The President of India vide notification No. 40/3/65-AR(P) dated 05.01.1966 appointed the Administrative Reforms Commission for addressing “Problems of Redress of Citizens’ Grievances” inter alia with the object for ensuring the highest standards of efficiency and integrity in the public services, for making public administration a fit instrument for carrying out the social and economic policies of the Government and achieving social and economic goals of development as also one responsive to people. The Commission was asked to examine the various issues including the Problems of Redress of Citizens’ Grievances. One of the terms of reference specifically assigned to the Commission required it to deal with the Problems of Redress of Citizens’ Grievances, namely:
(1) the adequacy of existing arrangements for redress of grievances; and
(2) the need for introduction of any new machinery for special institution for redress of grievances.
The Commission after elaborate discussion submitted its report on 14.10.1966 to the Prime Minister vide letter dated 20.10.1966.
The Commission suggested that there should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States and another authority in each State and at the Centre for dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary.
The Committee, in its report, has stated as follows:
We have carefully considered the political aspect mentioned above and while we recognize that there is some force in it, we feel that the Prime Minister’s hands would be strengthened rather than weakened by the institution. In the first place, the recommendations of such an authority will save him from the unpleasant duty of investigation against his own colleagues. Secondly, it will be possible for him to deal with the matter without the glare of publicity which often vitiates the atmosphere and affects the judgment of the general public. Thirdly, it would enable him to avoid internal pressures which often help to shield the delinquent. What we have said about the Prime Minister applies mutatis mutandis to Chief Minister.
Cases of corruption:
Public opinion has been agitated for a long time over the prevalence of corruption in the administration and it is likely that cases coming up before the independent authorities mentioned above might involve allegations or actual evidence of corrupt motive and favouritism. We think that this institution should deal with such cases as well, but where the cases are such as might involve criminal charge or misconduct cognizable by a Court, the case should be brought to the notice of the Prime Minister or the Chief Minister, as the case may be. The latter would then set the machinery of law in motion after following appropriate procedures and observing necessary formalities. The present system of Vigilance Commissions wherever operative will then become redundant and would have to be abolished on the setting up of the institution.
Designation of the authorities of the institution:
We suggest that the authority dealing with complaints against Ministers and Secretaries to Government may be designated “Lokpal” and the other authorities at the Centre and in the States empowered to deal with complaints against other officials may be designated “Lokayukta”. A word may be said about our decision to include Secretaries actions along with those of Ministers in the jurisdiction of the Lokpal. We have taken this decision because we feel that at the level at which Ministers and Secretaries function, it might often be difficult to decide where the role of one functionary ends and that of the other begins. The line of demarcation between the responsibilities and influence of the Minister and Secretary is thin; in any case much depends on their personal equation and personality and it is most likely that in many a case the determination of responsibilities of both of them would be involved.
The following would be the main features of the institutions of Lokpal and Lokayukta:-
(a) They should be demonstrably independent and impartial.
(b) Their investigations and proceedings should be conducted in private and should be informal in character.
(c) Their appointment should, as far as possible, be non-political.
(d) Their status should compare with the highest judicial functionaries in the country.
(e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.
(f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties.
(g) They should not look forward to any benefit or pecuniary advantage from the executive Government.
Bearing in mind these essential features of the institutions, the Commission recommend that the Lokpal be appointed at the Centre and Lokayukta at the State level.
The Lokayukta
So far as the Lokayukta is concerned, we envisage that he would be concerned with problems similar to those which would face the Lokpal in respect of Ministers and Secretaries though, in respect of action taken at subordinate levels of official hierarchy, he would in many cases have to refer complainants to competent higher levels. We, therefore, consider that his powers, functions and procedures may be prescribed mutatis mutandis with those which we have laid down for the Lokpal. His status, position, emoluments, etc. should, however, be analogous to those of a Chief Justice of a High Court and he should be entitled to have free access to the Secretary to the Government concerned or to the Head of the Department with whom he will mostly have to deal to secure justice for a deserving citizen. Where he is dissatisfied with the action taken by the department concerned, he should be in a position to seek a quick corrective action from the Minister or the Secretary concerned, failing which he should be able to draw the personal attention of the Prime Minister or the Chief Minster as the case may be. It does not seem necessary for us to spell out here in more detail the functions and powers of the Lokayukta and the procedures to be followed by him.
Constitutional amendment-whether necessary?
We have carefully considered whether the institution of Lokpal will require any Constitutional amendment and whether it is possible for the office of the Lokpal to be set up by Central Legislation so as to cover both the Central and State functionaries concerned. We agree that for the Lokpal to be fully effective and for him to acquire power, without conflict with other functionaries under the Constitution, it would be necessary to give a constitutional status to his office, his powers, functions, etc. We feel, however, that it is not necessary for Government to wait for this to materialize before setting up the office. The Lokpal, we are confident, would be able to function in a large number of cases without the definition of his position under the Constitution. The Constitutional amendment and any consequential modification of the relevant statute can follow. In the meantime, Government can ensure that the Lokpal or Lokayukta is appointed and takes preparatory action to set up his office, to lay down his procedures, etc., and commence his work to such extent as he can without the constitutional provisions. We are confident that the necessary support will be forthcoming from the Parliament.
Conclusion.
We should like to emphasise the fact that we attach the highest importance to the implementation, at an early date, of the recommendations contained in this our Interim Report. That we are not alone in recognizing the urgency of such a measure is clear from the British example we have quoted above. We have no doubt that the working of the institution of Lokpal or Lokayukta that we have suggested for India will be watched with keen expectation and interest by other countries. We hope that this aspect would also be fully borne in mind by Government in considering the urgency and importance of our recommendation. Though its timing is very close to the next Election, we need hardly to assure the Government that this has had nothing to do with the necessity of making this interim report. We have felt the need of such a recommendation on merits alone and are convinced that we are making it not a day too soon.
Based on the above report, the following Bill was presented before the Karnataka Legislature which reads as follows:
The Administrative Reforms Commission had recommended the setting up of the institution of Lokayukta for the purpose of appointment of Lokayukta at the state’s level, to improve the standards of public administration, by looking into complaints against the administrative actions, including cases of corruption, favouritism and official indiscipline in administrative machinery.
One of the election promises in the election manifesto of the Janata Party was the setting up of the Institution of the Lokayukta.
The bill provides for the appointment of a Lokayukta and one or more Upalokayuktas to investigate and report on allegations or grievances relating to the conduct of public servants.
The public servants who are covered by the Act include:
(1) Chief Minister;
(2) all other Ministers and Members of the State Legislature;
(3) all officers of the State Government;
(4) Chairman, Vice Chairman of local authorities, Statutory Bodies or Corporations established by or under any law of the State Legislature, including Co-operative Societies;
(5) Persons in the service of Local Authorities, Corporations owned or controlled by the State Government, a company in which not less than fifty-one per cent of the shares are held by the State Government, Societies registered under the Societies Registration Act, Co-operative Societies and Universities established by or under any law of the Legislature.
Where, after investigation into the complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration that the post held by him, and the declaration is accepted by the Competent Authority, the public servant concerned, if he is a Chief Minister or any other Minister or Member of State Legislature shall resign his office and if he is any other non-official shall be deemed to have vacated his office, and, if an official, shall be deemed to have been kept under suspension, with effect from the date of the acceptance of the declaration.
If, after investigation, the Lokayukta is satisfied that the public servant has committed any criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law for such prosecution shall be deemed to have been granted.
The Vigilance Commission is abolished. But all inquiries and investigations and other disciplinary proceedings pending before the Vigilance Commission will be transferred to the Lokayukta.
The Bill became an Act with some modifications as the Karnataka Lokayukta Act, 1984.
Relevant Provisions
The matters which have to be investigated are provided in Section 7 of the Act which is extracted hereunder for easy reference:
7. Matters which may be investigated by the Lokayukta and an Upalokayukta.-
(1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or specific approval of.-
(i) the Chief Minister;
(ii) a Minister or a Secretary;
(iii) a member of the State Legislature; or
(iv) any other public servant being a public servant of a class notified by the State Government in consultation with the Lokayukta in this behalf;
in any case where a complaint involving a grievance or an allegation is made in respect of such action.
(2) Subject to the provisions of the Act, an Upa-lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature, Secretary or other public servant referred to in Sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upa-lokayukta, the subject of a grievance or an allegation.
(2-A) Notwithstanding anything contained in Sub-sections (1) and (2), the Lokayukta or an Upa-lokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.
(3) Where two or more Upa-lokayuktas are appointed under this Act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act:
Provided that no investigation made by an Upalokayukta under this Act, and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.
(4) Notwithstanding anything contained in Sub-sections (1) to (3), when an Upa-lokayukta is unable to discharge his functions owing to absence, illness or any other cause, his function may be discharged by the other Upa-lokayukta, if any, and if there is no other Upa-lokayukta by the Lokayukta.
20. Few matters are not subjected to the investigation of Lokayukta or Upa Lokayukta which is provided in Section 8 of the Act, which is also extracted hereunder for easy reference:
Matters not subject to investigation.-(1) Except as hereinafter provided, the Lokayukta or an Upa-lokayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action,-
(a) if such action relates to any matter specified in the Second Schedule; or
(b) if the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any Tribunal, Court Officer or other authority and has not availed of the same.
(2) The Lokayukta or an Upa-lokayukta shall not investigate,-
(a) any action in respect of which a formal and public enquiry has been ordered with the prior concurrence of the Lokayukta or an Upalokayukta, as the case may be;
(b) any action in respect of a matter which has been referred for inquiry, under the Commission of Inquiry Act, 1952 with the prior concurrence of the Lokayukta or an Upalokayukta, as the case may be;
(c) any complaint involving a grievance made after the expiry of a period of six months from the date on which the action complained against becomes known to the complainant; or
(d) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place:
Provided that he may entertain a complaint referred to in Clauses (c) and (d) if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in those clauses.
(3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lokayukta or an Upa-lokayukta to question any administrative action involving the exercise of discretion except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised.
Section 9 of the Act pertains to provisions relating to ‘complaints’ and ‘investigations’ which is extracted hereunder:
9. Provisions relating to complaints and investigations.-(1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lokayukta or an Upa-lokayukta.
(2) Every complaint shall be made in the form of a statement supported by an affidavit and in such forms and in such manner as may be prescribed.
(3) Where the Lokayukta or an Upa-lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he.-
(a) shall forward a copy of the complaint to the public servant and the Competent Authority concerned;
(b) shall afford to such public servant an opportunity to offer his comments on such complaint;
(c) may make such order as to the safe custody of documents relevant to the investigation, as he deems fit.
(4) Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held either in public or in camera, as the Lokayukta or the Upa-lokayukta, as the case may be, considers appropriate in the circumstances of the case.
(5) The Lokayukta or the Upa-lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation, if in his opinion.-
(a) the complaint is frivolous or vexatious or is not made in good faith;
(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or
(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail such remedies.
(6) In any case where the Lokayukta or an Upa-lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned.
(7) The conduct of an investigation under this Act against a Public servant in respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to the investigation.
Section 10 empowers Lokayukta or Upa Lokayukta to exercise certain powers in relation to search and seizure. It says that the provisions of the Code of Criminal Procedure, relating to search and seizure, would apply only for the limited purpose of investigation carried out by the incumbent, in consequence of information in his possession, while investigating into any grievance, allegation against any administrative action.
23. Section 11 deals with the producing, recording, etc. of evidence for the purpose of investigation under the Act. Sub-sections (1) and (2) of Section 11 read as follows:
11. Evidence.-(1) Subject to the provisions of this section, for the purpose of any investigation (including the preliminary inquiry if any, before such investigation) under this Act, the Lokayukta or an Upa-lokayukta may require any public servant or any other person who, in his opinion, is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.
(2) For the purpose of any investigation (including the preliminary inquiry) the Lokayukta or Upa-lokayukta shall have all the powers of a Civil Court while trying a suit under that the Code of Civil Procedure, 1908, in respect of the following matters only:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) such other matters as may be prescribed.
Sub-section (3) of Section 11 provides for applicability of Section 193 of the Indian Penal Code (Punishment for false evidence), for proceedings before the Lokayukta or Upa Lokayukta, while exercising its powers conferred under Sub-section (2) of Section 11, and only for that limited extent is considered a judicial proceeding.
Section 12 deals with the reports of Lokayukta which essentially deals with the following aspects:
i) The Lokayukta or Upa Lokayukta can sent a report with certain recommendations and findings as envisaged in Sub-section (1) and (3) of Section 12.
ii) Under Sub-section (2) of Section 12, the competent authority is required to intimate or cause to intimate the Lokayukta or the Upa Lokayukta on the action taken on the report as provided under Sub-section (1) of Section 12, within 1 month.
iii) Failure to intimate the action taken on the report submitted u/s (1) has not been dealt with specifically, however if in the opinion of Lokayukta/Upa Lokayukta satisfactory action is not taken by the competent authority u/s 12(2), he is at liberty to send a ‘Special report’ to the governor as provided for under Sub-section (5) of Section 12.
iv) Findings and recommendations to be given by the Lokayukta or Upa-lokayukta under Sub-Section 3 of Section 12, include those as contemplated u/s 13 of the Act.
v) Sub-section (4) of Section 12 requires the competent authority to examine the report forwarded under Sub-section (3), within three months and intimate the Lokayukta or the Upa Lokayukta on the action taken or proposed to be taken on the basis of the report.
vi) Failure to intimate the action taken on the report submitted u/s (3) has not been dealt with specifically, however if in the opinion of Lokayukta/Upa Lokayukta, satisfactory action taken is not taken by the competent authority u/s 12(4), he is at liberty to send a ‘Special report’ to the governor as provided for under Sub-section (5) of Section 12.
vii) If any Special Report as contemplated under Sub-section (5) is received and the annual report of the Lokayukta under Sub-section (6), would have to be laid before each house of the State legislature along with an explanatory note of the Governor.
viii) It is important to note that the act neither binds the Governor nor the State Legislature to accept the recommendations or findings of the incumbent, thereby ensuring no civil consequences follow from the direct action of the Lokayukta or Upa Lokayukta.
Section 13 prescribes when a public servant would have to vacate office, which reads as follows:
13. Public servant to vacate office if directed by Lokayukta etc. (1) Where after investigation into a complaint the Lokayukta or an Upalokayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokayukta or the Upalokayukta shall make a declaration to that effect in his report under Sub-section (3) of Section 12. Where the competent authority is the Governor, State Government or the Chief Minister, it may either accept or reject the declaration. In other cases, the competent authority shall send a copy of such report to the State Government, which may either accept or reject the declaration. If it is not rejected within a period of three months from the date of receipt of the report, or the copy of the report, as the case may be, it shall be deemed to have been accepted on the expiry of the said period of three months.
(2) If the declaration so made is accepted or is deemed to have been accepted, the fact of such acceptance or the deemed acceptance shall immediately be intimated by Registered post by the Governor, the State Government or the Chief Minister if any of them is the competent authority and the State Government in other cases then, notwithstanding anything contained in any law, order, notification, rule or contract of appointment, the public servant concerned shall, with effect from the date of intimation of such acceptance or of the deemed acceptance of the declaration,
(i) if the Chief Minister or a Minister resign his office of the Chief Minister, or Minister, as the case may be.
(ii) If a public servant falling under items (e) and (f), but not falling under items (d) and (g) of Clause (12) of Section 2, be deemed to have vacated his office: and
(iii) If a public servant falling under items (d) and (g) of Clause (12) of Section 2, be deemed to have been placed under suspension by an order of the appointing authority.
Provided that if the public servant is a member of an All India Service as defined in Section 2 of the All India Services Act, 1951 (Central Act 61 to 1951) the State Government shall take action to keep him under suspension in accordance with the rules or Regulations applicable to his service.
Section 14 deals with the initiation of prosecution which reads as follows:
14. Initiation of prosecution.-If after investigation into any complaint the Lokayukta or an Upa-lokayukta is satisfied that the public servant has committed any criminal offence and should be prosecuted in a court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned and if prior sanction of any authority is required for such prosecution, then, notwithstanding anything contained in any law, such sanction shall be deemed to have been granted by the appropriate authority on the date of such order.
Investigative in nature
The provisions discussed above clearly indicate that the functions to be discharged by Lokayukta or Upa Lokayukta are investigative in nature and the report of Lokayukta or Upa Lokayukta under Sub-sections (1) and (3) of Section 12 and the Special Report submitted under Sub-section (5) of Section 12 are only recommendatory. No civil consequence as such follows from the action of Lokayukta and Upa Lokayukta, though they can initiate prosecution before a competent court. I have extensively referred to the object and purpose of the Act and explained the various provisions of the Act only to indicate the nature and functions to be discharged by Lokayukta or Upa Lokayukta under the Act.
The Act has, therefore, clearly delineated which are the matters to be investigated by the Lokayukta and Upa Lokayukta. They have no authority to investigate on a complaint involving a grievance in respect of any action specified in the Second Schedule of the Act, which are as follows:
(a) Action taken for the purpose of powers investigating crimes relating to the security of the State.
(b) Action taken in the exercise of powers in relation to determining whether a matter shall go to a Court or not.
(c) Action taken in matters which arise out of the terms of a contract governing purely commercial relations of the administration with customers or suppliers, except where the complaint alleges harassment or gross delay in meeting contractual obligations.
(d) Action taken in respect of appointments, removals, pay, discipline, superannuation or other matters relating to conditions of service of public servants but not including action relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service.
(e) Grant of honours and awards.
Further if the complainant has or had any remedy by way of appeal, revision, review or other proceedings before any tribunal, court officer or other authority and has not availed of the same, the Lokayukta and Upa Lokayukta shall not conduct any investigation under the Act, in other words, they have to act within the four corners of the Act.
The Act has also been enacted to make provision for making enquiries by the Lokayukta and Upa Lokayukta into the administrative action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution, taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka, including any omission or commission in connection with or arising out of such action etc.
Lokayukta or Upa Lokayukta under the Act are established to investigate and report on allegations or grievances relating to the conduct of public servants which includes the Chief Minister; all other Minister and members of the State Legislature; all officers of the State Government; Chairman, Vice Chairman of Local Authorities, Corporations, owned or controlled by the State Government, a company in which not less than fifty one per cent of the shares are held by the State Government, Societies registered under the Societies Registration Act, Co-operative Societies and Universities established by or under any law of the Legislature.
Lokayukta and Upa Lokayukta while exercising powers under the Act, of course, is acting as a quasi judicial authority but it functions are investigative in nature. The Constitution Bench of this Court in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, held whether or not an administrative body or authority functions as purely administrative one or in a quasi-judicial capacity, must be determined in each case, on an examination of the relevant statute and rules framed thereunder. This Court in Indian National Congress (I) Vs. Institute of Social Welfare and Others, , while dealing with the powers of the Election Commission of India under the Representation of the People Act, 1951 held that while exercising power u/s 29-A, the Commission acts quasi-judicially and passes quasi judicial orders.
The Court held that what distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions, under the relevant law, the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority. Noticing the above legal principles this Court held in view of the requirement of law that the Commission is to give decision only after making an enquiry, wherein an opportunity of hearing is to be given to the representative of the political party, the Election Commission is required to act judicially.
Recently, in Automotive Tyre Manufacturers Association Vs. The Designated Authority and Others, this Court examined the question whether the Designated Authority appointed by the Central Government under Rule 3 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped Articles and for Determination of Injury) Rules, 1995 (1995 Rules) for conducting investigation, for the purpose of levy of anti dumping duty in terms of Section 9-A of the Customs Act, 1962, is functioning as an administrative or quasi judicial authority. The Court after examining the scheme of the Tariff Act read with 1995 Rules and the nature of functions to be discharged by the Designated Authority took the view that the authority exercising quasi-judicial functions is bound to act judicially. Court noticed that the Designated Authority determines the rights and obligations of the “interested parties” by applying objective standards based on the material/information/evidence presented by the exporters, foreign producers and other “interested parties” by applying the procedure and principles laid down in the 1995 Rules.
Provisions of Sections 9, 10 and 11 clearly indicate that Lokayukta and Upa Lokayukta are discharging quasi-judicial functions while conducting the investigation under the Act. Sub-section (2) of Section 11 of the Act also states that for the purpose any such investigation, including the preliminary inquiry Lokayukta and Upa Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in the matter of summoning and enforcing the attendance of any person and examining him on oath. Further they have also the power for 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 examination of witnesses of documents etc. Further, Sub-section (3) of Section 11 stipulates that any proceedings before the Lokayukta and Upa Lokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. Therefore, Lokayukta and Upa Lokayukta, while investigating the matters are discharging quasi-judicial functions, though the nature of functions is investigative.
Consequence of the report
The Governor of the State, acting in his discretion, if accepts the report of the Lokayukta against the Chief Minister, then he has to resign from the post. So also, if the Chief Minister accepts such a report against a Minister, then he has to resign from the post. Lokayukta or Upa Lokayukta, however, has no jurisdiction or power to direct the Governor or the Chief Minister to implement its report or direct resignation from the Office they hold, which depends upon the question whether the Governor or the Chief Minister, as the case may be, accepts the report or not. But when the Lokayukta or Upa Lokayukta, if after the investigation, is satisfied that the public servant has committed any criminal offence, prosecution can be initiated, for which prior sanction of any authority required under any law for such prosecution, shall also be deemed to have been granted.
Nature of Appointment
We are, in this case, as already indicated, called upon to decide the nature and the procedure to be followed in the matter of appointment of Lokayukta or Upa Lokayukta under the Act for which I have elaborately discussed the intention of the legislature, objects and purpose of the Act and the nature and functions to be discharged by Lokayukta or Upa Lokayukta, its investigative nature, the consequence of its report etc. Section 3 of the Act deals with the appointment of Lokayukta and Upa Lokayukta, which reads as follows:
3. Appointment of Lokayukta and Upa-lokayukta-
(1) For the purpose of conducting investigations and enquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-lokayukta or Upa-lokayuktas.
(2)(a) A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly.
(b) A person to be appointed as an Upa-lokayukta shall be a person who has held the office of the Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the opposition in the Karnataka Legislative Council and the Leader of the opposition in the Karnataka Legislative Assembly.
(3) A person appointed as the Lokayukta or an Upa-lokayukta shall, before entering upon his office, make and subscribe before the Governor, or some person appointed in that behalf of him, an oath or affirmation in the form set out for the purpose in the First Schedule.
The purpose of appointment of Lokayukta or Upa Lokayukta is clearly spelt out in Section 3(1) of the Act which indicates that it is for the purpose of conducting investigation and enquiries in accordance with the provisions of the Act. The procedure to conduct investigation has been elaborately dealt with in the Act. The scope of enquiry is however limited, compared to the investigation that is only to the ascertainment of the truth or falsehood of the allegations. The power has been entrusted by the Act on the Governor to appoint a person to be known as Lokayukta and one or more persons to be known as Upa Lokayukta and Upa Lokayuktas. The person to be appointed as Lokayukta shall be a person who has held the office of a Judge of the Supreme Court of India or that of the Chief Justice of the High Court. The Governor, as per Section 3(2)(a), is empowered to appoint Lokayukta on the advice tendered by the Chief Minister, in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. It is, therefore, clear that all the above five dignitaries have to be consulted before tendering advice by the Chief Minister to the Governor of the State.
Section 3(2)(b) of the Act stipulates that, so far as the Upa Lokayukta is concerned, he shall be a person who has held the office of a Judge of the High Court and shall be appointed on the advice tendered by the Chief Minister. The Chief Minister has to consult the five dignitaries, the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Legislative Council and the Leader of Opposition in the Karnataka Legislative Assembly. Therefore, for the purpose of appointment of Lokayukta or Upa Lokayukta all the five consultees are common. The appointment has to be made by the Governor on the advice tendered by the Chief Minister in consultation with those five dignitaries.
