The controversy surrounding the amendment to the Lokayukta Act of Kerala — effected through an ordinance —has raised the political temperature in the State with the Opposition accusing the Government of trying to whittle away at the powers of the Lokpal. The Government, on the other hand, claims that through the amendment, a provision in the Act which is unconstitutional has been excised as it gave power to the Lokpal to give directions to the Governor to remove a Chief Minister or a Minister on being found guilty of corruption. This issue has sparked off a noisy debate in the media in the State which has, in fact, generated more heat than light. The Lokayukta has indirectly expressed its resentment over the attempt to take away some of its powers.
The background
The Lokpal-Lokayukta issue has always generated intense debate in the country. In fact, this term was first used in a report of the Administrative Reforms Commission headed by Morarji Desai as far back as in 1966. Political corruption had become rampant by then and it was thought that a credible system of an ombudsman should be established to redress public grievances against public officials and Ministers of the government. The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House. The idea of a Lokpal has had 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 involvement of civil society generated a lot of moral pressure on the Government which ultimately led to the passing of the Bill.
In order to get a clearer perspective on the Kerala Lokayukta controversy, it is necessary to understand the scheme of the Lokpal and Lokayuktas Act enacted by Parliament. The long title of the Act says: “An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries....” Thus, the Lokpal is conceived of as a body which will inquire into allegations of corruption. It is basically an investigative body whose task is to conduct prompt and fair investigation and the prosecution of cases of corruption.
A thread with the judiciary
However, the Lokpal is no ordinary investigative body. It is headed by the incumbent Chief Justice of India or a retired judge. It has eight members, four of whom are judicial members. Thus the whole system is studded with judges or judicial men. The Lokpal has an inquiry wing and a prosecution wing to deal with investigation and prosecution, respectively. The director of prosecution files the case in the special court based on the findings of the Lokpal.
The Lokpal has jurisdiction to inquire into allegations of corruption against the Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officers and officials of the central government. After the conclusion of the investigation, the Lokpal may file a case in the special court in case the findings disclose the commission of offence 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 a Minister from office.
The Lokpal and Lokayukta Act delegates the power to States to establish by law the Lokayukta to deal with complaints relating to corruption against public functionaries. Some States already have established Lokayuktas. For example, Maharashtra in 1971, and Kerala in 1999.
In Kerala, the implications
Now, in the background of the Lokpal Act let us examine the Lokayukta controversy in Kerala. Section 14 of the Act which has now been amended said that if the Lokayukta is satisfied on the complaint against the public servant being substantiated that he should not continue to hold the post held by him, he shall make a declaration to that effect in his report to the competent authority who shall accept it and act upon it. In other words, if the public servant is the Chief Minister or a Minister, he shall forthwith resign his office. It may be noted here that such a provision does not exist in any of the State laws or the Lokpal Act of the Centre.
This provision in the State law has serious legal and constitutional implications. Two important points need to be made here. One, an investigative body does not have the legal authority to direct the public servant to resign his post on the basis of its findings. It can only submit its findings to the competent authority or, as is provided in the Lokpal Act, file a case in the special court. The Lokayukta is basically an investigative body with certain powers to carry out an investigation into cases relating to the Prevention of Corruption Act. The only special 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 that does not alter the basic character of the Lokayukta as an investigative body. It does not and cannot enjoy the powers of the higher courts which alone can issue such directions in the nature of writs.
Two, the Chief Minister or a Minister holds office during the pleasure of the Governor (Article 164). The Constitution of India does not contemplate any external pressure on the Governor to withdraw his pleasure. The Sarkaria Commission had suggested that the Governor can dismiss a Chief Minister only when 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 could withdraw his pleasure is when the Chief Minister is disqualified from being a member of the House on account of his having been convicted in a criminal case and sentenced to not less than two years of imprisonment. In other words, a Chief Minister cannot be asked to resign when he enjoys a majority in the House. The Governor, being a high constitutional authority, cannot be compelled by a law to act in a particular manner so far as his constitutional duties and functions are concerned. No agency created by a law made by the Assembly, particularly an investigative body, can declare that its decision be carried out by the Governor. It would amount to a violation of the Constitution.
Thus, Section 14 of the Kerala Lokayukta Act, 1999 suffered from serious legal infirmities and it is only proper that the government of the day revisited this provision. However, the Bill is yet to be brought before the Assembly to replace the ordinance.
Provisions that are moot
There are some other provisions as well which may not stand legal scrutiny. For example, this law includes the office bearers of political parties within its definition of ‘public servant’. The Lokayukta law was enacted to inquire into cases of corruption of public functionaries such as Ministers, legislators, etc. who are covered by the Prevention of Corruption Act. This Act does not include office-bearers of political parties in its definition clause. Basically, the Prevention of Corruption Act deals with corruption in the government and allied agencies, statutory bodies, elected bodies, etc. The functionaries of political parties do not come within the mischief of this law. So, it is difficult to understand how they can be brought within the sweep of the Lokayukta Act.
Another problematic provision in this law is the one which deals with the reports of Lokayukta (Section 12). It says that the Lokayukta shall, on the allegation of corruption being substantiated, send the findings along with recommendation of action to the competent authority who is required to take action as recommended by the Lokayukta. It further says that if the Lokayukta is satisfied by the action taken by the competent authority, he shall close the case. The question is how the Lokayukta can close a corruption case which is a criminal case and which invites imprisonment for three to seven years. The Lokpal files the case in the court after the investigation. There is no provision in the central law under which the Lokpal can close the case before it reaches the court. The Lokayukta not being a court does not have the legal capacity to close the corruption case under any circumstances.
In fact the whole controversy could have been avoided if an objective and dispassionate analysis of this law had been made by all the stakeholders. The ballyhoo by television channels has effectively clouded the issue. The target rating point of channels has definitely increased but the public has been left none the wiser. The Kerala Lokayukta Act should be re-examined by a committee of the Assembly and should be brought on a par with the Lokpal Act. A legislation which seeks to punish corrupt public functionaries should be placed above controversies.
P.D.T. Achary is former Secretary General, Lok Sabha
