INTRODUCTION
Lokayuktas are regulatory bodies that are established in each state to look into corruption allegations against public officials, as envisaged under The Lokpal and Lokayuktas Act, 2013. However, Kerala (like many other states) already had a well-established Lokayukta under The Kerala Lok Ayukta Act, 1999 (hereinafter referred to as the Act). Recently, Kerala Governor Arif Mohammed Khan has assented to an ordinance that would amend the provisions of the Act. This blog would critically analyze the recent amendments to the Act by elaborating upon the repercussions of such a move. It would do so by elucidating the existing circumstances under which the amendments have been made and the problem with these amendments. It would also look into the justification for the amendments while comparing these amendments with the prevailing law in other states and looking into recent Supreme Court and High Court judgments upon the same. It would then suggest a possible policy change on the same before finally concluding the blog.
THE AMENDMENT
The Ordinance seeks to amend S.14(1) of the Act which states that if the Lok Ayukta is satisfied that the concerned public servant should not continue to hold his post, then the public servant has to accept the declaration of the Lok Ayukta. The amendment changes the law from “where the competent authority is the Governor, the Government of Kerala or the Chief Minister, he or it shall accept the declaration” to “either accept or reject the verdict of the Lok Ayukta after an opportunity of being heard.” This change is substantial as it reduces the power of the Lok Ayukta to merely recommendatory in nature, thus diluting its powers to bind the government with its orders.
CIRCUMSTANCES SURROUNDING THE AMENDMENT
The current amendments have received a lot of criticism from the opposition due to their particular timing. These amendments have come at a time when the Lok Ayukta has been very active in investigating corruption charges against the Kerala government. Last year, the Lok Ayukta held the then Higher Education Minister KT Jaleel guilty of nepotism. The Lok Ayukta has also ongoing investigations against Chief Minister Pinarayi Vijayan himself and current Higher Education Minister R Bindu. Reducing the Lok Ayukta’s powers to merely recommendatory in nature would certainly help the Kerala government. Another point that hints towards a political motive behind these amendments are the urgency shown by the government in bringing these amendments. The fact that the government chose to bring in an ordinance to give effect to these amendments rather than to bring in a bill in the Legislative Assembly casts doubt on the motive behind these amendments. The government should have brought in a bill in the Assembly regarding the same as it would have allowed for greater deliberation and better decision-making.
PROBLEM WITH THE AMENDMENT
The amendments are problematic not only because of their political connotation for the ruling party but also because of diluting the powers of the Lok Ayukta in general. The Lok Ayukta needs to have binding powers to effectively act as a watchdog on the government and curb corruption. The reduction of the Lok Ayukta to a merely advisory body would be against the spirit of the Lokpal and Lokayukta Act, 2013 which envisages the creation of effective bodies to curb corruption. This may also have a negative influence on the morale of the Lok Ayukta which may result in subsidized participation by the same, especially when the Lok Ayukta has been increasingly carrying out investigations into allegations against the government.
JUSTIFICATIONS FOR THE AMENDMENT
Despite the political reasons for these amendments and dilution of the powers of Lok Ayukta, they are in conformation with the powers of Lok Ayukta in other states as well as recent Supreme Court and High Court verdicts. The Karnataka Lokayukta, which is considered to be one of the most effective anti-corruption bodies, already has the same provisions in place which the Kerala government is bringing in through the amendments. The Maharashtra Lokayukta, which was the first Lokayukta in India, has also been conferred only recommendatory powers and not mandatory powers. Similarly, most of the states have only conferred advisory powers to their Lokayuktas. This reveals that the proposed amendments are actually not an aberration but the norm across states.
The Supreme Court in Chandrashekaraiah v. Janekere C. Krishna, while examining the Karnataka Lokayukta Act, 1984, held that the reports of the Lokayuktas are only recommendatory in nature and no civil consequence follows from these reports. The same was also affirmed in Bhumika Cleantech Services Pvt. Ltd. v. Lokayukta for Goa Lokayukta Act, 2011 by the Bombay High Court. This establishes that the amendments undertaken by the Kerala government are in line with recent Supreme Court and High Court judgments. One important justification for these amendments was a lack of a mechanism for appeal in the Act. The Act, before the amendment, made the order of the Lok Ayukta binding on the public servant. This order had to be accepted by the public servant without giving him the opportunity to appeal the decision of the Lok Ayukta. This was considered to be a violation of the principles of natural justice. Even though the concerned person can move the High Court and the Supreme Court for relief, these Courts are often reluctant to allow such pleas. This gives unbridled power to the Lok Ayukta which may be abused by him.
Conclusion and Suggestions
In light of the above analysis, it is clear that it was necessary to make amendments to the Act. However, the amendments made by the Kerala government are not desirable. The government rather than finding an innovative solution to the problem in the Act decided to blindly follow the law as it is in other states and reduced the Lok Ayukta to a merely recommendatory body. The main issue with the Act was a lack of provision for appeal or review of the order passed by the Lok Ayukta. This could be dealt with by providing the power to review or reconsider the order passed by the Lok Ayukta. The same was also suggested for the Lokpal at the national level by a 3 member committee to the Department of Personnel and Training (DoPT). This would effectively provide the accused a mechanism of the appeal of Lok Ayukta’s decision without reducing the anti-corruption institution to a toothless advisory body.
Author(s) Name: Paras Khetan (National Law School of India University, Bangalore)
