Context

The controversy surrounding the amendment to the Lokayukta Act of Kerala — effected through an ordinance —has raised the political temperature in the State.

The background of the Lokayukta

• The term Lokpal was first used in a report of the Administrative Reforms Commission headed by Morarji Desai as far back as in 1966.
• The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House.
• Finally, after 45 years the Lokpal and Lokayuktas Bill was passed by Parliament in 2013.
• 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.
• 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.
• Some States already have established Lokayuktas. For example, Maharashtra in 1971, and Kerala in 1999.

How Lokpal is different from other investigative bodies

• The Lokpal is no ordinary investigative body.
• Connection with judiciary: It is headed by the incumbent Chief Justice of of India or a retired judge.
• It has eight members, four of whom are judicial members.
• 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.

Issue in Kerala

• 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….”
• Investigative body: Thus, the Lokpal is conceived of as a body which will inquire into allegations of corruption.
•  Section 14 of the Lokayukta Act in Kerala 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.
• 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.
•  An investigative body does not have the legal authority to direct the public servant to resign his post on the basis of its findings.
• 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.
• 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.
• State 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.
• 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.
• 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.

Conclusion

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.

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