The concept of the Lokpal (at the Union level) and Lokayukta (at the State

level) in India serves as an anti-corruption ombudsman system established to

inquire into allegations of corruption against public functionaries. This
framework is primarily governed by the Lokpal and Lokayuktas Act, 2013.

Key Features and Functions

• Establishment and Status:
o Statutory Bodies: The Lokpal and Lokayuktas are statutory, non-
constitutional bodies established under the Lokpal and Lokayuktas
Act, 2013.
o Ombudsman Role: They act as an Ombudsman to receive and
inquire into allegations of corruption against public servants.
• Jurisdiction of Lokpal (Union):
o Covers the Prime Minister (with specific restrictions, such as
excluding allegations relating to international relations,
external/internal security, public order, atomic energy, and space).
o Union Ministers, Members of Parliament (MPs), and all categories
of central government employees (Groups A, B, C, D).
o Functionaries of any body established by a Central Act, or financed
or controlled by the Central Government.
• Structure and Appointment:
o Lokpal Composition: Consists of a Chairperson (who is or was a
Chief Justice of India, or a Judge of the Supreme Court, or an
eminent person with special knowledge and experience in anti-
corruption policy, vigilance, public administration, etc.) and a
maximum of eight members.
o 50% Judicial Members: Not less than fifty percent of the
members must be judicial members.
o Representation: Not less than fifty percent of the members must
be from SC, ST, OBC, minorities, and women.
o Appointment: Appointed by the President based on the
recommendation of a high-powered Selection Committee
(comprising the Prime Minister, Speaker of Lok Sabha, Leader of
 Opposition/Leader of single largest Opposition Party, Chief Justice
of India or a Supreme Court Judge nominated by him/her, and one
eminent jurist).
• Powers and Investigation:
o Inquiry and Prosecution Wings: The Lokpal has its own Inquiry
Wing for conducting preliminary inquiries and a Prosecution Wing
for the prosecution of public servants.
o Inquiry Powers: Vested with powers of a Civil Court for
summoning and examining witnesses, discovery and production of
documents, etc.
o Investigation: Can refer cases for investigation to the Central
Bureau of Investigation (CBI) or any other agency, with powers
of superintendence and direction over them for cases referred by
the Lokpal.
o Provisional Attachment: Has the power to sanction the
provisional attachment of assets acquired by corruption.
o Search and Seizure: Has the power of search and seizure.
o Transfer/Suspension: Can recommend the transfer or suspension
of a public servant connected with the allegation.
• Lokayuktas (State):
o The Act mandates that every state must establish a Lokayukta
within one year of the commencement of the Act, if not already
established.
o The structure and jurisdiction of the Lokayukta vary from state to
state, as the state legislature enacts the respective law.

Relevant Case Laws (Emphasis on Lokpal/Lokayukta Implementation and

Scope)
While the Lokpal and Lokayuktas Act, 2013, is relatively new, key judicial
pronouncements have focused mainly on ensuring its effective implementation
and clarifying the appointment process:
• Common Cause (A Regd. Society) v. Union of India (2017):
 o Key Aspect: The Supreme Court mandated that the appointment of
the Lokpal should not be deferred merely due to the absence of a
recognized Leader of the Opposition (LoP) in the Lok Sabha.
o Implication: This landmark judgment cleared the way for the
appointment process by ruling that in the absence of a recognized
LoP, the leader of the single largest opposition party could be
considered, effectively validating the 2016 amendment and
ensuring the commencement of the Lokpal appointment procedure.
• Justice S. K. Mahajan v. Union of India (2019):
o Key Aspect: This case dealt with the selection process for the
Lokpal members and was instrumental in the finalization of the
first Lokpal Chairperson and members.
o Implication: It solidified the Supreme Court's supervisory role in
ensuring the timely constitution of the Lokpal body as per the Act,
following the 2017 ruling.

Judicial Review of Ombudsman Decisions

Decisions and recommendations of bodies like the Lokayukta/Lokpal are
generally subject to judicial review by the High Courts (under Articles 226 and
227) and the Supreme Court (under Article 32 and 136) on limited grounds,
such as:
• Lack of jurisdiction.
• Violation of principles of natural justice.
• Decision being based on no evidence or irrelevant considerations
(perversity).
• Case Law on Ombudsman (General Principle): The Supreme Court, in
cases involving other ombudsman institutions (like the Banking
Ombudsman or Telecom Regulatory Authority), has consistently held that
the power of judicial review remains a basic feature of the Constitution,
ensuring that statutory authorities, including the ombudsman, act within
their legal bounds and fairly. Decisions can be challenged if they are ultra
vires (beyond the scope of power) or violate fundamental rights.
Applicability of the “Rule of Fair Hearing” to Adjudicatory Bodies in
Administrative Law

1. Introduction
• The Rule of Fair Hearing (Latin: Audi Alteram Partem) means “hear
the other side.”
• It ensures fairness, transparency, and justice in administrative and
quasi-judicial actions.
• Rooted in Articles 14 & 21 of the Constitution — it guards against
arbitrariness and ensures due process.

2. Meaning
• Every person affected by an administrative or adjudicatory decision must
be given:
o Notice of the action,
o A fair chance to present their case, and
o A reasoned decision after hearing both sides.

3. Essential Elements of the Rule

(a) Notice
• Must clearly state charges, date, time, and place of hearing.
• Without proper notice → decision becomes void.
• Cases:
o Keshav Mills Co. Ltd. v. Union of India – Ambiguous notice =
violation of fair hearing.
o Punjab National Bank v. All India Bank Employees Federation –
Defective notice made penalty invalid.
(b) Fair Hearing / Opportunity to be Heard
• Affected person must get a reasonable chance to explain or defend
themselves.
 • Cases:
o State of Orissa v. Binapani Dei (1967) – Even administrative
actions need hearing.
o Ridge v. Baldwin (1964, UK) – Dismissal without hearing is
invalid.
(c) Right to Present and Challenge Evidence
• Both sides must be allowed to produce evidence and cross-examine
witnesses.
• Cases:
o Union of India v. T.R. Varma (1957) – Denial of cross-examination
violates fair hearing.
o Stafford v. Minister of Health – Evidence must not be taken behind
one’s back.
(d) Right to Legal Representation
• Not absolute but allowed in complex or technical matters.
• Cases:
o J.J. Mody v. State of Bombay – Refusal of lawyer = breach of
justice.
o J.R. Parashar v. Union of India – Legal aid needed in technical
matters.
(e) Reasoned (Speaking) Orders
• Authorities must give reasons for decisions → ensures transparency.
• Case: Siemens Engineering v. Union of India (1976) – Reasoned orders
are part of natural justice.

4. Exceptions to the Rule

Ground Explanation Case

When law expressly excludes Maneka Gandhi v.

Statutory Exclusion
hearing, unless arbitrary. Union of India
Ground Explanation Case

General rule-making doesn’t

Legislative Action —
need personal hearing.

Impracticability / In emergencies, prior hearing Union of India v.

Urgency may be skipped. Tulsiram Patel

Academic or Regulatory Not always needed in academic

JNU v. B.S. Narwal
Decisions evaluations.

Interim or Preventive Temporary suspensions may S.A. Khan v. State

Actions not require hearing. of Haryana

5. Application to Adjudicatory Bodies

• Applies to tribunals, commissions, and disciplinary authorities
exercising quasi-judicial powers.
• Ensures decisions are just, reasoned, and free from bias.
• Case: A.K. Kraipak v. Union of India (1969) – Even administrative
actions with civil consequences must follow natural justice.

6. Conclusion
• The Rule of Fair Hearing is the cornerstone of administrative justice.
• It protects individuals from arbitrary actions, ensures transparency, and
maintains public confidence.
• Exceptions exist, but they are narrowly interpreted to prevent injustice.

Important Case Summary Table

Case Principle Established

Dismissal without hearing violates natural

Ridge v. Baldwin (1964, UK)
justice

State of Orissa v. Binapani Dei Hearing needed even in administrative

(1967) actions
Case Principle Established

A.K. Kraipak v. Union of India Natural justice applies to quasi-judicial &

(1969) administrative acts

Maneka Gandhi v. Union of India

Fair hearing part of Article 21
(1978)

Siemens Engineering v. Union of

Reasoned orders essential
India (1976)

Union of India v. T.R. Varma

Right to cross-examine upheld
(1957)

Union of India v. Tulsiram Patel

Exceptions allowed in emergencies
(1985)

Administrative Discretion: Easy Explanation and Detailed Points

1. Administrative Discretion
Administrative Discretion is simply the freedom or power given to government
officials to choose between different courses of action when implementing a
law. Since it's impossible for the law to cover every unique situation, officials
need this power to apply rules in a flexible and sensible way.
• Necessity: In a modern welfare state, the government handles incredibly
complex issues (economy, environment, social services). A rigid law
cannot address all these complexities. Discretion allows administrators to
fill in the gaps and adjust general rules to specific, real-world situations.
• The Power of Choice: When a law gives an administrator the power to
act "if he thinks fit" or "as he deems necessary," that's discretion. The
administrator isn't told exactly what to do; they must use their judgment
and expertise to find the best solution.
• Balancing Act: This power is essential for efficiency, but it's dangerous
if it becomes absolute. The core challenge of Administrative Law is to
ensure this power is used fairly and not arbitrarily (like a personal whim).

2. Meaning and Definition of Discretion

A. General Meaning (Layman's View)
 • Definition: The power to decide or act according to one's own judgment
or impulse. In its purest form, it's a completely free and unrestricted
choice.
• Analogy: A child choosing what game to play from many options—the
choice is purely personal.
B. Legal/Administrative Meaning (The Controlled View)
• Definition: Administrative discretion is the power to choose between
various alternatives, but this choice must be guided by the rules of
reason, fairness, and justice, not personal fancy.
• Focus: It must be legal and regular. The official must act on sound
principles, taking relevant factors into account and ignoring irrelevant
ones.
• Crux (Kenneth Culp Davis): "Where law ends, discretion begins, and
the exercise of discretion may mean either beneficence or tyranny, either
justice or injustice, either reasonableness or arbitrariness." This highlights
the need for control.

3. Discretionary Powers: Why They are Given

Discretionary powers are not granted by accident; they are a deliberate necessity
for good governance.

Reason Explanation (Easy Language)

Modern government handles vast, technical matters (e.g.,

setting pollution control standards, managing trade). A
Complexity of
single law can't provide the perfect answer for every town
Issues
or factory. Discretion allows experts to make technical
judgments.

A crisis (like a pandemic or natural disaster) demands

Flexibility and immediate action. Officials need the freedom to respond
Speed quickly without waiting for the legislature to pass a new,
specific law.

Individualizing Applying the same rule rigidly to everyone, regardless of

Justice their unique circumstances, can lead to injustice. Discretion
Reason Explanation (Easy Language)

allows officials to tailor a solution to a person's or case's

specific facts.

Lawmakers cannot predict every future problem.

Unforeseen Discretion allows the administration to effectively deal
Circumstances with issues that were not specifically covered or anticipated
by the original law.

4. Judicial Control Over Discretionary Power

The Judiciary (Courts) acts as a "watchdog" to prevent the administrative
power from turning into tyranny. They use the power of Judicial Review to
check the legality of the decision-making process.
A. Grounds for Judicial Review (When the Court Intervenes)
Courts intervene when the administrative authority commits an error under two
main heads:
I. When Discretion is Not Exercised at All (Non-application of Mind)
The authority failed to use the power as intended by the law.
• 1. Acting Under Dictation:
o The authority does not make the decision itself but acts solely on
the order or pressure from a superior officer or political leader.
o Example: A local officer has the power to issue a license but
refuses because the Chief Minister's assistant told him to. The court
says the officer hasn't exercised his discretion.
• 2. Improper Delegation (Sub-delegation):
o The authority to whom the power was given hands it over to a
subordinate official without legal permission.
o Principle: "A delegate cannot further delegate" (Delegatus non
potest delegare).
• 3. Self-Restriction (Fettering Discretion):
 o The authority adopts a rigid internal policy and refuses to
consider any exceptions, essentially blocking itself from using its
actual discretionary power for a deserving case.
II. When Discretion is Abused or Exercised Improperly (Abuse of Power)
The authority technically used the power but did so wrongly.
• 1. Mala Fide (In Bad Faith):
o The power is used with a dishonest or malicious intention (e.g.,
punishing a personal enemy, granting a favor to a friend). The
action is driven by an illegal or secret motive.
• 2. Irrelevant Considerations:
o The authority bases its decision on factors that have nothing to do
with the purpose of the law.
o Example: Denying a business permit because the applicant belongs
to a certain political party (political affiliation is an irrelevant
factor).
• 3. Leaving Out Relevant Considerations:
o The authority fails to take into account facts or information that
are legally required or essential for a fair decision.
• 4. Improper Purpose (Collateral Purpose):
o The power is used for an unauthorized goal, even if the action
itself seems lawful.
o Example: Using the power to acquire land for a "public purpose"
(as written in the law) but secretly acquiring it to give it to a friend
for a private business.
• 5. Unreasonableness (The Wednesbury Test):
o The decision is so outrageous, illogical, or absurd that no
sensible person acting reasonably could have arrived at it. It's a
very high standard to meet.
B. Limits of Judicial Control
• No Appeal: Courts do not substitute their judgment for that of the
administration. They cannot say, "I think this person deserves the
 license." They can only say, "The way you reached the decision was
illegal, so you must make it again properly."
• Focus on Process: The court reviews the legality of the decision-
making process, not the merits or correctness of the decision itself.