Dilution of Lokayukta Powers in Kerala

Context: With an ordinance,the Kerala government proposes to amend Kerala Lokayukta Act and it has attracted criticism from the opposition.

Kerala Lokayukta (Amendment) Ordinance, 2021

• It has provisions to cut down the powers of the Lokayukta to merely advisory in nature and relax the qualification of the Lokayukta.
• It is intended to bring the anti-corruption body on par with those in other states.
• It bestows the competent authority — the Governor or Chief Minister or the Kerala government — with the power to overrule the Lokayukta.
• It gives the government powers to either accept or reject the verdict of the Lokayukta, after giving an opportunity of being heard.
• It proposes an amendment to section 15 of the Act, which deals with Lokayukta’s power to initiate prosecution against a public servant.
• It allows any former High Court Judge to hold office.

Criticism of the ordinance

• It is regarded as an attempt to undermine the powers of the Lokayukta, and facilitate corruption in the government.
• The ordinance comes at a time when complaints of several irregularities of the government are pending before the Lokayukta.
• The amendment to section 14 (vacating office) will impact the powers of the Lokayukta to initiate prosecution.
• It is unconstitutional as it allows the authority to continue in office even if the corruption is proved.

About Lokayukta

• The Lokayukta is an autonomous anti-corruption agency formed to keep a check on corruption in the government.
• It is an Ombudsman type of institution to investigate the grievances of the public about administrative wrongs and excesses.
• Lokayuktas are the state equivalents of the central Lokpal.
• The institution of lokayukta was established first in Maharashtra in 1971.

Lokayuktas Act (2013)

• It seeks to establish the institution of Lokayukta at the level of the State.
• It seeks to provide a uniform vigilance and anti-corruption road map for the nation at the States.
• The Act provides freedom to the states to decide upon the contours of the Lokayukta mechanism in their respective state.
• The 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.

Lokayukta’s current powers

• To conduct the investigations and inquiries against the cases of grievances as well as allegations.
• It can initiate investigations either on the basis of a complaint received from the citizen against unfair administrative action or suo moto.
• Exception to the suo moto power: Uttar Pradesh, Himachal Pradesh and Assam.
• The recommendations made by the lokayukta are only advisory.

The provisions in the Act that makes the directions of the Lokayukta binding are:

• If it makes a declaration that the public servant is unfit to hold the post, the Governor or Chief Minister is bound to accept it.
• The orders issued by the Lokayukta or an Upa-Lokayukta after investigation are binding in nature on the government.

Appointment

• The lokayukta and upalokayukta are appointed by the governor of the state.

While appointing, the governor in most of the states consults:

• the chief justice of the state high court,
• the leader of Opposition in the state legislative assembly.

The Governor appoints

• one Lokayukta (a retired Supreme Court judge or High Court Chief Justice)
• two Upa-Lokayuktas (retired or serving High Court judges)

Tenure

• The term of office fixed for lokayukta is of 5 years duration or 65 years of age, whichever is earlier.
• He is not eligible for reappointment for a second term.

How does Lokayuktas work in states?
Lokayuktas are the state equivalents of the central Lokpal. The law gave states the autonomy to frame their own laws. So, the Lokayukta’s powers vary from state to state on various aspects, such as tenure, and the need for sanction to prosecute officials. Among these are:

• Nagaland:  It passed the law allowing the Nagaland government the power to keep the post of the state Lokayukta vacant for a year.
• Goa: Goa’s Lokayukta does not have powers of prosecution.
• Bihar: It 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.
• UP: In 2012, Uttar Pradesh passed a law for increasing the tenure of Lokayukta to 8 years. In 2015, the state brought another amendment removing the High Court Chief Justice from the selection committee.