The story so far
The Congress-led United Democratic Front (UDF) Opposition in Kerala is up in arms about the Left Democratic Front (LDF) government’s “Machiavellian” bid to promulgate an Ordinance to “defang” the Kerala Lok Ayukta and relegate the Ombudsman to a “nominal advisory role”.
On Thursday, a UDF delegation led by Leader of the Opposition V. D. Satheesan met Kerala Governor Arif Mohammed Khan and entreated him to withhold gubernatorial assent to the proposed executive order.
UDF charge
The UDF claimed the government had furtively pressed for an executive order in a Cabinet meeting last week to "dilute" Section 14 of the Kerala Lok Ayukta Act, 1999.
The proposal aimed to forestall the Constitutional and political fallout of possible adverse Lok Ayukta findings against Chief Minister Pinarayi Vijayan and Higher Education Minister R. Bindu.
The Lok Ayukta is currently investigating allegations of corruption and nepotism against them. The complainants, including Congress leader Ramesh Chennithala, had moved the Ombudsman for a "declaration" banning the leaders from holding public office under Section 14 of the Act.
The potent provision empowers the Lok Ayukta to eject a corrupt public official from office and deter the offender from holding the post again.
Jaleel's case
Arguably, for the first time since its inception, the Kerala Lok Ayukta had invoked Section 14 of the Act in April 2021 against the then Higher Education Minister K. T. Jaleel.
The forum had found Dr. Jaleel guilty of unduly favouring a relative of his for appointment to a top post in a State-run Corporation.
The Lok Ayukta deemed Dr. Jaleel unfit to hold office after it found him guilty of abuse of power, nepotism and violation of oath of office.
The Kerala High Court and Supreme Court upheld the Lok Ayukta's "momentous declaration" under section 14 of the Act.
Chief Minister Pinarayi Vijayan, the competent authority under the Act to implement the declaration, had little choice but to abide by the Lok Ayukta's "declaration". Section 14 insists that the Lok Ayukta's ruling is binding on the "competent authority".
Suspicious haste
The UDF felt that the government had moved with "suspicious haste" ahead of the Assembly's Budget session in mid-February to abrogate Section 14 of the Act via an executive order to preempt Dr. Jaleel's "fate" from befalling Mr. Vijayan or Dr. Bindu.
The UDF has also strongly objected to the Ordinance that accords the Governor, the Chief Minister, or the government in their capacity as the "competent authority", as the case may be, to accept or reject the decision of the Lok Ayukta after hearing the disputing parties.
Executive overreach
It has specifically asked the government to explain how the executive could have appellate jurisdiction over a judicial forum headed either by a former Supreme Court judge or a retired High Court Chief Justice.
The Opposition claimed the government had, via the proposed Ordinance, sought to resurrect a provision that the Assembly had debated and rejected when considering the original Lok Ayukta Bill in 1999.
Dissent in LDF
Meanwhile, the UDF also sought to exploit the perceived rumblings of dissent in the LDF about the "hasty Ordinance". CPI State secretary Kanam Rajendran had suggested that the government should have ideally brought the amendment as a Bill in the Assembly. He had sidestepped whether the LDF had discussed the Ordinance.
Govt.'s contention
Law Minister P. Rajeeve defended the Ordinance stating that it glaringly lacked an appeal provision. The original legislation was flawed and required an amendment. Such absolute power was Constitutionally untenable and violative of natural justice.
Hence, the Cabinet had resolved to close the legal loophole via an amendment Ordinance. Several others States had done the same. A succession of High Court judgments and expert legal advice justified the Cabinet's unanimous decision.
UDF rider
The UDF has no objection to introducing an appeal provision in the Lok Ayukta Act, 1999. However, the Opposition has inserted a rider to the proposal. It has recommended that the High Court's Division Bench be given appellate jurisdiction over Lok Ayukta declarations under Section 14 and not the political executive.
Lok Pal
Mr. Rajeeve said the Lok Pal Act allowed States to pass and suitably amend their respective Lok Ayukta laws. He denied the UDF claim that such an "amendment Ordinance" required Presidential assent. He said Lok Ayukta rules were the State's jurisdiction.
CPI(M) backs Ordinance
The CPI(M) has thrown its weight behind the proposed Ordinance. CPI(M) State secretary Kodiyeri Balakrishnan said Article 164 of the Constitution mandated that the Governor appointed or dismissed the Council of Ministers.
However, as per the current law, the Lok Ayukta could "destroy" a Constitutionally elected government by an adverse ruling. The State could not even appeal against the Lok Ayukta's declaration under Section 14, which was final and binding.
Mr. Balakrishnan said Karnataka, Andhra Pradesh, Tamil Nadu, Rajasthan, Bihar and Congress-ruled Punjab had imposed reasonable restrictions on the powers of their respective Lok Ayukta.
The proposed Ordinance did not restrict the right of citizens to move the Lok Ayukta against maladministration and corruption. The forum could not throw out those elected to public office. Such a decision required the concurrence of the Legislative Assembly.
Legal battle
The skirmishing over the Ordinance is fast shaping into a major political battleground between the government and the Opposition. The UDF has said it would mobilise civic society against the move to "catalyse corruption and maladministration".
It might also pursue the matter in court, raising new legal questions about the right of the States, the Lok Pal Act and limits of Lok Ayukta's jurisdictional powers.
