On February 5, 2022, the Governor of Kerala, Arif Mohammed Khan gave his assent to the controversial Kerala Lok Ayukta (Amendment) Ordinance, 2022, to amend the Kerala Lok Ayukta Act of 1999. However, the Lok Ayukta has indirectly expressed its resentment over the attempt to take away some of his powers. The amendment takes away Section 14 of the Kerala Lok Ayukta Act, under which a public servant was required to vacate the office immediately if indicted by the Lok Ayukta. After the amendment, the Lok Ayukta has only recommendatory authority, not a mandatory jurisdiction. Now, the verdict of the Lok Ayukta can be accepted or rejected by a competent authority constituted by the executive. In other words, the state government would, have the power to either accept or reject the verdict of the Lok Ayukta.
The amendment has also done away with the requirement of appointing retired Supreme Court judges or former chief justice as Lok Ayukta and has allowed the appointment of retired high court judges to the post.
Kerala Lok Ayukta Act
The Lok Ayukta is one of the strongest anti-corruption bodies of the country. The Kerala Lok Ayukta Act was enacted by the Communist Party of India (Marxist) [CPI(M)] government led by the then Chief Minister, E. K. Nayanar, in 1999 to check corruption. All posts were included under its ambit.
Implications of the Act Under Section 14 of the Act, even if the public servant is the chief minister or minister, he shall immediately resign if found guilty of corruption by the Lok Ayukta. This provision in the act has legal and constitutional implications. Following two points can be noted in this regard:
- According to the Lokpal, the investigative authority does not have the legal authority to direct the public servant to resign from the post on the basis of its findings. The Lok Ayukta is an investigative body with certain powers to investigate into cases relating to the Prevention of Corruption Act. Though it is headed by a retired Supreme Court judge or a retired chief justice of a high court, it does not and cannot enjoy the powers of the higher courts to issue such directions in the nature of writs.
- The Article 164 of the Constitution addresses the ministers’ appointment, tenure, responsibility, qualifications, oath, and salaries and allowances. The chief minister or minister holds office during the pleasure of the governor. The Constitution of India does not contemplate any external pressure on the governor to withdraw his pleasure. The governor cannot be compelled by a law to act in a particular manner so far as his constitutional duties and functions are concerned. No investigative agency created by a law made by the assembly, has the power to declare that its decision be carried out by the governor. It would amount to a violation of the Constitution.
Thus, Section 14, of the Kerala Lok Ayukta Act, 1999 is said to have serious legal infirmities. However, the bill is yet to be brought before the state assembly to replace the ordinance.
Contentious Provisions of the Act
- The Lok Ayukta Law was enacted to inquire into cases of corruption of public functionaries such as ministers, legislators, etc., who are covered by the Prevention of Corruption Act. However, this act does not include the office-bearers of political parties in its definition clause. The Prevention of Corruption Act deals with corruption in the government and allied agencies, statutory bodies, elected bodies, etc. The functionaries of political parties do not come within the ambit of this law. Hence, it would be difficult to understand how they could be brought within the sweep of the Lok Ayukta Act.
- According to the Section 12 of the Kerala Lok Ayukta Act, 1999, the Lok Ayukta shall, on the allegation of corruption being substantiated, send the findings along with its recommendation of action to the competent authority. The competent authority is required to take action as recommended by the Lok Ayukta. It further adds that if the Lok Ayukta is satisfied by the action taken by the competent authority, the case shall be closed. But the point is that how could the Lok Ayukta close a corruption case which is a criminal case and would invite imprisonment for three to seven years. The Lokpal files a case in the court after the investigation. There is no provision in the central law under which the Lokpal can close a case before it reaches the court. Thus, the Lok Ayukta, not being a court, does not have the legal authority to close a corruption case under any circumstances.
Kerala High Court’s Stand on the Amendment
A writ petition, opposing the amendment of Section 14 of the Lok Ayukta Act by the Kerala Government, was filed by R. Sasikumar. On February 10, 2022, the division bench of the Kerala High Court declined to stay the operation of the amendment of Section 14 of the Kerala Lok Ayukta Act brought through an ordinance. The bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, however, stated that any decisions to be taken by the Government on the orders passed by the Lok Ayukta under Section 14 would be subject to the outcome of the writ petition.
The petitioner stated that the amendment interfered with the administration of justice. Rather, it has given way to a mode of appeal on the state, which is far more dangerous than abolishing the Lok Ayukta itself. By delegating the power to the government to consider the merit of the orders by the Lok Ayukta, the legislation is interfering with the functioning of a judicial body. Besides, the amendment has granted protection to a delinquent public servant.
The petitioner also stated that it was obligatory on the part of the governor to reserve the ordinance for the assent of the president according to the mandate of the Constitution of India. Hence, the assent of the governor was invalid and opposed to the constitutional scheme.
Background
In 2021, the Kerala higher education minister, K.T. Jaleel was forced to resign after the Lok Ayukta found him guilty of nepotism on the basis of lobbying for a relative to be appointed in the State Minority Welfare Corporation. He was also alleged of manipulating with some of the qualifications required for the post to fit in his kin. Though Jaleel moved to the High Court and to the Supreme Court, his plea against the Lok Ayuta’s ruling was turned down by both the courts.
Difference of Opinion Though the CPI(M) government introduced Lok Ayukta in Kerala, in 1999, it has now curtailed its powers and made it redundant justifying its action stating that political situation in the country is now different from that of the Nayanar era. Moreover, the state government is of the opinion that the existing Lok Ayukta Act denies natural justice as there is no provision even for an appeal.
In fact, at the national level CPI(M) has always been advocating for ‘strong’ and ‘effective’ Lokpal and Lok Ayuktas. It also has been demanding that all higher officials, including the prime minister, should come under the ambit of the Lokpal.
Even the allies of the ruling Left Democratic Front (LDF) have expressed their reservation over the ordinance and expressed their dissent over the Governor of Kerala’s assent. The allies stated that no discussion was held on this issue, and the Chief Minister of Kerala should have waited and discussed this issue in the assembly session. The Congress has also criticised this decision of the Kerala government saying that “both the BJP and the CPI(M) have arrived at an understanding to help each other to weaken the Congress”. CPI leader Kanam Rajendran, partner of ruling LDF, even said that the governor might have been convinced about the urgency behind the ordinance.
Justification by the Kerala Government As per the Kerala Government, there have been two high court verdicts which stated that the Lok Ayukta has only recommendatory jurisdiction and not mandatory one. There was also legal advice that Section 14 of the Lok Ayukta Act is against Article 163 of the Constitution (status of the council of ministers), and Article 164 (ministers’ appointment, tenure, responsibility, qualifications, oath, and salaries and allowances). The government said that the Lok Ayukta infringes upon the rights of the Cabinet. Besides, the government pointed out that states have the autonomy to frame their own laws. Also, the Lok Ayukta’s powers vary from state to state on various aspects, such as tenure and need of sanction to prosecute officials.
Lokpal/Lok Ayuktas term was first used in a report of the Administrative Reforms Commission, led by Morarji Desai, in 1966. The first bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed because of the dissolution of the lower house. Then after 45 years, the Lokpal and Lok Ayuktas Bill was passed by Parliament in 2013. The Act provides for the establishment of a body of Lokpal for the Union and Lok Ayukta for states to inquire into allegations of corruption against certain public functionaries. Lokpal is not just an investigative body. It is headed by the incumbent Chief Justice of India or a retired judge of the Supreme court. The Lokpal consists of not more than eight members, of which 50 per cent are judicial members and 50 per cent are from scheduled castes, scheduled tribes, other backward classes, minorities or women. The Lokpal has an inquiry wing and a prosecution wing to deal with investigation and prosecution respectively. The director of prosecution files the case in the special court based on the findings of the Lokpal. The Lokpal has jurisdiction to inquire into allegations of corruption against the prime minister, ministers, members of parliament (MPs) among other central government officials. After the investigation, the Lokpal may file a case in the special court. However, the Lokpal does not have the power to ask the President of India to remove the prime minister or a minister from the office.
The Lokpal and Lok Ayukta Act delegates the power to states to establish by law the Lok Ayukta to deal with complaints related to corruption against public functionaries. States like Maharashtra and Kerala established their Lok Ayuktas in 1971 and 1999 respectively. Today, almost all the states have their own Lok Ayuktas. There are no Lok Ayuktas in Jammu & Kashmir and Puducherry. Those states which have Lok Ayuktas have their own rules and regulations in that regard.
Conclusion
The whole controversy on the amendment of Section 14 of the Kerala State Lok Ayukta Act, 1999, could have been avoided if an objective and dispassionate analysis of the law had been made by all the stakeholders. The act should be re-examined by a committee of the Kerala Assembly and should be brought on par with the Lokpal Act.
© Spectrum Books Pvt Ltd.