The Governor of Kerala promulgated the Kerala Lok Ayukta (Amendment) Ordinance, 2022, in the first week of February. The move witnessed strong resistance from the Opposition in the assembly. The ordinance seeks to increase the role of the executive in the decisions of the Lok Ayukta.
Section 14 of the Act empowers the Lok Ayukta to direct public servants to vacate their office if the Lok Ayukta is satisfied that the allegation against such public servant is substantiated. Such direction will be confirmed by the competent authority (governor, chief minister or the government of Kerala).
The government’s reasoning to amend the Act was rooted in Articles 163 and 164 of the Constitution. The Lok Ayukta is empowered to direct the chief minister (CM) or minister to vacate their office. This contradicts the “pleasure doctrine” that the CM and minister hold their office during the pleasure of the governor. Even high courts cannot direct the removal of ministers through the writ of quo warranto.
In S Gunasekaran v Ministry of Home Affairs, the Madras High Court held that the CM or minister hold their office during the pleasure of the governor, and a breach of oath or criminal charges would not be grounds for the court to issue the writ of quo warranto. While the argument of the government is valid on the principles enshrined in the Constitution, the outcome of the ordinance is no better.
The ordinance, in substance, has two significant hurdles. First, it reduces the Lok Ayukta to merely an advisory role by subjecting its direction to the competent authority. The ordinance has amended this provision to empower the competent authority to either accept or reject the report submitted by Lok Ayukta after giving the public servant an opportunity of being heard. This has transformed the competent authority under the Act into a pseudo appellate body that may render its decision in three months.
Second, it infringes on the principles of separation of powers. The amended section gives the competent authority the discretion to approve or reject the direction of the Lok Ayukta. The competent authority as defined under Section 2 of the Act is the governor, CM or government of Kerala, in most cases, rendering an adjudicatory role to the executive.
The Supreme Court in P Sambamurthy v State of Andhra Pradesh struck down a constitutional amendment that granted the executive the power to modify or annul decisions of administrative tribunals on the ground that rule of law and judicial review are basic features of the Indian Constitution.
Further, the necessity for the promulgation of the ordinance is questionable in this case. Ordinance making power is one of the most misused provisions of the Constitution. The jurisprudence laid down by the Supreme Court that bars the judicial review of the subjective satisfaction of the governor/president for the promulgation of ordinance is the primary reason for this rampant misuse.
Over the last two assemblies (14th and 15th), Kerala has passed only 150 laws in contrast to the promulgation of over 360 ordinances. Whereas under the previous government of the Congress (13th assembly), 145 bills were passed, and 190 ordinances were promulgated. While the number is better for the 13th assembly, it is not ideal. The number of ordinances remaining higher than bills passed by duly elected assemblies highlights the misuse of the ordinance making power as well as points out the utter disregard of the parliamentary system envisaged under the Constitution.
In defence of ordinances, Ambedkar stated in the constituent assembly that ordinances were not supposed to create a parallel power of legislation. However, the numbers suggest that Kerala has done the opposite. By their very nature, Ordinances work on executive fiat and lack the deliberations necessary for law-making in a democratic setup.
Parliaments and assemblies give the platform for various stakeholders to debate core issues. Committees in duly elected assemblies further this legislative scrutiny resulting in better legislations. These principles must be kept in mind during the legislative stages. The issues of separation of power, the rule of law, hindering the rights of the Cabinet and the procedural necessity of taking the law through an appropriate amount of legislative scrutiny are fundamental to law-making.
The lack of such measures is meant to produce a situation: Two wrongs don’t make a right, as it did in Kerala.
Prakhar Raghuvanshi is a constitutional law honours student at National Law University, Jodhpur
The views expressed are personal