This article is authored by Anupam Aysha Editor at LJRF Voice, Convenor LJRF Mission Better Tomorrow Initiative and Researcher at Law and Justice Research Foundation.

“Integrity, transparency and the fight against corruption have to be part of the culture. They have to be taught as fundamental values.”

Angel Gurría, OECD secretary general.

INTRODUCTION

An Ombudsman is a neutral body that resolves conflicts and provides assistance in a completely confidential manner. Lokayukta and Lokpal are the Indian versions of the Ombudsman. At the central level, we have Lokpal and at the State level, there is Lokayukta. What do these bodies do?

Lokpal has the duty to inquire into matters relating to corruption. The Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union government, or a Member of Parliament, and also officials of the Union government under Groups A, B, C and D. The chairpersons, members, officers, and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre are also covered under the Lokpal’s jurisdiction. Any society or trust or body that receives foreign contributions above ₹10 lakh also come under this.

In Kerala, the Lokayukta Act, 1999¹ is the statute that deals with the powers and functions of Lokayukta.

PURPOSE OF KERALA Lokayukta ACT, 1999

The important and relevant function of this Act is to inquire into issues involving corruption allegations against the public servants. Kerala Lokayukta Act came after the Kerala Public Men’s Corruption (Investigations and Inquiries ) Act 1987².

Public servants from the Chief Minister to the members of the panchayat come within the purview of the Act. The Lokayukta and Upa Lokayukta is appointed under the Act are conferred with solemn functions of investigating the various acts of omissions and commissions of such public servants.

PREAMBLE OF THE ACT

The preamble of this Act is as follows:

‘WHEREAS it is expedient to make provision for the appointment and functions of certain authorities for making enquiries into any action (including any omission and commission in connection with or arising out of such action)relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala of certain public servants in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto;’

Seventh Schedule of the Indian Constitution³ provides for the three lists. Union List, State List and Concurrent List. The List II and List III provides for State List and Concurrent List respectively. So, here what the preamble to the Kerala Lokayukta Act, 1999 provides for is that this Act is formed for the purpose of appointing certain authorities for inquiring into matters given in the State List and Concurrent List. It also includes omission and commission in connection with or arising out of such action.

IMPORTANT PROVISIONS

The Kerala Lokayukta Act 1999 provides for the appointment, removal, and also terms of office of the members of Lokayukta .

APPOINTMENT OF LOKAYUKTA AND UPA LOKAYUKTA

Section 3 of the Act provides for the Appointment of the Lokayukta . Under this Section, it is given that there shall be 1 Lokayukta and 2 Upa Lokayukta . They are appointed by the Governor. The person appointed as Lokayukta is a person who has held the office of a Judge of the Supreme Court of India or Chief Justice of a High Court. The qualification to become Upa Lokayukta is that that person should be someone who holds or has held the office of a Judge of a High Court. Lokayukta and Upa Lokayukta s are appointed by the Governor on the advice of the Chief Minister in consultation with the Speaker of the Legislative Assembly and the Opposition Leader. The proviso to clause 3 of Section 3 provides that in case a sitting Judge of High Court is appointed as Upa Lokayukta , it should be done in consultation with the Chief Justice of the High Court. The following sections discuss the tenure and Removal of the Office of the Lokayukta and Upa Lokayukta

TERM OF OFFICE

Lokayukta and Upa Lokayukta hold office for a period of 5 years. After the expiration of tenure, the person who had held the office is ineligible for reappointment.

Clause 3 of Section 5 provides that,

‘(3) On ceasing to hold office, the Lokayukta or an Upa-Lokayukta shall not be eligible for further employment to any office of profit under the Government or in any authority, corporation, company, society or university referred to in item (vii)of clause (o) of section 2.’

So, it is expressly given in the Act that after the expiration or ceasing to hold the office, the Lokayukta and Upa Lokayukta are not entitled to further hold any office of profit. This clause helps in making the process of determination of justice more transparent as it prohibits the holders of the office of Lokayukta and Upa Lokayukta from obtaining any perks from the Public Officials as they are the ones who decide on issues related to the allegations of corruption against these public officials

REMOVAL OF Lokayukta AND UPA Lokayukta

Section 6 of the Act talks about the removal of members of Lokayukta and Upa Lokayukta Clause 1 of S.6 says that Lokayukta or an Upa- Lokayukta shall not be removed from his office except by an order of the Governor. This order should be passed after an address by the Legislative Assembly of the State. The procedure for the investigation of the misbehavior and incapacity of the Lokayukta or Upa Lokayukta is to be done as given under the Judges (Inquiry) Act, 1968⁴. Besides all these, Clause 3 of Section 6 provides that in case of the Upa Lokayukta , who is appointed from the sitting judges of the High Court cannot be removed unless in the procedure of removal of a judge of the High Court.

Matters that are to be dealt with and not to be dealt with by Lokayukta and Upa Lokayukta

This is provided under Section 7 and Section 8 of the Kerala Lokayukta Act respectively. Under section 7, the Lokayukta and Upa Lokayukta can deal with matters regarding the following:

Any action which is taken by or with the general or specific approval of-

the Chief Minister; or

a Minister; or

a Member of the State Legislature; or

a Secretary; or

an office bearer of a political party at the State Level; or

an officer referred to in sub-clause (iii) of clause (d) of section 2, in any case where complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lokayukta and the Upa-Lokayukta as so nominated, the action shall be investigated by the Lokayukta and both the Upa-Lokayukta s together and the decision of the majority therein shall prevail.

2. Any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office-bearer of a political party at State Level or an officer referred to in sub-clause (iii) of clause (d) of section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa-Lok-Ayukta, the subject of a grievance or an allegation.

3. Any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government.

4. The Lokayukta may, by general or special order ,assign to each of the Upa-Lokayukta the matters which may be investigated by them.

It is also provided under subsection 5 of the section that, when an Upa-Lokayukta is unable to discharge his functions owing to absence, illness, or any other cause, his functions may be discharged by the other Upa-Lokayukta , and in the absence of both, by the Lokayukta . And no investigation made by an Upa-Lokayukta under this Act and no action taken or things that are done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.

Matters that are not to be dealt by the Lokayukta or Upa Lokayukta are provided under Section 8 of the Act. They are:

Actions relating to matters provided in the Second Schedule.
Any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lokayukta or an Upa-Lokayukta , as the case may be;
Any action in respect of a matter which has been referred to an inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952);
Any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place:

Section 14

Section 14 of the Kerala Lokayukta Act, 1999 is as given below:

‘Public Servant to vacate office if directed by Lokayukta etc.

(1) Where, after investigation into a complaint, the Lokayukta or an Upa-Lokayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lokayukta of the Upa -Lokayukta , as the case may be, shall make a declaration to that effect in his report under sub-section (3) of section 12. Where the competent authority is the Governor, the Government of Kerala or the Chief Minister, he or it shall accept the declaration. In other cases, the competent authority concerned shall send a copy of such a report to the Government, which shall accept the declaration.

(2) When the declaration so made is accepted, the fact of such acceptance shall immediately be intimidated by registered post, by the Governor, the Government or the Chief Minister, if any of them is the competent authority and the Government, in other cases and then, notwithstanding anything contained in any law, order, notification, rule or contract of appointment, the public servant concerned shall, with effect from the date of intimation of such acceptance or deemed acceptance of the declaration-

(i) if he is the Chief Minister or a Minister, resign his office of Chief Minister or Minister as the case may be;

(ii) if he is a public servant falling under items (v) and (vi), but not falling under items (iv) and (vii) of clause (o) of section 2, be deemed to have vacated his office; and

(iii) if he is a public servant falling under items (iv) and (vii) of clause (o) of section 2, be deemed to have been placed under suspension by an order of the appointing authority and the appointing authority shall initiate appropriate action in accordance with the rules applicable to such public servant:

Provided that if the public servant is a member of an All India Service as defined in section 2 of the All India Services Act, 1951 (Central Act 61 of1951), the Government shall take action to keep him under suspension and initiate appropriate action, in accordance with the rules or regulations applicable to his service.’

According to Section 14, as provided above, a public servant is required to vacate the office immediately if indicted by Lokayukta.

Under subsection 1 of Section 14, it is clearly provided that if after the investigation, the Lokayukta or Upa Lokayukta is convinced with the fact that the allegation against the concerned public servant is proved and he or she should not continue to hold office, then, they can make a declaration with regard to that in the report under Section 12.

What subsection 2 says is that the concerned authority should intimate the Public Servant about the declaration of Lokayukta or Upa Lokayukta . If the public servant is the Chief Minister or a Minister, then he or she should resign office immediately. If the public servant is someone belonging under items (v) and (vi) of clause o of Section 2, they are supposed to vacate the office.

S. 2(o) (v):

the Chairman and the Vice-Chairman or a member of a local authority in the State or a statutory body or corporation established by under any law of the State Legislature, including a co-operative society, or a Government Company within the meaning of section 617 of the Companies Act, 1956 and such other Corporations or Boards, as the Government may, having regard to its financial interest, in such Corporations or Boards, by notification from time to time, specify;

S.2(o) (vi): a member of a Committee or Board or Authority or Corporation, statutory or non-statutory, constituted by the Government of Kerala;

Clause (iii) of S. 14 (2) says that if he is a public servant falling under items (iv) and (vii) of clause (o) of section 2, be deemed to have been placed under suspension.

The clauses iv and vii of S. 2 (o) are as given below:

S. 2 (o) (iv) : a Government servant;

S. 2 (o) (vii): a person in the service or pay of,-

(A) a local authority in the State;

(B) a statutory body or a corporation (not being a local authority) established by or under a State or a Central Act, owned or controlled by the Government of Kerala and any other board or corporation as the Government may, having regard to its financial interest therein, specify by notification in the Gazette from time to time;

(C) a company registered under the Companies Act, 1956 (Central Act 1 of 1956), in which not less than fifty-one percent of the paid up share capital is held by the Government of Kerala or any company which is a subsidiary of such company;

(D) a society registered or deemed to have been registered under the Travancore Cochin Literary , Scientific and Charitable Societies Registration Act, 1955 (XII of 1955) or the Societies Registration Act, 1860 (Central Act 21 of 1860), which is subject to the control of the Government of Kerala and which is notified, in this behalf, in the Gazette;

(E) a co-operative society;

(F) a University;

The proviso to S.14 of the Kerala Lokayukta Act, 1999 provides that if the public servant is a member of an All India Service as defined in section 2 of the All India Services Act, 1951 (Central Act 61 of1951), the Government shall take action to keep him under suspension and initiate appropriate action, in accordance with the rules or regulations applicable to his service.

THE AMENDMENT

The new amendment which was signed by the Governor of Kerala, Shri Arif Muhammed Khan takes away Section 14 of the Kerala Lokayukta Act, 1999. The ordinance for amendment had made a lot of controversies in and around Kerala. Now let us have a look at what exactly Section 14 puts forth and what changes it is going to make in the functions and powers of the Lokayukta .

It is evident from the amendment that it is taking away the power of Lokayukta to decide and substituting it with a recommendatory power. Here, the concerned authority, that is the Chief Minister or Governor can ultimately accept or reject the declaration of Lokayukta to remove a public servant.

This exactly is the point where the amendment had become controversial. The decision-making power of Lokayukta being constitutionally valid is being taken away. It is going to become a mere recommendation body. And as the issues the Lokayukta deal with are mostly related to corruption and nepotism, it is allegedly going to create a big hole in the justice system.

The government also proposed an amendment to section 15 of the Kerala Lokayukta Act. Section 15 deals with Lokayukta ’s power to start criminal prosecution against a public servant. This happens only if the investigation is substantiated. The non-obstante clause — “Notwithstanding anything contained in section 14” — from section 15 has been omitted as a result of the proposed Amendment.

Section 3 of the Act deals with ‘Appointment of Lokayukta and Upa-Lokayukta s’.In the principal act, a person who has previously served as a Supreme Court Judge or Chief Justice of a High Court, was to be appointed as Lokayukta. As per the proposed amendment, along with the Supreme Court Judge and Chief Justice of the High Court, a Judge of the High Court can also be appointed as the Lokayukta .

The fact that Section 14 of the Kerala Lokayukta Act violated Articles 163 and 164 of the Indian Constitution⁵ is the primary argument for the amendment.

Article 163 puts forth a Council of Ministers to aid and advise the Governor, with the Chief Minister as its head. Article 164, 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.” On the other hand Section 14 of the Kerala Lokayukta Act gives power for the Lokayukta to direct a public servant to vacate from the office. This can be considered inconsistent or in conflict with the provisions of the constitution which mandates that a minister can hold office during the pleasure of the Governor.

CONCLUSION

Power and corruption are two words that are very much attracted to each other. The strength of a democratic country is the strength of its mechanism against corruption. The biggest weakness of a democratic society will be the weakness of its mechanism against corruption.

“Corruption is paid by the poor”- Pope Francis

The greatest effect of corruption is borne by the poorest of the economy. Therefore ensuring transparency in the business of the government is a necessary fundamental right of every citizen. Because, any hindrance to this is demolishing the very existence of democracy and justice.