Untangling Kerala’s Lokayukta controversy

• 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.

Evolution of Lokpal-Lokayukta

• 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.
• 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.

Lokpal-Lokayukta as a body

• 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.

Kerala Lokayukta controversy

• 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.

Criticism of Kerala Act

• 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.
• 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.
• 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.
• 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.

Need of such Institutions

• Maladministration is like a termite, steadily eroding a nation's foundation and preventing administration from accomplishing its goals.
• Corruption is at the basis of the issue. The majority of anti-corruption authorities are barely self-contained. CBI has been referred to as a ""caged parrot"" and ""its master's voice"" by the Supreme Court.
• Many of these organisations are merely advisory groups with no real power, and their recommendations are rarely implemented.
• There's also the issue of internal responsibility and openness. Furthermore, there is no independent and efficient system in place to keep these entities in check.
• In this backdrop, the establishment of an independent Lokpal was a watershed moment in Indian politics, providing a solution to the never-ending threat of corruption.

Way forward

• 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.
• 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.