Lok Ayukta Cannot Investigate Matters Relating To Selection Of Candidates By Political Parties: Kerala High Court

The Kerala High Court recently held that the Kerala Lok Ayukta cannot investigate into matters relating to selection of candidates by political parties for contesting election. 

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman while considering a petition filed by the State Secretary of Communist Party of India (CPI), Pannyan Raveendran, challenging the order of the Kerala Lok Ayukta finding such a complaint to be maintainable, and observed that, 

"A political party has the discretion to choose a candidate of its choice subject to the requirement of providing necessary information regarding criminal antecedents etc; of the candidate so that the voter can exercise his right to franchise in an effective manner". 

The Court observed that when a political party so selects a candidate for election, such selection of candidate cannot be construed as 'action' taken or purporting to be taken by the office bearers of the political party in exercise of any administrative functions. 

Referring to the observation made by the Lok Ayukta in its order that selection of candidate by a political party is a matter in which the public or the community at large has an interest and would therefore fall within the ambit of 'public duty' as defined in Section 2 (b) of the Prevention of Corruption Act,1988, the Court observed:

"The electorate in India has no role in the selection of candidates or setting up of candidates at elections to either House of Parliament or of a State Legislature under the laws made by Parliament under Article 327 of the Constitution of India. It is an internal affair of the political party and the party selects its candidates as per the constitution of the party, political principles, policies, winnability etc. Once the candidate is set up by the political party, then, on the date of poll, the public exercise their electoral right for any of the candidates in the fray. Therefore, we are unable to subscribe to the view of the Lok Ayukta that selection of candidate by a political party is a matter in which the public or the community at large has an interest". 

Factual Matrix

As per the factual matrix, a social and political worker, Shamnad A. (1st respondent herein), had filed a complaint before the Kerala Lok Ayukta alleging that the office bearers of CPI had hatched a conspiracy and given candidature to one Dr.Bennet Abraham (named as the 4th respondent in the complaint before the Lok Ayukta) to contest as Left Democratic Front (LDF) candidate for election to the 16th Lok Sabha from the Thiruvananthapuram constituency, after receiving illegal gratification from the latter. The Lok Ayukta while considering the complaint, found the same to be maintainable and passed an order deciding to conduct an investigation into the allegations in the complaint. It invoked its powers under Section 16(3) of the Kerala Lok Ayukta Act, 1999 (hereinafter, 'Act, 1999'), and entrusted a senior police officer of the State to conduct the enquiry. Additionally, it was observed by the Lok Ayukta that if the allegations levelled by the complainant against the respondents therein came to be proved, the same would amount to both corruption and maladministration. 

Pursuant to the same, the present petitioner, who is also the 1st respondent in the complaint filed by Shamnad, filed two applications before the Lok Ayukta, raising the issue of maintainability. It was contended that the respondents named in the complaint were National Executive and State Executive members of the political party, and would hence not come within the ambit of public servant under Section 2 (o) (ix) of the Act, 1999. It was averred that the selection of candidates for election is an internal private matter of the political party and the decision to confer candidature is a policy decision of the party which cannot be investigated by the Lok Ayukta. The Lok Ayukta however, rejected the averments, and found that the present petitioner is a public servant by virtue of Section 2(o)(ix) of the Act, 1999, and that the Lok Ayukta is statutorily bound to enquire into the truth or otherwise of the allegations of corruption and maladministration against the State and District level office bearers of political parties. It is in this context that the present writ petition has been filed challenging the said order of the Lok Ayukta. 

It is the case of the petitioner that the Lok Ayukta has no jurisdiction to investigate into the internal affairs of a political party. It was averred that selection of candidates at election is not an administrative function and would not amount to 'maladministration' and that the complainant has not sustained injustice or undue hardship in consequence of maladministration and also that there was no scope for investigation under Section 7 of the Act, 1999. It was further pointed out that the allegations of corruption would not sustain, since office bearer of a political party would not fall within the ambit of definition of public servant under Section 21 of the Indian Penal Code or Section 2 (c) of the Prevention of Corruption Act, 1988.

Findings of the Court 

The Court at the very outset, perused the definitions of 'political party' in Section 2 (m), and 'public servant' in Section 2(o) of the Act, 1999. It observed that as per Section 2(o)(ix) of the Act, 1999, any office bearer of a political party, at the District or State level will fall within the definition of 'public servant', while an office bearer of the political party at the National level falls outside the definition of 'public servant'. 

The Court further observed that when a complaint involving a 'grievance' or an 'allegation' is made in respect of any 'action' which is taken by or with the general or specific approval of an office bearer of a political party at the State Level, such 'action' can be investigated by the Lok Ayukta, as per Section 7(1) of the Act, 1999. 

However, in this case, the Court was posed with the question as to whether the selection of a candidate for contesting an election to parliamentary constituency would amount to an 'action' taken by an office bearer of a political party at the State Level, warranting investigation by the Lok Ayukta under Section 7 of the Act. 

The Court thus observed that, the term 'action' refers to "any action including administrative action taken by way of decision, recommendation or finding or in any other manner".

It thus went on to observe, 

"Assuming for a moment that the selection of candidates for election to Parliamentary constituencies is an 'action', the Lok Ayukta can initiate investigation under Section 7 only if the 'action' is taken by or with the approval of an office bearer of the political party at the State Level and not at the National level. When the constitution of the party provides that nominations of party candidates for election to Parliament shall be subject to approval by the National Executive at the National level, the Lok Ayukta cannot investigate any action taken with the approval of the political party at the National Level". 

The Court further observed the statement of objects and reasons and other provisions of the Act, 1999, as well as the three lists of the Seventh Schedule to the Constitution of India, and went on to observe, 

"Selection of candidates by political party for election to Parliament or to Legislature of the State does not fall in Lists I, II or III of the Seventh Schedule to the Constitution of India. Selection of candidate at election is not an action relatable to matters specified in the State List or the Concurrent List, or matter connected therewith or ancillary thereto. Selection of candidates by political party or its office bearers for election to Parliament is therefore not a matter subject to investigation by Lok Ayukta". 

It also relied upon the decision in Anil Thomas v. Indian National Congress & Ors. and found itself to be in perfect consonance with the view ascribed thereto. 

"The political party is not required to perform any public duty in the selection of candidates to contest election. We have already found that selection of candidates by political party or its office bearers for election to Parliament is not a matter subject to investigation by Lok Ayukta. Ext. P2 complaint before the Lok Ayukta does not reveal any allegation or grievance in consequence of maladministration. The Lok Ayukta has no jurisdiction to entertain Ext. P2 complaint. It is declared so," the Court held while allowing the petition, and setting aside the impugned orders. 

The petitioner was represented by Senior Advocate Renjith Thampan and Advocates P.R. Reena and Nisha George. Senior Advocate George Poonthottam and Advocate J. Harikumar appeared on behalf of the respondents. 

Case Title: Pannyan Raveendran v. Shamnad A. & Anr. 

Citation: 2023 LiveLaw (Ker) 193 

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