Gorwala, set up to suggest ways to improve the system of
governance, observed that quite a few of Nehru's ministers were corrupt and this was
common knowledge and that the government goes out of its way to shield its ministers.”

The Santhanam Committee, which was appointed in 1962 to examine the problem of
corruption, observed in 1964 that: “There is widespread impression that failure of integrity is
www.annahazare.org visited on 10 April 2014 X

2G signifies second generation wireless digital technology

Legislative Measures for Prevention of Corruption: A Study in the Special Reference of Lokpal Institution by Chandra
Shekhar Joshi, Research Scholar(Law), Faculty of Law, Kumaun University, S.S.J.Campus, Almora

(Published in ChotaNagpur Law Journal, 2012-13 )

Page | 13
not uncommon among ministers and that some ministers, who have held office during the last
sixteen years have enriched themselves illegitimately, obtained good jobs for their sons and
relations through nepotism and have reaped other advantages inconsistent with any notion of
purity in public life.”

In later years, corruption gradually became almost institutionalized when power got
concentrated in just one person Indira Gandhi. Nagarwala case (or V K Malhotra) was a most
bizarre scandal when the Chief Cashier of State Bank of India, V.P.Malhotra paid Rs 60 lakhs
to one Nagarwala supposedly on telephonic instructions from Indira Gandhi. Nagarwala died
in jail but the mystery was never really resolved.

Later, the Bofore’s deal and the kickback charges led to Rajiv Gandhi losing power. Then
Narsimha Rao became the first Prime Minister to be prosecuted in corruption charges in the
JMM bribery case. Of course, he was later acquitted.

What is surprising is that despite the knowledge of widespread corruption no effective


measures have yet be0en installed that curb the menace. The Lokpal Bill could not be passed
in last decades; it speaks for the utter lack of political will in the country.

SUPREME COURT’S VIEWS ON CORRUPTION

11
Subharmaniam Swamy v. Manmohan Singh

Expressing concern over corruption plaguing public life, the Supreme Court said "Today,
corruption in our country not only poses a grave danger to the concept of constitutional
governance, it also threatens the very foundation of Indian democracy and the Rule of Law,"
Justice A K Ganguly said while delivering the verdict on the issue of granting sanction to
prosecute former Telecom Minister A Raja in the 2G spectrum allocation scam.

"The magnitude of corruption in our public life is incompatible with the concept of a
socialist, secular and democratic republic. It cannot be disputed that where corruption begins
all rights end, Corruption devalues human rights, chokes development and undermines
justice, liberty, equality, fraternity which are the core values in our preambular vision.
Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and
worked out in such a fashion as to strengthen the fight against corruption,"
11
(2012) 3 SCC 64

Page | 14
12
J. Jayalalitha v. Union of India & another

It was observed that, “the legislature has enacted the Prevention of Corruption Act as it had
become aware of rampant corruption amongst the public servants. While replacing the 1947
Act by the present Act the legislature wanted to make the provisions of the Act more effective
and also to widen the scope of the Act by giving a wider definition to the term `public
servant'. The reason is obvious. Corruption corrodes the moral fabric of the society and
corruption by public servants not only leads to corrosion of the moral fabric of the society
but is also harmful to the national economy and national interest, as the persons occupying
high posts in Government by misusing their power due to corruption can cause considerable
damage to the national economy, national interest and image of the country.”

13
Delhi Development Authority v. Skipper Construction Co. (P) Ltd

The Supreme Court made the following observations:

“If the canker of corruption is not to prove the death-knell of this nation. According to
several perceptive observers, indeed, it has already reached near-fatal dimensions. It is for
the Parliament to act in this matter, if they really mean business.”

14
Vineet Narain vs. Union of India

In these judgments, the Supreme Court has directed the Central Bureau of Investigation and
the Revenue authorities to fairly and properly conduct and complete the investigation
expeditiously against every person involved, irrespective of position and status. The Supreme
Court observed that it is the bounden duty of the judiciary to enforce the rule of law and to
see that investigation into corruption “is conducted in accordance with law and is not scuttled
by anybody”.

The Court further observed:-

“The adverse impact of lack of probity in public life leading to a high degree of corruption is
manifold. It also has adverse effect on foreign investment and funding from the International
Monetary Fund and the World Bank who have warned that future aid to under developed
countries may be subject to the requisite steps being taken to eradicate corruption, which
prevents International aid from reaching those for whom it is meant. Increasing corruption
has led to investigative journalism which is of value to a free society. The need to highlight

(1999) 5 SCC 138

AIR 1996 SC 2005

1998 (1) SCC 226

Page | 15
corruption in public life through the medium of public interest litigation invoking judicial
review may be frequent in India but is not unknown in other countries”.

15
State of M.P. vs. Ram Singh

The Supreme Court observed:

“Corruption is termed as a plague which is not only contagious but if not controlled, spreads
like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has
also been termed as royal thievery. The socio-political system exposed to such a dreaded
communicable disease is likely to crumble under its own weight. Corruption is opposed to
democracy and social order, being not only anti-people, but aimed and targeted against them.
It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the
earliest, it is likely to cause turbulence – shaking the socio-economic-political system in an
16
otherwise healthy, wealthy, effective and vibranting society”.

17
State vs. S. Bangarappa

No doubt corruption affects the normal fabric of the society. The citizens loose their faith in
the political leaders who shout that they are for the people. No doubt many people go
unpunished although corruption causes considerable damage to the economy of the nation.
The roots of corruption are so deep that it is an uphill task to eradicate them. It is only
possible if and only if each citizen in our country follows the philosophy of contentment. To
quench the thirst of greed and lust one must be drenched in shower of honesty and the
fountain of sublime love should sprinkle the magical drops on the eyes of everyone who has
shut his eyes for the reality of the life. Unless one tries to find a golden key to open the gates
of wisdom, the heavenly life remains as a myth and we are all making the futile effort to
attain divinity in our life. The public man should have crystal clear and transparent
personality. Caesars wife must be above suspicion.
2000 (5) SCC 88

www.socialissuesindia.wordpress.com visited on 13 April 2014 X

2001 Cri.L.J. SC 111

Page | 16
18
Justice Nirmal Yadav (Retd.) vs. CBI

After the Supreme Court dismissed the plea for stay on proceedings of the trial court, Finally,
the special CBI judge on Saturday framed charges on corruption against the controversial
former high court judge, Justice Nirmal Yadav for her alleged involvement in the cash-in-bag
scam that had rocked the entire judiciary in 2008. Justice Yadav has been charged under
19
Section 11 of the Prevention of Corruption Act.

20
Common Cause, A Registered Society vs. Union of India

The Supreme Court in an innovative exercise examined executive actions of two former
Union Ministers. It found that one of them allotted petrol pumps in favour of fifteen persons
which were plainly vitiated by lack of transparency, nepotism and arbitrariness. The
allotments made mostly in favour of the relations of the Ministers or members of his staff. In
the case of the other Minister, the Court found that illegal allotments had been made in
relation to occupation of Government accommodation. The Court, while taking the view that
no public servant could arrogate himself the power to act in a manner which was plainly
arbitrary, observed:

“It is high time that the public servants should be held personally responsible for their mala
fide acts in the discharge of their functions as public servants. With the change in socio-
economic outlook, the public servants are being entrusted with more and more discretionary
powers even in the field of distribution of government wealth in various forms. We take it to
be perfectly clear, that if a public servant abuses his office either by an act of omission or
commission, and the consequence of that is injury to an individual or loss of public property,
an action may be maintained against such public servant. No public servant can say you may
set aside an order on the ground of mala fide but you cannot hold me personally liable. No
public servant can arrogate to himself the power to act in a manner which is arbitrary.”

The Supreme Court directed one Minister to pay a sum of Rs. Fifty lakhs by way of
exemplary damages to the government. Likewise, the other Minister was asked to pay a sum
of Rs. Sixty lakhs by way of exemplary damages. The Court, in both the cases, concluded that
the actions of the Ministers amounted to a misfeasance of public property.

Criminal Revision No.2639 of 2013


(Public servant obtaining valuable thing without consideration from person concerned in proceeding or business
transacted by such public servant)

AIR 1996 SC 3539 at page 3551 (paragraph 25)

Page | 17
These decisions, certainly, were welcome and enhanced the image of the Supreme Court in
the public eye. The decisions established that courts were concerned with public servants and
ministers could not escape consequences of their mala fide acts and orders. The decisions, in
substance, demonstrated the adage that howsoever high you may be, the law is above you.
The decisions reinforced the rule of law and not that of men and further that public servants
must develop a respect for public property and, above all, that public office is a trust and not a
charter of corruption, nepotism and personal gain.

The authority empowered to take proceedings must be an independent high level


officer/agency whose tenure, conditions of service and independence should be firmly and
fully guaranteed as has been done in the case of Central Vigilance Commissioner. Different
authorities may be prescribed for different classes of public servants.

Time and again this Court has expressed its dismay and shock at the ever growing tentacles of
21
corruption in our society but even then situations have not improved much.
21
Sanjiv Kumar v. State of Haryana & ors., (2005) 5 SCC 517; State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC
319; Shobha Suresh Jumani v. Appellate Tribunal Forfeited Property & another, (2001) 5 SCC 755; State of M.P.
& ors. v. Ram Singh, (2000) 5 SCC 88; J. Jayalalitha v. Union of India & another, (1999) 5 SCC 138; Major
S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394.

Page | 18
LAWS AND PROVISIONS IN INDIA TO TACKLE CORRUPTION

Public servants in India can be penalized for corruption under the Indian Penal Code, 1860
and the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act,
1988, The Prevention of Money Laundering Act, 2002 which penalizes public servants for the
offence of money laundering. India is also a signatory to the UN Convention against
Corruption since 2005. The Convention covers a wide range of acts of corruption and also
22
proposes certain preventive policies.

Indian Penal Code, 1860

The IPC defines “public servant” as a government employee, officers in the military, navy or
air force; police, judges, officers of Court of Justice, and any local authority established by a
23
central or state Act .

Section 169 pertains to a public servant unlawfully buying or bidding for property. The public
servant shall be punished with imprisonment of up to two years or with fine or both. If the
property is purchased, it shall be confiscated.

Section 409 pertains to criminal breach of trust by a public servant. The public servant shall
be punished with life imprisonment or with imprisonment of up to 10 years and a fine.

The Prevention of Corruption Act, 1988

The Prevention of Corruption Act, 1988 was enacted to consolidate different anti-corruption
provisions from various pieces of legislation under one umbrella and to make them more
effective. The Corruption Act, inter alia, widened the scope of the definition of a “public
servant”; enhanced penalties provided for offences in earlier laws; incorporated the provisions
of freezing of suspected property during trial; mandated trial on a day-to-day basis, prohibited
the grant of stay on trial; etc. The Corruption Act is the main law for dealing with offences
pertaining to corruption in India, however many avenues of corruption cannot be dealt with
under the Prevention of Corruption Act, 1988.
PRS Legislative Research Available at www.prsindia.org, visited on 12 March 2014 X

Section 21 of the Indian Penal Code, 1860

Page | 19
The Benami Transactions (Prohibition) Act, 1988

The Act prohibits any benami transaction (purchase of property in false name of another
person who does not pay for the property) except when a person purchases property in his
wife’s or unmarried daughter’s name. Any person who enters into a benami transaction shall
be punishable with imprisonment of up to three years and/or a fine. All properties that are
held to be benami can be acquired by a prescribed authority and no money shall be paid for
such acquisition.

The Foreign Exchange Management Act 1999

Middlemen or touts, who take huge commissions for brokering deals pertaining to purchases
from foreign suppliers, often transfer such money in foreign currencies, claiming it to be the
proceeds of some business abroad. This Act empowers the Directorate of Enforcement, India
to investigate and prosecute such persons under the said act.

The Prevention of Money Laundering Act, 2002

The Act states that an offence of money laundering has been committed if a person is a party
to any process connected with the proceeds of crime and projects such proceeds as untainted
property. “Proceeds of crime” means any property obtained by a person as a result of criminal
activity related to certain offences listed in the schedule to the Act. A person can be charged
with the offence of money laundering only if he has been charged with committing a
scheduled offence.

The penalty for committing the offence of money laundering is rigorous imprisonment for
three to seven years and a fine of up to Rs 5 lakh. If a person is convicted of an offence under
the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can
extend up to 10 years.

The Adjudicating Authority, appointed by the central government, shall decide whether any of
the property attached or seized is involved in money laundering. An Appellate Tribunal shall
hear appeals against the orders of the Adjudicating Authority and any other authority under
the Act. Every banking company, financial institution and intermediary shall maintain a
record of all transactions of a specified nature and value, and verify and maintain records of
all its customers, and furnish such information to the specified authorities.
Page | 20
The Right to Information Act 2005

The 2005 Right to Information (RTI) Act represents one of the country’s most critical
achievements in the fight against corruption. Under the provisions of the Act, any citizen may
request information from a "public authority" which is required to reply within 30 days. The
Act also requires every public authority to computerize its records for wide dissemination and
to proactively publish certain categories of information for easy citizen access. This act
provides citizens with a mechanism to control public spending. Many anticorruption activists
have been using the RTI to expose corruption. Lack of legal protection against
whistleblowers, however, puts them in risky situation and many RTI activists have lost their
lives in last six years.

UNITED NATIONS CONVENTION AGAINST CORRUPTION AND INDIA

24
The preamble of this convention which has been signed by India and has been ratified by it ,
25
states that this convention was adopted , because the parties adopting it were “Concerned
about the seriousness of problems and threats posed by corruption to the stability and security
of societies, undermining the institutions and values of democracy, ethical values and justice
and jeopardizing sustainable development and the rule of law”

Article 6(2) of UNCAC provides that “Each State Party shall grant the body or bodies
referred to in paragraph 1 of this article the necessary independence, in accordance with the
fundamental principles of its legal system, to enable the body or bodies to carry out its or
their functions effectively and free from any undue influence. The necessary material
resources and specialized staff, as well as the training that such staff may require to carry out
their functions, should be provided.”

Article 7(4) of UNCAC provides that “Each State Party shall, in accordance with the
fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen
systems that promote transparency and prevent conflicts of interest.” These are the principles
on the basis of which powers of investigation and prosecution for corruption, enquiry and
punishment for misconduct are required to be entrusted to an independent authority which
would have no conflict of interest.

11 May 2011 (India ratifies U.N. Convention against Corruption), The Hindu 12 May 2011
On 31st October 2003

Page | 21
Article 8(2) of UNCAC provides that “In particular, each State Party shall endeavour to
apply, within its own institutional and legal systems, codes or standards of conduct for the
correct, honourable and proper performance of public functions.” In accordance with these
principles the instant Lokpal Act provides that each public authority shall prescribe a citizen’s
charter for the performance of its public functions for which it would be held accountable to
the independent Lokpal authority.

LOKPAL-HOPE FOR ‘WE THE PEOPLE OF INDIA’

It is statutory body set up under the Lokpal and Lokayuktas Act, 2013 to inquire into
allegation of corruption against certain public functionaries of the Union of India specified in
26
Section 2(1) (o) read with section 14 of the Act . The Lokpal shall independently inquire into
and prosecutes acts of corruption by the said functionaries.

Lokpal Means the Place of Gods- The name Lokpal mythological refers to Vishnu, the
sustainer, who looks after the earth. Etymologically, it means the "protector of the people".

27
Adopting the famous Lincolnian phrase, it can also be seen as a protector "of the people, by
28
the people, for the people" . The word 'Ombudsman', on the other hand, is rooted in the Old
Norse language, essentially meaning "representative", which is an official charged with
representing the interests of the public by investigating and addressing complaints reported by
29
individual citizens.

30
The modern use of word Ombudsman began in Sweden and that stands for "an officer
appointed by the legislature to handle complaints against administrative and judicial action”.

Traditionally the ombudsman is appointed based on unanimity among all political parties
supporting the proposal. The incumbent, though appointed by the legislature, is an
independent functionary - independent of all the three organs of the state, but reports to the
The Lokpal And Lokayuktas Act, 2013

Need of Lokpal Bill in Present Democratic System: A Present Need by DR. RAJESH S. VYAS Principal, Shri N. S.
Patel Law College, Modasa, Dist. Sabarkantha Gujarat (India), Vol. 2, Issue:2, February 2013

Politics of Lokpal: a way beyond by Vinod Bhanu, CLRA Research Paper Series: No.1 April 2011

An Article, “Politics of Lokpal: A way Beyond” by Vinod Bhanu, from ssrn.com as visited on 12th April 2014

Wade & Forsyth, Administrative Law, ( Oxford University Press, Oxford Eighth Edition, 2000) p. 88

Page | 22
legislature. The Ombudsman can act both on the basis of complaints made by citizens, or suo
31
moto. They can look into allegations of corruption as well as mal-administration.

INSTITUTION OF LOKPAL AND ITS HISTORY IN INDIA

32
“Power does not corrupt. Fear corrupts; perhaps the fear of a loss of power.”

PHASE I (1952-71)

The concept of establishing an independent body to look into the citizens' grievances in India
dates back to the year 1952, when for the first time it was discussed in the Parliament during a
33
discussion on the Prevention of Corruption Bill. Seven years later the need for Ombudsman
type of institution in India was effectively articulated by the then Chairman of the University
Grants Commission and former Minister of Finance, Shri. C. D. Deshmukh, who observed
that ‘an uneasy public hears of nepotism, high-handedness, gerrymandering, feathering
of nests through progeny, and a dozen other sins of omission and commission, and yet is
34
helpless for lack of precise data, facts and figures, evidence and proof’.

Again regarding the need of an independent agency to look into the grievances of citizens was
highlighted by M.C. Setalwad, the then Attorney General of India, in the Third All India Law
Conference held on 12-14th August 1962. However it was the relentless effort of the great
Parliamentarian Dr. L. M. Singhvi who fought rigorously for setting up of an Ombudsman
type of institution in India. Dr. Singhvi said that ‘the institution of

Ombudsman would enable the citizen to effectively ventilate his grievances; that the
question hour in Parliament and writing letters to Ministers are no substitute for it; that
the available judicial remedy is not adequate as the courts are hide-bound by limitations
of procedures and technicalities; that through it Parliament would effectively function
in individual cases; and that it would ensure independent impartial justice in matters of
administrative excesses in individual cases’.

An Article, “Instilling public confidence in administration: The need for an Ombudsman like institution in India”
John Steinbeck from http://www.goodreads.com/quotes/tag/corruption

Can Corruption be Checked by A Lokpal Act Only ? by Madhubrata Mohanty, Odisha Review (November -
2012)

Shri. C. D. Deshmukh, in his lecture delivered on 11th July 1959 at Madras.

Page | 23
Thereafter, Dr. Singhvi made several efforts to make the Government establish the
Ombudsman, but failed. At this time Prime Minister Jawaharlal Nehru in his address to the
All-India Congress Committee at Jaipur (November 3, 1963) observed that ‘while the system
of Ombudsman fascinated him, since the office would have overall authority to deal with
charges even against the Prime Minister and would command respect and confidence of all,
he, nevertheless, felt that its introduction was beset with difficulties in a big country like
35
India.

The Administrative Reforms Commission set up in 1966 under the Chairmanship of late Shri
Morarji Desai have recommended the idea of setting up two types of Ombudsman
institutions, namely, The Lokpal and The Lokayukta. As per the recommendation of the ARC,
the Lokpal was expected to deal with the complaints against the Ministers and the Secretaries
of government posted at the Centre and in the States, whereas the Lokayukta in each State
and one for the Centre to look into the complaints against public officials other than Ministers
and Secretaries to the Government.

In their interim report on the Problem of Redress of Citizens Grievances submitted in 1966,
the Administrative Reforms Commission recommended inter alia the setting up of the
institution of Lok Pal. To give effect to this recommendation, a Bill called the Lok Pal and
Lokayukta Bill, 1968 was introduced in the fourth Lok Sabha in 1968. It was referred to a
Joint Committee of the two Houses of Parliament and on the basis of its Report, the Bill was
passed by Lok Sabha in 1969. But while the Bill was pending in the Rajya Sabha, the fourth
Lok Sabha was dissolved with the result that the Bill lapsed.

In 1971, the Bill passed by the previous Lok Sabha was reintroduced in Lok Sabha under the
same title but this Bill also lapsed on the dissolution of the fifth Lok Sabha.

The Bills introduced in 1968 and 1971 covered complaints in respect of not only allegations
of misconduct but also grievances as to mal-administration. Lokpal was thought of as a single
member body who could be described roughly as a person who would combine in himself the
functions of ombudsman as known to the western countries such as Norway, Sweden, UK and
the functions of the Central Vigilance Commission as it was constituted under an
administrative order of the Central Government. Complaints could be made under the said
Bill against the union ministers, union civil servants, union territory ministers and persons in

35
Quoted in ‘Lokpal : Ombudsman in India’ M. P. Jain, First Edition 1970, page 2.
Page | 24
the service of local authorities and corporations, owned or controlled by the Central
Government. However, Members of Parliament and the State Chief Ministers were not
covered by the Bill. In short, these Bills were designed to check abuse of power, corruption
and other instances of mal-administration; liberty was given to the aggrieved persons to
approach specified authorities.

PHASE II (1977)

In the year 1977, a fresh Bill called the Lok Pal Bill, 1977 was introduced in Lok Sabha. It
was again referred to a Joint Committee of both Houses of Parliament which submitted its
Report in July, 1978. While this Bill was under consideration of the Lok Sabha, it was
prorogued first and subsequently dissolved. Accordingly, this Bill also lapsed. It may be
mentioned that the 1977 Bill did not take in grievances as to mal-administration; it was
confined to complaints as to misconduct or corruption against specified categories of persons
including Union Ministers, Members of Parliament, State Chief Ministers and so on. This Bill
brought within its purview the Prime Minister and MLAs of Union Territories as well. Civil
servants were excluded from its purview. The definition of misconduct was widely worded to
include instances of abuse of power wherein a public man - if we can use that expression to
denote the persons brought within the purview of the Act - directly or indirectly, allows his
position to be taken advantage of by his relatives or associates. The Bill also provided that a
public man would be guilty of misconduct if he fails to act in accordance with norms of
integrity and conduct which ought to be followed by the class of public men to which he
belongs. Of course the Joint Committee to which this Bill was referred had recommended that
the said requirement be omitted. Be that as it may, this Bill also lapsed.

PHASE III (1985)

In the year 1985, another Lok Pal Bill was introduced in Lok Sabha on the pattern of the 1977
Bill. However the office of the Prime Minister was excluded from its purview. The Lok Pal
was to be a single member body and its jurisdiction was confined to cases of corruption
leaving out maladministration and grievances. Be that as it may, this Bill also lapsed for the
same reason as in the case of other such Bills.

PHASE IV (1989)

In the year 1989, another Lok Pal Bill was introduced. Under this, the Lok Pal was to be a
three-member body and the office of the Prime Minister was also brought within its purview.
Page | 25
There were some changes in the matter of eligibility for appointment and removal which it
may not be necessary to mention here.

PHASE V (1996)

In the year 1996, yet another Lok Pal Bill was introduced in the Lok Sabha on 13th
September, 1996. It was referred to the Department related Parliamentary Standing
Committee on Home Affairs for examination. The Standing Committee submitted its report to
the Parliament on 9th May, 1997. But before the government could finalise its thinking on the
various recommendations of the Committee, the Lok Sabha was dissolved on 4th December,
1997. Consequently, the Bill lapsed.

PHASE VI (1998)

Another attempt at enacting the Lok Pal Act was made by the introduction of a Lok Pal Bill in
the Lok Sabha on 3rd August, 1998, being Bill No. 90 of 1998. This Bill sought to provide for
setting up the office of Lok Pal with a chairperson and two members with a fixed term. To
ensure the members of their independence, it is provided that they shall not be removed from
their office except by an order made by the President on the ground of proved misbehaviour
or incapacity after an inquiry made by a committee consisting of the Chief Justice of India
and two other judges of the Supreme Court, next to the Chief Justice in seniority, in which
inquiry the member has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges.

PHASE V (2001, 2005 & 2008)

Anyhow, a new Bill titled The Lok Pal Bill, 2001 covering the Prime Minister also was
introduced in Lok Sabha on 14th August, 2001. Again it was introduced in 2005 and 2008 but
36
did not get passed due to lack of legislative support and political will.

GROWTH OF LOKPAL IN STATES


Despite the fact that the Lokpal Bill could not be created as a national institution, interest
generated in the concept of Ombudsman throughout the country made its manifestation felt in
the enactment of various State Legislations. Orissa was the first State that enacted legislation
in 1970 on the institution, Lokpal. This was soon followed by Maharashtra in 1971,

36
Dhavan, Rajeev (2011): “Lokpal is not wanted by anyone”, India Today, January, 17

Page | 26
Rajasthan and Bihar in 1973, Madhya Pradesh in 1974 and Uttar Pradesh in 1975; Kerala
adopted a policy to institute a Commissioner to expose corruption in 1976, the Jammu and
Kashmir as Prevention of Corruption Statute in 1975, Tamil Nadu as Administrative Criminal
Misconduct in 1974, Karnataka in 1973.

IMPORTANCE OF LOKPAL IN THE ERA OF CORRUPTION

Currently, there are multiple anti-corruption agencies to deal with corruption cases. But they
spend a lot of time in dealing with the same cases. Therefore, other important cases are made
to stand in queue and wait for their chance to be considered. This problem can be solved if
there happens to be a separate and independent agency that would deal specifically with
corruption cases.

“It is not wisdom alone but public confidence in that wisdom which can support an
37
administration”.

This statement underscores the importance of public confidence as the test of the efficacy of
38
administration. In a democracy, people are supreme and hence, all state authorities must be
39
exercised in the public interest.

The need for Lokpal at the center and Lokayukta in states is therefore, justified in this
democratic framework. After all, public also wants that their problems should be looked after,
which also can be inferred from Article 350 of the Constitution of India that law makers were
40
also intended for such like an institution to come.

This cannot be possible unless we have these two separate agencies to function for the
welfare of the public. This will help the public to instill confidence in the administrative
bodies. Not only this, but the corrupt officials will also find the way out from their chambers
which they might have obtained through numerous illegal ways. This will give a sigh of relief
to the citizens. But not even one has taken place till now. This is the saddest part.

Thomas Jefferson to James Monroe, 1824


An Article, “Instilling public confidence in administration: The need for an Ombudsman like institution in
India”, from ssrn.com as visited on 12 April 2014

Justice Markandey Katju, Administrative law and judicial review of administrative action, (2005) 8 SCC (J)

Article 350 of The Constitution of India, 1950 (Language to be used in representations for redress of grievances
Every person shall be entitled to submit a representation for the redress of any grievance to any

officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case
may be)

Page | 27
This agency will be able to initiate investigation without prior permission from any other
agency. The whistleblowers will come under the protective purview of Lokpal.

It may be recalled that the Supreme Court had given certain directions in the case of Vineet
41
Narain vs. Union of India , for conferring statutory status upon the Central Vigilance
Commission and to insulate the Central Bureau of Investigation and the Enforcement
Directorate from political control and pressures. In the said decision, the Supreme Court
referred with approval the recommendations of Lord Nolan Committee on Standards in
Public Life in the United Kingdom.

The Supreme Court observed further:

“It is trite that the holders of public offices are entrusted with certain powers to be exercised
in public interest alone and, therefore, the office is held by them in trust for the people. Any
deviation from the path of rectitude by any of them amounts to a breach of trust and must be
severely dealt with instead of being pushed under the carpet. If the conduct amounts to an
offence, it must be promptly investigated and the offender against whom a prima facie case is
made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule
of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to
42
guard against erosion of the rule of law.”

Supreme Court has always suggested establishment of such Institution. As in the case of

43
Attorney General For India vs Amratlal Prajivandas , the nine-Judge Constitution Bench
made certain pertinent observations:

“We are, therefore, of the opinion that at least now the Central Government should enact a
comprehensive law on public servants. Such a measure would act as a salutary check-a
deterrent -upon corrupt public servants and would certainly be a measure to ensure probity
in governance.”

In this connection, it is necessary to point out the inadequacies in the existing law, namely, the
Prevention of Corruption Act, 1988 and the Indian Penal Code. Mere prosecution under the
IPC or the Prevention of Corruption Act (PCA) is not sufficient, apart from the fact that such
prosecutions are very rarely launched and even when they are, the conviction is much too
rare. Unless the fruits of corruption are taken away, you would not be fighting the corruption
truly and effectively.

AIR 1998 SC 889

AIR 1998 SC 889, at page 917

1994 AIR 2179

Page | 28
RECOMMENDATIONS OF VARIOUS EXPERTS COMMITTEES ON THE

QUESTIONS FRAMED BY THE GOVERNMENT ON THE LOK PAL

A number of other Committees also like the Committee on Prevention of Corruption (1962),
Administrative Reforms Commission of Rajasthan, Special Consultative Group of Ministers
44
of Parliament, Administrative Reforms Commission, the National Commission to Review
the Working of the Constitution, all have recommended the setting up of the institution of
Ombudsman or Lokpal.

In May 2011, Shri Pranab Mukherjee, the chairperson of the Joint Drafting Committee had
sent a letter to state governments and political parties seeking their views on certain issues
45
related to the drafting of the Lok Pal Bill. According to the letter, the government felt that
there are some basic issues where consultations with all stakeholders are necessary before
finalizing the Bill. The issues were framed in the form of six questions that were deemed to
be of “vital importance” for the governance structure in the years to come.

First Administrative Reforms Commission, 1966 (ARC)

Second Administrative Reforms Commission, 2007

46
The Report of the Standing Committee on Home Affairs on the Lok Pal Bill, 1996

The Report of the Standing Committee on Home Affairs on the Lok Pal Bill, 1998

The Report of the Standing Committee on Home Affairs on the Lok Pal Bill, 2001

The Report of the National Commission to Review the Working of the Constitution, 2002
(NCRWC)
[ARC] (1966 and 2007)

“I completely accept draft Lokpal, says Hazare” - The Hindu, Dec 14, 2013

(SCR) 1996

Page | 29
THE LOKPAL AND LOKAYUKTAS ACT, 2013- DREAM HAS COME TRUE

The Lokpal and Lokayuktas Act, 2013 was passed by the Rajya Sabha on 17.12.2013 and by
47
the Lok Sabha on 18.12.2013. The Act aims to provide for the establishment of a body of
Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption
48
against certain public functionaries . The Act envisages that Lokpal shall be “an effective
institution to independently inquire into and prosecute acts of corruption”.

The Preamble of the Act provides as under:

WHEREAS the Constitution of India established a Democratic Republic to ensure justice for
all;

AND WHEREAS India has ratified the United Nations Convention Against Corruption; AND
WHEREAS the Government's commitment to clean and responsive governance has to be
reflected in effective bodies to contain and punish acts of corruption;

NOW, THEREFORE, it is expedient to enact a law, for more effective implementation of the
said Convention and to provide for prompt and fair investigation and prosecution in cases of
corruption.

The obligations of the United Nations Convention Against Corruption (UNCAC), with
th
reference to India, have come into force with effect from 8 June 2011. Thus, this Act also
seeks to fulfill India’s obligations under the UNCAC.

While the Act contains detailed provisions on Lokpal including composition of Lokpal, its
powers, its jurisdiction, the Act only requires every state to establish a Lokayukta within 1
year from the commencement of the Act by an Act of state legislature. The Act has not given
model provisions for Lokayuktas. In fact clause 63 to 97 of the Lokpal and Lokayuktas Bill,
2011 which contained detailed provisions in respect of Lokayuktas have been omitted at the
time of passage of the Act in the Parliament.
“Historic Lokpal Bill passed” - The Hindu, Dec 18, 2013

Specified in Section 2(1)(o) read with section 14 of the Act

Page | 30
SALIENT FEATURES OF THE LOKPAL AND LOKAYUKTAS ACT, 2013

The Lokpal and Lokayuktas Act, 2013 is probably the most important step in the control of
corruption in the country after the establishment of the Central Vigilance Commission in
1964. The present Act brings about broad changes in the entire anti-corruption set up of the
country and also proposes changes into a number of organizations including the Central
Vigilance Commission and the central Bureau of Investigation (CBI). The important features
49
of the act can be stated as below :

1. Establishment and composition of the Lokpal

50
The Lokpal and Lokayuktas Act, 2013 establishes a body called the Lokpal which shall
consist of a chairperson and maximum of Eight Members. Fifty percent of the Members
would be judicial members. Further, Fifty percent of the Members shall belong to Scheduled
Castes, Schedule Tribes, other Backward Classes, Minorities and Women. The chairperson
and the members are elected for a period of five years or until the person attains the age of
seventy years.

A chairperson of the Lokpal has to be a sitting or retired Chief Justice of India or a sitting or
retired judge of the Supreme Court or he can also be an eminent person of impeccable
integrity having a knowledge of not less than twenty five years in matters of anti-corruption
policy, public administration, vigilance, finance, law and management.

A judicial member has to be a retired or a sitting judge of the Supreme Court or a retired or a
sitting Chief Justice of a High Court. A member other than a judicial member has to be an
eminent person of impeccable integrity having knowledge of not less than twenty five years
in matters of anti-corruption policy, public administration, vigilance, finance, law and
51
management.

2. Selection And Appointment of the Members of the Lokpal

The chairperson and the members are appointed by the president after recommendation from
a selection committee consisting of the Prime Minister, Speaker of the Lok Sabha, Leader of
Taxmann’s Guide to Lokpal and Lokayuktas Act, 2013

Section 3(1) of the Lokpal and Lokayuktas Act, 2013

Salient features of Lokpal, Lokayuktas Bill - The Hindu, Dec 18, 2013

Page | 31
Opposition in Lok Sabha, chief justice of India or his nominee and an eminent jurist
52
recommended by the four members mentioned before.

The Act states that the selection Committee is aided by a search committee consisting of at
least seven persons of standing having special knowledge and expertise in the matters relating
to anti-corruption policy, public administration, vigilance, finance, law and management. The
search committee has to however have fifty percent of the members belonging to Scheduled
Castes, Schedule Tribes, other Backward Classes, Minorities and Women.

Public Functionaries Against Whom Complaints of Corruption Can Be Entertained By


Lokpal

Section 14(1) of the Lokpal and Lokayuktas Act, 2013 provides that the Lokpal shall inquire
or cause an inquiry to be conducted into any matter involved in, or arising from, or connected
with, any allegation of corruption made in a complaint in respect of the following, namely:

A Prime Minister or Ex- Prime Minister

any person who is or has been a Minister of the Union;

any person who is or has been a Member of either House of Parliament;

officer serving/served with Union Group A/B/C/D

Current/Ex-Chairperson/ Employees of Central Government corporations

Current/Ex-Officers/Office-bearers of specified NGOs

Clause (2) of Section 14 provides that “Notwithstanding anything contained in sub-section


(1), the Lokpal shall not inquire into any matter involved in, or arising from, or connected
with, any such allegation of corruption against any Member of either House of Parliament in
respect of anything said or a vote given by him in Parliament or any committee thereof
covered under the provisions contained in clause (2) of article 105 of the Constitution.”

52
Section 4(1) of the Lokpal and Lokayuktas Act, 2013

Page | 32
Public Functionaries Against Whom Complaints of Corruption Cannot Be Made to
Lokpal

Lokpal has no jurisdiction to entertain complaints of corruption against Public Functionaries


excluded from section 14(1) of the Act-

The President of India

The Vice- President of India

Governors of State

Chief Ministers

State Ministers

MLAs

MLCs

State Government servants

Judiciary

Armed Forces

Officers & Office-bearers of maths, temples, wakfs etc.


Public Functionaries in (iv) to (viii) will be covered under Lokayukatas Acts enacted by state
legislatures. Judiciary will be covered by Judicial Accountability Bill.

5. Establishment of the Inquiry And The Prosecution Wing

53
The Lokpal establishes a separate Inquiry and prosecution wing. The Inquiry wing functions
under a director of Inquiry for the purpose of conducting preliminary inquiry into any offence
alleged to have been committed by a public servant punishable under the prevention of
corruption act, 1988. The prosecution wing is headed by the director of prosecution for the
purpose of prosecution of public servants in relation to any complaint by the Lokpal under
this act. The director of prosecution has the duty to file the case before the court on instruction
by the Lokpal and take all necessary steps in respect of prosecution of the public servants for
any offence punishable under the prevention of corruption act, 1988.

6. Jurisdiction of the Lokpal

The Jurisdiction of the Lokpal was probably the most contentious issue before the bill was
passed and finally the Government bowed to pressure from the civil society to include the

53
Section 11 and 12 of the Lokpal and Lokayuktas Act, 2013

Page | 33
54
Prime Minister, Union Ministers and Members of the Parliament. The act has however
included specific safeguards before the prosecution of the Prime Minister.

The Act states that the Lokpal shall not inquire into decisions of the Prime Minister which
relate to international relations, external and internal security, public order, atomic energy and
space. Further any inquiry can be initiated only when the full bench of the Lokpal consisting
of its chairperson and all Members considers the initiation of inquiry and at least two-thirds of
its Members approves of such inquiry. Any inquiry against the prime minister has to be held
in in camera and if the Lokpal comes to the conclusion that the complaint deserves to be
dismissed, the records of the inquiry shall not be published or made available to anyone.

The other persons who have been brought under the ambit of the Lokpal include Group A, B,
C and D officers working under the Union Government, any person working in any authority
or corporation established by an Act of the Parliament or wholly or partially controlled or
financed by the central government. An important provision of the Act which would bind
many Non-Governmental Organizations states that any person working for an organization
which in receipt of any donation from any foreign source under the Foreign Contribution
(Regulation) Act, 2010 in excess of ten lakh rupee in a year would be under purview of the
55
Act. This provision was widely opposed as a measure to curb the voices of anti-

Government NGO’s which receive foreign funding and it is feared that it can be misused by
the Government.

7. Inquiry, Investigation and Trial under the Lokpal Act

The Lokpal on receipt of a complaint can decide whether there exists a prima facie case by
asking for a preliminary enquiry by the inquiry wing of the Lokpal or by the Delhi special
police establishment. During the preliminary enquiry the Lokpal has to call for an explanation
from the public servant to determine if there exists a prima facie case against him. The report
of the preliminary enquiry has to be submitted to the Lokpal within a period of sixty days
Section 14 (1) (a) to (c) of the Lokpal and Lokayuktas Act, 2013

Section 14 (1) (h) of the Lokpal and Lokayuktas Act, 2013

Page | 34
56
from the date of reference for preliminary enquiry. The process of preliminary enquiry has
57
to be finally completed within a period of ninety days.

The report of the preliminary enquiry is then considered by a bench consisting of at least
three members of the Lokpal and either of the Following three actions may be ordered:
Investigation by any agency or the CBI, initiation of departmental proceedings or other action
against the public servant or in case the allegation are found to be false, closure of the
proceedings.

In case the Lokpal decides to move ahead with the proceedings, then it can order any
competent agency including the CBI to move ahead with investigation in the case. under
normal circumstances the final investigation report has to be submitted to the Lokpal within a
period of six months from the date of order of investigation.

On submission of the final report, a bench of Lokpal consisting of not less than three
members may decide if they should proceed with prosecution in the given case. the Lokpal
may also order departmental proceedings against the public servant. In case, the Lokpal
decides on prosecuting the public servant, then the prosecution wing or the investigating
agency is directed to file the charges.

The prosecution of the cases under investigation by the Lokpal would be conducted in Special
58
courts which are formed by the central government. The trial of cases in special court
should normally be completed within a period of one year and under no circumstances should
extend beyond two years after the commencement of trial. It may be noted that the Lokpal
59
cannot inquire into any complaint which is made seven years after the expiry of the offence.

8. Additional Powers Granted To Lokpal

the lokpal has been granted a number of special powers which were previously not provided
to any other investigating agency in India. The powers have been provided to aid the Lokpal
in rapid investigation of cases and prevent unwanted third party interference and destruction
of evidence.

Section 20(2) of the Lokpal and Lokayuktas Act, 2013


Section 20(4) of the Lokpal and Lokayuktas Act, 2013

Section 35(1) of the Lokpal and Lokayuktas Act, 2013

Section 53 of the Lokpal and Lokayuktas Act, 2013

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a) Supervisory Powers of Lokpal

The Lokpal shall, notwithstanding anything contained in section 4 of the Delhi Police
Establishment Act, 1946 and section 8 of the Central Vigilance Commission Act, 2003, have
the powers of superintendence over, and to give direction to the CBI in respect of the matters
referred by the Lokpal for preliminary inquiry or investigation to the Delhi Police
Establishment under this Act.

While excercising powers of superintendence or giving direction under this sub-section, the
Lokpal shall not exercise powers in such a manner so as to require any agency to whom the
investigation has been given, to investigate and dispose of any case in a particular manner.

The Central Vigilance Commission shall send a statement, at such interval as the Lokpal may
direct, to the Lokpal in respect of action taken on complaints referred to it under second
proviso to section 20(1) and on receipt of such statement, the Lokpal may issue guidelines for
effective and expeditious disposal of such cases.

Any officer of the Delhi Police Establishment (CBI) investigating a case referred to it by the
Lokpal, shall not be transferred without the approval of the Lokpal.

b) Power to use services of any agency

The Lokpal Act provides the power to the Lokpal to utilize the services of any officer or
organization of the central Government or the state Government for the purpose of
60
preliminary enquiry or investigation in a case. when the officer or organization is
investigating the case referred to it by the Lokpal, then the Lokpal has the power of
superintendence over the agency.

c) Power to attach properties

The Lokpal has been provided the power to attach properties or any proceeds which it
61
believes are a result of corruption. The property may be attached for a maximum period of
ninety days and the Lokpal has to direct the Prosecution Wing within a period of thirty days
to file an application before the special court to confirm attachment of the property till the end
of the trial of the person who is being investigated.
Section 28 (1) of the Lokpal and Lokayuktas Act, 2013

Section 29 of the Lokpal and Lokayuktas Act, 2013

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d) Power to act on false complaints

The Lokpal Act provides that any person who makes a false or frivolous complaint may be
punished with imprisonment for up to a year and a fine which may extend to Rupees one
62
Lakh. Such an offence of a false complaint may only be registered by the Lokpal and the
prosecution of such cases would take place in the Special Courts.

e) Power of Lokpal to Grant Sanction for initiating Prosecution

Notwithstanding anything contained in section 197 of the Code of Criminal Procedure, 1973
or Section 6A of the Delhi Special Police Establishment Act, 1946 or Section 19 of the
Prevention of Corruption Act, 1988, the Lokpal shall have the power to grant sanction for
prosecution under clause (a) of sub-section (7) of section 20.

No prosecution shall be initiated against any public servant accused of any offence alleged to
have been committed by him while acting or purporting to act in the discharge of his official
duty, and no court shall take cognizance of such offence except with the previous sanction of
the Lokpal.

Nothing contained in the above provisions shall apply in respect of the persons holding office
in pursuance of the provisions of the Constitution and in respect of which a procedure for
removal of such person has been specified therein.

The above provision shall be without prejudice to the generality of the provisions contained
63
in Article 311 and sub-section (c) of section (3) of Article 320 of the Constitution.

64
It is to be noted that in the case of Subharmaniam Swamy v. Manmohan Singh , Learned
Attorney General in the course of his submission fairly admitted before the court that out of
total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited.
Therefore, in more than 1/3rd cases of request for prosecution in corruption cases against
public servants, sanctions have not been accorded.
Section 46 of the Lokpal and Lokayuktas Act, 2013

Section 23 (4) of the Lokpal and Lokayuktas Act, 2013

(2012) 3 SCC 64

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f) Lokpal to have Powers of Civil Court in certain cases

For the purpose of any preliminary inquiry, the inquiry wings of Lokpal shall have all the
powers of a civil court, under the Code of Civil Procedure, 1908, while trying a suit in respect
of the following matters namely-

Summoning and enforcing the attendance of any person and examining him on oath;

Requiring the discovery and production of any document; (iii) receiving evidence on
affidavits;

Receiving evidence on affidavits;

Requisitioning any public record or copy thereof from any court or office;

Issuing commissions for the examination of witnesses or documents:

Provided that such commission, in case of a witness, shall be issued only where the witness,
in the opinion of the Lokpal, is not in a position to attend the proceeding before the Lokpal;
and

Such other matters as may be prescribed.

Any proceeding before the Lokpal shall be deemed to be a judicial proceeding within the
65
meaning of section 193 of the Indian Penal Code.

9. Special Courts

The Lokpal’s role is to inquire investigate and prosecute the corrupt. The Lokpal cannot
sentence the corrupt or confiscate their ill-gotten wealth. Sentencing the corrupt public
servants after trial and confiscation of their ill-gotten wealth is the role of the Special Courts.
According to section 2(1)(s) of the Act, “Special Court” means the court of a Special Judge
appointed under sub-section (1) of section 3 of the Prevention of Corruption Act, 1988.

Section 35(1) of the Act provides that the Central Government shall constitute such number
of Special Courts, as recommended by the Lokpal, to hear and decide the cases arising out of
the Prevention of Corruption Act, 1988 or under the Act.

Section 35(2) of the Act provides that the Special Courts shall ensure completion of each trial
within a period of 1 year from the date of filing of the case in the court. If trial cannot be

65
Section 27 (2) of the Lokpal and Lokayuktas Act, 2013

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completed within a period of one year, the Special Court shall record shall record reasons but

the period shall not exceed 2 years.

10. Processes are time-bound

Preliminary Inquiry-ordinarily 90 days and for reasons recorded in writing further 90 days
from date of receipt of complaint.

Investigation- ordinarily within 6 months from date of Lokpal’s order….extendable by


Lokpal for further periods not exceeding 6 months at a time for reasons recorded in

writing.

III. Granting sanction under section 20(7) (a)/ (b) for filing chargesheet/closure report…no
time limit.

IV. Trail by Special Court-to be completed within 1 year from date of filing of case in court.
In special cases, Special Courts may extend time by not more than 3 months at a time. In any
case trial is to be concluded within 2 years.

66
In the case of J. Jayalalitha v. Union of India & another , it was observed that, “it is not
in dispute that one of the objects of the Prevention of Corruption Act is to provide speedy trial
for offences punishable under the Act. In the statement of objects and reasons for enacting
this Act it is stated that "in order to expedite the proceedings provision for day-to-day trial of
cases... have also been included. Therefore, while exercising the power under Section 3 the
Government shall have to be guided by the said policy, in order to achieve the object of the
Act.”

11. Impact of the Lokpal Act on the CBI and Central Vigilance Commission

In addition to the Power of superintendence granted to the Lokpal, the Act has brought a
number of changes to the structure and organization of CBI. The part II of the Schedule to the
Act prescribes the changes to the procedure of appointment of Director and officers of the
CBI above the rank of Superintendent of Police (SP). The Director of CBI would now be
67
appointed on the recommendation of a committee consist.

12. Time Limit For Filing Complaints

(1999) 5 SCC 138

“Govt clears 14 major changes to Lokpal Bill - Indian Express”, Fri Feb 01 2013

Page | 39
Section 53 provides 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.

There are instances where as a result of delayed grant of sanction prosecutions under the P.C.
Act against a public servant have been quashed. In the case of Mahendra Lal Das vs. State
68
of Bihar and Others , wherein this Court quashed the prosecution as the sanctioning
authority granted sanction after 13 years. Similarly, in the case of Santosh Dev vs. Archna
69
Guha and Others , this Court quashed prosecution in a case where grant of sanction was
unduly delayed.

Article 14 must be construed as a guarantee against uncanalized and arbitrary power.


Therefore, the absence of any time limit in granting sanction in Section 19 of the P.C. Act is
not in consonance with the requirement of the due process of law which has been read into
our Constitution by the Constitution Bench decision of this Court in Maneka Gandhi vs.
70
Union of India and Another .

PITFALLS IN THE LOKPAL AND LOKAYUKTAS ACT, 2013

1. Lokpal Cannot suo moto Proceed Against Any Public Servant

The starting point of the Lokpal process is a complaint alleging corruption against a public
servant. Lokpal cannot proceed suo motu against any public servant as same is not allowed by
the Act. This makes a mockery of the requirement in Section 44 of the Act of declaration of
assets by public servants to competent authority who is required to upload them on website.
There will be a wealth of information about assets of public servants in public domain on
government websites. But the Lokpal cannot suo moto act on them unless a complaint is filed
against the public servants. Thus the act needs amendment to allow Lokpal to proceed suo
moto against public servants.

2. Emphasis on Form of Complaint Rather Than Substance

Complaints against public servants alleging corruption have to be in prescribed form and
should allege that a public servant has committed an offence punishable under prevention of
(2002) 1 SCC 149

(1994) Supp.3 SCC 735

(1978) 1 SCC 248

Page | 40
corruption act, 1988. Complaint cannot be on plain paper. Nor can complaint be oral or
through telephone.

This emphasis on written complaints complaints in prescribed form will cripple many
particularly in rural area from filing complaints.

Heavy Punishment For False And Frivolous Complaints Against Public Servants May
Deter Complaints Being Filed To Lokpal

Section 46 punishing false and frivolous or vexatious complaints imposes stiff punishment of
fine up to 1, 00,000 and imprisonment up to 1 year. Beside the convicted complainant will
have to pay compensation and legal charges to the concerned public servant. Complainant can
escape punishment only if he can prove that his action was in good faith. It may be that a
complainant in good faith may ultimately win the case but the very threat of legal action
under section 46 and legal expenditure to defend actions under section 46 will deter many
complainants from coming forward to file complaints against public servants. Also, the entire
action under Section 46 against the complainant will be state-funded. There is no provision to
compensate legal actions to the complainant even if he is able to prove that his action was in
good faith.

The Act needs amendment to scale down punishments. Also, actions under Section 46 against
complainants.

Anonymous Complaints Not Allowed- Can’t Just Make A Complaint On Plain Paper
And Drop It In A Box With Supporting Documents

In view of Section 46, it appears that Anonymous Complaints against public servants are
impliedly barred by the Act. It’s not as if an unsigned typed complaint with supporting
documents can be dropped in a box outside Lokpal office. Lokpal can’t act on such a
complaint no matter the merits of documentary evidence. This would deter complaints would
fear physical/other harm from mighty public servants and not come forward to file
complaints.

5. Legal Assistance To Public Servant Against Whom Complaint Is Filed


Section 55 provides that the Lokpal shall provide to every person against whom a complaint has
been made, before it, under this Act, legal assistance to defend his case before the Lokpal, if such
assistance is requested for. There is no provision to recover legal expenses for such

Page | 41
legal assistance from convicted public servants. Nor is there any provision to reimburse legal
expenses reward to complainant at certain % of confiscated assists of public servant where
public servant is convicted.

6. Limitation Period of 7 Years To File Complaints

Section 53 provides 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. The high and the
mighty can suppress evidence of their misdeeds. So 7 years period should commence from
date their misdeeds comes to complainant’s knowledge and not 7 years from date of misdeeds
as provided in the Act and the Act should be amended to this effect.

7. Very Non-Transparent Procedure For Dealing with Complaints Against the PM

The following principles apply as regards Lokpal inquiry into any matter involved in, or
arising from, or connected with, any allegation of corruption made in complaint in respect of
PM.

Any inquiry by Lokpal only if a full bench of the Lokpal consisting of its Chairperson and all
rd
Members considers the initiation of inquiry and at least 2/3 of its members.

Any such inquiry shall be held in camera and if Lokpal concludes that complaint is fit to be
dismissed, records of enquiry shall not be published or made available to anyone.

It is not clear why if complaints are dismissed against PM, records shall not be made public.
It means aggrieved complaint can’t approach High Court/ Supreme Court by filing writ
petition since reasons for dismissing complaint not made available to him.

8. Selection Process Ensuring Control to Political Rulers

If an independent and objective selection process is not adopted, all the power vested in
Lokpal go waste and its lofty objectives cannot be realized. Section 4 of the Act provided for
five member selection committee (to choose chairman and eight other members of Lokpal)
consisting of PM, Speaker, Leader of Opposition, Chief Justice of India (or a SC Judge
nominated by CJI) and one eminent jurist nominated by President, is showing full political
control to the Government. Selection Committee is crucial for Lokpal. If a biased or pro-PM

Page | 42
Lokpal is appointed as chairman and member, its objective will be defeated. Further the
problem arises when it comes to Search Committee, Section 4 (3) provided that The Selection
Committee shall for the purposes of selecting the Chairperson and Members of the Lokpal
and for preparing a panel of persons to be considered for appointment as such, constitute a
Search Committee consisting of at least seven persons of standing and having special
knowledge and expertise in the matters relating to anti-corruption policy, public
administration, vigilance, policy

making, finance including insurance and banking, law and management or in any other matter
which, in the opinion of the Selection Committee, may be useful in making the selection of
the Chairperson and Members of the Lokpal. But the point is recommendation made by
Search Committee is not binding upon the Selection Committee which may frustrate the very
purpose as Fali S. Nariman Said, while refusing to be a member of Search Committee that,
“I decline the honour. In my humble view this is no way in which an institution as vital and as
important as the Lokpal is to be constituted .The chairperson and members of the Lokpal as
ultimately selected may well be projected as democratically chosen by a broad consensus
from amongst two levels of selectors (upper and lower), but it is precisely for that reason that
I do fear that the most competent, the most independent, and the most courageous will get
overlooked.”

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

9. Reservation: Courting a Controversy

There is a controversial provision that 50% of Search Committee members should be from
Scheduled Castes, Schedule Tribes, other Backward Classes, Minorities and Women.
Bringing a reservation at the last stage appears to be for raking up caste tensions and
litigation. The legal phraseology of ‘reservation’ in the Act made Lokpal extra-constitutional
and designed to make the law ‘vulnerable’ to legal challenge. Several Constitutional experts
have observed that idea of empowerment had been misused to make the anti-corruption body
an ‘accommodative joke’. Lokpal is not to generate jobs but to fight corruption. In the context
of Lokpal, the proposed reservation is extraneous. It is unconstitutional to provide
reservations for minorities. Reservations are meant for empowering oppressed groups.

Page | 43
Securing minorities is different and reservation is not the means of protecting minorities.

Even if it is so, providing seats in Lokpal will not serve that purpose.

CRITICAL ANALYSIS OF THE LOKPAL AND LOKAYUKTAS ACT, 2013

There are a number of problems with regard to jurisdiction, authority and power. These
sections have to be again looked into by the government for an effective functioning of the
Lokpal. Also, if these anomalies prevail it will pose problems to common people. Also,
chances are that these sections will be challenged in court of law and some of them are liable
to be stuck down as they go against the basic essence of the constitution of India and even
infringes fundamental rights. Ambit of Lokpal is also restricted by legislature. Because of this
the Lokpal can look into a limited number of corruption charges. This to a certain extent led
to the failure of legislative intention to curb corruption. The scope of increasing the authority
of Lokpal is very wide and as it is to a great extent an independent body it can be a good
71
option.

Whether The Definition of ‘Complaint’ Exhaustive?

The subject-matter jurisdiction of the proposed Lokpal is determined by the definition of the
term ‘complaint’ in of the Act. It is defined as “complaint means, made in such form as may
be prescribed, alleging that a public servant has committed an offence punishable under the
72
Prevention of Corruption Act, 1988”.

73
According to the Act, the Lokpal can investigate any ‘complaints’ under the act. The issue
that arises is whether such the definition of complaint is wide enough to would adequately
cover all acts of corruption. For instance the ‘Jan Lokpal’ Bill recommended that the
definition be expanded to include offences committed under the Foreign Exchange
Management Act (FEMA), 1999 and the Prevention of Money Laundering Act (PMLA),
2002. The reason behind this suggestion was that the Prevention of Corruption Act, 1988
(POCA) is possibly too narrow to cover all possible acts associated with corruption.

However the mere addition of offences under FEMA and PMLA may not suffice, since
certain acts of corruption may also be associated with crimes under other legislations such as
An Article, “Lokpal in India- An Analysis” by “Triloknath Mishra”, 3rd October 2011

S. 2(e), Lokpal and Lokayuktas Act, 2013

S. 12(1), Lokpal and Lokayuktas Act, 2013

Page | 44
the Indian Penal Code (IPC), 1860. Hence, ambit of this definition should expand to cover
74
more corrupt activities within it else the purpose of the whole Act will fail to a great extent.

Whether There Is Jurisdictional Overlaps Between The Lokpal, The CVC & The CBI?

75
In the case of Vineet Narain v. Union India 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 it is
proposed that the Lokpal will have the jurisdiction to investigate all allegations of corruptions
against Members of Parliament, Union Ministers, Group A or Group B or Group C or Group
D officers and the equivalent officers employed at corporations controlled by the Central
76
Government. 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
77
by the Central Government.

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

The Central Bureau of Investigation (CBI) whose actual name is the Delhi Special Police
Establishment (DPSE) was setup under the Delhi Special Police Establishment Act. In 1988
when POCA was enacted by Parliament, the CBI was nominated as the agency authorized to
investigate all offences of corruption under the Act. The CBI underwent its first major reform
in the year 2008 when all investigations related to terrorism, were transferred to the National
Investigation Agency (NIA) which was setup under the NIA Act, 2008. With the creation of
the NIA the CBI’s focus returned exclusively to corruption and other crimes as referred to it
by Central or State Governments.

The issue therefore is the overlapping jurisdiction between the proposed jurisdiction of the
Lokpal and the CBI. It makes little administrative logic to give two different agencies the
power to investigate the same offence. It is therefore necessary for the Committee to
Electronic copy available at: http://ssrn.com/abstract=2343535

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

S. 14(1), Lokpal and Lokayuktas Act, 2013

S. 8(2)(a), CVC Act 2003

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78
recommend an amendment to either in the Lokpal and Lokayuktas Act, 2013 or in the
79
POCA 1988.

Whether change in offences investigated by the lokpal requires amendment in section

provided for special courts?

According to the Act the Central Government shall notify any number of Special Courts as
recommended by the Lokpal to hear and decide cases arising out of POCA or under the
80
proposed Act . If at any point of time the parliament decides to amend Section 2(e) to
expand the ambit of Lokpal then in that case even Section 35(1) will have to be amended.
The reason for this being that is that it has been explicitly mentioned in this section that the
Special Court will have jurisdiction over the cases arising out of POCA or under the proposed
Act.

Therefore, it should be always remembered that Section 35(1) has to be always read with

Section 2(e) to overcome any ambiguity that may arise in future.

Whether The Final Appellate Authority Section Constitutionally valid?

In the Act it is provided that The Lokpal shall function as the final appellate authority in
respect of appeals arising out of any other law for the time being in force providing for
delivery of public services and redressal of public grievances by any public authority in cases
where the decision contains findings of corruption under the Prevention of Corruption Act,
81 82
1988 . This section is directly against an article of the Constitution of India which says that
Supreme Court will be the final appellate authority for any judgment, decree, determination,
sentence or order passed by any court or tribunal in the territory of India. Therefore, this
section restricts the rights of appellant and so, is void.
S, 20(3)(a), Lokpal and Lokayuktas Act, 2013

S. 17(a), POCA 1988

S. 35(1), Lokpal and Lokayuktas Act, 2013

S. 49, Lokpal and Lokayuktas Act, 2013

Art. 136(1), The Constitution of India, 1950

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CAN LOKPAL BE A MAGIC BULLET AGAINST CORRUPTION?

The need for the establishment of any institute definitely depends upon a specific and
pertinent cause. Likewise, the need for establishment of the institute of Lokpal is the outcome
of the issue of rampant growth of corruption in almost every sphere. It is not that the evil of
corruption is of recent origin, rather is as old as governance. In fact, when the question of
governance comes, the possibilities of misgovernance by the rulers become more visible.
Regarding corruption in governance even, Kautilya in his Arthashastra, has described the
king as a servant of the state having no personal likes and dislikes and rather following the
likes and dislikes of the servants means his people.

Kautilya’s treatise on governance says that the gods, who failed to bring the people under
their control through benevolence, assigned the duty of protecting people to a king in human
form after taking the qualities of beauty, lustre, prowess, victory, renunciation and restraint
from the Moon, the Sun, Indra, Vishnu, Kubera and Yama respectively.

Corruption in India has been a problem ever since the country had been having a multilayered
83
administration by officers, ministers and other administrative chiefs. The corruption
problem in ancient India, coupled with bribery, kept infesting the society more and more in an
increasing rate. This is quite clear from the way the contemporary writers like Kshemendra
and Kalhana, who lived in 990-1065 BC, have condemned the government officials, as well
as other employees of different levels, in their celebrated works.8 Kshemendra has advised
the king to remove all the officials, ministers, generals and priests from office with immediate
effect, who were either taking bribes themselves or have been indulging in corruption in some
other way. Yet another work by Kshemendra, called Narmamala, depicts corruption, bribery
spreading fast like rampant maladies. He also found an answer to the much discussed
question how to stop corruption in India of his time; he has explicitly addressed the
contemporary intelligentsia to step forward and shoulder the responsibility of purging their
folks.

Though Ombudsman or Lokpal was intended to look into maladministration’s and misuse of
official powers, there has been a shift in this approach. Increasingly it is felt that the
Ombudsman should also look into allegations of corruption and bribery. Particularly in India
there is a demand for an agency, which will curb corruption.

83
Justice Markandey Katju, Administrative law and judicial review of administrative action, (2005) 8 SCC (J)
25, from ssrn.com as visited on 11 April 2014

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The objectives of the institution of Ombudsman are to improve the quality of administration
and to provide a mechanism for individuals to obtain redress by:-

identifying instance of defective administration through independent investigations

by encouraging agencies to provide remedies for members of the public affected by defective
administration.

identifying legislative, policy and procedural deficiencies, and encouraging systematic


improvements to overcome those deficiencies; and

contributing to advise to the government on the adequacy, effectiveness and efficiency of the
84
various means of review of administrative action.

In general the need for establishment of an institution like Lokpal is required for three
reasons:

Firstly, The major source of grievance of the public is the discretionary powers enjoyed by the
public officials. In many cases neither these powers are codified nor is there any check if it is
misused. The presence of Lokpal in itself will act as a deterrent to the official. If the public
official knows that his decisions relating to the citizens will be subject to a review by the
Ombudsman, he will think twice before using his powers arbitrarily. As such the Ombudsman
or Lokpal will act as citizens’ defender .As rightly observed by R. K. Dhawan, the usefulness
of new institution (Ombudsman) will lie much more in what it prevents from happening than
in the grievance it redresses.

Secondly, corruption is so deep rooted in our surroundings that there is a general feeling
among the citizens that all public officials are corrupt. The Lokpal through his investigation
will try to correct this misconception. Again by weeding out frivolous and vexatious
complaints, the Lokpal will also try to send a message to the public officials that here is an
institution, which will protect them from baseless allegations, thus acting as a protector of the
officials also.
84
As explained by the former Australian Commonwealth Ombudsman, Dennis Pearce. Madhubrata

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CONCLUSION

“If we cannot make India corruption-free, then the vision of making the nation develop by
2020 would remain as a dream.”

-Dr. A.P.J.Abdul Kalam

Corruption is a topic on which if one starts discussing it is never going to end. Merely
furnishing ideas to combat corruption will not eventually eradicate corruption from society as
it has actually corrupted the souls of humans. There seems to be a nexus between terrorism,
drugs, smuggling, and politicians, a fact which was emphasized in the Vohra Committee
Report. Corruption has flourished because one does not see adequately successful examples
of effectively prosecuted cases of corruption. Cases, poorly founded upon, half-hearted and
incomplete investigation, followed by a tardy and delayed trial confluence a morally ill-
deserved but a legally inevitable acquittal. The acceptance of corruption as an inexorable
reality has led to silent reconciliation and resignation to such wrongs. There needs to be a
vital stimulation in the social consciousness of our citizens that is neither has a place in the
personal nor social. It is true that the present process of withdrawing the State from various
sectors in which it should have never entered or in which it is not capable of performing
efficiently may reduce the chances of corruption to some extent but even if we migrate to a
free market economy, there has to be regulation of economy as distinct from restrictions upon
the industrial activity. The requirements of governance would yet call for entering into
contracts, purchases and so on.

The Scandinavian economist-sociologist, Gunnyar Myrdal, had described the Indian society
as a soft society . He also clarified what the expression soft society means. According to him,
a soft society is: (a) one which does not have the political will to enact the laws necessary for
its progress and development and/or does not possess the political will to implement the laws,
even when made, and (b) where there is no discipline.

Corruption also casts a negative influence on the efforts to deal with the incidence of poverty.
It has become a mechanism by which a neo-nich class has been developed in many
developing countries. It can affect morals by the `perversion’ or `destruction’ of integrity in
the discharge of public duties by bribery or favour or the use or existence of corrupt practices.
Thus it destroys the ability of institutions and bureaucracies to deliver services that society
may expect thereby posing a serious threat to the democratic institutions and the very
existence of social order. Corruption in defence purchase and contracts tends to undermine
the very security of the State.
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Finally, though not directly, but indirectly the Ombudsman will help in improving the
administrative procedure. While redressing the grievances of the citizens, if the Ombudsman
will feel that some systematic changes are required, he may suggest to the Government to
bring in new legislations and procedures or amend the existing ones.
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