How and where a complaint against Lokayukta of Haryana can be made?

How and where a complaint against Lokayukta of Haryana can be made?

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Question: How and where a complaint against Lokayukta of Haryana can be made? [Asked by: Dr. M.P. Gupta, Director Technical Education Haryana (Retd.), Panchkula-134109 (Haryana).]

Answer: The Lokayukta of Haryana is appointed under the provisions of the Haryana Lokayukta Act, 2002. As per Section 4 of this Act, only a person who is or has been a Judge of the Supreme Court or a Chief Justice or a Judge of a High Court in India, would be qualified to become Lokayukta. In view of the nature of the office held by the Lokayukta, certain protections have been given to him under this Act to ensure his independence. Section 7 of this Act provides that the Lokayukta can be removed from his office only by way of impeachment in the Haryana legislative assembly. This section is reproduced below:

Procedure for filing complaint against Lokayukta

Removal of Lokayukta

7. (1) The Lokayukta shall not be removed from his office except by an order of the Governor passed after an address by the Haryana Legislative Assembly, supported by a majority of the total membership of the Legislative Assembly and by a majority of not less than two-thirds of the members thereof, present and voting, has been presented to the Governor in the same session for such removal on the grounds of proved misconduct or incapacity.

    (2) The procedure for the presentation of an address and for the investigation and proof of the misconduct, or incapacity of the Lokayukta under sub-section (1) shall be as provided in the Judges (Inquiry) Act, 1968, in relation to the removal of a Judge and, accordingly, the provisions of that Act shall, subject  to necessary  modifications, apply in relation to the removal of the Lokayukta as they apply in relation to the removal of a Judge.”

Thus, it may be seen that the Lokayukta of Haryana can be removed by following this procedure which is similar to the procedure by which a judge of the Supreme Court or High Court can be removed; the only difference being that his impeachment process has to be conducted in the Haryana legislative assembly instead of the Parliament of India.

Section 22 of the Haryana Lokayukta Act, 2002, further provides protection to the Lokayukta for any action taken in good faith; this section is reproduced below:

Protection of action taken in good faith

22. No suit, prosecution or other legal proceedings shall lie against the Lokayukta or against any officer or employee, agency or person acting on his behalf in respect of anything which is in good faith done or intended to be done under this Act.”

As noted in Section 7 above, the procedure for the presentation of an address in the Haryana legislative assembly for the impeachment of Lokayukta and for the investigation and proof of the misconduct or incapacity of the Lokayukta is the same as provided in the Judges (Inquiry) Act, 1968, in relation to the removal of a Judge, subject  to necessary  modifications.

It is pertinent to point out that under Section 3 of the Judges (Inquiry) Act, a motion for presenting an address praying for removal of a judge of a High Court or of Supreme Court, has to be signed by at least 100 members of the Lok Sabha or at least 50 members of the Rajya Sabha. Thereafter, a three-member committee is constituted to conduct inquiry into the alleged misbehaviour or incapacity of the judge. Report of this committee is presented before the concerned House of Parliament for initiating the impeachment process in case the report contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity. Section 3 of the Judges (Inquiry) Act is reproduced below for a ready reference:

3. Investigation into misbehaviour or incapacity of Judge by Committee.—(1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,—

(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less than fifty members of that Council;

then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.

(2) If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom—

(a) one shall be chosen from among the Chief Justice and other Judges of the Supreme Court;

(b) one shall be chosen from among the Chief Justices of the High Courts; and

(c) one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist:

Provided that where notices of a motion referred to in sub-section (1) are given on the same day in both Houses of Parliament, no Committee shall be constituted unless the motion has been admitted in both Houses and where such motion has been admitted in both Houses, the Committee shall be constituted jointly by the Speaker and the Chairman:

Provided further that where notices of a motion as aforesaid are given in the Houses of Parliament on different dates, the notice which is given later shall stand rejected.

(3) The Committee shall frame definite charges against the Judge an the basis of which the investigation is proposed to be held.

(4) Such charges together with a statement of the grounds on which each such charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of presenting a written statement of defence within such time as may be specified in this behalf by the Committee.

(5) Where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for the medical examination of the Judge by such Medical Board as may be appointed for the purpose by the Speaker or, as the case may be, the Chairman or, where the Committee is constituted jointly by the Speaker and the Chairman, by both of them, for the purpose and the Judge shall submit himself to such medical examination within the time specified in this behalf by the Committee.

(6) The Medical Board shall undertake such medical examination of the Judge as may be considered necessary and submit a report to the Committee stating therein whether the incapacity is such as to render the Judge unfit to continue in office.

(7) If the Judge refuses to undergo medical examination considered necessary by the Medical Board, the Board shall submit a report to the Committee stating therein the examination which the Judge has refused to undergo, and the Committee may, on receipt of such report, presume that the Judge suffers from such physical or mental incapacity as is alleged in the motion referred to in sub-section (1).

(8) The Committee may, after considering the written statement of the Judge and the medical report, if any, amend the charges framed under sub-section (3) and in such a case, the Judge shall be given a reasonable opportunity of presenting a fresh written statement of defence.

(9) The Central Government may, if required by the Speaker or the Chairman, or both, as the case may be, appoint an advocate to conduct the case against the Judge.”

It is noteworthy that under Section 3 of the Judges (Inquiry) Act, a motion for presenting an address praying for removal of the judge has to be signed by at least 100 members of the Lok Sabha or at least 50 members of the Rajya Sabha; and while Lok Sabha has 543 elected members and Rajya Sabha has 250 members. On the other hand, Haryana legislative assembly has only 90 members. Therefore, though Section 7(2) of the aforesaid Haryana Lokayukta Act lays down that a similar procedure has to be followed (subject to necessary modifications) for removal of the Lokayukta, it may not be possible to have a motion for presenting an address for impeachment of the Lokayukta with the signatures of 100 or 50 members of the legislative assembly. In fact, even 50 members of the Haryana legislative assembly will constitute a majority of the total membership of the legislature which is one of the requirements for passing the address for impeachment. Though this section speaks of “subject to necessary modifications”, no such specific modifications have been laid down in the said Act, and nothing appears to have been laid down in the Rules framed under the said Act also. Therefore, such an important issue has been left unresolved in the aforesaid Haryana Lokayukta Act. Perhaps a similar rule of 20% of the total members of the House signing the motion for such address should have been laid down; however, it was supposed to be done by the legislature which has apparently not been done. Yet, taking advantage of the clause “subject to necessary modifications”, perhaps the method of taking signatures of a corresponding 20% members of the Haryana Legislative Assembly may be tried, though, of course, it is a vague provision. Someone may perhaps have to challenge the vagueness and/or impracticality of this provision.

Coming back to your original question as to where and how a complaint can be fined against the Lokayukta of Haryana, I may state that if the complaint relates to allegations of “misconduct or incapacity”, then the provisions of aforementioned Section 7 of the Haryana Lokayukta Act will have to be followed for getting an inquiry conducted into such allegations, which may ultimately lead to his removal by way of impeachment. However, this may not always be a practical solution, more so because, as mentioned above, Section 7 of the act appears to be defective and impractical. Still, one can try this method by getting a motion presented for an address for impeachment of the Lokayukta by taking signatures of at least 20% of the members of the Haryana Legislative Assembly.

As I have mentioned in my previous two articles (here and here), an “In-House Procedure” has been laid down by the Supreme Court for conducting inquiry into allegations against a sitting judge of a High Court or of Supreme Court. However, this In-House Procedure may not be applicable for conducting inquiry into the allegations against Haryana Lokayukta.

In view of these reasons, I am of the considered opinion that if there are serious allegations of misconduct or impropriety, etc., against the Haryana Lokayukta, a writ petition may also perhaps be filed before the High Court of Punjab and Haryana, seeking appropriate inquiry into the allegations. If need be, this matter may perhaps have to be taken to the Supreme Court.

In addition to the above, I am of the considered opinion that if the allegations against the Lokayukta relate to some offence committed by him which is unconnected with the official functions of his office, a complaint can be filed in the police station or the court having jurisdiction. It may be relevant to point out that as per the majority decision (of a Constitution Bench of 5-Judges) of the Supreme Court in the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655, it is necessary to take the permission of the Chief Justice of India before a criminal case is registered against a Judge of a High Court of or Supreme Court. However, a careful perusal of the said judgment shows that such permission is necessary only when the case being registered is against a sitting Judge of a High Court and not when the case being registered is against a retired Judge of a High Court. Therefore, in my considered opinion, such permission from the Chief Justice of India would not be necessary if a criminal case is to be filed against Haryana Lokayukta who may be a retired Judge of a High Court or Supreme Court. Therefore, you can try filing a criminal complaint in the police station or the court concerned, if the allegations relate to some offence which is unconnected with the official functions of the office of the Lokayukta.

These are some of the options open to you for filing a complaint against the Lokayukta of Haryana, in case you have evidence of some serious allegations against him.

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