The Advocate General’s (AG) legal opinion on Kerala Lok Ayukta Act amendment, which the State government used to promulgate an Ordinance to curtail the Lok Ayukta’s powers, says that Section 14 of the Act violated Articles 163 and 164 of the Constitution and hence the Section requires amendment.
Chief Minister Pinarayi Vijayan placed the legal opinion on the table of the Assembly on Wednesday.
According to the legal opinion given to the government in April 2021, an anomalous situation may arise if a declaration is made against a member of the Council of Ministers of the State by the Lok Ayukta in terms of Section 14, read with 12(3) of the Act. As per Section 14, if the Lok Ayukta or Upa Lok Ayukta is satisfied that the complaint involving an allegation against a public servant is substantiated, he or she should not continue to hold the post. It also says that the competent authority, be it the Governor or the Chief Minister or the government, shall accept the Lok Ayukta's declaration to this effect under Section 12(3).
According to the AG, this goes against Article 163 of the Constitution, which provides for a Council of Ministers to aid and advice the Governor, with the Chief Minister as its head, and Article 164, which provides that the Chief Minister shall be appointed by the Governor, the other Ministers by the Governor on the advice of the Chief Minister and that the "Ministers shall hold office during the pleasure of the Governor."
The AG argues that when the Constitution mandates that a Minister shall hold office during the pleasure of the Governor, Section 14 of the Act, on the contrary, provides that a Minister shall vacate office if directed by the Lok Ayukta.
"A statutory provision cannot override a constitutional provision. Section 14 of the Act, in so far as its application to a member of the Council of Ministers of the State is concerned, is apparently in conflict with Articles 163 and 164 of the Constitution. Therefore, in my view, Section 14 of the Act requires amendment," the AG says.
He further writes that many of the similar Acts pertaining to Lok Ayukta in other States do not have such a mandatory provision of there being consequential vacating of office on declaration by the Lok Ayukta. On the contrary, such Acts provide for discretion on the part of the competent authority to accept or reject such a report.
