Lok Ayukta without enforceable powers comes into being. Guv loses more authority

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Pinarayi Vijayan, VD Satheesan, P Rajeev

 The Kerala Lok Ayukta (Amendment) Bill, which takes away the enforceable rights of the Lok Ayukta, was passed in the Assembly on Tuesday. The Opposition UDF boycotted the day's proceedings saying it would not be witness to the government's autocratic approach of using its brute majority to annihilate the only anti-corruption mechanism that existed in Kerala.

The Opposition was especially critical of the new changes that were introduced when the Bill was under the consideration of the Assembly Subject Committee. This relates to the restructuring of the competent authorities to whom the Lok Ayukta would make its recommendation.

In the 1999 Act, which has now been superseded, the Governor was the competent authority in the case of any findings against the Chief Minister. This has now been changed to the State Legislative Assembly. Meaning, the Assembly will now sit in judgment over the Lok Ayukta recommendations against a Chief Minister. The State Legislative Assembly would be the competent authority for MLAs, too.

Under the original Act, the recommendations of Lok Ayukta, which had been created to prevent corruption in high places, was binding on the 'competent authority'; the Governor in the case of the Chief Minister and also MLAs, the Chief Minister in the case of ministers, and ministers in the case of IAS officers.

After the Amendment, the Lok Ayukta findings will not be binding on the competent authorities; they can either either accept or reject the Lok Ayukta's recommendations. Sensing that a Governor, perhaps acting at the behest of the Centre, could accept adverse findings and unseat an elected Chief Minister, the LDF Government has removed the Governor from a position that could give him power over the Chief Minister. This was also emblematic of the government's growing mistrust of Governor Arif Muhammad Khan.

Opposition Leader V D Satheesan did not seem particularly bothered about the Governor losing his powers but was critical of the move to provide judicial powers to the Legislature. "It is wrong to grant the powers to reject or accept a finding that was evolved through a judicial process to the Legislature. This is against the doctrine of separation of powers," Satheesan said. "How can you expect majority of MLAs to move against a Chief Minister who has been found guilty by the Lok Ayukta. It is weird to give appellate powers to the Legislature," he said.

Law Minister P Rajeeve, quoting a High Court order, said that the issue could become a public debate when the Lok Ayukta's findings were discussed in the Assembly.

The minister said the Amendment was made just to bring the Lok Ayukta law in line with the Centre's Lokpal Act. The Opposition argued that the amendment would give more powers than was envisaged in the Lokpal to the competent authorities.

Under the Lokpal Act, the competent authority is not empowered to either reject or accept the findings of the Lokpal. Satheesan quoted section 24 of the Lokpal Act that states that if the Lokpal finds that an offence had been committed, it should file a case in a special court. "The Lokpal only needs to inform the competent authority of its findings and the competent authority has no role beyond that," Satheesan said.

Further, he said that the Lokpal findings, contrary to what the minister argued, was binding on the Centre. For this he invoked Section 32(2) of the Lokpal Act. It says that the Centre should "ordinarily accept the recommendations of the Lokpal", except where it is not feasible to do so for administrative reasons. Rajeeve pounced on the second part. "So, the Centre can reject the findings of the Lokpal if need be. We too are doing just this," he said.

Further, Rajeeve said that the A K Antony government had in 2004 passed an order against the adjudicatory powers vested in the Lok Ayukta. Satheesan shot back asking whether the Antony government, which had a brute majority in the Assembly, ever attempted to bring an amendment to strip the Lok Ayukta of its powers.

The other major argument of the LDF, put forward by K K Shylaja, Saji Cherian and K T Jaleel, was that the original Lok Ayukta Act negated the principles of natural justice by not giving the affected public servant a chance to explain his side. It was said that Jaleel was not heard when the Lok Ayukta passed an order against him for alleged nepotism. However, the UDF side held up Section 9(3) of the original Act that states that the public servant accused of an offence should be given an opportunity to offer his comments on the matter.

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