The Kerala government’s decision to amend a handful of key provisions of the Kerala Lok Ayukta Act, 1999, through an ordinance—instead of presenting them for a broader discussion and voting in an imminent Assembly session—has triggered yet another political controversy in the Left-ruled State.
The Cabinet discussed the draft ordinance on January 19, and, reportedly, even before the four Ministers of the Communist Party of India (CPI), a constituent of the ruling Left Democratic Front (LDF), in the Cabinet could realise the import of the proposed amendments, the government hurriedly sent it to the Governor for his approval.
Since then, the opposition has been crying foul and imploring the Governor not to sign the ordinance. If approved, opposition leaders said, it would negate the purpose for which an LDF government enacted the Act 23 years ago, giving the quasi-judicial body the power to force a public servant to vacate office for corruption or other misdeeds. The proposed ordinance, the opposition said, would make the Lok Ayukta an ineffective advisory body, not worth the money the State spends on its upkeep.
But the State government is firm that the 23-year-old law needs amendment; it cites legal advice given by the Advocate General a year earlier that some of its key provisions go against the Constitution. The opposition argues that there have been no complaints in all the years of the Lok Ayukta’s functioning in the State regarding the provisions the government is about to revise.
The government’s counter-argument is that neither the High Court nor the Supreme Court has so far reviewed the constitutional validity of Section 14 of the Act. The fact that a constitutionally unacceptable provision continued to be a part of the Act for so long cannot be a measure of its constitutional validity, it said. Section 14 is a stringent provision that forces any public servant, be it a Chief Minister or other Ministers or government officials, to vacate office based on the findings of the State Lok Ayukta on the complaint against them.
The proposed amendments
The draft ordinance seeks to give the Governor, the Chief Minister or any other appropriate authority powers to either accept or reject the Lok Ayukta’s report to remove a public servant and, reportedly, to provide the accused person with an opportunity to be heard by them. Critics say it thus aims to reduce the Lok Ayukta’s powers and allow it merely to make recommendations or send reports to the executives in government.
P. Rajeeve, State Law Minister, told the media that the amendments aimed to bring the Lok Ayukta law on a par with those in other States. He said: “The first Pinarayi Vijayan government had taken up the issue, but now the Advocate General has said that the present powers of the Lok Ayukta stand in the way of natural justice and are also not in tune with the Constitution. Besides, there are two judgments to this effect from the Kerala High Court. The government sent the ordinance to the Governor based on all this.”
A unique law
The Kerala Lok Ayukta Act, enacted by the E.K. Nayanar government on March 4, 1999, is a unique law that LDF leaders have often hailed as one of the most effective measures against corruption, abuse of power, favouritism, nepotism and a lack of integrity and inefficiency in government. The law empowers the three-member quasi-judicial body to inquire, on the basis of complaints, into any action taken by ‘public servants’ and ensure removal of those against whom it finds the complaints to be valid.
The law has under its purview the Chief Minister, other Ministers, MLAs, Secretaries and other government servants, government and public sector officials, and persons in the service of local authorities, statutory bodies and corporations, including cooperative societies, government companies, charitable societies and universities.
The Governor can appoint only a former Supreme Court judge or the Chief Justice of a High Court as the Lok Ayukta and retired or sitting judges of a High Court as Upa Lok Ayuktas. The Act also states that these appointments should be made on the advice of the Chief Minister and in consultation with the Speaker of the Assembly and the Leader of Opposition.
They can be removed from office only by an order of the Governor on the basis of a decision of the Assembly supported by a majority of the total members of the House and by not less than two-thirds of the members of the Assembly present and voting, and on the grounds of “proved misbehaviour or incapacity”. The general consensus so far was that these were well-thought-out provisions included in the Act to ensure the independent functioning of the body.
According to Section 12 of the Act, if the Lok Ayukta or Upa Lok Ayukta finds that a public servant’s action has resulted in injustice or undue hardship to the complainant or any other person, they shall first give a report to the competent authority that such injustice or hardship shall be remedied or redressed in a manner specified in the report.
If, however, the Lok Ayukta or Upa Lok Ayukta is satisfied that the complaint against the public servant is substantiated and that he should not continue to hold his post, then under Section 14—perhaps the most powerful provision in the Act—they can direct the public servant to resign or vacate office through a report sent to the competent authority.
Moreover, under Section 15, “notwithstanding anything contained in Section 14”, the Lok Ayukta or Upa Lok Ayukta can initiate prosecution of a public servant in a court of law by filing a report or a complaint before the court to take cognisance of a criminal offence committed by a public servant.
The government’s argument
The State government and the Communist Party of India (Marxist), which leads the ruling LDF, claim that Section 14 of the Lok Ayukta Act violates Articles 163 and 164 of the Constitution by allowing the removal of a Minister appointed by the Governor as per the Constitution “without even a provision for appeal against the Lok Ayukta’s direction”.
It proposes to amend the Act so that the Governor, the government or any other respective competent authority can review the Lok Ayukta’s inquiry-based report on the complaint. It also proposes to downgrade the Lok Ayukta’s status by allowing a retired High Court judge to head the body instead of a retired Chief Justice of the High Court or former Supreme Court judge as mandated by the original Act.
Article 163 requires that there shall be a Council of Ministers, led by the Chief Minister, to aid and advise the Governor in exercise of his functions. Article 164 allows the Chief Minister, appointed by the Governor, and other Ministers, appointed by the Governor on the advice of the Chief Minister, “to hold office during the pleasure of the Governor”.
The State government argues that according to Articles 163 and 164 of the Constitution, which, among other things, say the Chief Minister and other Ministers shall hold office during the pleasure of the Governor, it would not be proper to allow the removal of a Chief Minister or a Minister based on a Lok Ayukta decision.
But the opposition argues that a Minister will have to vacate office if a High Court issues a writ of quo warranto against the Minister. Therefore, there is no merit in the government’s argument that a Lok Ayukta order is unconstitutional, it says.
The government denies this argument, pointing out that at least a couple of High Court orders have said that a writ of quo warranto issued by the High Court will not stand against a Minister appointed “at the pleasure of the Governor and on the advice of the Chief Minister”.
The main contention of the critics, including those in the opposition United Democratic Front and the Bharatiya Janata Party and a number of legal experts, is that making the Chief Minister, who heads the Council of Ministers, and the Governor, who acts on the advice of the Council of Ministers, as the appellate authority to judge a Lok Ayukta verdict against a Minister or the Chief Minister goes against the fundamental principle that “no one should be a judge in his own case”. They also say that even if the Act of 1999 needs to be amended, the right way would have been for the government to introduce an amendment Bill in the Assembly.
Oommen Chandy, Ramesh Chennithala, V.D. Satheesan and other opposition leaders have also been asking the State government to explain the urgent situation for it to come up with such a draft ordinance when the Assembly was about to meet within a few weeks, in February itself.
Last April, during the fag end of the first term of the Pinarayi Vijayan-led LDF government, K.T. Jaleel, the then Minister for Higher Education and Welfare of Minorities, was forced to resign after the Lok Ayukta found him guilty of abusing the power of his office by appointing a relative as the general manager of the State Minorities Finance Development Corporation. The Kerala High Court, and later the Supreme Court, upheld the Lok Ayukta’s findings, and the Chief Minister was forced to ask Jaleel to step down.
Significantly, there are complaints pending before the Lok Ayukta against R. Bindu, the current Higher Education Minister, and Chief Minister Pinarayi Vijayan. Former Opposition Leader Ramesh Chennithala has filed a complaint against Bindu over her alleged illegal interference in the reappointment of the Kannur University Vice Chancellor. The complaint against the Chief Minister accuses him of political favouritism in sanctioning emergency funds from the Chief Minister’s Distress Relief Fund to “ineligible persons” (allegedly, some members associated with the ruling Front).
Opposition leaders allege that the government is rushing through with the ordinance because it fears an adverse verdict from the Lok Ayukta on these complaints. CPI(M) leaders, however, deny this.
Jaleel, now an LDF MLA, has added a jarring note to the entire controversy by making allegations against Justice Cyriac Joseph, the current Lok Ayukta, in a series of Facebook posts. The allegations relate to a High Court judgment jointly authored by Cyriac Joseph and the then Chief Justice. The BJP has said it will soon file a contempt of court petition against the former Minister. The CPI(M) has not come out openly in support of Jaleel.
At the time of writing this report on February 2, the Governor was yet to give his sanction for the ordinance. Therefore, the State Cabinet had kept on hold a decision on when the Assembly session, proposed to begin on February 18, should be held. The opposition has announced it will approach the court if the Governor approves the ordinance. The CPI, a major coalition partner of the CPI(M), also criticised the government move to issue an ordinance when the Assembly session was just around the corner.