Lokpal and Lokayuktas: Composition, Jurisdiction, Powers and the Act of 2013

The Lokpal was proposed in 1966, was the subject of Bills in almost every decade thereafter, and became law only in 2013 after a public movement forced the question. The Act creates a multi-member body at the Centre with jurisdiction over public functionaries from the Prime Minister downwards, gives it an inquiry wing and a prosecution wing, places the Delhi Special Police Establishment under its superintendence in referred matters, and requires the States to establish Lokayuktas within a year. Its design reflects a compromise between two objections that were pressed throughout the drafting: that an ombudsman without investigative control would be powerless, and that one with unchecked power over the whole executive would be uncontrollable. This topic sets out the scheme and its working.

1. Composition and Appointment

The structure of the Lokpal under the Act of 2013

The Lokpal consists of a Chairperson and not more than eight Members, of whom not less than fifty per cent must be Judicial Members. Not less than fifty per cent of the Members must be from among persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities and women. The Chairperson must be a former Chief Justice of India, a former Judge of the Supreme Court, or an eminent person of impeccable integrity with special knowledge and expertise of not less than twenty-five years in matters relating to anti-corruption policy, public administration, vigilance, finance, law and management. A Judicial Member must be a former Judge of the Supreme Court or a former Chief Justice of a High Court. The Chairperson and Members are appointed by the President on the recommendation of a Selection Committee consisting of the Prime Minister as Chairperson, the Speaker of the House of the People, the Leader of the Opposition in that House, the Chief Justice of India or a Judge of the Supreme Court nominated by him, and one eminent jurist nominated by the President, the Selection Committee being assisted by a Search Committee. The term of office is five years or until the age of seventy, whichever is earlier, and no person below forty-five years may be appointed. The Chairperson receives the salary of the Chief Justice of India and Members that of a Judge of the Supreme Court.

The 2016 amendment made two changes of practical importance. Where there is no recognised Leader of the Opposition, the leader of the single largest opposition party in the House of the People is a member of the Selection Committee, which removed an obstacle that had prevented the body being constituted. And section 44, which had required public servants to declare the assets of themselves and their families within thirty days, was amended so that the declaration is made in the form and manner prescribed by the Government.

2. Jurisdiction

Person	Position
Prime Minister	Within jurisdiction, but with exclusions for allegations relating to international relations, external and internal security, public order, atomic energy and space, and with special procedural safeguards including consideration by a Full Bench and a three-fourths majority, the proceedings being held in camera
Ministers of the Union	Within jurisdiction
Members of Parliament	Within jurisdiction, except in respect of anything said or a vote given in the House, which Article 105(2) protects
Officers of Groups A, B, C and D of the Central Government	Within jurisdiction, with complaints against Groups C and D handled through the Central Vigilance Commission
Chairpersons, members and officers of bodies established by a Central Act	Within jurisdiction
Bodies wholly or partly financed or controlled by the Central Government	Within jurisdiction
Societies and trusts receiving foreign contribution above the prescribed limit	Within jurisdiction under the Foreign Contribution (Regulation) Act, 2010
State Government functionaries	Outside; the Lokayukta of the State has jurisdiction
The judiciary	Expressly excluded

The substantive jurisdiction is over offences under the Prevention of Corruption Act, 1988, so the Lokpal is an anti-corruption body rather than an ombudsman against maladministration in the classical sense. A complaint must ordinarily be made within seven years of the offence.

3. Powers and Procedure

Inquiry Wing, headed by a Director of Inquiry, to conduct preliminary inquiry into offences under the Prevention of Corruption Act.
Prosecution Wing, headed by a Director of Prosecution, to prosecute public servants before the Special Court.
Superintendence over the Delhi Special Police Establishment in respect of matters referred by the Lokpal for preliminary inquiry or investigation, and the agency may not transfer an officer investigating such a case without the Lokpal's approval.
Powers of a civil court under the Code of Civil Procedure for the purpose of inquiry, including summoning witnesses, requiring the production of documents and receiving evidence on affidavit.
Search and seizure, and the power to make interim orders including attachment of property believed to be derived from corrupt means, through the Special Court.
Recommendation of transfer or suspension of a public servant against whom an allegation is being inquired into.
Directions to prevent destruction of records during the preliminary inquiry.
Reports from the Central Vigilance Commission on action taken in matters referred to it.
Sanction for prosecution. Where the Lokpal directs prosecution, it grants the sanction itself, which removes the requirement of approval by the department concerned.

4. Sanction and the Problem of Delay

📖 Subramanian Swamy v. Dr. Manmohan Singh, (2012) 3 SCC 64

Facts: A citizen sought sanction to prosecute a Union Minister in connection with the allocation of telecom spectrum. The application for sanction remained undecided for a very long period, no decision being communicated one way or the other, and the prosecution could not proceed because section 19 of the Prevention of Corruption Act bars a court from taking cognizance without previous sanction.

Held: The Supreme Court held that a private citizen is entitled to apply for sanction to prosecute a public servant, and that the competent authority is under a duty to decide such an application. It held that the authority must ordinarily take a decision within three months, extendable by one month where legal consultation is required, and that inaction or unexplained delay in deciding a sanction application is contrary to the object of the Prevention of Corruption Act, since delay in granting sanction has spoilt many a valid prosecution. The Court observed that the power to grant sanction is to be exercised with due care and application of mind, that it is not an opportunity to shield the accused, and that the officer deciding must consider the material rather than the status of the person concerned.

Ratio: A citizen may seek sanction to prosecute a public servant, and the competent authority must decide within three months, extendable by one month. Delay in deciding defeats the purpose of the anti-corruption law.

The Lokpal Act addresses this problem structurally. Where the Lokpal, after inquiry, directs that a public servant be prosecuted, it grants the sanction, so the decision is taken by an independent body rather than by the department to which the accused belongs. That is among the most significant features of the Act, because the sanction requirement had been the point at which many prosecutions failed.

5. Probity in Public Life

📖 Manoj Narula v. Union of India, (2014) 9 SCC 1

Facts: A petition sought a direction that persons against whom criminal charges had been framed for serious offences should not be appointed as Ministers, and that the Prime Minister and Chief Ministers be restrained from advising such appointments. The Constitution lays down disqualifications for membership of the legislature but prescribes no additional qualification for appointment as a Minister beyond membership.

Held: A Constitution Bench declined to issue the direction sought, holding that the Court cannot add a disqualification which the Constitution does not contain, since Articles 75(1) and 164(1) confer the power of appointment on the President and the Governor on the advice of the Prime Minister or Chief Minister, and prescribing further conditions would amount to legislating. But the Court held that the power is to be exercised in accordance with the doctrine of constitutional trust, that constitutional morality and good governance require those entrusted with such advice to bear in mind the character of the persons recommended, and that it is expected of the Prime Minister and Chief Ministers not to advise the appointment of persons with criminal antecedents involving serious or heinous offences. The Court expressed the hope that this expectation would be honoured.

Ratio: The Court cannot add constitutional disqualifications for ministerial office, but the power to advise appointments is subject to constitutional trust and morality, and the expectation is that persons facing serious criminal charges will not be recommended.

6. Lokayuktas in the States

Obligation under the Act. Section 63 requires every State to establish a Lokayukta by law within one year of the commencement of the Act, but leaves the composition and powers to the State legislature.
Earlier institutions. Several States had Lokayuktas well before 2013, Maharashtra being the first in 1971, followed by Odisha, Rajasthan, Bihar and others.
Wide variation. States differ on whether the Chief Minister is within jurisdiction, whether the Lokayukta has its own investigating agency, whether it may act suo motu, and whether its findings are binding on the Government.
Karnataka has had the most active institution, with an independent police wing and a record of investigating senior functionaries, and its experience is generally cited in support of giving the office its own investigative capacity.
Appointment is usually by the Governor on consultation with the Chief Justice of the High Court, the Chief Minister and the Leader of the Opposition, with a fixed tenure and protected removal.
Common weaknesses are the absence of an investigating wing, dependence on State agencies, delay in appointment, and the recommendatory character of the findings.

⚠ The Act was designed around the sanction problem, not around maladministration

Reading the Lokpal Act against the classical model shows what it was actually built to do. It has an inquiry wing, a prosecution wing, superintendence over the investigating agency, power to attach property, and the power to grant its own sanction to prosecute. Every one of those features addresses a stage at which a corruption prosecution had previously failed because the executive controlled it. What the Act does not contain is any jurisdiction over delay, neglect, unfairness or inefficiency, which is what an ombudsman in Sweden, Denmark or New Zealand chiefly does. The Lokpal is therefore best understood as an independent anti-corruption prosecuting authority carrying an ombudsman's name, and the gap the classical institution was meant to fill remains open in India.

7. The Position in Summary

The Lokpal consists of a Chairperson and up to eight Members, at least half judicial, appointed by the President on the recommendation of a Selection Committee headed by the Prime Minister, for five years or until the age of seventy.
Its jurisdiction extends to the Prime Minister with exclusions and special safeguards, Ministers, Members of Parliament, officers of all Groups, statutory bodies and bodies financed or controlled by the Centre, and to certain recipients of foreign contribution.
It has an inquiry wing and a prosecution wing, superintendence over the Delhi Special Police Establishment in referred matters, the powers of a civil court, powers of attachment, and the power to grant sanction for prosecution itself.
A citizen may seek sanction to prosecute a public servant and the competent authority must decide within three months, extendable by one (Subramanian Swamy v. Dr. Manmohan Singh), a problem the Act addresses structurally.
States were required to establish Lokayuktas within a year, but their composition, powers and independence vary widely, and the Lokpal's own jurisdiction is confined to corruption rather than maladministration.

8. Related Topics and Provisions

Ombudsman: Meaning and Development (Topic 158) and Central Vigilance Commission (Topic 160).
Administrative Accountability (Topic 147) and Control over Administration (Topic 148).
Judicial Control over Administration (Topic 156): what the courts cannot reach.
Writ of Quo Warranto (Topic 112): the scrutiny of appointments to statutory offices.
Internal Administrative Control (Topic 157): departmental vigilance alongside the Lokpal.
Constitution of India: Articles 75, 105, 164, 194 and 311; Lokpal and Lokayuktas Act, 2013; Prevention of Corruption Act, 1988; Delhi Special Police Establishment Act, 1946.