The proposed ordinance comes at a time when complaints of several irregularities against the LDF government are pending before the Lokayukta, including allegations against CM Pinarayi Vijayan and Minister R Bindhu.

Kerala CM Pinarayi Vijayan against the backdrop of the state Assembly building
news Governance Thursday, January 27, 2022 - 15:42

In a cabinet meeting convened on January 19, the CPI(M)-led Left Democratic Front (LDF) government in Kerala promulgated an ordinance to make certain amendments to the Kerala Lokayukta Act, 1999. The state government reportedly made no mention of the ordinance in the cabinet brief it issued later. However, it did eventually come to light and has now raised a furore in the state. According to reports, the proposed ordinance — Kerala Lok Ayukta (Amendment) Ordinance, 2021 — has provisions, inter alia, to cut down the powers of the anti-corruption agency to merely advisory in nature and relax the qualification of the Lokayukta.

The Lokayukta is an autonomous anti-corruption agency formed to keep a check on corruption in the government. It is an Ombudsman type of institution “to investigate the grievances of the public about administrative wrongs and excesses.”

The state Congress and BJP charged that the proposed ordinance was an attempt to undermine the powers of the ombudsman, that is Lokayukta, and facilitate corruption in the government. Former Opposition leader and Congress veteran Ramesh Chennithala alleged that the CPI(M), which had campaigned for strengthening anti-corruption measures through systems like Lokpal, is now trying to clip the wings of the state Lokayukta. Appealing to Governor Arif Mohammed Khan to not give assent to the ordinance, Opposition leader VD Satheesan sent a letter saying the move was to “water down” the powers of the Lokayukta.

“To kill is easy, but to give life is difficult. If the powers are tweaked, the best thing is to dissolve this institution as it costs a huge sum of money to the exchequer. And to keep it going without powers is of no use, hence it is better to wind it up,” former Kerala Upa Lokayukta (retired Justice) KP Balachandran told the media, criticising the tweaking of the powers of the Lokayukta.

However, Kerala Law Minister P Rajeev, on Tuesday, January 25, said that the amendments are aimed at bringing the anti-corruption body on par with those in other states. “The first Pinarayi Vijayan government had taken up the issue, but now the advocate general has said that the present powers of the Lokayukta 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. Based on all this, the amendment to the Kerala Lokayukta Ordinance was sent to the Governor,” Rajeev told the media.

Incidentally, the ordinance comes at a time when complaints of several irregularities of the government are pending before the Lokayukta, including the allegations against Kerala Chief Minister Pinarayi Vijayan and state Higher Education Minister R Bindhu. While the CM is accused of misusing funds, the Education Minister is accused of using her power to recommend her kin as the Kannur University’s Vice-Chancellor.

So what are the Lokayukta’s current powers and what are the proposed amendments? Here’s an explainer.

Lokayukta’s current powers

Any citizen can bring grievances or complaints of corruption, nepotism, mal-administration and/or abuse of power, among others, against public servants, including the Chief Minister, MLA or a state Minister, before the Lokayukta.

To conduct the investigations and inquiries, the Governor appoints one Lokayukta (a retired Supreme Court judge or High Court Chief Justice) and two Upa-Lokayuktas (retired or serving High Court judges) on the advice of the CM and in consultation with the Speaker and the Leader of the Opposition.

Per the Kerala Lokayukta Act, 1999, the orders issued by the Lokayukta or an Upa-Lokayukta after investigation are binding in nature on the government or the competent authorities, which include the Governor, the Chief Minister or the Minister of the department concerned.

After the investigation, if the Lokayukta has found that an injustice has been caused to the complainant or if the allegation against a public servant has been wholly or partly substantiated, the competent authority should inform the former of the action taken within one month or three months respectively. These directions by the autonomous body are recommendatory in nature and are not binding on the government.

However, there is a provision in the Act that makes the directions of the Lokayukta binding. When the Lokayukta finds the public servant in question guilty of the allegations, the former will inform the Governor or the CM as a “declaration” — a declaration that the public servant is unfit to hold the post. This declaration is binding on the government, which means the Governor or the CM should accept it.

For example, in April 2021, the Lokayukta found then Kerala Higher Education Minister KT Jaleel guilty of nepotism and abuse of power, and unfit to continue in office. Jaleel was accused of appointing his relative, KT Adeeb, as the general manager of the Kerala State Minorities Development Finance Corporation. The competent authority, in this case, was the Chief Minister. In the face of mounting opposition following the Lokayukta report, Jaleel finally resigned from the state cabinet. He also challenged Lokayukta’s findings in the Kerala High Court and the Supreme Court. Both courts, however, dismissed his petitions.

The proposed amendments

One of the Kerala government’s proposed amendments bestows the competent authority — the Governor or Chief Minister or the Kerala government — with the power to overrule the Lokayukta. The Governor or CM can “accept or reject the declaration” to remove the public servant from the post. However, if it is not rejected within three months of receiving the Lokayukta report, the direction shall be “deemed to have been accepted.”

In light of this, let’s take the example of the Lokayukta inquiry into allegations against CM Pinarayi Vijayan.

A Public Interest Litigation (PIL) accused Pinarayi Vijayan of political favouritism by diverting funds under the Chief Minister’s Distress Relief Fund (CMDRF) to “ineligible persons.” The petitioner accused the CM of using emergency funds to assist those displaced by disasters to pay off debts, compensate and give financial assistance to three members associated with the CPI(M)-led LDF.

If the Lokayukta were to find Pinarayi Vijayan guilty of political favouritism and ask him to step down as the Chief Minister, the competent authority (the Governor, in this case) can give the CM an opportunity to hear him first, and then, accordingly, either accept or reject the direction. This relegates the Lokayukta direction to a recommendation.

The government also proposed an amendment to section 15 of the Act, which deals with Lokayukta’s power to initiate prosecution in case of a criminal offence against the public servant, if the investigation is substantiated. It has been proposed to omit the non-obstinate clause — “Notwithstanding anything contained in section 14” — from section 15 of the Act.

While some lawyers say that the amendment to section 14 (vacating office) will impact the powers of the Lokayukta to initiate prosecution, others argue that removing the non-obstinate clause will have no impact. “The non-obstante clause in section 15, now proposed to be removed, only means that besides the action for discontinuation in office, Lokayukta can also initiate prosecution against the public servant, upon satisfaction that he/she has committed a criminal offence,” said advocate Ashkar Khader, a Kerala High Court lawyer.

Under Section 3 (appointments) of the Act, apart from a person who has previously served as a Supreme Court Judge or Chief Justice of a High Court, a former High Court judge, too, can be appointed as Lokayukta, per the proposed amendment. “A former HC Chief Justice or an SC Judge will have minimum of 15 years of experience. Only senior judges will be CJ or in SC. That will not be the case now. Any District Judge, who gets promoted to HC and then retires, also can be a Lokayukta,” advocate Harish Vasudev told TNM.

“Weakening this provision to allow any former High Court Judge to hold office will only serve to lower the status of the state’s most significant institution,” Opposition leader Satheesan argued in his letter to the Governor.

Former Chief Minister Oommen Chandy and Ramesh Chennithala questioned the LDF government's urgency to come up with the ordinance at a time when the state Assembly is set to convene next month.

BJP state chief K Surendran alleged that the government took the hasty decision as the Lokayukta was considering some of the biggest corruption scandals against the government. “The move is the latest example of the Left government to take control of all constitutional institutions,” Surendran said.

Lawyers, too, have criticised the proposed amendment to undermine the Lokayukta power. In an interview with the Mathrubhumi, advocate T Asaf Ali, a former Special Attorney, Lokayukta, said the proposed move would essentially make the Chief Minister a "Super Lokayukta" and that it would "crucify" an anti-corruption committee like the Lokayukta. (Retired) Kerala HC Justice Kemal Pasha said that it was equal to deceiving and challenging the public.

“Lokayukta is a judicial body intended to remove any executive for corruption, including the CM. That is constitutional. With the amendment, the CM or any executive can continue in office even if the corruption is proved. This defeats the purpose of the Lokayukta Act and is a regressive legislation,” said advocate Harish.

(With input from PTI, IANS)

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