Overview of the Lokpal and Lokayukta Act, 2013, in light of the recent appointments and amendments made thereunder

Article by Anuj Berry, Partner

On 23 March 2019, Justice Pinaki Chandra Ghose (a former judge of the Indian Supreme Court, and presently a sitting member of the National Human Rights Commission of India) was officially sworn in as the first Chairman of the ‘Lokpal’ institution in India, along with 8 other members who were appointed pursuant to the Lokpal and Lokayukta Act, 2013 (“Lokpal Act”). [1] While the Lokpal Act, (which envisaged the establishment of an ‘Ombudsman’ type institution called the ‘Lokpal’ at the Centre and ‘Lokayuktas’ in States to effectively deal with allegations / cases of corruption against certain categories of public servants), was brought into force by Parliament on 16 January 2014, the law had been hanging in limbo for almost five years, owing to the fact that no steps had been taken by the Central Government to appoint the various functionaries (including a Chairman and other constituent members of the Lokpal) under the provisions of the Lokpal Act. The recent appointments therefore, marks an important and significant step forward in giving effect to the provisions of the Lokpal Act, the implications of which are briefly set out in the following paragraphs.

I. Brief Overview of the establishment of the Lokpal and Lokayuktas in India

World over, several countries have established independent ‘ombudsman’ institutions to effectively channelise complaints against the public officials in relation to corruption, and to undertake investigations and / or prosecutions in respect of such public officials.[2] Typically, such ombudsman institutions act as nodal agencies to supervise the investigative agencies responsible for investigating the complaints regarding corruption.

In India, prior to introduction of the Lokpal Act, various Lokayukta institutions had been established at the State level to act as anti-corruption ombudsman institutions empowered to deal with cases / allegations of corruption and maladministration by State government officials / bodies. The Lokpal Act was brought into effect in order to set up an anti-corruption ombudsman at the center / federal level in India, and to mandate the creation of Lokayuktas at the State level, by all the remaining States in India that so far had not set up Lokayuktas. Therefore, while there had been similar ombudsman institutions functioning at the state level prior to the year 2013, the Lokpal Act, sought to establish a nodal agency at the Center to act in relation to allegations / cases of corruption against its central government functionaries and to supervise the overall anti-corruption regulatory framework in India.

In terms of the existing anti-corruption framework in India, the receipt of illegal gratification by public officials and payment of such gratification to the public officials is punishable under the Prevention of Corruption Act, 1988 (“PC Act”)[3] and typically the following agencies investigate the offences under the PC Act upon receipt of information/complaint in respect of such offences:

• Central Bureau of Investigation (constituted by the Delhi Special Police Establishment Act, 1946) (“CBI”);
• Central Vigilance Commission (“CVC”) (constituted under the Central Vigilance Act, 2003 (“CVC Act”); and
• State Anti-Corruption Bureau/Branch (“ACB”) of the police department of State.

However, to ensure prompt action in respect of the complaints received against the public officials in relation to the offences committed under the PC Act and to promote fair investigation and prosecution of such officials, the Lokpal Act now allows a complaint to be directly made to the Lokpal against such offences. Upon receipt of such complaints, the Lokpal may direct any agency or its own inquiry wing to conduct a preliminary inquiry and / or an investigation against the public officials and initiate prosecution, wherever necessary.

Essentially, the Lokpal is tasked to perform the following functions in terms of the Lokpal Act:

• Upon receipt of a complaint against any public official in relation to the offences committed under the PC Act (“Complaint”), Lokpal may pass an order directing its own inquiry wing or any other agency to conduct a preliminary inquiry in respect of such Complaint to ascertain whether there is a prima facie case for acting upon such Complaint;
• In case there is an ascertainment of a prima facie case, then, the Lokpal can pass an order directing any agency to conduct investigation in respect of the Complaint and file a report within six months before the respective jurisdictional court for the purposes of framing of charges;
• Lokpal shall supervise such investigation by the concerned agency;
• Upon filing of such report by the investigative agency, Lokpal may either grant sanction for the prosecution of such public official or in the alternative direct such agency to file a closure report before the concerned jurisdictional court.
• Further, to ensure transparency, Lokpal shall maintain a repository of all Complaints indicating the status of such Complaints.

II.  Jurisdiction and Functions of the Lokpal

As per the Lokpal Act, upon receipt of a Complaint, the Lokpal is tasked to conduct a preliminary inquiry to ascertain whether there is any prima facie case to proceed against such public official or to direct an investigation upon such ascertainment. Such Complaints can inter alia be made against the following persons:

• Prime Minister (including a former one),
• Union Ministers,
• Members of Parliament,
• Groups A, B, C and D officers of the Central Government.
• Any member or employee of any organisation or trust established by an Act of Parliament or partly financed by the Central Government; and
• Any officer of a society or association or trust, which is in receipt of any donation from any foreign source under the Foreign Contribution (Regulation) Act, 2010 (42 of 2010) in excess of Rs. 10 Lakh in a year or such higher amount as the Central Government may notify.

Essentially, in terms of the Lokpal Act, Lokpal shall deal with the Complaint in the following manner:

• Upon receipt of a Complaint, Lokpal may pass an order directing its own inquiry wing or any other agency to conduct a preliminary inquiry in respect of such Complaint to ascertain whether there is a prima facie case for acting upon such Complaint (Section 20(1), Lokpal Act);
• Such investigating agency is required to submit a report to Lokpal within sixty days from the receipt of such reference from Lokpal (Section 20(2), Lokpal Act) and Lokpal shall endeavour to complete such preliminary inquiry with ninety days from the receipt of the Complaint (Section 20(4), Lokpal Act).
• Upon receipt of such report from the investigating agency, Lokpal shall decide whether there exists a prima facie case to proceed against the concerned public official after giving due opportunity to such official. If the Lokpal determined that there exists a prima facie case against the public official, Lokpal may:

1. 1. • Order an investigation by any agency in respect of the Complaint;
      • Order initiation of department inquiry against the public official; (Section 20(3), Lokpal Act)

• Should the Lokpal decide that there does not exist a prima facie case against the public official in terms of the Complaint and the preliminary inquiry, it shall direct the closure of proceedings against such public official (Section 20(3), Lokpal Act) and to proceed against the complainant for false complaint in terms of Section 46 of the Lokpal Act.
• In case the Lokpal passed an order for an investigation under Section 20(1)(b), the said investigation is required to be completed within a period of six months.
• The investigating agency is required to submit the investigation report to the respective jurisdictional court and also forward a copy of such report to Lokpal.
• Upon examination of the investigation report, Lokpal may issue the following directions:

1. 1. • Grant sanction to prosecute the concerned public official before the respective jurisdictional court to such investigating agency or its own prosecution wing (Section 20(7), Lokpal Act) and file a charge sheet against such public official before the concerned jurisdictional court;
      • Pass an order to initiate department inquiry against such public official.

• However, should Lokpal consider that there exists no merit in proceeding with the prosecution against the public official upon examining the report of the investigating agency, it may direct closure of the proceedings against the public official (Section 20(7), Lokpal Act).

It is relevant to note that in furtherance of the its objective of providing an effective and efficient mechanism to deal with anti-corruption cases in India, the Lokpal Act mandates that upon initiation of the prosecution against the concerned public official, the concerned jurisdictional court ought to complete the trial within a period of one year. (Section 35 of the Lokpal Act). Furthermore, besides ensuring fair and prompt investigation, Lokpal Act requires the Lokpal to publish a list of complaints and the status of such complaints in terms of whether they are pending or disposed off, thereby promoting transparency in the entire investigating process.

 III. Powers of the Lokpal

While performing its foregoing functions, the Lokpal has been granted several powers to ensure that the inquiry / investigation is conducted in a fair and transparent manner. In this regard, in terms of Section 27 of the Lokpal Act, the Lokpal is empowered with all powers vested in a civil court, under the Code of Civil Procedure, 1908.[4] Further, the Lokpal, during the investigation / inquiry, has the power to summon / inquire into the conduct of any person in the following cases:

• Any person involved in the act of abetting, bribe giving or bribe taking or any conspiracy related to the Complaint; (Sections 14(3) / 21 of the Lokpal Act)
• Any person, who in the opinion of Lokpal, possess material information which would assist the inquiry / investigation process, and the Lokpal can call upon such person to furnish such information (Section 22 of the Lokpal Act)
• Any person, in the opinion of Lokpal, whose reputation is prejudicially going to be affected by the investigation / inquiry in respect of the Complaint (Section 21 of the Lokpal Act)

In addition to the above, the Lokpal has been given power to search and seize any document which, in its opinion, could be used as evidence for the purpose of the proceedings, in terms of Section 26 of the Lokpal Act.

In relation to the foregoing inquiry / investigation process, Section 25 of the Lokpal Act provides that the Lokpal shall have supervision over the functioning of the CBI in respect of all Complaints, which is in consonance with the intention of the legislature to create an ombudsman to supervise the anti-corruption investigation framework at the federal level. Furthermore, in order to ensure that the proceeds of corruption are not dissipated / alienated during the pendency of the proceedings, the Lokpal, in terms of Sections 29 and 30 of the Lokpal Act, has the authority to sanction provisional attachment of such assets of any person. In a similar vein of promoting a fair investigation, the Lokpal has been vested with the power to recommend to the Central Government for transfer or suspension of such public official from the post during the pendency of the proceedings in terms of Section 32 of the Lokpal Act, to ensure that the proceedings are not vitiated through undue influence.

To add teeth to the above powers of the Lokpal, the Lokpal Act has also empowered the Lokpal to grant sanction for initiating prosecution in respect of any public official under Section 20(7)(a) of the Lokpal Act, which overrides the requirement given in the PC Act and the CrPC in relation to procuring sanctions from the respective governments with which the public servant is employed.[1]. Thus, this is a step towards expediting the entire proceedings in respect of the Complaint against public officials, given that in cases where the complaint is filed directly with an investigating agency, there is usually a significant delay caused owing to the need for obtainment of a sanction from the concerned government which employs the said public official.

Lastly, the legislature, by way of Section 49 of the Lokpal Act, has made the Lokpal a 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 PC Act.” This indicates that the legislature’s intention has been to create an ombudsman to supervise the entire anti-corruption framework at the federal level in India. The Lokpal has therefore effectively been constituted as an anti-corruption ombudsman with supervisory powers, with the aim to ensure that the investigation / inquiry proceedings in respect of a Complaint against a public official is undertaken with fairness, transparency and promptness.

IV. Concluding Remarks

As foregoing paragraphs elucidates, the Lokpal is the authority which, upon examination of the preliminary inquiry report by an investigating agency, determines the existence of a prima facie case for the purposes of proceeding or acting pursuant to a Complaint against a public official. At this stage, the statute envisages an important power to filter out frivolous or egregious Complaints. Further, typically, in respect of complaints against public officials filed directly with an investigation agency, such investigating agency is empowered to conduct a preliminary inquiry and make a decision to proceed with the investigation and/or file a charge sheet pursuant to its investigation. However, as explained above, in respect of Complaints registered with Lokpal, the decisions to (a) proceed with an investigation and (b) to file a charge sheet are made by Lokpal and the investigating agencies are required to act upon the direction issued by Lokpal in this regard.

The Lokpal has also been vested with the power to sanction prosecution, upon examination of the investigation report filed by the concerned agency under Section 20(7) of the Lokpal Act, thus bypassing the requirement (under the PC Act and the CrPC) to obtain sanction from prosecution from the Union Government, which employs the public official. Seen in this context, the Lokpal Act attempts to expedite the entire investigation process in relation to offences committed under the PC Act. Additionally, upon the registration of the investigation report with the respective jurisdictional court by the investigation agency, the Lokpal besides granting the sanction for prosecuting the concerned public official, has also been vested with wide powers to call upon its prosecution wing to initiate prosecution in the relevant jurisdictional court in respect of the cases investigated by such investigating agency.

Pertinently in addition to the above, the Lokpal Act also envisages a new mechanism aimed at stifling corruption under Section 44 of the Lokpal Act which requires every public official to make a declaration of his assets and liabilities in a form and manner which may be prescribed. In case a public official wilfully does not declare his assets, then, it would be presumed that such assets have been procured by the public official via corrupt means, to be accordingly dealt with under the provisions of the Lokapl Act and PC Act.

Although the Lokpal has been constituted now, the Lokpal will be seen to be to fully operational only when the following supporting structures are established:

• Lokpal’s inquiry wing and its prosecution wing, as required to be set up by the Lokpal in terms of Sections 11 and 12 of the Lokpal Act;
• Any number of jurisdictional courts, as required to be set up by the Central Government, upon recommendation by the Lokpal, for the purpose of prosecution of the public officials in relation to the Complaint

That being said, the Lokpal Act indicates that till the time such inquiry and prosecution wings are set up by the Lokpal, the Central Government shall provide certain number of officers, as may be necessary, thereby indicating that the functioning of the Lokpal is not hindered in the meantime. Additionally, as the definition of the jurisdictional court under the Lokpal Act, is the same as the definition provided under the PC Act, the Central Government, on an interim basis, may use such courts which have already been constituted under the PC Act for prosecution of Complaints in relation to the Lokpal Act.

There is also an apparent lack of clarity, in the present stage, in respect of Section 49 of the Lokpal Act, by way of which, the Lokpal has been made a final appellate authority in relation to anti-corruption matters. The said provision of the Lokpal Act fails to detail out the nature of appeals which may lie before the Lokpal, and hence, it will be interesting to see how courts interpret the concerned provision.

[1] Shri Justice Dilip B. Bhosale, Shri Justice Pradip Kumar Mohanty, Smt. Justice Abhilasha Kumari, Shri Jusitce Ajay Kumar Tripathi, Shri Dinesh Kumar Jain, Smt. Archana Ramasundaram, Shri Mahender Singh and Dr. Indrajeet Prasad Gautam.

[2] The word ‘Ombudsman’ finds its roots in Sweden, where in 1809, the first ‘grievance redressal’ mechanism called the ‘Ombudsman’ to look after citizen’s grievances against government officials was introduced by Parliament. Today, many countries have adopted the Ombudsman concept, and this has given rise to over 150 national ombudsman-type institutions around the world.

[3] Essentially under the PC Act, the following acts are criminalised:

• Offence related to Public Servant being bribed (Section 7 of PC Act);
• Giving of an undue advantage to another person with an intention to (a) induce a public servant to perform improperly a public duty or (b) to reward such public servant for the improper performance of a public duty (Section 8 of PC Act);

• Public servant obtaining undue advantage, without consideration from person concerned in business transacted by such public servant (section 11 of POCA);

• Criminal misconduct by a public servant including habitual corruption or possession of disproportionate assets (Section 13 of POCA).

[4] Section 27 of the Lokpal Act vests the following powers with the Lokpal:

• Summoning and enforcing the attendance of any person and examining him on oath;
• Requiring the discovery and production of any document;
• Receiving evidence on affidavits;
• Requisitioning any public record or copy thereof from any court or office;
• Issuing commissions for the examination of witness or documents

[5] Section 19 of POCA and Section 197 of CRPC, inter alia, mandate that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of POCA except with previous sanction taken either from the Central Government or State Government (or the competent authority having the power to remove such official), which is dependent on the government with which the public servant works.