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..
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