September 11, 2022

Why Lok Ayukta Amendment?

P Rajeeve

THE Kerala Assembly has passed the Lok Ayukta Amendment Bill after detailed discussions. The assembly came to the general point of view that the bill has constitutional and legal validity. This bill has been formulated as per the provisions of the Central Lokpal Act and the State Lok Ayukta Model Bill by upholding the provisions of the constitution. As per the Lok Ayukta Act, this system will be responsible for investigations and inspections. This has been clearly stated in the preamble of the bill.

The Central Lokpal and the Lok Ayukta in various states are investigative agencies according to respective laws. Therefore, there are no clauses necessitating punishment or its mandatory implementation. Even the Jan Lokpal Bill introduced as part of Anna Hazare’s anti-corruption movement did not have clauses similar to the 14th clause in Kerala’s Lok Ayukta Bill. In Sweden, where the Ombudsman system came into place for the first time and also in other countries which later adopted this system, Ombudsman functions as an investigating agency with powers to only give recommendations.

 It is in this context, that the 14th clause of the pre-amended Kerala Lok Ayukta Act attains significance. The Lok Ayukta had been given the power to pronounce that the chief minister and ministers should step down, if necessary. Moreover, there was a mandatory provision in the Act that stipulates that this should be implemented with immediate effect.  Such an illegal right to investigate, punish and ensure compulsory implementation is not granted to any similar system anywhere in India or for that matter anywhere in the world. The chief minister holds his office based on the majority in assembly. The ministers hold their office during the pleasure of governor. This, in fact, means the pleasure of the governor is based on the recommendation of the chief minister. As long as this provision prevails, no court of law can pass a judgment to step down. This has been amply made clear on several occasions by the highest courts of the country. Therefore, the assembly has only acted upon its responsibility to bring changes to clauses that are evidently unconstitutional, illegal and outside the purview of the law. The power to declare an act as ultravires rests with the judiciary. But, if an act is found to be the same, the legislature has the power to amend it or repeal it.

The Amendment bill has set assembly as the competent authority in the case of the chief minister, chief minister in the case of ministers and speaker in the case of MLAs. This is similar to Lokpal. In the case of the prime minister, the competent authority is the Lok Sabha, in the case of union ministers, it is the prime minister and in the case of MPs, it is the Lok Sabha speaker and the Rajya Sabha chairman. As per the 24th section of Lokpal, the Lokpal report must be submitted to the competent authority. This has been stipulated so since the prime minister has to prove his majority in the Lok Sabha. These have all been set as per provisions of the constitution.

As per the model Lok Ayukta Act, the competent authority should inform Lok Ayukta regarding the action taken within 90 days. The same provision has been included in the 14th clause. There is an additional provision which states that if the recommendation is not acted upon, the reason for the same should be notified to the Lok Ayukta. In section 36 of the Lokpal Act, with regard to the corruption by government officials, along with the clause that the recommendation shall be implemented, it has also been stated that, if failing to do so, the reason for the same shall be given in writing. The provision which is binding only to the government officials has been made applicable to chief minister and ministers.

One important thing to be noted is that Lokpal does not have the authority to give direction to remove prime minister or ministers from office. However, the Lok Ayukta Amendment Bill grants authority to the Lok Ayukta to give recommendations that the chief minister or ministers do not deserve to hold office. Such a bill does not exist in any other state, except in Karnataka. And in Karnataka, it has been laid down that the competent authority can either accept or reject the recommendation.

The opposition argued that Lok Ayukta has judicial authority and with the amendment, the executive is turning to be the appellate authority for judicial decisions and therefore it is unconstitutional. However, in the State of Kerala vs Bernard (2002 KHC 765), division bench including Justice Sreekrishna and Justice Sivaraman ruled that Lok Ayukta is only an investigating agency and it does not wield the power to pass judgment or insist upon its implementation. The High court has made it unequivocally clear that Lok Ayukta is not equivalent to the court of law. The court ordered that “A survey of relevant provisions leads us to the conclusion that, barring the area of investigation of a complaint involving allegation, which in other words means, a complaint made with regard to corruption, improper motives, nepotism, favouritsm etc., as defined in the expression allegation in S.2(b) and covered by S.14 of the Act, the Lok Ayukta has neither any adjudicatory power nor the power to enforce his recommendation or finding. In fact his role is confined to making a report or recommendation. He has no power of execution of his orders. In fact, it would be inappropriate to call the report/recommendation made by Lok Ayukta as an order. Though the Lok Ayukta has been invested with certain powers of the civil court for the purpose of enabling him to conduct the investigation with grater efficacy, we do not think that thereby the Lok Ayukta can be equated to a court”. In the case of K T Jaleel, only matters related to appeal were evaluated. Neither the Bernard case verdict was mentioned in this case nor were the fundamental observations in the Bernard case withdrawn.

The opposition also raised the argument that the system would have judicial powers because it was led by retired judges.  The fundamental issue is not who sits where but under what rules.  It is for this reason that the orders of the Human Rights Commission and Commissions under the Commission of Inquiry Act, which are chaired by a person who was the chief justice of Supreme Court and included with former Supreme Court judges, are not judicial orders. 

During the tenure of A K Antony as chief minister, questions arose about whether an amendment is required to give judicial authority to Lok Ayukta. But, A K Antony ministry decided against it upon the recommendation from the law department that such a move will be an infringement upon the powers of the judiciary. It is because Lok Ayukta does not have the constitutional and legal authority to take judicial decisions, that higher courts are not deemed as appellate authorities of Lok Ayukta.

Lok Ayukta has the right to send reports and recommendations. Additionally, as per section 15, if Lok Ayukta finds corruption, it has the power to give prosecution to any court. In 2013, once the Lokpal Act came into force, then home minister Ramesh Chennithala had given an answer to legislative assembly that the government intended to amend the Lok Ayukta Act in accordance with Lokpal Act. This mission has also been accomplished through this amendment.

The government has been able to expose the hypocrisy of the opposition in opposing the structuring of Lok Ayukta as a legally valid system. The Congress party had not even bothered to introduce the Lokpal Bill in Rajya Sabha after it was passed in Lok Sabha in 1968. And the Bill that was brought after four and half decades did not include prime minister in its purview. When the government was forced to include the prime minister after much pressure, a number of restrictions were placed. The provisions went on like this – the complaint against PM shall not be registered even if it may seem to affect public order; if at all the complaint is registered, the investigation shall be in camera; and if the complaint is dismissed, then the reason for the same shall not be intimated to anyone including the complainant. So the Congress party which introduced the Act, in effect, spared the prime minister. It also formulated Acts in Maharashtra, Rajasthan, Gujarat and Andhra which did not include the chief minister. Then, how ridiculous the show they put up over here is!

Even though the assembly has been fixed as the competent authority in the case of the chief minister following the example of lokpal, some are ridiculing it. In the aforementioned Bernard case, the High Court of Kerala has stated the significance of the assembly. The High Court's observation that ‘the discussions in the legislature based on Lok Ayukta report would help form public opinion’ upholds democracy. The amendment that has been passed upholding the constitution, the High Court verdict and in accordance with the objectives of the law is in fact the execution of the responsibility of the Kerala Assembly.