Kerala High Court seeks response from State on plea against Lokayukta Ordinance

The Kerala High Court on Thursday issued notice to the State government on a petition which challenged the constitutional validity of the recent amendment to Section 14 of the Lokayukta Act introduced by way of an ordinance [RS Sasikumar v State of Kerala]..A division bench of Chief Justice S Manikumar and Justice Shaji P Chaly admitted the matter and issued notice to the State government. The Bench also passed an interim order stating that any decision taken by the authority constituted by way of the new ordinance during the interregnum will be subject to the outcome of the petition before the High Court. The petition was moved by one RS Sasikumar, a social worker. He was represented by Senior Advocate George Poonthottam instructed by advocate Arun Chandran. Advocate General Gopalakrishna Kurup K appeared for the State government with Government Pleader V Manu accepting notice for the State..In his plea, the petitioner stated that he had approached the Kerala Lokayukta alleging nepotism, favouritism and abuse of power by the Chief Minister and the members of the State Cabinet while taking decisions, favouring people, based on political consideration resulting in disbursing of the Chief Minister‟s Distress Relief fund. He claimed that the complaint field under Section 9 of the Act is presently at the final stage of hearing and he had sought declaration under Section 14 of the Act.In the meanwhile, the State Cabinet came out with an ordinance on January 19 mainly amending Section 14 along with amendments to other provisions. This was sent to Governor Arif Mohammad Khan for his assent on January 22 and he signed the same after a meeting with Chief Minister Pinarayi Vijayan on February 7..The Kerala Lokayukta Act was enacted in the year 1999 replacing Kerala Public Men (Prevention of Corruption) Act 1983 conferring power on the Lokayukta to enquire into any action including omission relatable to matters specified in list II or list III of the 7th schedule of the Constitution of India. As per Section 14 of the Act, if a finding is returned by the Lokayukta or Upa Lokayukta against a public servant, the public servant is required to vacate his office as provided in Section 14 of the Act.Through the enactment of the ordinance, the executive has become the appellate authority over the orders or declarations passed by the Lokayukta, the petitioner contended.According to the ordinance, notified in the gazette on Tuesday, the Governor, Chief Minister or the State government would be the competent authority who may either accept or reject the declaration by the Lokayukta, after giving an opportunity of being heard..This, according to the petitioner, is in contravention to the doctrine of separation of powers emphasized in Article 50 of the Constitution of India."However, by overlooking the constitutional mandate, executive is allowed to function as an appellate authority by stealing away judicial authority, which is a clear indication of the unconstitutionality of the ordinance.The duty of the judicial body/judiciary, is to adjudicate and the duty of the executive, as required by the constitution, is to execute the order passed by the judiciary. But now, through the ordinance, there is reversal of the function. The executive would now function as an appellate body rather to execute the order passed by the judiciary," the plea said.The petitioner pointed out that after the enactment of the Kerala Lokayukta Act, the Union Government came out with the Lokpal Act and as such the assent given by the Governor to the ordinance without instructions from the President is violative of the constitutional mandate, since the introduction of the bill in the legislature requires the sanction of President. "When the field is already occupied by the central Legislation, in spite of 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," the plea stated..On these among other grounds the petitioner sought declarations that the ordinance is void as it is violative of Article 254(2) of the Constitution of India and that the amendment to Section 14 of the Kerala Lokayukta Act introduced through it conferring power of appeal to the executive is violative of the concept of independence of judiciary.