N.PRAKASH vs STATE OF KERALA

<div> <b> -1-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> <b>IN THE HIGH COURT OF KERALA AT ERNAKULAM</b><br /> <b>PRESENT</b><br /> <b>THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN</b><br /> <b>&amp;</b><br /> <b>THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.</b><br /> <b>ST</b><br /> <b>TUESDAY, THE 31</b> <b> DAY OF MARCH 2026 / 10TH CHAITHRA, 1948</b><br /> <b>WP(C) NO. 11107 OF 2024</b><br /> <b>PETITIONER/S:</b><br /> <b>N.PRAKASH</b><br /> <b>AGED 59 YEARS</b><br /> <b>PRAJITH VIHAR, AYINI ROAD, MARADU P.O. ERNAKULAM, </b><br /> <b>PIN - 682304</b><br /> <b>BY ADV N.PRAKASH(PARTY-IN-PERSON)</b><br /> <b>RESPONDENT/S:</b><br /> <b>STATE OF KERALA</b><br /> <b>REPRESENTED BY CHIEF SECRETARY, GOVERNMENT </b><br /> <b>SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001</b><br /> <b>BY ADVS. </b><br /> <b>GOVERNMENT PLEADER</b><br /> <b>SHRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL</b><br /> <b>OTHER PRESENT:</b><br /> <b>V. MANU-SPL.GP TO A.G.</b><br /><br /> <b> -2-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> <b>THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION</b><br /> <b>ON 31.03.2026, ALONG WITH WP(C).18749/2024, THE COURT ON THE</b><br /> <b>SAME DAY DELIVERED THE FOLLOWING: </b><br /><br /> <b> -3-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> <b>IN THE HIGH COURT OF KERALA AT ERNAKULAM</b><br /> <b>PRESENT</b><br /> <b>THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN</b><br /> <b>&amp;</b><br /> <b>THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.</b><br /> <b>ST</b><br /> <b>TUESDAY, THE 31</b> <b> DAY OF MARCH 2026 / 10TH CHAITHRA, 1948</b><br /> <b>WP(C) NO. 18749 OF 2024</b><br /> <b>PETITIONER/S:</b><br /> <b>RAMESH CHENNITHALA M.L.A.</b><br /> <b>AGED 66 YEARS</b><br /> <b>S/O LATE RAMAKRISHNA PILLA, MEMBER, KERALA </b><br /> <b>LEGISLATIVE ASSEMBLY, HARIPAD ASSEMBLY </b><br /> <b>CONSTITUENCY, ALAPPUZHA DISTRICT, KERALA, RESIDING</b><br /> <b>AT 485, ANANDAMANDIRAM, NEAR SUBRAMANIA SWAMY </b><br /> <b>TEMPLE, 28, HARIPPAD, ALAPPUZHA DISTRICT, PIN - </b><br /> <b>690514</b><br /> <b>BY ADVS. </b><br /> <b>SMT.NISHA GEORGE</b><br /> <b>SRI.GEORGE POONTHOTTAM (SR.)</b><br /> <b>SRI.A.L.NAVANEETH KRISHNAN</b><br /> <b>SMT.ANN MARIA FRANCIS</b><br /> <b>SHRI.REGINALD VALSALAN</b><br /> <b>SHRI.ANSHIN K.K</b><br /> <b>SMT.NAMITA PHILSON</b><br /> <b>SMT.KAVYA VARMA M. M.</b><br /> <b>SHRI.SIDHARTH.R.WARIYAR</b><br /> <b>RESPONDENT/S:</b><br /><br /> <b> -4-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> <b>THE STATE OF KERALA</b><br /> <b>REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT </b><br /> <b>SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001</b><br /> <b>BY ADVS. </b><br /> <b>GOVERNMENT PLEADER</b><br /> <b>SHRI.V.MANU, SENIOR G.P.</b><br /> <b>THIS WRIT PETITION (CIVIL) HAVING COME UP FOR</b><br /> <b>ADMISSION</b> <b> </b> <b>ON</b> <b> </b> <b>31.03.2026,</b> <b> </b> <b>ALONG</b> <b> </b> <b>WITH</b><br /> <b>WP(C).11107/2024, THE COURT ON THE SAME DAY</b><br /> <b>DELIVERED THE FOLLOWING: </b><br /><br /> <b> -5-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> C.R.<br /> JUDGMENT<br /> <br /> SOUMEN SEN, C.J.<br /> These writ petitions filed as Public Interest Litigations<br /> involving the common questions of law and facts are taken up<br /> together and disposed of by this common judgment.<br /> 2. The writ petitioner in W.P.(C) No. 18749/2024 is an elected<br /> member of the Kerala Legislative Assembly, presently from<br /> Haripad assembly. The petitioner in W.P.(C) No. 11107/2024 is<br /> an Indian citizen and presently residing in the State of Kerala.<br /> st<br /> The 1 petitioner is represented by Senior Counsel Mr. George<br /> nd<br /> Poonthottam, assisted by Ms. Kavya Verma. The 2 petitioner<br /> is appearing in person.<br /> 3. The common thread of challenge in these writ petitions is<br /> the amendment to the definition of the “competent authority”<br /> and Section 14 of the Kerala Lok Ayukta Act, 1999 whereby the<br /> declaration of the Lok Ayukta or the Upa Lok Ayukta has been<br /> made as recommendation.<br /><br /> <b> -6-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 4. Mr. George Poonthottam, the learned Senior Counsel, has<br /> submitted that the object of the Kerala Lok Ayukta Act, 1999<br /> (for short, the ‘KLAA’) stands defeated by replacing the<br /> &quot;declaration&quot; with a “recommendation&quot;, whereby the executive<br /> authority would now be required to review a decision rendered<br /> by a retired Judge of the Hon’ble Supreme Court or by a retired<br /> Chief Justice of the High Court, as the case may be.<br /> 5. It is submitted that the amendment, in effect, amounts to<br /> an administrative review of a decision taken by a judicial or<br /> quasi-judicial authority, as it cannot be disputed that the<br /> functions discharged by the Lok Ayukta or the Upa Lok Ayukta,<br /> as the case may be, are judicial or quasi-judicial in nature, as<br /> recognised in Chandrashekaraiah (Retd) v. Janekere C.Krishna<br /> 1<br /> and Others . In this regard, the learned Senior Counsel has<br /> referred to paragraphs 107 and 108 of the decision in<br /> Chandrashekaraiah (supra) to argue that, having regard to the<br /> broad spectrum of functions, powers, duties and<br /> responsibilities of the Lok Ayukta as prescribed under the KLAA<br /> 1<br /> (2013) 3 SCC 117<br /><br /> <b> -7-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> it would be evident that he is not merely performing a quasi-<br /> judicial function, as contrasted with a purely administrative or<br /> executive function, but is more than an investigator or an<br /> enquiry officer.<br /> 6. The significance of the unamended provision was to give<br /> due importance and enforcement to the declaration made by<br /> the Lok Ayukta in respect of the Chief Minister, a Minister and<br /> a Member of the Legislative Assembly of the State of Kerala.<br /> However, the same has now been reduced and watered down to<br /> practically nothing, as the State Legislature is now required to<br /> consider and treat the report of Lok Ayukta as the<br /> recommendation of the Lok Ayukta. This was not what was<br /> intended when the KLAA was enacted. It is submitted that,<br /> though in Chandrashekaraiah (supra) it was stated that the<br /> position of the Lok Ayukta was sui generis, meaning thereby<br /> that it is one of its own kind, the effectiveness of the declaration<br /> contemplated in the KLAA is nowhere diluted in the said<br /><br /> <b> -8-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> judgment, notwithstanding the fact that it may not be strictly<br /> considered to be a judicial order.<br /> 7. The very purpose of appointing a Judge to investigate in the<br /> manner prescribed under Sections 9 to 12 of the KLAA clearly<br /> demonstrates that the Legislature intended to obtain a neutral<br /> and impartial view from an authority who, over a period of time,<br /> has gained experience on the judicial side and is capable of<br /> adjudicating and deciding the complaint. It, therefore, follows<br /> that such an authority is not an ordinary authority or an<br /> executive body entrusted with the power of adjudication.<br /> 8. A Judge in charge under the unamended Act is required to<br /> hold a detailed investigation and thereafter, make a declaration,<br /> which the Legislature thought fit to accept without even batting<br /> an eyelid. The amendment is a clear act of interference with due<br /> discharge of the judicial functions of an authority vested with<br /> such power under law and it violates the rule of law which<br /> requires impartiality and neutrality in the process of<br /> adjudication.<br /><br /> <b> -9-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 9. The Lok Ayukta Act is enacted for the purpose of improving<br /> the standards of public administration, including cases of<br /> corruption, favoritism, official indiscipline in the administrative<br /> machinery. The Lok Ayukta and Upa-Lok Ayukta, appointed as<br /> per Section 3 of the KLAA aim at ensuring clean and<br /> transparent administration. The aforesaid amendments are<br /> totally against the aims and objectives of the KLAA. The<br /> arguments of the petitioners can be summarised as follows:<br /> i) By amending Section 14 of the KLAA, the Lok Ayukta<br /> and Upa Lok Ayukta have been converted as a body, without<br /> any power, in the case of Chief Minister and Members of the<br /> Legislative Assembly, as the enforcement of the<br /> recommendation made by the Lok Ayukta and Upa-Lok Ayukta<br /> is at the mercy of the competent authority. Prior to the<br /> amendment, it was obligatory on the part of the competent<br /> authority in terms of Sections 14(1) and (2) of the KLAA to<br /> accept and act upon the said recommendation. Now, the Lok<br /> Ayukta or the Upa-Lok Ayukta is necessitated to make<br /><br /> <b> -10-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> recommendation to the competent authority and thereafter, it is<br /> for the competent authority to examine the recommendation<br /> and communicate to the Lok Ayukta or Upa-Lok Ayukta. As<br /> such, the Lok Ayukta or the Upa-Lok Ayukta has been<br /> converted to a powerless body, acting upon the<br /> recommendations of the competent authority.<br /> ii) The amendments incorporated to Sections 2, 3 and 14 of<br /> the KLAA resulted in conferring power on the Legislature,<br /> Executive and Speaker to consider/revisit the merit of the order<br /> passed by the Lok Ayukta. The said conferment of power is<br /> delegation over the Legislature, Executive and Speaker to<br /> decide as to whether the order is to be accepted or not. This can<br /> only be termed as legislative interference with the functioning of<br /> the judicial body.<br /> iii) By amending Section 14 of the KLAA, the finality of the<br /> orders passed by the Lok Ayukta or the Upa-Lok Ayukta is<br /> taken away, vesting power upon the State Legislative Assembly<br /><br /> <b> -11-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> and the Speaker of the Legislative Assembly to examine the<br /> recommendation of the Lok Ayukta or the Upa-Lok Ayukta.<br /> iv) Prior to the amendment, if a finding is returned by the<br /> Lok Ayukta or Upa Lok Ayukta against a public servant, the<br /> said public servant is required to vacate his office as provided<br /> therein on finding by the Lok Ayukta or Upa Lok Ayukta that<br /> the public servant has abused his position. However, the power<br /> conferred on the Lok Ayukta or Upa-Lok Ayukta has now<br /> completely been taken away by the amendment to Section 14.<br /> v) The doctrine of separation of power which form part of<br /> the basic structure of the Constitution of India is enumerated<br /> in various judgments of the Hon&#x27;ble Supreme Court. By<br /> upholding the separation of powers between the Legislature,<br /> Executive and the Judiciary, it has been time and again<br /> reiterated that these three organs have to function as separate<br /> organs of the republic and that they cannot take over the<br /> functions assigned to one other. <br /><br /> <b> -12-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> vi) The impugned amendments are an attempt to weaken<br /> the judicial system, by encroaching upon the independence of<br /> the judiciary.<br /> vii) It is also relevant to note that there are no provisions in<br /> other States wherein, the competent authority in relation to the<br /> Chief Minister is the State Legislative Assembly and that of a<br /> member of the State Legislative Assembly is the Speaker of the<br /> State Legislative Assembly. A perusal of the Karnataka<br /> Lokayukta Act, 1984 and the Tamil Nadu Lok Ayukta Act,<br /> 2018, would show that the competent authority in relation to<br /> the Chief Minister is the Governor. Also, in Karnataka<br /> Lokayukta Act, 1984, the competent authority in relation to a<br /> member of the State Legislature is the Governor acting in his<br /> discretion. As such, the amendments are violative of the basic<br /> structure doctrine and hence, liable to be struck down.<br /> 10. The learned Senior Counsel is, in fact, trying to emphasise<br /> that the amendment is shocking and clearly subversive of all<br /> known canons of law and fairness, as it gives overriding power<br /><br /> <b> -13-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> to the State Legislature to treat the report of the Lok Ayukta,<br /> which was earlier considered as a declaration, now as a<br /> recommendation. If this amendment is allowed, it would make<br /> a mockery of the entire adjudicatory process and would amount<br /> to clear violation of the basic concept of justice, thereby<br /> defeating the very purpose and object of the KLAA. It would now<br /> mean that the Executive will decide the fate of an authority,<br /> even though the very object of the KLAA is to ensure impartial<br /> adjudication by a judicial authority – no less than a Judge of<br /> the Hon’ble Supreme Court or the Chief Justice of the High<br /> Court, who may now be substituted by a Judge of the High<br /> Court. It is articulated that overriding the decision of the Lok<br /> Ayukta was not contemplated under the original Act, and the<br /> amended Act, by diluting the said provisions, has rendered the<br /> object of the legislation redundant. It is submitted that the<br /> amendment is unconstitutional, as it strikes at judicial<br /> independence in reviewing the declaration which is now a<br /> recommendation of the Lok Ayukta.<br /><br /> <b> -14-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 11. In short, the argument is that the effect of the amendment<br /> is to be judged on the touchstone of the rule of law and whether<br /> it violates the rule of law would be the proper test to assess the<br /> quality of the amendment. The purpose and object of the KLAA<br /> would be defeated if the reports recommending actions are<br /> rendered ineffective and inoperative, as is intended by replacing<br /> “declaration” with “recommendation” in the amendment to<br /> Section 14 of the KLAA. The power of the Governor has also<br /> been diluted in the definition clause of “competent authority”,<br /> as the Governor is no longer the competent authority vis-à-vis<br /> the Chief Minister; instead, the State Legislature has been<br /> made the competent authority for implementing the report of<br /> the Lok Ayukta. The said amendments, if allowed to be<br /> sustained, would weaken the faith of the people in the rule of<br /> law and it is necessary that the Constitutional Court<br /> safeguards the rule of law by setting aside the amendments.<br /> 12. The learned Senior Counsel has submitted that, upon<br /> analysing the provisions of both the amended and unamended<br /><br /> <b> -15-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Act, there has been no fundamental change in the powers to be<br /> exercised by the Lok Ayukta and the Upa Lok Ayukta with<br /> regard to the manner of investigation and the proposed action,<br /> as elaborately set out in Sections 9 to 12 of the KLAA . However,<br /> the effectiveness of the report has now been rendered ineffective<br /> by replacing the word “declaration” in the unamended Section<br /> 14 with “recommendation,” resulting in a complete change with<br /> regard to the enforceability of the said report, which is now to<br /> be considered a recommendation instead of a declaration. While<br /> a declaration was enforceable without any further scrutiny and<br /> was not subject to review by any competent authority under the<br /> unamended Section 3 of the KLAA , by reason of the amendment<br /> to Section 14, the report, which is now in the nature of a<br /> recommendation, will be scrutinized by the State Legislative<br /> Assembly in relation to the Chief Minister, instead of the<br /> Governor immediately taking steps on the basis of the said<br /> report under the unamended provision, which did not permit<br /> any further review. The said amendments, according to the<br /><br /> <b> -16-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> learned Senior Counsel, in fact, amount to a review by the State<br /> Legislature of a report prepared and submitted by a Judge of<br /> the Hon’ble Supreme Court or by the Chief Justice of the High<br /> Court, which would, in effect, constitute an administrative<br /> review of a decision taken by a judicial or quasi-judicial<br /> authority having the trappings of a court.<br /> 13. The learned Senior Counsel, with reference to Sections 9<br /> to 12 of the KLAA , has strenuously argued that these powers<br /> are essentially judicial or quasi-judicial in nature, having the<br /> trappings of a court, and hence, on the basis of the decision of<br /> the Hon’ble Supreme Court in Amrik Singh Lyallpuri v. Union<br /> 2<br /> of India , the amendments are clearly unsustainable, since<br /> they, in effect, provide for an administrative review of a decision<br /> taken by a judicial or quasi-judicial body. In this regard,<br /> reference is made to p aragraph 17 of the decision in Amrik<br /> Singh Lvallpuri (supra) which is reproduced as under:<br /> “17. In a subsequent Constitution Bench decision<br /> of this Court in L. Chandra Kumar v. Union of<br /> 2<br /> (2011) 6 SCC 535<br /><br /> <b> -17-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> India [(1997) 3 SCC 261 : 1997 SCC (L&amp;S) 577 :<br /> AIR 1997 SC 1125] Abmadi, C.J. after an analysis<br /> of different decisions of this Court, affirmatively<br /> held that judicial review is one of the basic<br /> features of our Constitution. Such a finding of<br /> this Court, obviously means that there cannot be<br /> administrative review of a decision taken by a<br /> judicial or a quasi-judicial authority which has<br /> the trappings of a court. Since judicial review has<br /> been considered an intrinsic part of<br /> constitutionalism, any statutory provision which<br /> provides for administrative review of a decision<br /> taken by a judicial or a quasi-judicial body is,<br /> therefore, inconsistent with the aforesaid<br /> postulate and is unconstitutional.”<br /> <i></i>* (emphasis<br /> supplied)<br /> 14. The learned Senior Counsel has submitted that the said<br /> amendments are shocking and run counter to the basic concept<br /> of justice, and that, if given effect, they would make a mockery<br /> of the entire adjudicative process, whereby the Legislature can<br /> now completely annul the decision of the Lok Ayukta. It is not<br /> only detrimental to the well-established notions of justice but<br /> also confers a power that is liable to be abused or misused. In<br /> placing reliance upon the decision in M.P. High Court Bar<br /><br /> <b> -18-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 3<br /> Association v. Union of India &amp; Others , it is submitted that<br /> vesting of the ultimate authority to uphold or reject the report<br /> of Lok Ayukta would make a mockery of the very purpose for<br /> which the KLAA was enacted . The said decision has also been<br /> relied upon to emphasise that the rule of law would cease to<br /> have any meaning, as it would be open to the State Government<br /> to defy the report of the Lok Ayukta and, in that sense, it would<br /> clearly violate the basic structure of the KLAA .<br /> 15. Lastly, reliance has been placed upon the decision in<br /> 4<br /> Madras Bar Association v. Union of India and Another , to<br /> argue that the impugned amendments would amount to an<br /> impermissible exercise of legislative power, as they overrule the<br /> recommendations of the Lok Ayukta, which run completely<br /> counter to the object of the KLAA and keeping in mind the<br /> nature of the duties performed by the Lok Ayukta in processing<br /> the complaint in investigating the allegations that resulted in<br /> the filing of a declaration, which would otherwise have been<br /> 3<br /> (2004) 11 SCC 766<br /> 4<br /> (2026) 2 SCC 1<br /><br /> <b> -19-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> binding upon the Government. The said amendments,<br /> therefore, clearly interfere with the due discharge of the<br /> functions of a person not less than a Judge of the Hon’ble<br /> Supreme Court or High Court, and if such interference is<br /> allowed at this stage, it would violate the rule of law.<br /> 16. Mr. N. Prakash, appearing in person, has reiterated the<br /> submissions of the learned Senior Counsel. It has been<br /> emphasised that the essential feature of a judgment or quasi-<br /> judicial order is the independence of the authority and the<br /> finality attached thereto, in the absence of a judicial process,<br /> such as an appeal or judicial review. When an order is issued<br /> by a high-powered body like the Lok Ayukta, which comprises<br /> former Judges of the Hon’ble Supreme Court or former Chief<br /> Justices of a High Court, the character and quality of the<br /> orders passed are of the highest standard. The orders thus<br /> passed have all the trappings of a judicial order and cannot be<br /> equated with an administrative or statutory order, against<br /> which, an appeal to a higher authority in the Executive<br /><br /> <b> -20-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Government can be contemplated.<br /> 17. The learned counsel has relied upon the decision of the<br /> Hon’ble Supreme Court in Indira Nehru Gandhi v. Raj<br /> 5<br /> Narain and Ors to argue that it has been clearly held in the<br /> said decision that none of the three organs of the Republic,<br /> namely, the Executive, the Legislature and the Judiciary, can<br /> take over the functions assigned to the others. It is the basic<br /> structure or scheme of the system of Government or the<br /> Republic laid down in this Constitution, whose identity cannot,<br /> 6<br /> according to the majority view in Kesavananda’s case, be<br /> changed, even by resorting to Article 368.<br /> 18. Per contra, Mr. Gopalakrishna Kurup, the learned Advocate<br /> General, has submitted that i n W.P.(C) No. 18749 of 2024, the<br /> contentions are to the effect that the impugned amendments<br /> have resulted in orders passed by the Lok Ayukta, a quasi-<br /> judicial forum, being subjected to revisit by an authority, other<br /> than a judicial forum; that the amendments are against basic<br /> 5<br /> AIR 1975 SC 2299 <br /> 6<br /> AIR 1973 SC 1461<br /><br /> <b> -21-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> structure principle and concept of separation of powers; and<br /> that the impugned amendments take away the power of Lok<br /> Ayukta in regard to finality of its orders.<br /> 19. The learned Advocate General has referred to Sections 24,<br /> 32 and 48 of the Lokpal and Lokayuktas Act, 2013 (&quot;2013 Act&quot;)<br /> and submits that Section 24, inter alia, requires Lokpal to send<br /> a copy of the report together with its finding to the competent<br /> authority. Section 32 of the 2013 Act enables the Lokpal only to<br /> recommend transfer or suspension of a public servant to the<br /> Central Government. Section 48 of the 2013 Act provides for<br /> the reports of Lokpal to be presented annually to the Hon&#x27;ble<br /> President. The Hon&#x27;ble President shall cause a copy of the<br /> report to be laid before each House of Parliament together with<br /> a memorandum explaining, in respect of the cases, if any,<br /> where the advice of the Lokpal was not accepted, the reason for<br /> such non-acceptance.<br /> 20. The learned Advocate General has further submitted that<br /> the grounds on which a vires of the legislation can be<br /><br /> <b> -22-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> challenged are now well settled. It is trite and settled law and<br /> no more res integra that the vires of a legislation can only be<br /> challenged on the grounds of lack of legislative competence, the<br /> same being violative of Part III of the Constitution, the same<br /> being violative of any other constitutional provision and the<br /> same being vitiated by manifest arbitrariness. The challenge to<br /> the impugned amendments are not mounted on any of these<br /> grounds, save bald pleadings.<br /> 21. That the State Legislature is having the legislative<br /> competence to enact the impugned amendments is not<br /> disputed. The provisions of the impugned amendments are not<br /> inconsistent with any provisions of an earlier law made by the<br /> Parliament or an existing law or any other matter enumerated<br /> in the concurrent list. Further, Section 63 of the Lokpal and<br /> Lok Ayukta Act, 2013 provides that every State shall establish a<br /> Lok Ayukta for the State, if not so established, constituted or<br /> appointed, by a law made by the State Legislature. Kerala Lok<br /> Ayukta Act, 1999, being a law made by the State Legislature,<br /><br /> <b> -23-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> the impugned amendments are also not in conflict with the<br /> Lokpal and Lok Ayukta Act, 2013 also.<br /> 22. The petitioner has not made out any case of the impugned<br /> amendment being violative of Part III of the Constitution or of<br /> any other constitutional provision. The petitioner has also not<br /> brought out any case of there being manifest arbitrariness in<br /> the impugned amendments.<br /> 23. Lok Ayukta is a creation of the Act. It is well within the<br /> legislative domain to alter, amend or vary its powers by way of<br /> the impugned amendments.<br /> 24. The impugned amendment cannot be, by any stretch of<br /> imagination, stated to be against basic structure principle.<br /> Even otherwise, it is trite and settled and no more res integra<br /> that the constitutional validity of a statute cannot be challenged<br /> for violation of the basic structure of the Constitution.<br /> 25. The learned Advocate General has submitted that the<br /> contention of the writ petitioners that the Lok Ayukta possesses<br /><br /> <b> -24-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> all the powers of a court and that the impugned amendments<br /> result in undue interference with the administration of justice<br /> and the same is against the concept of separation of powers, is<br /> unsustainable and reflects a clear misunderstanding and<br /> misconception regarding the functioning of the Lok Ayukta. <br /> 26. It is submitted that the Preamble of the KLAA declares<br /> that it is expedient to make provision for the appointment and<br /> functions of certain authorities for making enquiries into any<br /> action (including any omission and commission in connection<br /> with or arising out of such action) relatable to matters specified<br /> in List I or List III of the VII Schedule to the Constitution of<br /> India. A reading of the said Preamble together with Section 7<br /> (Matters which may be investigated by the Lok Ayukta and Upa<br /> Lok Ayuktas), Section 8 (Matters not subject to investigation)<br /> and Section 9 (Provisions relating to complaints and<br /> investigations) of the KLAA make it abundantly clear that the<br /> functions of the Lok Ayukta are investigative in nature. Section<br /> 12(1) of the KLAA empowers Lok Ayukta to submit a report<br /><br /> <b> -25-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> after investigation on a complaint involving grievance. Section<br /> 14 of the KLAA enables the Lok Ayukta to submit a report after<br /> investigation into a complaint involving an allegation.<br /> 27. The above provisions reiterate that the functions of the<br /> Lok Ayukta are only investigative in nature. It is also trite and<br /> settled law that the nature and functions of Lok Ayukta and<br /> Upa-Lok Ayukta are investigative and that Lok Ayukta or Upa<br /> Lok Ayukta is neither a court nor a Tribunal. It is also settled<br /> that Lok Ayukta or Upa Lok Ayukta was not placed on the<br /> pedestal of a judicial authority rendering a binding decision and<br /> that Lok Ayukta did not function as a Court of law, but as an<br /> investigating functionary. A report or a declaration by the Lok<br /> Ayukta does not partake the character of a judicial order. In<br /> this regard, the learned Advocate General has relied upon the<br /> following decisions:<br /> 7<br /> (i) State of Kerala v. Bernard ; and<br /> (ii) Justice Chandrashekaraiah v. Janekere C. Krishna and<br /> 8<br /> others .<br /> 7<br /> 2002 KHC 765<br /> 8<br /> (2013) 3 SCC 117<br /><br /> <b> -26-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 28. In so far as the function of the Lok Ayukta is essentially of<br /> investigative nature, it cannot be said that the amendment to<br /> Section 14, as per the impugned amendment, will result in<br /> executive encroachment into the domain of the judiciary or in<br /> Executive becoming the Appellate Authority against the<br /> declaration passed by the Lok Ayukta or will be violative of the<br /> doctrine of separation of powers.<br /> 29. The composition of Lok Ayukta provided for in Section 3 of<br /> the KLAA; the mandate of Section 4 of the KLAA; the manner<br /> for removal of Lok Ayukta, prescribed under Section 6 of the<br /> KLAA; the provisions of Section 11(3) of the KLAA; the power<br /> conferred on the Lok Ayukta and Upa Lok Ayukta, as per the<br /> KLAA, to issue warrant and enabling gathering of evidence; and<br /> the powers conferred or the Lok Ayukta and the Upa Lok<br /> Ayukta under Sections 18 and 19 of the KLAA will not make the<br /> Lok Ayukta a judicial body or a Court or a Tribunal or part of<br /> the judicial organ of the State.<br /><br /> <b> -27-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 30. It is submitted that the amendment to Section 14 of the<br /> KLAA by way of the Amendment Act, does not confer any<br /> appellate power on the Executive, as contended by the<br /> petitioners. It only enables the competent authority to take a<br /> call on the report of the Lok Ayukta, after affording the public<br /> servant an opportunity of being heard. The amendment only<br /> makes Section 14 of the KLAA compatible with constitutional<br /> provisions, as explained hereinafter.<br /> 31. The learned Advocate General in justification of the<br /> amendment to Section 14 has submitted that a public servant,<br /> as defined in the KLAA, takes in, inter alia, Chief Minister of the<br /> State, Ministers of the State, Members of the Legislature and<br /> Government servants. Article 163(1) of the Constitution of India<br /> provides that there shall be a Council of Ministers headed by<br /> the Chief Minister to aid and advice the Governor. Article 164(1)<br /> of the Constitution provides that a Chief Minister shall be<br /> appointed by the Governor and that the Ministers shall be<br /> appointed by the Governor on the basis of the advice of the<br /><br /> <b> -28-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Chief Minister. It is also provided therein that Ministers shall<br /> hold office during the pleasure of the Governor. Thus, the<br /> appointment of a Minister is in accordance with the pleasure of<br /> the Governor, which in turn, is dependent on the advice of the<br /> Chief Minister. The discretion of the Governor in the<br /> appointment of the Chief Minister is circumscribed by the<br /> limitation that the leader enjoying the majority in the State<br /> Legislature has necessarily to be selected.<br /> 32. Article 164 of the Constitution of India also provides for<br /> other provisions as regards the Ministers. Article 164(4)<br /> envisages that a Minister, who for any period of six consecutive<br /> months, is not a Member of the Legislature of the State shall at<br /> the expiration of that period cease to be a Minister. Thus, the<br /> qualification for the Minister, inter alia. is that he must be<br /> either a Member of the Legislature or become a Member within<br /> six months of assumption of office. A person thus qualified to<br /> be a Minister will be disqualified to be so if he ceases to be a<br /><br /> <b> -29-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Member of the Legislature on account of any of the provisions<br /> of Articles 190 to 193 of the Constitution.<br /> 33. It is trite and well-settled law that once an office<br /> dependent on pleasure is held under a valid title, its<br /> continuance is also dependent on the doctrine of pleasure.<br /> Thus, the Ministers, inclusive of the Chief Minister, are entitled<br /> to hold office as long as they enjoy the pleasure of the<br /> Governor, which pleasure is dependent on the advice of the<br /> Chief Minister in the case of Ministers and confidence of the<br /> majority of the House in the case of the Chief Minister. This is a<br /> constitutional mandate which cannot be overridden by a<br /> Legislation of the State Legislature.<br /> 34. Similarly, Articles 190 to 193 of the Constitution of India<br /> provide for disqualification of Members of the State Legislature.<br /> Apart from the various disqualifications stated therein, Article<br /> 191(1)(e) provides that a person shall be disqualified for being<br /> chosen as, and for being, a Member of the Legislature if he is so<br /> disqualified under or by any law made by the Parliament.<br /><br /> <b> -30-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Provisions in any State Legislation, inclusive of pre-amended<br /> Section 14 of the Act, cannot entail disqualification from the<br /> membership of the Legislature. <br /> 35. The report and findings submitted by the Lok Ayukta and<br /> Upa Lok Ayukta under Section 12 of the KLAA are<br /> recommendatory in nature. However, sub-section (1) of Section<br /> 14 of the KLAA stipulates that the Competent Authority shall<br /> accept the declaration made by the Lok Ayukta in terms of the<br /> report under sub-section (3) of Section 12, which stipulation is<br /> mandatory in nature. This contradiction between Sections 12<br /> and 14 of the KLAA had to be rectified. Further, Section 14 of<br /> the KLAA was to be brought into conformity with the<br /> constitutional provisions. Moreover, there is no provision<br /> analogous to the erstwhile Section 14 of the KLAA in similar<br /> statues of other States. All these factors necessitated<br /> amendment to Section 14.<br /> 36. In distinguishing the decisions relied upon by the learned<br /> Senior Counsel, Mr. George Poonthottam, it is submitted that<br /><br /> <b> -31-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> the analogy attempted to be drawn by the petitioners with<br /> regard to the declaration of Article 371-D (5) to be violative of<br /> basic structure doctrine is not applicable in the facts and<br /> circumstances of the case at hand, in so far as the function of<br /> the Lok Ayukta, for the reasons mentioned above, is only<br /> investigative in nature and cannot be by any stretch, equated at<br /> par with a Tribunal or a Court.<br /> 37. The decision of the Hon&#x27;ble Supreme Court in Madras Bar<br /> 9<br /> Association v. Union of India and Others is not applicable<br /> to the facts and circumstances of the present case, as the<br /> Amendment Act, amending Section 14 of the KLAA cannot, for<br /> the reasons aforementioned, be stated to make inroads into the<br /> judicial sphere or to violate the principles of separation of<br /> powers, judicial independence and the Rule of Law. Likewise,<br /> the decisions in Samba Murthy v. State of Andhra<br /> 10<br /> Pradesh , M.P. High Court Bar Association v. Union of<br /> 11<br /> India and Others and Amrik Singh Lyallpuri (supra) are<br /> 9<br /> (2022) 12 SCC 455<br /> 10<br /> AIR 1987 SC 663<br /> 11<br /> <br /> AIR 2005 SC 4114<br /><br /> <b> -32-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> also inapplicable to the facts and circumstances of the present<br /> case.<br /> 38. In the conspectus of these facts and circumstances of the<br /> case and the arguments advanced by the learned Senior<br /> Counsel for the petitioner and Mr. N. Prakash, the party-in-<br /> person, the validity of the amendments to Sections 3 and 14 of<br /> the KLAA is required to be considered.<br /> th<br /> 39. The Kerala Lok Ayukta Act, 1999 came into force on 4<br /> March 1999. The statement of objects and reasons of KLAA<br /> would show that the State Government in order to eliminate<br /> corruption in public service and strengthen the existing<br /> vigilance measure in the State and in consideration of the<br /> Kerala Public Men’s Corruption (Investigations and Inquiries)<br /> Act, 1987 (for short, the ‘KPMCA’) in force in the State decided<br /> to bring about this legislation since the KPMCA was found to be<br /> not sufficient to effectively prevent the corruption among public<br /> servants. Hence, the Government considered it necessary to<br /> widen the ambit of the legislation by including all the<br /><br /> <b> -33-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Government servants, the members and the person in service of<br /> local authority, statutory and non-statutory bodies and Co-<br /> operative Societies within the purview of the Act. The KLAA<br /> thus is a comprehensive new legislation for the effective enquiry<br /> and investigation of complaints against public servants and<br /> matters connected therewith or ancillary thereto. <br /> 40. The said Act was amended by Act 2 of 2000. Noticing<br /> certain inconsistencies between Section 22 of the KLAA and<br /> Rule 37 of the Kerala Government Servants Conduct Rules<br /> 1960, an amendment was brought to exclude the Last Grade<br /> employees of the Corporation, Boards etc., who are already<br /> governed by Rule 37 of the Kerala Government Servants<br /> Conduct Rules, 1960. The purpose to the said legislation, as<br /> would appear from the Preamble, is to make provision for the<br /> appointment and functions of certain authorities for making<br /> enquires into any action (including an omission or commission<br /> in connection with or arising out of such action) relating to<br /> matter specified in List II or List III of the Seventh Schedule of<br /><br /> <b> -34-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> the Constitution of India taken by or on behalf of the<br /> Government of Kerala or certain public authorities in the State<br /> of Kerala in certain cases and for matters connected therewith<br /> and ancillary thereto. The said Act is a complete code<br /> irrespective of the matters concerning enquiry into the<br /> allegation or grievance made by a person before the Lok Ayukta<br /> and the Lok Ayukta has been invested with all the powers of<br /> investigation, enquiry and for initiation of prosecution after<br /> investigation.<br /> 41. In order to appreciate the quality of the merits of challenge<br /> of the writ petitions, it is necessary to refer to few of the<br /> provisions of the said KLAA in order to understand the nature<br /> of the amendments carried out to such provisions and whether<br /> such amendments are legally permissible or could be a subject<br /> matter of challenge in a writ petition.<br /> 42. To start with, we may refer to the unamended definition of<br /> “competent authority”, that is to say, as it was in the Statute<br /> nd<br /> from 1999 until 2 March 2024. “Competent authority” is<br /><br /> <b> -35-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> defined under Section 2(d) of the KLAA, which reads as follows:<br /> &quot;(d) &quot;competent authority&quot;, in relation to a public<br /> servant, means-<br /> (i) in the case of the Chief Minister or a Member of<br /> the State Legislature, or an office bearer of a political<br /> party, at the State level, the Governor acting in his<br /> discretion;<br /> (ii) in the case of a Minister or Secretary, the Chief<br /> Minister;<br /> (iii) in the case of an officer of the All India services,<br /> employed in connection with the affairs of the State,<br /> the Minister concerned;<br /> (iv) in the case of any other public servant, such<br /> authority, as may be prescribed.&quot;<br /> (emphasis supplied)<br /> 43. Pursuant to the Kerala Lok Ayukta (Amendment) Act,<br /> 2022, amongst others, the said definition clause was amended<br /> in the manner as follows:<br /> “(a) for the existing item (i), the following shall be<br /> substituted, namely:-<br /><br /> <b> -36-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> &quot;(i) in the case of the Chief Minister, the State<br /> Legislative Assembly;&quot;<br /> (b) after item (i), the following items shall be<br /> inserted, namely:-<br /> &quot;(ia) in the case of Member of the State Legislative<br /> Assembly, the Speaker of the State Legislature<br /> Assembly:&quot;<br /> (emphasis supplied)<br /> 44. Similarly, Section 14 has been amended which essentially<br /> has replaced the heading of the Section from “Public Servant to<br /> vacate office if directed by the Lok Ayukta etc.” to<br /> “Recommendation of the Lok Ayukta or Upa Lok Ayukta and<br /> action thereon” (emphasis supplied).<br /> 45. The original and the amended sections are given in a<br /> tabular form as under:<br /></div><table><thead><tr><th>Pre-amendment</th><th>Post-amendment</th></tr></thead><tbody><tr><td>“14. Public Servant to vacate&lt;br&gt;office if directed by Lok Ayukta&lt;br&gt;etc.”&lt;br&gt;(1) Where, after investigation&lt;br&gt;into a complaint, the Lok</td><td>&quot;14. Recommendation of the&lt;br&gt;Lok Ayukta or Upa-Lok Ayukta&lt;br&gt;and action thereon-&lt;br&gt;(1) Where, after investigation&lt;br&gt;into a complaint, the Lok</td></tr></tbody></table><div><br /><br /> <b> -37-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>Ayukta or an Upa-Lok Ayukta&lt;br&gt;is satisfied that the complaint&lt;br&gt;involving an allegation against&lt;br&gt;the public servant is&lt;br&gt;substantiated and that the&lt;br&gt;public servant concerned&lt;br&gt;should not continue to hold the&lt;br&gt;post held by him, the Lok&lt;br&gt;Ayukta or the Upa-Lok Ayukta,&lt;br&gt;as the case may be, shall make&lt;br&gt;a declaration to that effect in&lt;br&gt;his report under sub-section (3)&lt;br&gt;of Section 12. Where the&lt;br&gt;competent authority is the&lt;br&gt;Governor, the Government of&lt;br&gt;Kerala or the Chief Minister, he&lt;br&gt;or it shall accept the&lt;br&gt;declaration. In other cases, the&lt;br&gt;competent authority concerned&lt;br&gt;shall send a copy of such&lt;br&gt;report to the Government,&lt;br&gt;which shall accept the&lt;br&gt;declaration.&lt;br&gt;(2) When the declaration so&lt;br&gt;made is accepted, the fact of&lt;br&gt;such acceptance shall&lt;br&gt;immediately be intimated by&lt;br&gt;registered post, by the&lt;br&gt;Governor, the Government or&lt;br&gt;the Chief Minister, if any of&lt;br&gt;them is the competent&lt;br&gt;authority and the Government,&lt;br&gt;in other cases and then,</th><th>Ayukta or an Upa-Lok Ayukta&lt;br&gt;is satisfied that the complaint&lt;br&gt;involving an allegation against&lt;br&gt;the public servant is&lt;br&gt;substantiated and the public&lt;br&gt;servant is not fit to hold the&lt;br&gt;post as such, the Lok Ayukta&lt;br&gt;or Upa-Lok Ayukta, as the case&lt;br&gt;may be, shall make a&lt;br&gt;recommendation to the&lt;br&gt;competent authority to that&lt;br&gt;effect in its report under sub-&lt;br&gt;section (3) of Section 12.&lt;br&gt;(2) The competent authority&lt;br&gt;shall examine the&lt;br&gt;recommendation made by the&lt;br&gt;Lok Ayukta or Upa-Lok Ayukta,&lt;br&gt;as the case may be, and&lt;br&gt;communicate to the Lok&lt;br&gt;Ayukta or Upa-Lok Ayukta, as&lt;br&gt;the case may be, within a&lt;br&gt;period of ninety days from the&lt;br&gt;date of receipt of the report, the&lt;br&gt;action taken or proposed to be&lt;br&gt;taken on the basis of the&lt;br&gt;recommendation or the reasons&lt;br&gt;for not taking any action on the&lt;br&gt;said recommendation:&lt;br&gt;Provided that where the&lt;br&gt;competent authority is the&lt;br&gt;State Legislative Assembly, in&lt;br&gt;computing the period of ninety&lt;br&gt;days, any period during which</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -38-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>notwithstanding anything&lt;br&gt;contained in any law, order,&lt;br&gt;notification, rule or contract of&lt;br&gt;appointment, the public&lt;br&gt;servant concerned shall, with&lt;br&gt;effect from the date of&lt;br&gt;intimation of such acceptance&lt;br&gt;or deemed acceptance of the&lt;br&gt;declaration-&lt;br&gt;(i) if he is the Chief Minister or&lt;br&gt;a Minister, resign his office of&lt;br&gt;Chief Minister or Minister, as&lt;br&gt;the case may be;&lt;br&gt;(ii) if he is a public servant&lt;br&gt;falling under items (v) and (vi),&lt;br&gt;but not falling under items (iv)&lt;br&gt;and (vii) of Clause (o) of Section&lt;br&gt;2, be deemed to have vacated&lt;br&gt;his office; and&lt;br&gt;iii) if he is a public servant&lt;br&gt;falling under items (iv) and (vii)&lt;br&gt;of Clause (o) of Section 2, be&lt;br&gt;deemed to have been placed&lt;br&gt;under suspension by an order&lt;br&gt;of the appointing authority and&lt;br&gt;the appointing authority shall&lt;br&gt;initiate appropriate action in&lt;br&gt;accordance with the rules&lt;br&gt;applicable to such public&lt;br&gt;servant:&lt;br&gt;Provided that if the public&lt;br&gt;servant is a member of an All</th><th>the State Legislative Assembly&lt;br&gt;is not in session, shall be&lt;br&gt;excluded.&lt;br&gt;(3) In the case of a public&lt;br&gt;servant falling under items (iv)&lt;br&gt;to (vii) of clause (o) of section 2,&lt;br&gt;the appointing authority shall&lt;br&gt;initiate appropriate action in&lt;br&gt;accordance with the rules or&lt;br&gt;regulations applicable to the&lt;br&gt;service of such public servants.&lt;br&gt;(4) If the public servant is a&lt;br&gt;member of All India Service as&lt;br&gt;defined in section 2 of the All-&lt;br&gt;India Services Act, 1951&lt;br&gt;(Central Act 61 of 1951), the&lt;br&gt;Government shall take&lt;br&gt;appropriate action in&lt;br&gt;accordance with the rules or&lt;br&gt;regulations applicable to his&lt;br&gt;service.&quot;</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -39-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>India Service as defined in&lt;br&gt;Section 2 of the All India&lt;br&gt;Services Act, 1951 (General Act&lt;br&gt;61 of 1951), the Government&lt;br&gt;shall take action to keep him&lt;br&gt;under suspension and initiate&lt;br&gt;appropriate action in&lt;br&gt;accordance with the rules or&lt;br&gt;regulations applicable to his&lt;br&gt;service.</th><th></th></tr></thead><tbody></tbody></table><div><br /> (emphasis supplied)<br /> 46. While in the definition of “competent authority”, the power<br /> of the “Governor” acting in his discretion has been replaced<br /> with the “State Legislative Assembly” in relation to the Chief<br /> Minister, the imperative and compulsive force of the report of<br /> the Lok Ayukta prepared following the procedure as prescribed<br /> in Sections 9 and 10 of the KLAA is now to be treated as<br /> “recommendation” instead of “declaration”. The Legislature has<br /> thus diluted the efficacy and enforceability of the report of the<br /> Lok Ayukta from a “declaration” to a “recommendation”.<br /> However, as would appear from Section 14(2), the Legislature in<br /> the case of the “Chief Minister” would be required to examine<br /><br /> <b> -40-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> the recommendation within a period of 90 days from the date of<br /> receipt of the report, the action taken or proposed to be taken<br /> on the basis of the recommendation or the reasons for not<br /> taking any action on the said recommendation and in<br /> computing the period of 90 days any period during which the<br /> State Legislative Assembly is not in session would be excluded.<br /> This change in the entire complexion of the Statute, from its<br /> initial strong enforceability being diluted to a recommendation<br /> and to be left to the discretion of the State Legislature, has been<br /> criticized and objected to by the writ petitioners as it is<br /> perceived to be against the rule of law and the Preamble of the<br /> said Statute.<br /> 47. Based on such perception and understanding of the<br /> original and the unamended sections of the KLAA and the<br /> objects it seeks to achieve, it has been strenuously argued that<br /> conferring power on the Executive to exercise appellate<br /> jurisdiction over a “declaration” now changed to<br /> “recommendation” would be against the fundamental concept of<br /><br /> <b> -41-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> the rule of law, independence of Judiciary and separation of<br /> powers as envisaged in the Constitution of India.<br /> 48. The argument that the amendments thus bring about a<br /> fundamental alteration in the nature and effective enforceability<br /> of the powers of the Lok Ayukta under the KLAA is clearly<br /> visible from the amendments itself.<br /> 49. The principal contention of the writ petitioners is that, by<br /> reason of the amendments introduced to Sections 3 and 14 of<br /> the KLAA, the efficacy of the institution has been substantially<br /> diluted. Put pithily, it would mean that the statutory provisions<br /> now have been rendered virtually toothless — it may bark, but<br /> can no longer bite. According to the petitioners, the<br /> substitution of a binding declaration with a mere<br /> recommendation denudes the Lok Ayukta of its effective<br /> authority and reduces its determinations to advisory opinions,<br /> dependent entirely upon executive acceptance.<br /> 50. The amendments thus reflect a paradigm shift regarding<br /> the nature of enforceability of the reports under the KLAA. Now,<br /><br /> <b> -42-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> let us examine the true nature and character of the Lok Ayukta.<br /> It is a statutory authority created to inquire into allegations of<br /> corruption, maladministration, or abuse of office against public<br /> servants. It is empowered to conduct investigations, summon<br /> witnesses, receive evidence and render findings based on the<br /> material placed before it; its powers are circumscribed by the<br /> statute that constitutes it. The Hon’ble Supreme Court in<br /> 12<br /> Justice Chandrashekaraiah v. Janekere C. Krishna and Ors. ,<br /> has discussed similar provisions and held as follows: <br /></div><table><thead><tr><th></th><th>“Provisions of Sections 9, 10 and 11 clearly</th></tr></thead><tbody></tbody></table><div><br /> indicate that Lokayukta and Upa Lokayukta are<br /></div><table><thead><tr><th>discharging</th><th>quasi-judicial functions</th><th>while</th></tr></thead><tbody></tbody></table><div><br /> conducting the investigation under the Act. Sub-<br /> section (2) of Section 11 of the Act also states that<br /> for the purpose any such investigation, including<br /></div><table><thead><tr><th>the preliminary inquiry</th><th>Lokayukta</th><th>and Upa</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Lokayukta</th><th>shall have all the powers of a Civil Court</th></tr></thead><tbody></tbody></table><div><br /> while trying a suit under the Code of Civil<br /></div><table><thead><tr><th>Procedure, 1908</th><th>, in the matter of summoning and</th></tr></thead><tbody></tbody></table><div><br /> enforcing the attendance of any person and<br /> examining him on oath. Further they have also the<br /> 12<br /> <br /> (2013) 3 SCC 117<br /><br /> <b> -43-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> power for requiring the discovery and production of<br /> any document, receiving evidence on affidavits,<br /> requisitioning any public record or copy thereof<br /> from any court or office, issuing commissions for<br /></div><table><thead><tr><th>examination of witnesses of documents etc</th><th>. Further,</th></tr></thead><tbody></tbody></table><div><br /> Sub-section (3) of Section 11 stipulates that any<br /></div><table><thead><tr><th>proceedings before the Lokayukta</th><th>and Upa</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Lokayukta</th><th>shall be deemed to be a judicial</th></tr></thead><tbody></tbody></table><table><thead><tr><th>proceeding</th><th>within the meaning of Section 193 of the</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Indian Penal Code.</th><th>Therefore, Lokayukta and Upa</th></tr></thead><tbody></tbody></table><div><br /> Lokayukta, while investigating the matters are<br /> discharging quasi-judicial functions, though the<br /></div><table><thead><tr><th>nature of functions is investigative</th><th>”.</th></tr></thead><tbody></tbody></table><div><br /> <i></i>* (emphasis supplied)<br /> 51. In the course of examining the distinction between courts,<br /> tribunals and other statutory authorities and while referring to<br /></div><table><thead><tr><th>the decision of the Constitution Bench in</th><th>The Bharat Bank</th></tr></thead><tbody></tbody></table><div><br /> 13<br /> Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi , the<br /> Hon’ble Supreme Court has characterised the Lok Ayukta and<br /></div><table><thead><tr><th>Upa-Lokayukta as</th><th>sui generis</th><th>quasi-judicial authorities. The</th></tr></thead><tbody></tbody></table><div><br /> Court observed that the final decision rendered by the Lok<br /> 13<br /> (1950) SCR 459<br /><br /> <b> -44-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Ayukta or Upa-Lokayukta, described as a report, may not bear<br /> the stamp of a judicial decision as would that of a court or, to a<br /> lesser extent, a tribunal. Nevertheless, in formulating such a<br /> report, the Lok Ayukta and Upa-Lokayukta are required to<br /> consider the point of view of the person complained against and<br /> to ensure that the investigation reaches its logical conclusion,<br /> one way or the other, without any interference and without fear.<br /> At the same time, the Court clarified that the report of the Lok<br /> Ayukta does not determine the rights of either the complainant<br /> or the person complained against. It is for this reason that the<br /> Hon’ble Supreme Court held that the Lok Ayukta and the Upa-<br /> Lokayukta cannot be regarded as courts or tribunals, but are<br /></div><table><thead><tr><th>best described as</th><th>sui generis</th><th>quasi-judicial authorities.</th></tr></thead><tbody></tbody></table><div><br /> 52. Therefore, in our view, the mere fact that the Lok Ayukta<br /></div><table><thead><tr><th>follows a procedure resembling adjudication does not</th><th>ipso facto</th></tr></thead><tbody></tbody></table><div><br /> elevate it to the status of a court or tribunal exercising plenary<br /> judicial power and for this reason, it occupies a distinct<br /></div><table><thead><tr><th>position as a</th><th>sui generis</th><th>quasi-judicial authority under the</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -45-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> statutory scheme.<br /> 53. The submission made by the petitioners that the impugned<br /> amendments trench upon the domain of a judicial or quasi-<br /> judicial authority cannot be accepted. The amendments were<br /> enacted to harmonise the provisions of the Lok Ayukta Act with<br /> the constitutional framework, rather than to subvert it. The<br /> constitutional scheme relating to Ministers, as embodied in<br /> Articles 163 and 164 of the Constitution, makes it abundantly<br /> clear that Ministers hold office during the pleasure of the<br /> Governor, and their continuance in office cannot be rendered<br /> mechanically contingent upon the findings or recommendations<br /> of a statutory authority. The argument of the learned Advocate<br /> General that to that extent, the pre-amended Section 14, which<br /> mandated resignation upon acceptance of a declaration made<br /> by the Lok Ayukta, did give rise to issues of constitutional<br /> incongruity, might operate harshly. Therefore, the said<br /> amendment seeks to remove such inconsistency and align the<br /> statutory mechanism with constitutional mandates.<br /><br /> <b> -46-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 54. We also took note of the judgments relied upon by the<br /></div><table><thead><tr><th>petitioners in the cases of</th><th>Madras Bar Association</th><th>,</th><th>M.P. High</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Court Bar Association</th><th>(supra)</th><th>and</th><th>Amrik Singh Lyallpuri</th></tr></thead><tbody></tbody></table><table><thead><tr><th>(supra)</th><th>where the court solely deals with</th><th>executive</th></tr></thead><tbody></tbody></table><div><br /> encroachment upon core judicial functions, particularly in the<br /> context of tribunals exercising powers previously vested in<br /> constitutional courts. The present case does not involve such a<br /> transfer or dilution of judicial power.<br /> 55. Though the Lok Ayukta and the Upa-Lokayukta perform<br /></div><table><thead><tr><th>quasi-judicial functions and occupy a unique position as</th><th>sui</th></tr></thead><tbody></tbody></table><table><thead><tr><th>generis</th><th>quasi-judicial authorities, they are neither courts nor</th></tr></thead><tbody></tbody></table><div><br /> tribunals exercising plenary judicial power. Their reports,<br /> however, arrived at through a fair and independent process, do<br /> not determine the rights of parties in the manner of judicial<br /> adjudication. Consequently, the substitution of a binding<br /> declaration with a recommendation, coupled with an obligation<br /> on the competent authority to record and communicate<br /> reasons, cannot be construed as conferring appellate powers on<br /><br /> <b> -47-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> the executive or as an impermissible encroachment into the<br /> judicial domain.<br /> 56. The impugned amendments do not dilute the independence<br /> of the Lok Ayukta, nor do they interfere with the administration<br /> of justice. On the contrary, the impugned amendments seek to<br /> bring the statutory framework in consonance with the<br /> constitutional scheme, as discussed earlier, under which,<br /> Ministers hold office during the pleasure of the Governor and<br /> cannot be compelled to demit office solely on the basis of a<br /> statutory declaration. The Legislature was well within its<br /> competence to re-calibrate the consequences flowing from a<br /> report of the Lok Ayukta, without denuding the institution of its<br /> essential character or effectiveness.<br /></div><table><thead><tr><th>57. The apprehension of bias founded on the doctrine of</th><th>nemo</th></tr></thead><tbody></tbody></table><table><thead><tr><th>judex in causa sua</th><th>is equally untenable. The amendment does</th></tr></thead><tbody></tbody></table><div><br /> not institutionalise bias nor does it immunise executive action<br /> from judicial scrutiny. Any arbitrary, mala fide, or<br /> unreasonable decision taken by the competent authority in<br /><br /> <b> -48-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> response to a recommendation of the Lok Ayukta remains<br /> amenable to judicial review.<br /> 58. The amendment also does not offend the requirements of<br /> procedural fairness. The investigative and quasi-judicial<br /> process before the Lok Ayukta remains intact, including<br /> adherence to principles of natural justice and reasoned<br /> decision-making. Under the substituted Section 14, the<br /> competent authority is not vested with unbridled discretion; it<br /> is obligated to examine the recommendation and communicate<br /> the action taken or the reasons for declining to act. Such a<br /> decision is amenable to judicial review. Therefore, the statutory<br /> scheme, as amended, preserves fairness at both stages — at the<br /> level of inquiry and at the level of executive response — and<br /> cannot be characterised as arbitrary or procedurally unjust.<br /> 59. In view of the foregoing discussion, we hold that the<br /> amendment to Section 14 of the Kerala Lok Ayukta Act, 1999<br /> does not violate the doctrine of separation of powers, the<br /> principle of judicial independence or the basic structure of the<br /><br /> <b> -49-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Constitution. The writ petitions, therefore, fail and are<br /> accordingly dismissed.<br /> 60. The learned Senior Counsel Mr. George Poonthottam has in<br /> all fairness concede to the situation that the legislative<br /> competence is not in question and it cannot be argued that the<br /> Legislature do not have the power to bring about such<br /> amendments. But, he would rather contend that such<br /> legislation has to be tested on the ground of arbitrariness or<br /> effect offence of any of the Articles of the Constitution.<br /> 61. In the background of the aforesaid submissions, it is<br /> necessary to refer to few paragraphs from the decision of the<br /> Hon’ble Supreme Court in Anjum Kadari (supra) where the<br /> ground on which a Statute can be declared ultra vires. The<br /> elaborate discussions on these issues are discernable from<br /> paragraphs 48 to 56 as follows:<br /></div><table><thead><tr><th></th><th>“48.</th><th></th><th>The Constitution imposes certain limitations</th></tr></thead><tbody></tbody></table><div><br /> on the legislative powers of Parliament and the State<br /> Legislatures. Article 13(2) provides that the State shall<br /><br /> <b> -50-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> not make any law that takes away or abridges the<br /> rights conferred by Part III. Statutes enacted by the<br /> State Legislatures must be consistent with the<br /> fundamental rights enumerated under Part III of the<br /> Constitution. Further, Article 246 defines the scope<br /> and limitations of the legislative competence of<br /> Parliament and State Legislatures. A statute can be<br /></div><table><thead><tr><th>declared ultra vires on two grounds alone:</th><th>(i)</th><th>it is</th></tr></thead><tbody></tbody></table><div><br /> beyond the ambit of the legislative competence of the<br /></div><table><thead><tr><th>legislature; or</th><th>(ii)</th><th>it violates Part III or any other</th></tr></thead><tbody></tbody></table><table><thead><tr><th>provision of the Constitution. [</th><th>State of A.P.</th><th></th><th>v.</th><th></th><th>McDowell</th></tr></thead><tbody></tbody></table><table><thead><tr><th>&amp; Co.</th><th>, (1996) 3 SCC 709, pp. 737-38, para 43 “</th><th>43</th><th>. …</th></tr></thead><tbody></tbody></table><div><br /> The power of Parliament or for that matter, the State<br /></div><table><thead><tr><th>Legislatures is restricted in two ways.</th><th>A law made by</th></tr></thead><tbody></tbody></table><div><br /> Parliament or the legislature can be struck down by<br /> courts on two grounds and two grounds alone viz. (1)<br /> lack of legislative competence; and (2) violation of any<br /> of the fundamental rights guaranteed in Part III of the<br /></div><table><thead><tr><th>Constitution or of any other constitutional provision.</th><th>”;</th></tr></thead><tbody></tbody></table><table><thead><tr><th>State of Kerala</th><th></th><th>v</th><th>.</th><th>Peoples Union for Civil Liberties</th><th>,</th></tr></thead><tbody></tbody></table><div><br /> (2009) 8 SCC 46, para 45] <br /></div><table><thead><tr><th></th><th>49.</th><th></th><th>In</th><th></th><th>Indira Nehru Gandhi</th><th></th><th>v.</th><th></th><th>Raj Narain</th><th></th><th>[Indira</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Nehru Gandhi</th><th></th><th>v.</th><th></th><th>Raj Narain</th><th>, 1975 Supp SCC 1], the</th></tr></thead><tbody></tbody></table><div><br /> Allahabad High Court disqualified the then Prime<br /><br /> <b> -51-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Minister for indulging in corrupt practices according to<br /></div><table><thead><tr><th>the Representation of the People Act, 1951.</th><th>To nullify</th></tr></thead><tbody></tbody></table><div><br /> the decision of the High Court, Parliament enacted the<br /> Representation of the People (Amendment) Act, 1974<br /> and the Election Laws (Amendment) Act, 1975 and<br /> placed them under the Ninth Schedule to the<br /> Constitution. The issue before this Court was whether<br /> the amendments violated the basic structure of the<br /> Constitution. <br /></div><table><thead><tr><th></th><th>50.</th><th></th><th>A.N. Ray, C.J. in</th><th></th><th>Indira Nehru Gandhi</th></tr></thead><tbody></tbody></table><table><thead><tr><th>case</th><th></th><th>[</th><th>Anshuman Singh Rathore</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, 2024</th></tr></thead><tbody></tbody></table><table><thead><tr><th>SCC OnLine All 857] held that the</th><th>constitutional</th></tr></thead><tbody></tbody></table><div><br /> validity of a statute depends entirely on the existence of<br /> the legislative power and the express provision in<br /> Article 13. Since the legislation is not subject to any<br /> other constitutional limitation, applying the basic<br /> structure doctrine to test the validity of a statute will<br /></div><table><thead><tr><th>amount to “rewriting the Constitution”</th><th>. [</th><th>Indira Nehru</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Gandhi case</th><th>, 1975 Supp SCC 1, paras 134 and 137]</th></tr></thead><tbody></tbody></table><div><br /> The learned Judge further observed that application of<br /> the undefinable theory of basic structure to test the<br /> validity of a statute would denude legislatures of the<br /> power of legislation and deprive them of laying down<br /></div><table><thead><tr><th>legislative policies. [</th><th>Indira Nehru Gandhi case</th><th>, 1975</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -52-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>Supp SCC 1, p. 61, para 136 “</th><th>136</th><th>.</th><th>The theory of basic</th></tr></thead><tbody></tbody></table><div><br /> structures or basic features is an exercise in<br /> imponderables. Basic structures or basic features are<br /></div><table><thead><tr><th>indefinable.</th><th>The legislative entries are the fields of</th></tr></thead><tbody></tbody></table><div><br /> legislation. The pith and substance doctrine has been<br /> applied in order to find out legislative competency, and<br /> eliminate encroachment on legislative entries. If the<br /> theory of basic structures or basic features will be<br /> applied to legislative measures it will denude<br /> Parliament and State Legislatures of the power of<br /> legislation and deprive them of laying down legislative<br /> policies. This will be encroachment on the separation of<br /> powers.”] K.K. Mathew, J. similarly observed that the<br /> concept of a basic structure is “too vague and indefinite<br /> to provide a yardstick to determine the validity of an<br /></div><table><thead><tr><th>ordinary law”. [</th><th>Indira Nehru Gandhi case</th><th>, 1975 Supp</th></tr></thead><tbody></tbody></table><div><br /> SCC 1, para 357] Y.V. Chandrachud, J. (as the learned<br /></div><table><thead><tr><th>Chief Justice then was) observed that</th><th>constitutional</th></tr></thead><tbody></tbody></table><div><br /> amendment and ordinary laws operate in different<br /></div><table><thead><tr><th>fields and are subject to different limitations</th><th>. [</th><th>Indira</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Nehru Gandhi case</th><th>, 1975 Supp SCC 1, pp. 261-62,</th></tr></thead><tbody></tbody></table><table><thead><tr><th>paras 691 and 692“</th><th>691</th><th>. … The constitutional</th></tr></thead><tbody></tbody></table><table><thead><tr><th>amendments may, on the ratio of the</th><th></th><th>Fundamental</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Rights case</th><th></th><th>[</th><th>Kesavananda Bharati</th><th></th><th>v.</th><th></th><th>State of Kerala</th><th>,</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -53-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> (1973) 4 SCC 225], be tested on the anvil of basic<br /> structure. But apart from the principle that a case is<br /> only an authority for what it decides, it does not<br /> logically follow from the majority judgment in<br /></div><table><thead><tr><th>the</th><th></th><th>Fundamental Rights case</th><th></th><th>[</th><th>Kesavananda</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Bharati</th><th></th><th>v.</th><th></th><th>State of Kerala</th><th>, (1973) 4 SCC 225] that</th></tr></thead><tbody></tbody></table><div><br /> ordinary legislation must also answer the same test as<br /></div><table><thead><tr><th>a constitutional amendment.</th><th>Ordinary laws have to</th></tr></thead><tbody></tbody></table><table><thead><tr><th>answer two tests for their validity: (</th><th>1</th><th>) The law must be</th></tr></thead><tbody></tbody></table><div><br /> within the legislative competence of the legislature as<br /></div><table><thead><tr><th>defined and specified in Chapter I, Part</th><th></th><th>XI of the</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Constitution, and (</th><th>2</th><th>) it must not offend against the</th></tr></thead><tbody></tbody></table><table><thead><tr><th>provisions of Articles 13(1) and (</th><th>2</th><th>) of the Constitution</th><th>.</th></tr></thead><tbody></tbody></table><div><br /> “Basic structure”, by the majority judgment, is not a<br /> part of the fundamental rights nor indeed a provision of<br /> the Constitution. The theory of basic structure is woven<br /> out of the conspectus of the Constitution and the<br /> amending power is subjected to it because it is a<br /> constituent power. “The power to amend the<br /> fundamental instrument cannot carry with it the power<br /> to destroy its essential features” — this, in brief, is the<br /> arch of the theory of basic structure. It is wholly out of<br /> place in matters relating to the validity of ordinary laws<br /> made under the Constitution.”] <br /><br /> <b> -54-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th></th><th>51.</th><th></th><th>The majority in</th><th></th><th>Indira Nehru Gandh</th><th>i</th><th>[</th><th>Indira</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Nehru Gandhi</th><th></th><th>v.</th><th></th><th>Raj Narain</th><th>, 1975 Supp SCC 1] held</th></tr></thead><tbody></tbody></table><div><br /> that the constitutional validity of a statute cannot be<br /> challenged for the violation of the basic structure<br /> doctrine. However, M.H. Beg, J. (as the learned Chief<br /> Justice then was) dissented with the majority view by<br /> observing that the basic structure test can be used to<br /> test the validity of statutes because statutes cannot go<br /></div><table><thead><tr><th>beyond the range of constituent power. [</th><th>Indira Nehru</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Gandhi</th><th></th><th>v.</th><th>Raj Narain</th><th>, 1975 Supp SCC 1, para 622]</th></tr></thead><tbody></tbody></table><table><thead><tr><th></th><th>52.</th><th></th><th>In</th><th>State of Karnataka</th><th></th><th>v.</th><th></th><th>Union of India</th><th></th><th>[</th><th>State of</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Karnataka</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (1977) 4 SCC 608, para</th></tr></thead><tbody></tbody></table><div><br /> 238], N.L. Untwalia, J. (writing for himself, P.N.<br /> Shinghal, J., and Jaswant Singh, J.) reiterated that the<br /> validity of a statute cannot be tested for violation of the<br /> basic structure of the Constitution. Y.V. Chandrachud,<br /> J. (as the learned Chief Justice then was) also observed<br /> that a statute cannot be invalidated on supposed<br /> grounds so long as it is within the legislative<br /> competence of the legislature and consistent with Part<br /></div><table><thead><tr><th>III of the Constitution. [</th><th>State of Karnataka case</th><th>, (1977)</th></tr></thead><tbody></tbody></table><div><br /> 4 SCC 608, para 197] However, M.H. Beg, C.J.<br /> observed that testing a statute for violation of basic<br /> structure does not “add to the contents of the<br /><br /> <b> -55-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>Constitution”. [</th><th>State of Karnataka case</th><th>, (1977) 4 SCC</th></tr></thead><tbody></tbody></table><div><br /> 608, para 128] He held that any inference about a<br /> limitation based on the basic structure doctrine upon<br /> legislative power must co-relate to the express<br /></div><table><thead><tr><th>provisions of the Constitution. [</th><th>State of Karnataka</th></tr></thead><tbody></tbody></table><table><thead><tr><th>case</th><th>, (1977) 4 SCC 608, para 123]</th></tr></thead><tbody></tbody></table><table><thead><tr><th></th><th>53</th><th>.</th><th>In</th><th></th><th>Kuldip Nayar v.</th><th></th><th>Union of India</th><th></th><th>[Kuldip</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Nayar</th><th></th><th>v</th><th>.</th><th>Union of India</th><th>, (2006) 7 SCC 1, p. 67, para</th></tr></thead><tbody></tbody></table><table><thead><tr><th>107 “</th><th>107</th><th>. The basic structure theory imposes</th></tr></thead><tbody></tbody></table><div><br /> limitation on the power of Parliament to amend the<br /> Constitution. An amendment to the Constitution under<br /> Article 368 could be challenged on the ground of<br /> violation of the basic structure of the Constitution. An<br /> ordinary legislation cannot be so challenged. The<br /> challenge to a law made, within its legislative<br /> competence, by Parliament on the ground of violation of<br /> the basic structure of the Constitution is thus not<br /> available to the petitioners.”] a Constitution Bench held<br /> that ordinary legislation cannot be challenged for the<br /> violation of the basic structure of the Constitution.<br /> Statutes, including State legislation, can only be<br /> challenged for violating the provisions of the<br /></div><table><thead><tr><th>Constitution</th><th>. [</th><th>Ashok Kumar Thakur</th><th></th><th>v.</th><th></th><th>Union of India</th><th>,</th></tr></thead><tbody></tbody></table><div><br /> (2008) 6 SCC 1 : 3 SCEC 35, para 116] However,<br /><br /> <b> -56-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>in</th><th></th><th>Madras Bar Assn.</th><th>v.</th><th></th><th>Union of India</th><th></th><th>[</th><th>Madras Bar</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Assn.</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (2014) 10 SCC 1, p. 190, para</th></tr></thead><tbody></tbody></table><div><br /> 109 : (2014) 187 Comp Cas 426 : (2014) 368 ITR 42 :<br /></div><table><thead><tr><th>(2014) 29 GSTR 12 : (2014) 75 VST 12 “</th><th>109</th><th>. … This</th></tr></thead><tbody></tbody></table><div><br /> Court has repeatedly held that an amendment to the<br /> provisions of the Constitution would not be sustainable<br /> if it violated the “basic structure” of the Constitution,<br /> even though the amendment had been carried out by<br /> following the procedure contemplated under “Part XI” of<br /> the Constitution. This leads to the determination that<br /> the “basic structure” is inviolable. In our view, the<br /> same would apply to all other legislations (other than<br /> amendments to the Constitution) as well, even though<br /> the legislation had been enacted by following the<br /> prescribed procedure, and was within the domain of<br /> the enacting legislature, any infringement to the “basic<br /> structure” would be unacceptable.”] a Constitution<br /> Bench applied the basic structure doctrine to test the<br /> validity of parliamentary legislation seeking to transfer<br /> judicial power from High Courts to tribunals. J.S.<br /> Khehar, J. (as the learned Chief Justice then was),<br /> writing for the Constitution Bench, held that the basic<br /> structure of the Constitution will stand violated if<br /> Parliament does not ensure that the newly created<br /><br /> <b> -57-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> tribunals do not “conforms with the salient<br /> characteristics and standards of the court sought to be<br /></div><table><thead><tr><th>substituted”. [</th><th>Madras Bar Assn. case</th><th>, (2014) 10 SCC 1,</th></tr></thead><tbody></tbody></table><div><br /> p. 218, para 136 : (2014) 187 Comp Cas 426 : (2014)<br /> 368 ITR 42 : (2014) 29 GSTR 12 : (2014) 75 VST<br /></div><table><thead><tr><th>12“</th><th>136</th><th>. … (</th><th>ii</th><th>i) The “basic structure” of the Constitution</th></tr></thead><tbody></tbody></table><div><br /> will stand violated if while enacting legislation<br /> pertaining to transfer of judicial power, Parliament does<br /> not ensure that the newly created court/tribunal<br /> conforms with the salient characteristics and<br /> standards of the court sought to be substituted.”] <br /></div><table><thead><tr><th></th><th>54.</th><th></th><th>In</th><th></th><th>Supreme Court Advocates-on-Record</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Assn.</th><th></th><th>v.</th><th></th><th>Union of India</th><th></th><th>[</th><th>Supreme Court Advocates-on-</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Record Assn.</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (2016) 5 SCC 1] this</th></tr></thead><tbody></tbody></table><div><br /> Court had to decide the constitutional validity of the<br /> Constitution (Ninety-ninth Amendment) Act, 2014 and<br /> the National Judicial Appointments Commission Act,<br /> 2014. J.S. Khehar, J. (as the learned Chief Justice then<br /></div><table><thead><tr><th>was) built upon his reasoning in</th><th></th><th>Madras Bar</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Assn.</th><th></th><th>[</th><th>Madras Bar Assn.</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (2014) 10</th></tr></thead><tbody></tbody></table><div><br /> SCC 1 : (2014) 187 Comp Cas 426 : (2014) 368 ITR 42 :<br /> (2014) 29 GSTR 12 : (2014) 75 VST 12] by observing<br /> that a challenge to ordinary legislation for violation of<br /> the basic structure would only be a “technical flaw”<br /><br /> <b> -58-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> and “cannot be treated to suffer from a legal infirmity”.<br /></div><table><thead><tr><th>[</th><th>Supreme Court Advocates-on-Record Assn.</th><th></th><th>v.</th><th></th><th>Union of</th></tr></thead><tbody></tbody></table><table><thead><tr><th>India</th><th>, (2016) 5 SCC 1, para 381] He observed that the</th></tr></thead><tbody></tbody></table><div><br /> determination of the basic structure of the Constitution<br /> is made exclusively from the provisions of the<br /> Constitution. The observations of the learned Judge are<br /></div><table><thead><tr><th>instructive and extracted below: (</th><th>Supreme Court</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Advocates-on-Record Assn.</th><th></th><th>[</th><th>Supreme Court Advocates-</th></tr></thead><tbody></tbody></table><table><thead><tr><th>on-Record Assn.</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (2016) 5 SCC 1,</th></tr></thead><tbody></tbody></table><div><br /> para 381], SCC p. 451, para 381)<br /> “381. … when a challenge is raised to a<br /> legislative enactment based on the cumulative<br /> effect of a number of articles of the<br /> Constitution, it is not always necessary to refer<br /> to each of the articles concerned when a<br /> cumulative effect of the said articles has<br /> already been determined as constituting one of<br /> the “basic features” of the Constitution.<br /> Reference to the “basic structure” while dealing<br /> with an ordinary legislation would obviate the<br /> necessity of recording the same conclusion<br /> which has already been scripted while<br /> interpreting the article(s) under reference<br /> harmoniously. We would therefore reiterate<br /> that the “basic structure” of the Constitution is<br /> inviolable and as such the Constitution cannot<br /> be amended so as to negate any “basic<br /> features” thereof, and so also, if a challenge is<br /> raised to an ordinary legislation based on one<br /> of the “basic features” of the Constitution, it<br /> would be valid to do so. If such a challenge is<br /><br /> <b> -59-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> accepted on the ground of violation of the<br /> “basic structure”, it would mean that the<br /> bunch of articles of the Constitution (including<br /> the Preamble thereof, wherever relevant), which<br /> constitute the particular “basic feature”, had<br /> been violated. We must however credit the<br /> contention of the learned Attorney General by<br /> accepting that it would be technically sound to<br /> refer to the articles which are violated, when an<br /> ordinary legislation is sought to be struck<br /> down as being ultra vires the provisions of the<br /> Constitution.”<br /></div><table><thead><tr><th></th><th>55.</th><th>However, Lokur, J. in</th><th></th><th>Supreme Court</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Advocates-on-Record Association</th><th></th><th>[</th><th>Supreme Court</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Advocates-on-Record Assn.</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (2016) 5</th></tr></thead><tbody></tbody></table><div><br /> SCC 1] differed with J.S. Khehar, J. on the issue of<br /> testing the validity of a statute for violation of the basic<br /> structure doctrine. Lokur, J. followed the view of the<br /></div><table><thead><tr><th>majority in</th><th>State of Karnataka</th><th></th><th>[</th><th>State of</th></tr></thead><tbody></tbody></table><table><thead><tr><th>Karnataka</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (1977) 4 SCC</th></tr></thead><tbody></tbody></table><table><thead><tr><th>608.</th><th></th><th>SupremeCourt Advocates-on-RecordAssn.</th><th>v.</th><th></th><th>Union</th></tr></thead><tbody></tbody></table><table><thead><tr><th>of India</th><th>, (2016) 5 SCC 1, p. 621, para 795“</th><th>795</th><th>. For the</th></tr></thead><tbody></tbody></table><div><br /> purposes of the present discussion, I would prefer to<br /> follow the view expressed by a Bench of seven learned<br /></div><table><thead><tr><th>Judges in</th><th></th><th>State of Karnataka</th><th></th><th>v.</th><th></th><th>Union of India</th><th>, (1977) 4</th></tr></thead><tbody></tbody></table><div><br /> SCC 608 [seven-Judge Bench] that it is only an<br /> amendment of the Constitution that can be challenged<br /> on the ground that it violates the basic structure of the<br /><br /> <b> -60-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> Constitution—a statute cannot be challenged on the<br /> ground that it violates the basic structure of the<br /> Constitution. [The only exception to this perhaps could<br /> be a statute placed in the Ninth Schedule to the<br /> Constitution.] The principles for challenging the<br /> constitutionality of a statute are quite different.”] that a<br /> statute cannot be challenged for violating the basic<br /> structure doctrine. <br /></div><table><thead><tr><th></th><th>56.</th><th></th><th>From the above discussion, it can be concluded</th></tr></thead><tbody></tbody></table><div><br /> that a statute can be struck down only for the violation<br /> of Part III or any other provision of the Constitution or<br /> for being without legislative competence. The<br /> constitutional validity of a statute cannot be challenged<br /> for the violation of the basic structure of the<br /></div><table><thead><tr><th>Constitution</th><th>. The reason is that concepts such as</th></tr></thead><tbody></tbody></table><div><br /> democracy, federalism, and secularism are undefined<br /> concepts. Allowing courts to strike down legislation for<br /> violation of such concepts will introduce an element of<br /> uncertainty in our constitutional adjudication.<br /> Recently, this Court has accepted that a challenge to<br /> the constitutional validity of a statute for violation of<br /> the basic structure is a technical aspect because the<br /> infraction has to be traced to the express provisions of<br /> the Constitution. Hence, in a challenge to the validity of<br /><br /> <b> -61-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> a statute for violation of the principle of secularism, it<br /> must be shown that the statute violates provisions of<br /> the Constitution pertaining to secularism.”<br /> <i></i>* (emphasis supplied)<br /> 62. Applying the aforesaid principle to the present legislation,<br /> which is admittedly an ordinary law and as observed in the<br /> aforesaid judgment, the validity of a Statute cannot be<br /> challenged for the violation of the basic structure of the<br /> Constitution, which, in fact, has reaffirmed the view expressed<br /> 14<br /> in State of Karnataka v. Union of India , as referred to in<br /> paragraph 52 of the Anjum Kadari (supra). <br /> 63. Both sides have relied on Justice Chandrashekar (Retd)<br /> (supra) in support of their respective arguments. The main<br /> issue that came up for consideration before the Hon’ble<br /> Supreme Court was whether the views expressed by the Chief<br /> Justice of the High Court of Karnataka has got primacy while<br /> making appointment to the posts of Lok Ayukta or Upa Lok<br /> Ayukta by the Government of Karnataka in exercise of powers<br /> 14<br /> (1977) 4 SCC 608<br /><br /> <b> -62-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> conferred on them under Section 3(2)(a) and (b) of the<br /> Karnataka Lokayukta Act, 1984. In deciding the said issue, the<br /> Hon’ble Supreme Court has considered Sections 7, 8, 9, 11 and<br /> 12 of the Karnataka Lokayukta Act, which are in pari materia<br /> with Sections 7, 8, 9, 11 and 12 of the present Act. In fact,<br /> most of the States have same and/or similar provisions that are<br /> covered by the aforesaid Sections.<br /> 64. However, unlike Section 13 of the Karnataka Lokayukta<br /> Act, the original unamended Section 14, which is pari materia<br /> to Section 13 of the aforesaid Act, has bestowed power upon the<br /> competent authority either to accept or reject the declaration<br /> made by the Lok Ayukta or Upa Lok Ayukta under sub-section<br /> (3) of Section 12 of the Karnataka Lokayukta Act. For better<br /> appreciation, Section 13 of the Karnataka Lokayukta Act and<br /> unamended Section 14 are given in the following table.<br /></div><table><thead><tr><th>Section 13 of the Karnataka&lt;br&gt;Lokayukta Act</th><th>Unamended Section 14 of the&lt;br&gt;KLAA</th></tr></thead><tbody><tr><td>“13. Public servant to vacate&lt;br&gt;office if directed by Lokayukta</td><td>“14. Public Servant to vacate&lt;br&gt;office if directed by Lok</td></tr></tbody></table><div><br /><br /> <b> -63-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>etc.-”&lt;br&gt;1. Where after investigation&lt;br&gt;into a complaint the&lt;br&gt;Lokayukta or an&lt;br&gt;Upalokayukta is satisfied that&lt;br&gt;the complaint involving an&lt;br&gt;allegation against the public&lt;br&gt;servant is substantiated and&lt;br&gt;that the public servant&lt;br&gt;concerned should not&lt;br&gt;continue to hold the post held&lt;br&gt;by him, the Lokayukta or the&lt;br&gt;Upalokayukta shall make a&lt;br&gt;declaration to that effect in his&lt;br&gt;report under sub-section (3) of&lt;br&gt;section 12. Where the&lt;br&gt;competent authority is the&lt;br&gt;Governor, State Government&lt;br&gt;or the Chief Minister, it may&lt;br&gt;either accept or reject the&lt;br&gt;declaration after giving an&lt;br&gt;opportunity of being heard. In&lt;br&gt;other cases, the competent&lt;br&gt;authority shall send a copy of&lt;br&gt;such report to the State</th><th>Ayukta etc.&lt;br&gt;(1) Where, after investigation&lt;br&gt;into a complaint, the Lok&lt;br&gt;Ayukta or an Upa-Lok Ayukta&lt;br&gt;is satisfied that the complaint&lt;br&gt;involving an allegation against&lt;br&gt;the public servant is&lt;br&gt;substantiated and that the&lt;br&gt;public servant concerned&lt;br&gt;should not continue to hold&lt;br&gt;the post held by him, the Lok&lt;br&gt;Ayukta or the Upa-Lok&lt;br&gt;Ayukta, as the case may be,&lt;br&gt;shall make a declaration to&lt;br&gt;that effect in his report under&lt;br&gt;sub-section (3) of section 12.&lt;br&gt;Where the competent&lt;br&gt;authority is the Governor, the&lt;br&gt;Government of Kerala or the&lt;br&gt;Chief Minister, he or it shall&lt;br&gt;accept the declaration. In&lt;br&gt;other cases, the competent&lt;br&gt;authority concerned shall send&lt;br&gt;a copy of such report to the&lt;br&gt;Government, which shall</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -64-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>Government, which may&lt;br&gt;either accept or reject the&lt;br&gt;declaration. If it is not rejected&lt;br&gt;within a period of three&lt;br&gt;months from the date of&lt;br&gt;receipt of the report, or the&lt;br&gt;copy of the report, as the case&lt;br&gt;may be, it shall be deemed to&lt;br&gt;have been accepted on the&lt;br&gt;expiry of the said period of&lt;br&gt;three months.&lt;br&gt;2. If the declaration so made&lt;br&gt;is accepted or is deemed to&lt;br&gt;have been accepted, the fact&lt;br&gt;of such acceptance or the&lt;br&gt;deemed acceptance shall&lt;br&gt;immediately be intimated by&lt;br&gt;Registered post by the&lt;br&gt;Governor, the State&lt;br&gt;Government or the Chief&lt;br&gt;Minister if any of them is the&lt;br&gt;competent authority and the&lt;br&gt;State Government in other&lt;br&gt;cases then, notwithstanding&lt;br&gt;anything contained in any</th><th>accept the declaration.&lt;br&gt;(2) When the declaration so&lt;br&gt;made is accepted, the fact of&lt;br&gt;such acceptance shall&lt;br&gt;immediately be intimated by&lt;br&gt;registered post, by the&lt;br&gt;Governor, the Government or&lt;br&gt;the Chief Minister, if any of&lt;br&gt;them is the competent&lt;br&gt;authority and the Government,&lt;br&gt;in other cases and then,&lt;br&gt;notwithstanding anything&lt;br&gt;contained in any law, order,&lt;br&gt;notification, rule or contract of&lt;br&gt;appointment, the public&lt;br&gt;servant concerned shall, with&lt;br&gt;effect from the date of&lt;br&gt;intimation of such acceptance&lt;br&gt;or deemed acceptance of the&lt;br&gt;declaration-&lt;br&gt;(i) if he is the Chief Minister or&lt;br&gt;a Minister, resign his office of&lt;br&gt;Chief Minister or Minister, as&lt;br&gt;the case may be;</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -65-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>law, order, notification, rule or&lt;br&gt;contract of appointment, the&lt;br&gt;public servant concerned&lt;br&gt;shall, with effect from the date&lt;br&gt;of intimation of such&lt;br&gt;acceptance or of the deemed&lt;br&gt;acceptance of the declaration,&lt;br&gt;i. if the Chief Minister or a&lt;br&gt;Minister resign his office of&lt;br&gt;the Chief Minister, or&lt;br&gt;Minister, as the case may be;&lt;br&gt;ii. if a public servant falling&lt;br&gt;under items (e) and (f), but not&lt;br&gt;falling under items (d) and (g)&lt;br&gt;of clause (12) of section 2, be&lt;br&gt;deemed to have vacated his&lt;br&gt;office; and&lt;br&gt;iii. if a public servant falling&lt;br&gt;under items (d) and (g) of&lt;br&gt;clause (12) of section 2, be&lt;br&gt;deemed to have been placed&lt;br&gt;under suspension by an order&lt;br&gt;of the appointing authority.&lt;br&gt;Provided that if the public</th><th>(ii) if he is a public servant&lt;br&gt;falling under items (v) and (vi),&lt;br&gt;but not falling under items (iv)&lt;br&gt;and (vii) of Clause (o) of&lt;br&gt;Section 2, be deemed to have&lt;br&gt;vacated his office; and&lt;br&gt;iii) if he is a public servant&lt;br&gt;falling under items (iv) and (vii)&lt;br&gt;of Clause (o) of Section 2, be&lt;br&gt;deemed to have been placed&lt;br&gt;under suspension by an order&lt;br&gt;of the appointing authority&lt;br&gt;and the appointing authority&lt;br&gt;shall initiate appropriate&lt;br&gt;action in accordance with the&lt;br&gt;rules applicable to such public&lt;br&gt;servant:&lt;br&gt;Provided that if the public&lt;br&gt;servant is a member of an All&lt;br&gt;India Service as defined in&lt;br&gt;Section 2 of the All India&lt;br&gt;Services Act, 1951 (General&lt;br&gt;Act 61 of 1951), the&lt;br&gt;Government shall take action</th></tr></thead><tbody></tbody></table><div><br /><br /> <b> -66-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /></div><table><thead><tr><th>servant is a member of an All&lt;br&gt;India Service as defined in&lt;br&gt;section 2 of the All India&lt;br&gt;Services Act, 1951 (Central&lt;br&gt;Act 61 to 1951) the State&lt;br&gt;Government shall take action&lt;br&gt;to keep him under suspension&lt;br&gt;in accordance with the rules&lt;br&gt;or regulations applicable to&lt;br&gt;his service.</th><th>to keep him under suspension&lt;br&gt;and initiate appropriate action,&lt;br&gt;in accordance with the rules or&lt;br&gt;regulations applicable to his&lt;br&gt;service.</th></tr></thead><tbody></tbody></table><div><br /> (emphasis supplied)<br /> 65. However, unlike Section 13(1) of the Karnataka Lokayukta<br /> Act, 1984, where there is a provision for “deemed acceptance” of<br /> the declaration, there is no similar provision in Section 14(2) of<br /> the KLAA where the Statute is silent as to what happens in the<br /> event the State Legislature fails to take any decision upon<br /> expiry of 90 days. It cannot be the intention or desire of the<br /> Legislation and, in fact, it is not so to keep the matter<br /> suspended or sit over it indefinitely, otherwise, the period of 90<br /> days would not have been mentioned in Section 14(2) of the<br /><br /> <b> -67-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> KLAA as amended.<br /> 66. It appears that while the State Legislature was considering<br /> of diluting the efficacy of the report from declaration to a<br /> recommendation on a consideration that there may be a<br /> violation of principles of natural justice for the person against<br /> whom the report has been filed by the Lok Ayukta or Upa Lok<br /> Ayukta as a declaration would be a fait accompli without any<br /> recourse as no appellate authority is prescribed under the said<br /> Act, it has never been the intention of the Legislature to make a<br /> mockery of the entire system or to make the entire process go<br /> for a toss. It was never intended to be an entirely wasteful and<br /> unnecessary exercise involving public exchequer. After all, it<br /> cannot be denied that the office of the Lok Ayukta has<br /> solemnity attached to it as being presided over by a retired<br /> Judge of the Hon’ble Supreme Court or the retired Chief Justice<br /> of a High Court, now replaced by a retired Judge of the High<br /> Court and it involves a detailed exercise to be carried out before<br /> it culminates into a report. <br /><br /> <b> -68-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> 67. However, the reason for the amendment as argued by the<br /> learned Advocate General is a plausible reason for the<br /> amendment and the Court cannot in a judicial review decide<br /> the quality of such amendment and does not depend upon the<br /> perception of the Judge. It has to be tested on the anvil of the<br /> tests as laid down in Anjum Kadari (supra) to consider the<br /> quality and merits of such objections in deciding the<br /> constitutional validity of the Statute. However, as observed<br /> earlier, it is a duty upon the State Legislature, like the<br /> provisions made in the Karnataka Legislation under Section 13<br /> with regard to deemed acceptance of such report in the event it<br /> is not accepted within the time frame as prescribed in Section<br /> 14(2) as amended. In fact, the learned Advocate General true to<br /> the tradition of the Bar and the Office that it commands has<br /> also fairly conceded to the fact that the said provision is<br /> required to be read into the same sub- section to give<br /> effectiveness to the Statute.<br /> 68. The Statute does not exclude judicial review of the action<br /><br /> <b> -69-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> taken or proposed to be taken or the rejection of the<br /> recommendation by the State Legislature. While the Lok Ayukta<br /> or Upa Lok Ayukta may not be a person aggrieved in the<br /> context of the report being rejected and no action is taken, it is<br /> always open for the complainant to file a writ petition<br /> challenging the decision of the State Legislature in not<br /> accepting the said recommendation of the Lok Ayukta on the<br /> grounds that may be available to such complainant. In fact,<br /> Section 12 used the word “recommendation” in sub-section (5)<br /> as opposed to a “declaration” which, however, in the<br /> unamended provision of Section 14, was considered to be a<br /> “declaration” although Section 12(3) refers to “recommendation”<br /> and not a “declaration”. When Section 12(3) is read with Section<br /> 14(1) unamended, there appears to be a dichotomy between the<br /> binding nature of the report, as it appears that at the stage of<br /> Section 12(3), it is only a recommendation which cannot be said<br /> to be of a binding nature, as it would not give any option unlike<br /> similar statues of having a re-look at the said report, as it is<br /><br /> <b> -70-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> treated as a “declaration” and is of a binding nature. It does not<br /> require any further deliberation or consideration, as envisaged<br /> in similar Statutes, nor does it require an opportunity of being<br /> heard. The said unamended provision is also likely to cause<br /> serious prejudice against whom an action is proposed. In fact,<br /> the Karnataka Lokayukta Act gives power to the competent<br /> authority either to accept or reject after giving an opportunity of<br /> being heard. The consequences are of a far sweeping nature<br /> given the wordings of Sections 12 and 14 as unamended.<br /> However, the amended provision in Section 14(2) contemplates<br /> a reason to be given by the Sate Legislature, which makes the<br /> State Legislature accountable for its decisions. The State<br /> Legislature shall be presumed to act bona fide upholding the<br /> Constitutional values and keeping in mind the object of the said<br /> Act profess in considering such recommendation.<br /> 69. There is another significant aspect in this matter which<br /> also requires a special mention. Under Section 12, the Lok<br /> Ayukta would be required to submit a report. Section 12(3)<br /><br /> <b> -71-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> contemplates action to be taken by the competent authority on<br /> the basis of the findings and recommendations made by the<br /> Lok Ayukta. At this stage, if it is in relation to the Chief<br /> Minister, then now by reason of the amendment, it has to be<br /> considered by the competent authority and under Section 12(4),<br /> the State Legislature would be required to examine the report<br /> within three months of the date of receipt of the report and<br /> intimate or cause to be intimated to the Lok Ayukta the action<br /> taken or proposed to be taken on the basis of the said report.<br /> However, the Lok Ayukta has been given power under Section<br /> 12(5) to either accept the action taken or proposed to be taken<br /> on the basis of the recommendation or can make a special<br /> report to the Governor expressing his reservation and also shall<br /> communicate to the State Legislature (now the competent<br /> authority in relation to the Chief Minister) and the complainant.<br /> The most significant provision is Section 12(7) which has not<br /> been amended that gives power to the Governor to forward such<br /> report which, after amendment, would be the State Legislature<br /><br /> <b> -72-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> in the case of the Chief Minister together with “an explanatory<br /> memorandum” to be laid before the Legislative Assembly.<br /> 70. Now, by virtue of the amendment, the report under Section<br /> 12(3) would not be considered any further as a declaration and<br /> it is now required to be placed before the State Legislature in<br /> the case of the Chief Minister to be considered in accordance<br /> with Section 14(2) of the Act as amended. Section 12(7) still<br /> retains the power of the Governor to make “an explanatory<br /> memorandum” in the event the recommendations are accepted<br /> by the State Legislature, but not implemented.<br /> 71. We, accordingly, are of the view that the State Legislature<br /> is competent to make such amendments, however, we make it<br /> clear that Section 14(2) contemplates that in the event said<br /> report is not rejected within the period of 90 days from the date<br /> of receipt of the report or the copy of the report, as the case<br /> may be, it shall be deemed to have been accepted on the expiry<br /> of the said period of three months and if it is deemed to have<br /> been accepted, the procedure under Section 12(5) would<br /><br /> <b> -73-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> immediately trigger. In fact, Sections 12(4) and 14(2) of the<br /> KLAA, in relation to the Chief Minister viz-a-viz the State<br /> Legislation, contemplate such procedure to be followed and any<br /> other interpretation to the said provisions would render Section<br /> 14(2) otiose, as in absence of “deemed acceptance”, Section<br /> 12(5) stage would never come and make the other provisions<br /> redundant. In the absence of any amendment being carried out<br /> to the said sections and keeping in mind the laudatory object of<br /> the said Act, “deemed acceptance” beyond the time stipulated<br /> in Section 14(2) is a necessary corollary and an obvious<br /> consequence to follow. It completely aligns with Section 12(4) as<br /> it, by reason of amendment to Section 14(2), mandates the<br /> State Legislature to examine the report within three months<br /> and if Section 12(5) is read harmoniously with Sections 12(4)<br /> and 14(2) as amended, it is incumbent upon the State<br /> Legislature to intimate the Lok Ayukta the action taken or<br /> proposed to be taken on the basis of the report. The words<br /> “deemed acceptance” are read into the amended Section 14(2)<br /><br /> <b> -74-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> to make it effective and in consonance with the object of the Act<br /> and the other provisions of the Statute.<br /> 72. The power of the Court in exceptional circumstances to<br /> read into a Statute, has been recognised, inter alia, in the<br /> decision of the Hon’ble Supreme Court in X (Juvenile) v. State<br /> 15<br /> of Karnataka , wherein, at paragraph 38, it was held as<br /> follows:<br /> “38. The rule of casus omissus i.e. “what has<br /> not been provided in the statute cannot be<br /> supplied by the courts” is the strict rule of<br /> interpretation. However, there are certain<br /> exceptions thereto. Para 19 of the judgment of<br /> this Court in Surjit Singh Kalra v. Union of<br /> India [Surjit Singh Kalra v. Union of India,<br /> (1991) 2 SCC 87 : (1991) 1 SCR 364 : 1991<br /> INSC 36] throws light thereon. The same is<br /> extracted below : (SCC p. 98)<br /> “19. True it is not permissible to read words<br /> in a statute which are not there, but “where<br /> the alternative lies between either supplying<br /> by implication words which appear to have<br /> been accidentally omitted, or adopting a<br /> 15<br /> (2024) 8 SCC 473<br /><br /> <b> -75-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> construction which deprives certain existing<br /> words of all meaning, it is permissible to<br /> supply the words’ (Craies Statute Law, 7th<br /> Edn., p. 109). Similar are the observations<br /> in Hameedia Hardware Stores v. B. Mohan<br /> Lal Sowcar [Hameedia Hardware Stores v.<br /> B. Mohan Lal Sowcar, (1988) 2 SCC 513] ,<br /> SCC at pp. 524-25 wherein it was observed<br /> that the court construing a provision should<br /> not easily read into it words which have not<br /> been expressly enacted but having regard to<br /> the context in which a provision appears<br /> and the object of the statute in which the<br /> said provision is enacted the court should<br /> construe it in a harmonious way to make it<br /> meaningful. An attempt must always be<br /> made so as to reconcile the relevant<br /> provisions as to advance the remedy<br /> intended by the statute. (See : Siraj-ul-Haq<br /> Khan v. Sunni Central Board of Wakf [Siraj-<br /> ul-Haq Khan v. Sunni Central Board of<br /> Wakf, 1958 SCC OnLine SC 27 : 1959 SCR<br /> 1287 : AIR 1959 SC 198] , SCR at p. 1299)”.<br /> <i></i>*<br /> 73. Similarly, in Rajbir Singh Dalal v. Chaudhari Devi Lal<br /> 16<br /> University , the Hon’ble Supreme Court held as follows:<br /> “13…….where the alternative lies between<br /> either supplying by implication words which<br /> appear to have been accidentally omitted, or<br /> 16<br /> (2008) 9 SCC 284<br /><br /> <b> -76-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> adopting a strict construction which leads to<br /> absurdity or deprives certain existing words of<br /> all meaning, and in this situation it is<br /> permissible to supply the words (vide Principles<br /> of Statutory Interpretation by Justice G.P.<br /> Singh, 9th Edn., pp. 71-76).”<br /> <i></i>*<br /> The said principles are also equally applicable to bring out<br /> the essence of the legislation, as without such “deemed<br /> acceptance”, the purpose of the Statute would stand defeated.<br /> 74. Considering the nature of the complaint, it is desirable that<br /> the original provision with regard to the appointment of a<br /> person who has held the office of the Chief Justice of the High<br /> Court may be restored as it appears that the original Act has<br /> equated a retired Judge of the Supreme Court with that of the<br /> retired Chief Justice of the High Court and the amendment has<br /> only replaced the retired Chief Justice of the High Court by a<br /> retired Judge of the High Court. We could not find any rational<br /> basis for such changes being made in Section 3(2). However, it<br /> is for the Legislature to decide taking into consideration the<br /><br /> <b> -77-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> observations made in this judgment.<br /> 75. The writ petitions are disposed of with the above<br /> clarification and interpretation of Section 14(2) of the KLAA in<br /> relation to the enforceability of the recommendations. The<br /> challenge to the constitutional validity of Sections 3 and 14 (as<br /> amended) herein fails.<br /> <br /> Sd/-<br /> SOUMEN SEN, <br /> CHIEF JUSTICE<br /> Sd/-<br /> SYAM KUMAR V.M., <br /> JUDGE<br /> uu/eb/jjj<br /><br /> <b> -78-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> <b>APPENDIX OF WP(C) NO. 11107 OF 2024</b><br /> <b>PETITIONER EXHIBITS</b><br /> <b>Exhibit P1</b> <b>TRUE COPY OF THE KERALA LOK AYUKTA</b><br /> <b>(AMENDMENT) ACT, 2022, ACT 7 OF 2024</b><br /> <b>PUBLISHED IN KERALA GAZETTE EXTRAORDINARY</b><br /> <b>NO.805 DATED 2.3.2024 VIDE NOTIFICATION</b><br /> <b>NO.1482/LEG.E2/2022/LAW DATED 2ND MARCH,</b><br /> <b>2024</b><br /><br /> <b> -79-</b><br /> W.P.(C) Nos.18749 &amp; 11107 of 2024<br /> <b>APPENDIX OF WP(C) NO. 18749 OF 2024</b><br /> <b>PETITIONER EXHIBITS</b><br /> <b>Exhibit -P1</b> <b>A TRUE COPY OF THE LOK AYUKTA AMENDMENT</b><br /> <b>ACT 2022 (ACT 7 OF 2024) PUBLISHED IN THE</b><br /> <b>GAZETTE BEARING NO. 1482/LEG.E2/2022/LAW</b><br /> <b>DATED 02.03.2024</b></div>