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Explained: Kerala’s proposal to limit Lokayukta’s powers, and laws in other states

The Kerala government proposes to amend the Kerala Lok Ayukta Act with an ordinance, a move that has drawn criticism from the opposition. What change has been proposed, and why?

Written by Apurva Vishwanath , Shyamlal Yadav | New Delhi |
Updated: February 1, 2022 2:40:23 pm
Kerala, Lokayukta, Kerala Lok Ayukta Act, India news, Indian express, Indian express news, current affairsKerala Chief Minister Pinarayi Vijayan (file)

The Kerala government proposes to amend the Kerala Lok Ayukta Act with an ordinance, a move that has drawn criticism from the opposition.

What change has been proposed?

The cabinet has recommended to the Governor that he promulgate the ordinance, which proposes to give the government powers to “either accept or reject the verdict of the Lokayukta, after giving an opportunity of being heard”. Currently, under Section 14 of the Act, a public servant is required to vacate office if directed by the Lokayukta.

The stated reason for this is that the state’s Advocate General K Gopalakrishna Kurup has given his opinion green-lighting the amendment. However, the move is widely seen as a fallout of the Supreme Court’s refusal in October last year to stay the Lokayukta decision holding CPI(M) leader K T Jaleel guilty of nepotism. Jaleel, who was Higher Education Minister during Pinarayi Vijayan’s first term as Chief Minister, had to resign after the Lokayukta decision. The Lokayukta is also currently investigating cases-one against Vijayan himself and Higher Education Minister R Bindu.

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How was the Lokayukta Act originally envisaged?

The central Lokpal and Lokayuktas Act, 2013 was notified on January 1, 2014. The law was a result of demands of several decades for stronger anti-corruption laws.

The Act provides for establishing a Lokpal headed by a Chairperson, who is or has been a Chief Justice of India, or is or has been a judge of the Supreme Court, or an eminent person who fulfils eligibility criteria as specified. Of its other members, not exceeding eight, 50% are to be judicial members, provided that not less than 50% belong to the SCs, STs, OBCs, minorities, or are women. The Lokpal and Lokayukta are to deal with complaints against public servants, a definition that includes the Lokpal chairperson and members. The Lokpal was appointed in March 2019 and it started functioning since March 2020 when its rules were framed. The Lokpal is at present headed by former Supreme Court Justice Pinaki Chandra Ghose.

As per statistics on its official website, the Lokpal received 1,427 complaints in 2019-20, 110 in 2020-21, and 30 in 2021-22 up to July 2021. Due to a delay in framing rules, one of the judicial members, Justice (Retd) Dilip B Bhosale, has resigned.

How does it work in the states?

Lokayuktas are the state equivalents of the central Lokpal. Section 63 of the Lokpal and Lokayuktas Act, 2013 states: “Every state shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.”

Originally, the central legislation was envisaged to make a Lokayukta in each state mandatory. However, regional parties and the BJP, which was in opposition then, argued that this would be against the spirit of federalism. The law then created a mere framework, leaving it to the states to decide the specifics.

Which states have Lokayuktas?

When the 2013 Act was passed, Lokayuktas were already functioning in some states — including in Madhya Pradesh and Karnataka where they were very active. Following the Act and the intervention of the Supreme Court, most states have now set up a Lokayukta.

In 2018, the Supreme Court had expressed concern that Jammu & Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Puducherry, Tamil Nadu, Telangana, Tripura, West Bengal and Arunachal Pradesh had not appointed any Lokayukta or Up-Lokayukta. It asked the chief secretaries about the steps taken for these appointment, and “if so the stage thereof… The reasons for non-appointment of Lokayukta/ Up-Lokayukta… be also laid before the court.”

However, given that states have autonomy to frame their own laws, the Lokayukta’s powers vary from state to state on various aspects, such as tenure, and need of sanction to prosecute officials. Examples of the laws in some states:

NAGALAND: On 3 August 2021, Nagaland passed a law allowing itself the power to keep the post of the state Lokayukta vacant for a year. It was also criticised for a political appointment: Up-Lokayukta Mangyang Lima is a member of the ruling National Democratic Progressive Party.

The new law came on the heels of the retirement of Lokayukta Justice (retd) Uma Nath Singh. Justice Singh was working from Delhi citing restrictions on travelling due to the pandemic. The state moved the Supreme Court, which observed in January last year: “We don’t understand this. How can a person be a Lokayukta while sitting in Delhi just because this is pandemic times… You are demeaning your office.” Subsequently, Justice Singh resigned.

GOA: Goa’s Lokayukta does not have powers of prosecution. On his retirement in June 2020, Justice (Retd) Prafulla Kumar Misra said he had left office “disenchanted” with the state government that had not acted on even one of the 21 reports that he submitted against public functionaries during his nearly four-and-a-half-year tenure.

BIHAR: In March last year, Bihar passed a law that sought to punish people filing false cases before the Lokayukta. The offence would carry a jail-term of up to three years. The move was criticised on the ground that it could be misused against whistle-blowers.

UTTAR PRADESH: In 2012, Uttar Pradesh passed a law increasing the tenure of Lokayukta to 8 years. Then Lokayukta Justice (retd) N K Mehrotra, who was appointed on March 16, 2006, got a two-year extension with the amendment. The Supreme Court upheld the law in 2014.

In 2015, the state brought another amendment removing the High Court Chief Justice from the selection committee. This came in the wake of Justice D Y Chandrachud, then Chief Justice of the Allahabad HC, disagreeing with the proposal to appoint Justice (retd) Ravindra Singh as Lokayukta, citing his proximity to the Samajwadi Party that was in power then.

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