Kerala Lokayukta to resolve dispute

The controversy surrounding an amendment to Kerala’s Lokayukta Act – effected through an ordinance – has raised the political temperature in the state, with the opposition accusing the government of trying to dilute the powers of the Lokpal. On the other hand, the government claims that through the amendment, a provision in the Act which is unconstitutional has been extended as it empowers the Lokpal to direct the governor to remove a chief minister or minister if found guilty. Of corruption. The issue has sparked a noisy media debate in the state, which has, in fact, generated more heat than light. The Lokayukta has expressed displeasure over the attempt to take away some of its powers indirectly.

background

There has always been a heated debate in the country over the Lokpal-Lokayukta issue. In fact, the term was first used in 1966 in a report of the Administrative Reforms Commission headed by Morarji Desai. By then political corruption was rampant and it was thought that a credible system of a Lokpal should be put in place for redressal. Public grievances against government officials and government ministers. The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House. The idea of ​​Lokpal has a long journey; Finally, after 45 years, the Lokpal and Lokayuktas Bill was passed by Parliament in 2013. Anna Hazare’s movement and the active participation of civil society created a lot of moral pressure on the government, which eventually led to the passage of the bill.

To get a clear view on the Kerala Lokayukta controversy, it is necessary to understand the scheme of Lokpal and Lokayukta Act enacted by the Parliament. The long title of the Act says: “An Act to establish a body of Lokpal for the Union and Lokayukta for the States to inquire into allegations of corruption against certain public functionaries…” Thus, the Lokpal was conceived. as a body that will investigate allegations of corruption. It is basically an investigative body whose function is to conduct speedy and fair investigation and prosecution of corruption cases.

a thread with the judiciary

However, the Lokpal is not an ordinary investigative body. It is presided over by the current Chief Justice of India or retired judge. It has eight members, of whom four are judicial members. Thus the whole system is surrounded by judges or judicial men. The Lokpal has an investigation wing and a prosecution wing to deal with investigation and prosecution respectively. Based on the findings of the Lokpal, the Director of Prosecution filed the case in the Special Court.

The Lokpal has jurisdiction to investigate allegations of corruption against the Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officials and Central Government officials. After the conclusion of the investigation, the Lokpal can file a case in the special court if the findings reveal an offense under the Prevention of Corruption Act by the Prime Minister, Ministers or Members of Parliament. However, the Lokpal does not have the power to ask the President to remove the Prime Minister or the Minister from office.

The Lokpal and Lokayuktas Act empowers the states to establish Lokayuktas by law to deal with complaints related to corruption against public functionaries. Some states have already established Lokayuktas. For example, Maharashtra in 1971 and Kerala in 1999.

In Kerala, the impact

Now, in the backdrop of the Lokpal Act, let us examine the Lokayukta controversy in Kerala. Section 14 of the Act, which has now been amended, states that if the Lokayukta is satisfied on a complaint against a public servant that he should not continue in his office, he shall make a declaration to that effect in his report. to the competent authority who will accept the same and act on the same. In other words, if the public servant is the Chief Minister or a minister, he will immediately resign from his post. It may be noted here that such a provision does not exist in any law of the State or the Lokpal Act of the Centre.

This provision in state law has serious legal and constitutional implications. Two important points need to be made here. One, an inquiry body does not have a legal authority to direct a public servant to resign from his post on the basis of its findings. It can only present its findings to the competent authority or, as provided in the Lokpal Act, file a case in a special court. The Lokayukta is basically an investigative body with certain powers to investigate matters related to the Prevention of Corruption Act. The only feature of this body is that it is headed by a retired judge of the Supreme Court or a retired Chief Justice of a High Court. But this does not change the basic character of the Lokayukta as an investigative body. It does not and cannot exercise the powers of the High Courts which alone can issue such directions in the nature of a writ.

Second, the Chief Minister or Minister holds office during the pleasure of the Governor (Article 164). The Constitution of India does not consider any external pressure on the Governor to withdraw his pleasure. The Sarkaria Commission had suggested that the governor can dismiss a chief minister only if he loses his majority in the assembly and refuses to step down. The Supreme Court has accepted this recommendation of the Sarkaria Commission. Another occasion when the Governor can withdraw his pleasure is when the Chief Minister is disqualified from being a member of the House because of his conviction in a criminal case and a sentence of not less than two years’ imprisonment. In other words, a Chief Minister cannot be asked to resign if he gets a majority in the House. The Governor, being a higher constitutional authority, cannot be bound by law to act in a particular manner so far as his constitutional duties and functions are concerned. No agency created by law made by the Legislative Assembly, especially an investigative body, may declare that it shall be decided by the Governor. This would be a violation of the constitution.

Thus, Section 14 of the Kerala Lokayukta Act, 1999 had serious legal loopholes and it is only appropriate that the then Government reconsidered this provision. However, the bill to replace the ordinance is yet to be brought before the assembly.

provisions that are controversial

There are also some other provisions which may not come under the purview of legal scrutiny. For example, the definition of ‘public servant’ in this law includes office-bearers of political parties. The Lokayukta Act was enacted to investigate cases of corruption of public functionaries like ministers, legislators, etc., which are covered under the Prevention of Corruption Act. Officials of political parties are not included in the definition clause of this Act. Basically, the Prevention of Corruption Act deals with corruption in the government and allied agencies, statutory bodies, elected bodies, etc. The office bearers of political parties do not come under the purview of this law. Therefore, it is difficult to understand how they can be brought under the ambit of the Lokayukta Act.

Another problematic provision in this Act relates to the report of the Lokayukta (Section 12). It said that the Lokayukta, upon confirmation of the allegations of corruption, shall send the findings along with a recommendation of action to the competent authority, which is required to take the action recommended by the Lokayukta. It further states that if the Lokayukta is satisfied with the action taken by the competent authority, he shall close the matter. The question is how the Lokayukta can close a corruption case which is a criminal case and carries an imprisonment of three to seven years. The Lokpal after investigation files the case in the court. There is no such provision in the central law under which the Lokpal can close the matter before it reaches the court. The Lokayukta does not have the legal capacity to close corruption cases under any circumstances as there is no court.

In fact the entire controversy could have been avoided had there been an objective and impartial analysis of this law by all the stakeholders. The issue has effectively been cornered by Ballyhoo by television channels. The target rating point of channels has definitely increased but the public has not become wiser. The Kerala Lokayukta Act should be re-examined by a committee of the Legislative Assembly and brought at par with the Lokpal Act. A law that seeks to punish corrupt public functionaries must be placed above controversies.

PDT Acharya is former Secretary General of Lok Sabha