Amendment To S.14 Of Kerala Lokayukta Act Unconstitutional, Dilutes Separation Of Powers: Plea Before High Court

A plea has reached the Kerala High Court challenging the recent amendment to Section 14 of the Lokayukta Act for allegedly diluting the judicial powers of the Lokayukta. The amendment ordinance had detonated a political storm in the State last month when it was first introduced by the Cabinet. 

The petitioner, a social worker, had challenged a certain decision of the State Cabinet taken as out of agenda items, by filing a complaint under Section 9 of the Kerala Lokayukta Act inter-alia seeking relief under Section 14 of the Act. The arguments were in progress in this case.

Meanwhile, the State Cabinet came out with an Ordinance on January 19 mainly amending Section 14 along with amendments in other provisions. This was sent to the Governor for his assent on January 22 and the Governor signed it on February 7. 

Before the amendment, Section 14 provided that public servants shall vacate their office if directed by the Lok Ayukta. For reference, the provision before amendment has been extracted below:

"Where, after investigation into a complaint, the Lok Ayukta or an Upa-Lok Ayukta 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 Lok Ayukta or the Upa-Lok Ayukta, 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."

After the amendment, the 'shall' was replaced by 'may'. This gives the Chief Minister the liberty to either accept or reject the declaration made by Lokayukta.

The plea filed through Senior Advocate George Poonthottam argues that the amendment has far-reaching consequences resulting in the interference with the administration of justice and conferring a mode of appeal to the executive of the State, 'which is far more dangerous than abolishing the Lok Ayuktha itself'.

The petitioner also argued that taking away the Lok Ayukta's power over the finality of its orders except by judicial review is a nullity in the eye of law and as such the ordinance to that extent is liable to be struck down. 

It has also pointed out that the doctrine of separation of powers between the executive, judiciary and legislature is the foundation of the Indian Constitution protecting the independence of each other.

"Any attempt by the executive or the legislature to transgress into the jurisdiction and powers of judiciary is described as constitutional poach," reads the plea.

The petitioner reflected that after the enactment of the Kerala Lok Ayukta Act, the Union Government came out with the Lokpal Act. Therefore, he argued that the field is occupied by the central Legislation.

"When the field is already occupied by the central Legislation, in spite of 16 Section 63 of the Central Act, a law made by the State shall not be inconsistent to the provisions of the Central Act and any law so made which is inconsistent with the Central Act will be void to that extent as provided under Article 254(2) of the Constitution of India," he submitted.  

For this reason, the plea argued that it was obligatory to reserve the ordinance for the assent of the President which is the mandate of the Constitution.

It was also emphasised how the decision taken by the cabinet to come out with an amendment was in a manner not known to law. Since the ordinance does not satisfy the constitutional mandate under Article 254(2), the petitioner argued that it was liable to be declared as unconstitutional.

"..once a law is enacted the constitutional validity of the provision can only be considered by the constitutional courts and not by anyone else," the petitioner pointed out.

Referring to Madras Bar Association v. Union of India & Ors and M.P. High Court Bar Association v. Union of India & Ors, it was submitted that the Apex Court had consistently in its endeavour to uphold the independence of the judiciary, held that any form of interference to nullify or annul a judicial order by the executive is an impermissible legislative exercise and the same has been declared as unconstitutional.

On these grounds, it was prayed that a declaration be made that amendment to Section 14 of the Kerala Lok Ayuktha Act conferring power of appeal to the executive is violative of the concept of independence of judiciary as envisaged in the constitution and therefore bad in law, is void and violative of Article 254(2) of the Constitution of India.

Case Title: R.S. Sasikumar v. State of Kerala