Lok Ayukta Bill: Presidential assent provides a boost to Kerala's LDF govt against Governor

The approval of the Kerala Lok Ayukta (Amendment) Bill, 2022 by President Droupadi Murmu serves as a major setback for Governor Arif Mohammed Khan, who had delayed action on the legislation for over a year. The Bill, passed in August 2022, received assent from the President, marking a rare occurrence where a legislation referred to the President was approved so promptly.

Assent to 3 Bills withheld

However, Kerala Raj Bhavan informed that the President has withheld assent to three Bills which the Governor had referred to Rashtrapati Bhavan for consideration.

These three Bills are the Kerala University Laws (Amendment) Bill 2022 (divesting Governor from the position of chancellor of universities), the University Law Amendment Bill, 2022 (Expansion of search committee for the appointment of vice-chancellors), and the University Law Amendment Bill, 2021.

Reports suggest that the legal advice supporting the amendment's similarity to provisions in the Lokpal Bill played a role in the President's decision to give her nod to the legislation. The Bill was presented in the Kerala Assembly, shortly after Governor Khan declined to renew the ordinance introduced by the government in January 2022.

What the legislation means

The legislation aims to limit the authority of the Lok Ayukta in prohibiting a public servant from holding office if found guilty of maladministration and corruption. Instead, it grants the political executive the power of appeal over the Lok Ayukta's determination. Under the current Act, if the Lok Ayukta makes an unfavourable decision against the Chief Minister, the Assembly, rather than the Governor, will serve as the competent authority. For MLAs, the Speaker will assume this role, while for Ministers, it will be the Chief Minister. These competent authorities will now have the discretion to accept or reject the Lok Ayukta's recommendations. Further, the Bill permits retired High Court judges to be appointed as Lok Ayukta. This contrasts with the existing Act, which mandates that the anti-graft ombudsman must have held the position of judge in the Supreme Court or Chief Justice of a High Court.

Despite strong opposition from UDF members and their subsequent boycott, the Kerala Assembly passed the Lok Ayukta (Amendment) Bill on August 30, 2022. The Opposition deemed this event a ‘black day’ in the history of the state Assembly. However, the CPI(M)-led LDF government argued that the amendment was necessary to align the state Lok Ayukta Act with the Centre's Lokpal Act.

Case against CM dismissed

During the previous tenure of the LDF government, the then Higher Education Minister K T Jaleel had to resign from the Cabinet after the State Lok Ayukta found that he had misused his position as a public servant to benefit a relative. In November 2023, the full Bench of the Kerala Lok Ayukta dismissed a case against Chief Minister Pinarayi Vijayan and former ministers, alleging misuse of funds from the Chief Minister Disaster Relief Fund (CMDRF), along with 18 others. This was after the case was referred to the full Bench, due to conflicting opinions between Lok Ayukta Cyriac Joseph and Upa Lok Ayukta Harun-ul-Rashid, prompting the decision to involve the entire Lok Ayukta and both Upa Lok Ayuktas. The Opposition had alleged that the amendment was aimed to protect Vijayan and his Cabinet colleagues from such cases.

Terming the amendment as a green flag for widespread corruption, the leader of the Opposition V D Satheesan had slammed the government in the Assembly, for ‘killing an anti-corruption agency’. "The CM has ensured that the Lok Ayukta would only bark and not bite. Pinarayi Vijayan will be remembered in history as the CM who presided over the dismantling of the anti-corruption mechanism in the State, paving the way for massive corruption," the LOP had accused in his Assembly speech.

'Governor’s stand was wrong'

The main contention of Governor Khan and the Congress-led Opposition was that the law violated the principle of natural justice, which dictates that ‘no one should be a judge in their own cause’. On the other hand, the LDF argued that the existing law elevated a statutory body above democratically elected Ministers and MLAs. Furthermore, the LDF asserted that it was the Lok Ayukta's unappealable orders that contradicted natural justice and were constitutionally unsustainable.

"When the Lokpal Bill was being discussed in the Parliament, a decision was taken that the States have the power to frame a similar law and therefore, there was nothing wrong in the manner in which the amendments were made to the Kerala Lok Ayukta Act. When the Governor had sought a clarification regarding the Bill, it was read out to him and therefore, he ought to have signed it back then. There was no need to send it to the President for assent. Now the Presidential assent indicates that the Governor’s stand was wrong," said P Rajeev, the state law minister.

The Left-front government held the perspective that in a democracy, statutory bodies should not hold authority superior to democratically elected governments. This rationale was put forth by the Left-front government to justify the amendment of a law previously enacted by their own previous government in the Assembly.