Congress leaders hand over the petition to Governor | Photo: Mathrubhumi
Thiruvananthapuram: UDF leaders on Wednesday visited Governor Arif Mohammad Khan and handed over a petition seeking him to refrain from signing the ordinance which curtails the powers of Lok Ayukta.
The petition noted that the new set of amendments is “frivolous, politically driven and in stark contravention to the established laws of the country.”
Opposition leader VD Satheesan was accompanied by former CM Oommen Chandy, MLA Ramesh Chennithala and leaders of various parties in the front.
Here is the complete copy of the petition submitted by Congress leadership to the Governor:
This letter is in continuation to my earlier letter dated 25-01-2022 requesting your good self to abstain from giving your assent to the Lok Ayukta ordinance.
Please note that the reasons for the proposed amendment to the Lok Ayukta Act have been revealed by the State Law Minister and other stakeholders in public. However, those justifications appear to be frivolous, politically driven, and in stark contravention of the established laws in this Country.
The Government has cited the Kerala High Court's decisions as one of the reasons for amending Section 14 of the THE LOK AYUKTA ACT,1999. As per available information, the judgment in Sudha Devi Vs The District Collector(WP(C). No.41335 of 2016) and The Kerala State Cooperative Vs Kerala Lok Ayukta (WP(C). No.23431 of 2016) have been cited by the Government. On perusal of these judicial decisions, it is abundantly clear that the scope of Section 12(1) of THE LOK AYUKTA ACT, 1999, rather than Section 14, was subjected to judicial scrutiny in these cases. The Court has rightly pointed out that the Lok Ayukta has only recommendatory jurisdiction as per Section 12(1), which is exactly what is mentioned in the Act. The Court’s decisions in these aforesaid cases are just literal interpretations of Section 12(1) of the Act, which talks about reports of Lok Ayukta and states that the Lok Ayukta shall by a report in writing recommend to the competent authority for taking appropriate decisions.
Kindly note that in the 22 year-long histories of the Lok Ayukta Act, only one decision was pronounced by Lok Ayukta invoking Section 14 of the Act. The decision was against former Minister Sri K.T. Jaleel, with the Lok Ayukta finding him guilty of nepotism and abuse of office to obtain a favour for a relative. The Kerala High Court and Supreme Court upheld the Lok Ayutka decision, demonstrating that Section 14 is in accordance with the Indian Constitution. Cases against the incumbent Higher Education Minister and the Chief Minister pending before the Lok Ayukta are to make a declaration under sec: 14 of the Act as in the case of Sri.K.T.Jaleel.
It is in fact shocking to learn that the verdicts of the High Court have been misconstrued in order to deceive the public and push anti-people legislation.
Another argument advanced by the government to justify the proposed amendment to Section 14 is that it violates Article 164 of the Indian Constitution. Article 164 discusses the appointment of the Chief Minister and other ministers, and how they hold office at the Governor's pleasure. This does not mean that the Chief Minister or other ministers can only be removed by the Governor. Many times, the Judiciary has ordered public servants to vacate their positions in quo warranto and other petitions. In fact, Section 8 of the Representation of the People Act, 1951, disqualifies a person convicted of any offence and sentenced to imprisonment for not less than two years from continuing in office. It would be absurd for the government to argue that the Apex court, High Court or a statute passed by the Legislature cannot order a public servant found to have committed a grave offence to vacate their positions.
Above all, the Indian Constitution has given the judiciary the power to validate the constitutionality of laws passed by the legislature under Articles 32, and 226. In fact, the legal principle of presumption of constitutionality requires the judge to assume that Acts passed by the legislature are constitutional unless they are found unconstitutional. Please note that no constitutional court has ever declared the impugned section unconstitutional in its 22-year history. In reality, the Supreme Court supported the Lok Ayukta's decision in the K.T.Jaleel case, demonstrating the Section's constitutional legitimacy.
However, in this ordinance, the executive is openly proclaiming a statute that has been in effect for 22 years to be unconstitutional and is proposing an ordinance to change the provision. This is ultra vires and goes against the fundamental tenets of the Indian constitution.
These facts demonstrate that the claim of unconstitutionality is baseless and founded on incorrect premises.
Another odd justification advanced by the Law Minister in defence of the proposed legislation is that the current Act lacks an appeal provision. There are various laws in this country that do not provide for appeals. Lok Adalat formed under Legal Services Authorities Act, is one example. The lack of an appeal clause in the original legislation can be justified by the fact that the Lok Ayukta would be a Supreme Court Judge or a retired High Court Chief Justice. Kindly note that the decisions of the Lok Ayukta can be challenged in the High Court as per Article 226 and Article 227.
In fact, the opposition will enthusiastically support measures amending the Said Act to include an appeal provision entrusting with a Division Bench of the High Court.
It's ironic that the proposed amendment, which purports to correct a violation of natural justice, actually contradicts the natural justice principle's basic premises.
The proposed amendment to Section 14 of the ordinance gives the Governor, the Chief Minister, or the government in their capacity as the competent authority to either reject or accept the decision of the Lok Ayukta after hearing both the parties. It is strange how an executive could serve as an appeal authority on a decision pronounced by a judicial or quasi-judicial forum consisting of former Supreme Court judge or Chief Justice of the High Court.
According to the natural justice maxim "Nemo Judex in causa sua," no one should be a judge in his or her own cause. After the proposed amendment, the case against the Chief Minister would be decided by the Governor, while the case against the Ministers would be decided by the Chief Minister. According to Article 163, the Governor has to exercise his functions at the aid and advise the council of Ministers with the Chief Minister at the head. As a result, the Chief Minister has a substantial say in the cases brought against him. This is an outright denial of natural justice.
Please take note that the contested provision in the ordinance was part of the original bill of the THE LOK AYUKTA ACT, 1999 when it was first introduced in the legislative assembly. However, due to widespread objections from members of both the opposition and the ruling party during the debate on February 22, 1999, this was withdrawn. In other words, this government is pushing through legislation that the Kerala Legislative Assembly debated and rejected.
The hastiness in bringing this ordinance is dubious and has put the probity of the government under scanner. As per Article 213, which talks about ordinances, compelling circumstances which render it necessary to take immediate action should exist as a prerequisite for promulgating an ordinance. With the legislative assembly session slated for next month, there seems to be no compelling reason to change the law, which has been in existence for over 22 years. The only immediate reason that could be perceived is that the Lok Ayukta is about to take up cases against the Chief Minister in relief fund misappropriation and the Higher Education Minister in the university issue. It should be understood that the government is expecting an unfavourable verdict in these cases and this ordinance is a shield to guard against any unsavoury decisions from the Lok Ayukta.
Moreover, the proposed amendment would serve as a catalyst for rampant corruption and nepotism.
In these compelling circumstances, taking into consideration the interest of the State and public at large, I request your good self to abstain from providing your assent to the Kerala Lok Ayukta (amendment) ordinance 2021.
-VD Satheesan, Chairman, UDF.