In kicking up controversy over removal of unconstitutional provisions of Lokayukta, the Opposition is motivated by deviant interests. The opposition put up by Congress and BJP stems from refusal to understanding facts. At the minimal, they should take a look at how things are shaped in the states ruled by their governments. The proposed amendment does not diminish powers of the Lokayukta. Rather, all that the amendment seeks to do is, modify the unconstitutional provisions contained in the Lokayukta law so they comply with the constitution.
No rule or provision can run in contradiction with country’s constitution. It becomes duty of a constitutionally elected government to watch out for such defective provisions and rectify them, so they are in line with provisions laid down by the constitution.
Incidentally, the current decision has not come all of sudden. Expert legal advice toward this was received back in April of 2021 , following which, all aspects of the amendment were put to scrutiny before finalising it. Judgments from various courts, high courts and Lokpal, and Lokayukta rules of other states were studied for purpose of framing the Ordinance.
With exception to Kerala, no other state empowers Lokayukta to remove the holder of constitutional office. In the current scenario, as per section 14 of the Lokayukta law, if a legislator is found guilty of violating a rule or law, he shall be forced to leave office. There is no scope for appealing his ouster. Now that contradicts Article 164 of the constitution.
Article 13 of the Indian Constitution stipulates rules to be observed by law-making bodies. The prime mandate therein demands that all aspects of a law be examined to ensure it in no manner violates the constitution. If there exists such effect, changes must be introduced to make the erroneous law compliant with the constitution. The High Court or Supreme Court at tunes pull up such violative laws into judicial ambit and quash the rogue law or orders amendments to make them constitutional.
The Section 14 of Lokayukta law in Kerala, is one such black spot that is sought to be rectified. Hence the amendment. Incidentally, the amendment does not question authority to summon investigation, seek report or order trial against an alleged corruption.
However, as per Section 12(2) currently, if there is complaint received against a public servant or minister, Lokayukta can conduct trial of the case and can pronounce the incumbent official unfit to ineligible for his post. As per section 14, Lokayukta has powers to also submit its report - ‘unfit’ observation included - to the Governor or the Chief Minister and seek report on stipulated action. Section 14 makes it compulsory for the Governor or CM to accept its ruling all and sundry.
And, the public servant or minister pronounced guilty in this manner, has to first resign his post before being able to invoke appeal with High Court under per Article 226, over his ouster. This runs against the natural justice guaranteed by the Constitution.
As per Article 164 of the Constitution ministers are appointed by the Governor on advice of the Chief Minister. Per Article 163 of the Constitution, the office of Chief Minister and Ministers are constitutional establishments. Both the High Courts and Supreme Court have time and again clarified that removal of persons in constitutional establishments is beyond the purview of courts’ jurisdiction.
Lokayukta is neither a constitutional establishment or court with that hallmark. It is simply a statutory body created by Bill passed by the Legislative Assembly. In other words, it is a quasi-judicial system at the highest. There exist court verdicts stating how Lokayukta rulings are only recommendatory rather than binding in nature.
In any case, the Congress and BJP have no right to question the amendment. Corruption thrived unabated under Congress rule at Centre and despite wide demand to bring in Lokpal at the time, fell on deaf ears. Finally, when it did introduce the Bill, Congress excluded the Prime Minister from its ambit. In Congress-ruled states of Punjab, Rajasthan etc the norm is identical.
The Chief Minister and state Ministers there are outside the purview of Lokayukta. Punjab effected amendment in 2020 stripping Lokayukta of its power to oust the Chief Minister, MLAs and state ministers. BJP made similar amendment in states it wielded power, namely Karnataka, Gujarat and Haryana.
Even so, the amendment in Kerala does not exclude anybody from ambit of the Lokayukta. Besides, the amendment also sets a three-month deadline for settlement of a Lokayukta report, pointing to the LDF government’s commitment to ensure that Lokayukta report does not remain just that.
