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Kerala: Ordinance to Dilute Lokayukta Powers

In recent years, the Indian legal system has acknowledged multiple anomalies in the legislative framework and has taken a constructive and a progressive approach to enhance accountability and greater public protection. Although corruption and malpractice exist practically everywhere, we cannot afford for it to become more ubiquitous with each day.

The recent Kerala ordinance amending the Kerala Lokayukta Act (1999) undermines the spirit of a Lokayukta's value and dramatically distorts the balance of powers between the judiciary and the legislature. Such an upset in a well-defined system of checks and balances may have profoundly distressing repercussions, discrediting the notion of constitutionalism and the separation of powers.

The new ordinance, which was submitted and endorsed by the Chief Minister, Pinarayi Vijayan's Cabinet, presently awaits Governor approval. The ordinance attempts to severely inhibit the powers of a Lokayukta by downgrading it from a Dependable Watchdog to a Trifling Puppy. The ordinance dramatically confines the authority of a Lokayukta by narrowing its function to that of an advisory institution. The amendment proposes to authorize the government to approve or disapprove the Lokayukta's finding after offering a chance to be heard. According to the proposed ordinance, the Lokayukta would only be able to formulate suggestions or provide recommendations to the government. The modification renders the legislature the final decision-making body, compromising the rationale of the Lokayukta's existence.

The Lokayukta is a statutory body tasked with probing complaints against public servants, including the Lokayukta chairperson and members. They serve as an "Ombudsman”, investigating bribery charges and other misconduct against specific public authorities and other relevant issues.

The First Administrative Reforms Commission advocated in 1966 the establishment of two independent agencies, one at the federal and one at the state level, to investigate complaints against public officials, including Members of Parliament. The Commission to Review the Working of the Constitution, led by M.N. Venkatachaliah, proposed the establishment of Lokpals (at the Central Level) and Lokayuktas (at the State Level), in 2002. In 2011, the grassroots movement "India Against Corruption" organised by Anna Hazare exerted pressure on the Centre's administration, resulting in the enactment of the Lokpal and Lokayuktas Bill, 2013. Section 43[1] of the bill mandated the establishment of Lokayukta’s at every State, through a legislation by the relevant State and the freedom was given on the method of regulation to the respective states. Once appointed, the Lokayukta cannot be dismissed or removed by the legislature. He may only be removed by the state assembly approving an impeachment resolution.

The Governor of the State appoints the Lokayukta. He is appointed by the Chief Minister, with the Chief Justice of the State High Court, the Leaders of the Opposition in the Legislative Assembly and Legislative Council, the Chairman of the Legislative Council, and the Speaker of the Legislative Assembly in agreement. For the position of Lokayukta, a retired Chief Justice or Judge, or a retired judge of the High Court, is eligible. In that sense, a Lokayukta may be pictured as a quasi-judicial body that monitors and ensures the government's transparency. It's reasonable to assume that such a thorough vetting mechanism was put in place to bolster public confidence.

Previous instances have demonstrated the power of Lokayukta in curbing misconduct and preventing injustice. A public officer is obligated to relinquish office if the Lokayukta decrees it under Section 14 of the Kerala Lokayukta Act (1999). The Supreme Court dismissed CPI(M) leader K T Jaleel's plea, which contested the Lokayukta's ruling. He was subsequently dismissed from office when the Lokayukta adjudged him to be guilty of nepotism and misusing his office's power.

The state of Uttar Pradesh proposed an amendment in 2015 that removed the High Court Chief Justice from the selection committee. This followed Justice D Y Chandrachud, Chief Justice of the Allahabad High Court (2015), objecting to the decision to designate Justice Ravindra Singh as Lokayukta, noting his close ties to the formerly ruling Samajwadi Party.

The amendment to the Kerala Ordinance comes at a time when the Chief Minister is accused of misappropriation of funds from the Chief Minister’s Disaster Relief Fund, investigation for which is running in the Kerala Lokayukta. In addition, proceedings have been instituted in the Lokayukta against Higher Education Minister, R Bindu for her alleged illegal interference in the re-appointment of Kannur University's vice-chancellor.

The law minister defended the amendment to the Kerala Lokayukta Act, 1999, alleging that it infringed Sections 163 and 164 of the Constitution. This argument, however, holds scant merit and is built on shaky grounds.

To be effective today, the fight against corruption must include a thorough overhaul of our political, legal, administrative, and judicial institutions, rather than one-time or piecemeal initiatives. The advancement of an extensive and well sustained Lokayukta is a commendable step. Limiting a Lokayukta's authority undoubtedly sends a negative message and indirectly supports legislative primacy. Does such a retrograde move not convey the opposite image in modern times, when we are starting to take comprehensive measures to progress forward?

[1] “Every state shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature”

This article is written by Vikram Krishnan of Tamil Nadu National Law University.

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