Onmanorama Explains | How Kerala Lok Ayukta amendment strips Governor of anti-corruption powers

Now with President Droupadi Murmu giving her nod to the Kerala Lok Ayukta (Amendment) Bill, the Kerala Governor has been dispossessed of his only power to act against corruption in high places. For obvious reasons, Kerala Governor Arif Mohammad Khan had refused to give his assent to the Bill passed by the Assembly on August 30, 2022.

He did not even send the Bill back to the Assembly for reconsideration as is required when the Governor has any reservations about a Bill. After ignoring the Bill for over a year, the Governor sent the Bill for the consideration of the President on November 23, 2023. This was just a day before the Supreme Court was about to take up a writ petition filed by the Kerala government against the Governor's practice of stalling the progress of a Bill passed by the Legislature.

Bills that took away the privileges of the chancellor like the amendments to the laws of various universities in Kerala were also kept in abeyance by the Governor.

How will Lok Ayukta change
In the 1999 Act, the Governor was the competent authority in the case of any findings against the Chief Minister. The amendment has removed the Governor and instead appointed the State Legislative Assembly as the 'competent authority'.

The Chief Minister can now heave a sigh of relief. For instance, take the case related to the misuse of Chief Minister's Distress Relief Fund (CMDRF). If the Lok Ayukta gave an adverse verdict against Chief Minister Pinarayi Vijayan, Governor Arif Mohammad Khan would have been in a position of authority over Pinarayi.

Now, with this amendment, the Assembly will sit in judgment over the Lok Ayukta recommendations against a Chief Minister. The Governor has been removed as competent authority for MLAs, too. In their case, it would be the Speaker from now on. For ministers, the Chief Minister has been retained as the ‘competent authority’.

Is LA recommendations binding?
The most consequential change that the amendment would bring about is not the defanging of the Kerala Governor but its non-binding clause. The Lok Ayukta findings will henceforth not be binding on the competent authorities -- they can either accept or reject the Lok Ayukta's recommendations.

It was the binding nature of the Lok Ayukta recommendations that forced K T Jaleel to resign from the Cabinet on April 13, 2021, after the Lok Ayukta passed a verdict against him in an alleged case of nepotism. Though the Chief Minister was the competent authority for a minister, Pinarayi had no choice but to forward Jaleel's resignation to the Governor. Even the High Court could not come to Jaleel's rescue.

The original 1999 Act said, "Where the competent authority is the Governor, the Government of Kerala or the Chief Minister, he or it shall accept the declaration."

The amendment but gives the competent authority (CA) options. It can either accept or reject. It only has to inform the LA, within 90 days of receiving its report, why it has decided not to act on the recommendations.

Now, if there is an adverse verdict against the Chief Minister in the CMDRF misappropriation case, the Kerala Assembly (the competent authority for the CM) with a clear majority for the LDF can without a trouble dump the findings.

Former health minister K K Shylaja, now an MLA, is another leader being probed by the Lok Ayukta for alleged corruption in the purchase of PPE kits and other medical equipment during Covid. Even if the anti-corruption body passes a guilty verdict, the Speaker (the competent authority for MLAs) in his wisdom can reject the findings. In the original Act, the Governor was the competent authority for MLAs.

Has amendment exempted any group
Senior politicians holding responsible positions in a political party have been taken out of the list of persons who could be investigated by the Lok Ayukta.

The other high offices that will remain within the influence of the LA are: Chief Minister, ministers, MLAs, local body heads, government secretaries, All India Service officers employed in the state, chairman or members of boards or corporations and public servants, including former chief ministers, former ministers and ex-MLAs.

Why is the amendment criticised?
The major criticism against the Lok Ayukta amendment is that it would give the legislature appellate powers over the judiciary, and thus render it toothless.

Opposition Leader V D Satheesan had argued in the Assembly that it would be wrong to grant the powers to reject a finding that was evolved through a judicial process to the Legislature. "It is against the separation of powers envisaged in the Constitution," he said.

Satheesan said it would be foolish to expect majority of MLAs to move against a Chief Minister who has been found guilty by the Lok Ayukta.

What is the government's defence?
Law minister P Rajeev said the amendment just brought the Kerala Lok Ayukta law in line with the national Lokpal Act. This seems to be the reasoning adopted by the Centre for granting Presidential nod for the amendment on February 28.

However, it is argued that contrary to Rajeev’s assertions, the Lokpal Act has indeed made the findings binding on the competent authority. In a sense, this is true. However, the national Act does so with a convenient caveat that could be easily invoked to reject the Lokpal findings.

Here is Section 32(2) of the Lokpal Act: "The Central Government shall ordinarily accept the recommendation of the Lokpal, except for the reasons to be recorded in writing in a case where it is not feasible to do so for administrative reasons."
Clearly, the Centre can find a way to ignore the Lokpal.