Powers of Lokpal (Notes)

 On March 19,2019  Justice Pinaki Chandra Ghosh was appointed as India’s first Lokpal. The announcement came after a delay of five years as the Lokpal and Lokayukta Act, which envisaged appointment of a Lokpal at the Centre and Lokayuktas in the States to look into cases of corruption against certain categories of public servants, was passed in 2013. Now that the Lokpal chairman and eight members have been appointed, there may arise many questions related to its functions, duties and powers. Here, we seek to answer some questions about its functioning and the procedure for dealing with complaints against public servants under the Prevention of Corruption Act.

What happens if a charge is made against the PM?

The Lokpal cannot inquire into any corruption charge against the Prime Minister if the allegations are related to international relations, external and internal security, public order, atomic energy and space, unless a full Bench of the Lokpal, consisting of its chair and all members, considers the initiation of a probe, and at least two-thirds of the members approve it. Such a hearing should be held in camera, and if the complaint is dismissed, the records shall not be published or made available to anyone.

How can a complaint be made and what happens next?

A complaint under the Lokpal Act should be in the prescribed form and must pertain to an offence under the Prevention of Corruption Act against a public servant. There is no restriction on who can make such a complaint. When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the CBI, if there is a prima facie case. Before the ordering of an investigation by the agency, the Lokpal shall call for an explanation from the public servant to determine whether a prima facie case exists. This provision, the Act says, will not interfere with any search and seizure that may be undertaken by the investigating agency. The Lokpal, with respect to Central government servants, may refer the complaints to the Central Vigilance Commission (CVC). The CVC will send a report to the Lokpal regarding officials falling under Groups A and B; and proceed as per the CVC Act against those in Groups C and D.

What is the procedure for preliminary inquiry?

The Inquiry Wing or any other agency will have to complete its preliminary inquiry and submit a report to the Lokpal within 60 days. It has to seek comments from both the public servant and “the competent authority,” before submitting its report. There will be a ‘competent authority’ for each category of public servant. For instance, for the Prime Minister, it is the Lok Sabha, and for other Ministers, it will be the Prime Minister. And for department officials, it will be the Minister concerned.

A Lokpal Bench consisting of no less than three members shall consider the preliminary inquiry report, and after giving an opportunity to the public servant, decide whether it should proceed with the investigation. It can order a full investigation, or initiate departmental proceedings or close the proceedings. It may also proceed against the complainant if the allegation is false. The preliminary inquiry should normally be completed within 90 days of receipt of the complaint.

What happens after the investigation?

The agency ordered to conduct the probe has to file its investigation report in the court of appropriate jurisdiction, and a copy before the Lokpal. A Bench of at least three members will consider the report and may grant sanction to the Prosecution Wing to proceed against the public servant based on the agency’s chargesheet. It may also ask the competent authority to take departmental action or direct the closure of the report. Previously, the authority vested with the power to appoint or dismiss a public servant was the one to grant sanction under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act. Now this power will be exercised by the Lokpal, a judicial body. In any case, the Lokpal will have to seek the comments of the ‘competent authority’ as well as the public servant’s comments before granting such sanction.

Who are the functionaries of the Lokpal?

The Lokpal will have a Secretary, who will be appointed by the Lokpal Chairperson from a panel of names prepared by the Central government. The Secretary will be of the rank of Secretary to the Government of India. The Lokpal will have to appoint an Inquiry Wing, headed by a Director of Inquiry, and a Prosecution Wing, headed by a Director of Prosecution. Until these officers are appointed, the government will have to make available officers and staff from its Ministries and Departments to conduct preliminary inquiries and pursue prosecution. The institution will also have to appoint other officers and staff.

Is there any norm for disclosure of assets?

Yes. Public servants will have to declare their assets and liabilities in a prescribed form. If any assets found in their possession is not declared, or if misleading information about these are furnished, it may lead to an inference that assets were acquired by corrupt means. For public servants under the State governments, the States have to set up Lok Ayuktas to deal with charges against their own officials.