Kerala High Court
Kochi: The Lok Ayukta's functions are only investigative in nature and therefore, the ordinance amending the Kerala Lok Ayukta Act has not made the executive an appellate authority nor has it resulted in encroachment into the judiciary's domain, the LDF government has told the High Court here.
The submission by the state government has been made in an affidavit filed in the high court in response to a plea challenging the constitutional validity of the recent Kerala Lok Ayukta (Amendment) Ordinance.
The petition by social worker R S Sasikumar, represented by senior advocate George Poonthottam, has contended that by passing the ordinance, the executive was "encroaching" into the domain of the judiciary and quasi-judicial bodies in contravention of the doctrine of separation of powers emphasised in the Constitution of India.
Opposing the contention, the state in its affidavit, filed through senior government pleader V Manu, has argued that a reading of the Kerala Lok Ayukta Act would make it clear that "functions of the Lok Ayukta are only investigative in nature" and that it was not a court of law.
"It is also trite and settled law that the nature and functions of the Lok Ayukta and Upa Lok Ayukta are investigative and that Lok Ayukta and Upa Lok Ayukta are neither a court nor a Tribunal," it has contended.
Therefore, the ordinance would not result in executive encroachment into the domain of the judiciary or the former becoming an appellate authority against declarations passed by the Lok Ayukta, the state government has claimed.
"The averments, allegations and contentions that the Ordinance has resulted in interference with administration of justice, that it conferred a mode of appeal to Executive of the State..., that it amounted to executive encroachment into the domain of the judiciary... and that the same would result in the Executive becoming the Appellate Authority against the declaration passed by the Lok Ayukta are wrong and denied," the state has further said in the affidavit.
The ordinance amended Section 14 of the Act, which stated that if the Lok Ayukta declared that a complaint against a public servant, including the ministers and Chief Minister, was substantiated and that the public servant should not continue to hold the post, that person has to vacate office.
The state, defending its action, said provisions for removal of ministers and the chief minister from office were there under the Constitution and they cannot be overridden by a legislation of the state legislature.
It also contended that while the report and findings of the Lok Ayukta and Upa Lok Ayukta, under Section 12 of the Act were recommendatory in nature, while Section 14 of the Act made its declaration as mandatory and therefore, to rectify this contradiction, the ordinance was issued.
The state has also argued that since the amended provision of the Act was not inconsistent with any provisions of an earlier law made by the Parliament or an existing law or any matter enumerated in the Concurrent List of the Constitution and in such circumstances, there was no need for a presidential assent for the ordinance.
"Lok Ayukta is a creation of the Act. It is well within the legislative domain to alter, amend or vary its powers by way of the Ordinance," the state has contended and sought that the petition be dismissed.
According to the ordinance, notified in the gazette, the Governor, Chief Minister or the state government would be the competent authority and he or it may either accept or reject the declaration by the Lok Ayukta, after giving an opportunity of being heard.
The petition has alleged that the ordinance will grant protection to "delinquent" public servants in the future, as the government will have the power to accept or reject the Lok Ayukta's declaration, and "the public will be helpless".
The state has opposed the contention saying that the competent authority, to whom the Lok Ayukta report will be forwarded, are persons holding high offices -- including constitutional offices, "and it cannot be presumed such persons will act on bias".
The petition has also said Sasikumar has moved a plea in the Kerala Lok Ayukta alleging nepotism, favouritism and abuse of power by the Chief Minister and the members of the State Cabinet while taking decisions and favouring people based on political considerations while disbursing amounts from the Chief Minister's Distress Relief fund.
"The complaint filed by the petitioner is presently at the final stage of hearing. The petitioner has reason to believe that the progress of the case is one of the reasons which has resulted in bringing out the amendment to Kerala Lok Ayukta Act after a gap of 22 years of the enactment on the ground that Section 14 of the said Act is unconstitutional without a challenge or declaration by a constitutional court," the plea contended.
This allegation too has been denied by the state in its counter affidavit.