made as recommendation.
4. Mr. George Poonthottam, the learned Senior Counsel, has
Chief Justice of the High Court, as the case may be.
recognised in Chandrashekaraiah (Retd) v. Janekere C.Krishna
and Others1. In this regard, the learned Senior Counsel has
a Member of the Legislative Assembly of the State of Kerala.
recommendation of the Lok Ayukta. This was not what was
intended when the KLAA was enacted. It is submitted that,
7. The very purpose of appointing a Judge to investigate in the
adjudicating and deciding the complaint. It, therefore, follows
executive body entrusted with the power of adjudication.
8. A Judge in charge under the unamended Act is required to
an eyelid. The amendment is a clear act of interference with due
adjudication.
9. The Lok Ayukta Act is enacted for the purpose of improving
machinery. The Lok Ayukta and Upa-Lok Ayukta, appointed as
transparent administration. The aforesaid amendments are
totally against the aims and objectives of the KLAA. The
v) The doctrine of separation of power which form part of
the basic structure of the Constitution of India is enumerated
in various judgments of the Hon'ble Supreme Court. By
upholding the separation of powers between the Legislature,
Executive and the Judiciary, it has been time and again
reiterated that these three organs have to function as separate
organs of the republic and that they cannot take over the
functions assigned to one other.
W.P.(C) Nos.18749 & 11107 of 2024
vi) The impugned amendments are an attempt to weaken
the judicial system, by encroaching upon the independence of
the judiciary.
vii) It is also relevant to note that there are no provisions in
other States wherein, the competent authority in relation to the
Chief Minister is the State Legislative Assembly and that of a
member of the State Legislative Assembly is the Speaker of the
State Legislative Assembly. A perusal of the Karnataka
Lokayukta Act, 1984 and the Tamil Nadu Lok Ayukta Act,
2018, would show that the competent authority in relation to
the Chief Minister is the Governor. Also, in Karnataka
Lokayukta Act, 1984, the competent authority in relation to a
member of the State Legislature is the Governor acting in his
discretion. As such, the amendments are violative of the basic
structure doctrine and hence, liable to be struck down.
10. The learned Senior Counsel is, in fact, trying to emphasise
that the amendment is shocking and clearly subversive of all
known canons of law and fairness, as it gives overriding power
W.P.(C) Nos.18749 & 11107 of 2024
to the State Legislature to treat the report of the Lok Ayukta,
which was earlier considered as a declaration, now as a
recommendation. If this amendment is allowed, it would make
a mockery of the entire adjudicatory process and would amount
to clear violation of the basic concept of justice, thereby
defeating the very purpose and object of the KLAA. It would now
mean that the Executive will decide the fate of an authority,
even though the very object of the KLAA is to ensure impartial
adjudication by a judicial authority - no less than a Judge of
the Hon'ble Supreme Court or the Chief Justice of the High
Court, who may now be substituted by a Judge of the High
Court. It is articulated that overriding the decision of the Lok
Ayukta was not contemplated under the original Act, and the
amended Act, by diluting the said provisions, has rendered the
object of the legislation redundant. It is submitted that the
amendment is unconstitutional, as it strikes at judicial
independence in reviewing the declaration which is now a
recommendation of the Lok Ayukta.
W.P.(C) Nos.18749 & 11107 of 2024
11. In short, the argument is that the effect of the amendment
is to be judged on the touchstone of the rule of law and whether
it violates the rule of law would be the proper test to assess the
quality of the amendment. The purpose and object of the KLAA
would be defeated if the reports recommending actions are
rendered ineffective and inoperative, as is intended by replacing
"declaration" with "recommendation" in the amendment to
Section 14 of the KLAA. The power of the Governor has also
been diluted in the definition clause of "competent authority",
as the Governor is no longer the competent authority vis-à-vis
the Chief Minister; instead, the State Legislature has been
made the competent authority for implementing the report of
the Lok Ayukta. The said amendments, if allowed to be
sustained, would weaken the faith of the people in the rule of
law and it is necessary that the Constitutional Court
safeguards the rule of law by setting aside the amendments.
12. The learned Senior Counsel has submitted that, upon
analysing the provisions of both the amended and unamended
W.P.(C) Nos.18749 & 11107 of 2024
Act, there has been no fundamental change in the powers to be
exercised by the Lok Ayukta and the Upa Lok Ayukta with
regard to the manner of investigation and the proposed action,
as elaborately set out in Sections 9 to 12 of the KLAA. However,
the effectiveness of the report has now been rendered ineffective
by replacing the word "declaration" in the unamended Section
14 with "recommendation," resulting in a complete change with
regard to the enforceability of the said report, which is now to
be considered a recommendation instead of a declaration. While
a declaration was enforceable without any further scrutiny and
was not subject to review by any competent authority under the
unamended Section 3 of the KLAA, by reason of the amendment
to Section 14, the report, which is now in the nature of a
recommendation, will be scrutinized by the State Legislative
Assembly in relation to the Chief Minister, instead of the
Governor immediately taking steps on the basis of the said
report under the unamended provision, which did not permit
any further review. The said amendments, according to the
W.P.(C) Nos.18749 & 11107 of 2024
learned Senior Counsel, in fact, amount to a review by the State
Legislature of a report prepared and submitted by a Judge of
the Hon'ble Supreme Court or by the Chief Justice of the High
Court, which would, in effect, constitute an administrative
review of a decision taken by a judicial or quasi-judicial
authority having the trappings of a court.
13. The learned Senior Counsel, with reference to Sections 9
to 12 of the KLAA, has strenuously argued that these powers
are essentially judicial or quasi-judicial in nature, having the
trappings of a court, and hence, on the basis of the decision of
the Hon'ble Supreme Court in Amrik Singh Lyallpuri v. Union
of India2, the amendments are clearly unsustainable, since
they, in effect, provide for an administrative review of a decision
taken by a judicial or quasi-judicial body. In this regard,
reference is made to paragraph 17 of the decision in Amrik
Singh Lvallpuri (supra) which is reproduced as under:
"17. In a subsequent Constitution Bench decision
of this Court in L. Chandra Kumar v. Union of
(2011) 6 SCC 535
W.P.(C) Nos.18749 & 11107 of 2024
India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577 :
AIR 1997 SC 1125] Abmadi, C.J. after an analysis
of different decisions of this Court, affirmatively
held that judicial review is one of the basic
features of our Constitution. Such a finding of
this Court, obviously means that there cannot be
administrative review of a decision taken by a
judicial or a quasi-judicial authority which has
the trappings of a court. Since judicial review has
been considered an intrinsic part of
constitutionalism, any statutory provision which
provides for administrative review of a decision
taken by a judicial or a quasi-judicial body is,
therefore, inconsistent with the aforesaid
postulate and is unconstitutional."
*** (emphasis
supplied)
14. The learned Senior Counsel has submitted that the said
amendments are shocking and run counter to the basic concept
of justice, and that, if given effect, they would make a mockery
of the entire adjudicative process, whereby the Legislature can
now completely annul the decision of the Lok Ayukta. It is not
only detrimental to the well-established notions of justice but
also confers a power that is liable to be abused or misused. In
placing reliance upon the decision in M.P. High Court Bar
W.P.(C) Nos.18749 & 11107 of 2024
Association v. Union of India & Others 3, it is submitted that
vesting of the ultimate authority to uphold or reject the report
of Lok Ayukta would make a mockery of the very purpose for
which the KLAA was enacted. The said decision has also been
relied upon to emphasise that the rule of law would cease to
have any meaning, as it would be open to the State Government
to defy the report of the Lok Ayukta and, in that sense, it would
clearly violate the basic structure of the KLAA.
15. Lastly, reliance has been placed upon the decision in
Madras Bar Association v. Union of India and Another 4, to
argue that the impugned amendments would amount to an
impermissible exercise of legislative power, as they overrule the
recommendations of the Lok Ayukta, which run completely
counter to the object of the KLAA and keeping in mind the
nature of the duties performed by the Lok Ayukta in processing
the complaint in investigating the allegations that resulted in
the filing of a declaration, which would otherwise have been
(2004) 11 SCC 766
(2026) 2 SCC 1
W.P.(C) Nos.18749 & 11107 of 2024
binding upon the Government. The said amendments,
therefore, clearly interfere with the due discharge of the
functions of a person not less than a Judge of the Hon'ble
Supreme Court or High Court, and if such interference is
allowed at this stage, it would violate the rule of law.
16. Mr. N. Prakash, appearing in person, has reiterated the
submissions of the learned Senior Counsel. It has been
emphasised that the essential feature of a judgment or quasi-
judicial order is the independence of the authority and the
finality attached thereto, in the absence of a judicial process,
such as an appeal or judicial review. When an order is issued
by a high-powered body like the Lok Ayukta, which comprises
former Judges of the Hon'ble Supreme Court or former Chief
Justices of a High Court, the character and quality of the
orders passed are of the highest standard. The orders thus
passed have all the trappings of a judicial order and cannot be
equated with an administrative or statutory order, against
which, an appeal to a higher authority in the Executive
W.P.(C) Nos.18749 & 11107 of 2024
Government can be contemplated.
17. The learned counsel has relied upon the decision of the
Hon'ble Supreme Court in Indira Nehru Gandhi v. Raj
Narain and Ors5 to argue that it has been clearly held in the
said decision that none of the three organs of the Republic,
namely, the Executive, the Legislature and the Judiciary, can
take over the functions assigned to the others. It is the basic
structure or scheme of the system of Government or the
Republic laid down in this Constitution, whose identity cannot,
according to the majority view in Kesavananda's6 case, be
changed, even by resorting to Article 368.
18. Per contra, Mr. Gopalakrishna Kurup, the learned Advocate
General, has submitted that in W.P.(C) No. 18749 of 2024, the
contentions are to the effect that the impugned amendments
have resulted in orders passed by the Lok Ayukta, a quasi-
judicial forum, being subjected to revisit by an authority, other
than a judicial forum; that the amendments are against basic
AIR 1975 SC 2299
AIR 1973 SC 1461
W.P.(C) Nos.18749 & 11107 of 2024
structure principle and concept of separation of powers; and
that the impugned amendments take away the power of Lok
Ayukta in regard to finality of its orders.
19. The learned Advocate General has referred to Sections 24,
32 and 48 of the Lokpal and Lokayuktas Act, 2013 ("2013 Act")
and submits that Section 24, inter alia, requires Lokpal to send
a copy of the report together with its finding to the competent
authority. Section 32 of the 2013 Act enables the Lokpal only to
recommend transfer or suspension of a public servant to the
Central Government. Section 48 of the 2013 Act provides for
the reports of Lokpal to be presented annually to the Hon'ble
President. The Hon'ble President shall cause a copy of the
report to be laid before each House of Parliament together with
a memorandum explaining, in respect of the cases, if any,
where the advice of the Lokpal was not accepted, the reason for
such non-acceptance.
20. The learned Advocate General has further submitted that
the grounds on which a vires of the legislation can be
W.P.(C) Nos.18749 & 11107 of 2024
challenged are now well settled. It is trite and settled law and
no more res integra that the vires of a legislation can only be
challenged on the grounds of lack of legislative competence, the
same being violative of Part III of the Constitution, the same
being violative of any other constitutional provision and the
same being vitiated by manifest arbitrariness. The challenge to
the impugned amendments are not mounted on any of these
grounds, save bald pleadings.
21. That the State Legislature is having the legislative
competence to enact the impugned amendments is not
disputed. The provisions of the impugned amendments are not
inconsistent with any provisions of an earlier law made by the
Parliament or an existing law or any other matter enumerated
in the concurrent list. Further, Section 63 of the Lokpal and
Lok Ayukta Act, 2013 provides that every State shall establish a
Lok Ayukta for the State, if not so established, constituted or
appointed, by a law made by the State Legislature. Kerala Lok
Ayukta Act, 1999, being a law made by the State Legislature,
W.P.(C) Nos.18749 & 11107 of 2024
the impugned amendments are also not in conflict with the
Lokpal and Lok Ayukta Act, 2013 also.
22. The petitioner has not made out any case of the impugned
amendment being violative of Part III of the Constitution or of
any other constitutional provision. The petitioner has also not
brought out any case of there being manifest arbitrariness in
the impugned amendments.
23. Lok Ayukta is a creation of the Act. It is well within the
legislative domain to alter, amend or vary its powers by way of
the impugned amendments.
24. The impugned amendment cannot be, by any stretch of
imagination, stated to be against basic structure principle.
Even otherwise, it is trite and settled and no more res integra
that the constitutional validity of a statute cannot be challenged
for violation of the basic structure of the Constitution.
25. The learned Advocate General has submitted that the
contention of the writ petitioners that the Lok Ayukta possesses
W.P.(C) Nos.18749 & 11107 of 2024
all the powers of a court and that the impugned amendments
result in undue interference with the administration of justice
and the same is against the concept of separation of powers, is
unsustainable and reflects a clear misunderstanding and
misconception regarding the functioning of the Lok Ayukta.
26. It is submitted that the Preamble of the KLAA declares
that it is expedient to make provision for the appointment and
functions of certain authorities for making enquiries into any
action (including any omission and commission in connection
with or arising out of such action) relatable to matters specified
in List I or List III of the VII Schedule to the Constitution of
India. A reading of the said Preamble together with Section 7
(Matters which may be investigated by the Lok Ayukta and Upa
Lok Ayuktas), Section 8 (Matters not subject to investigation)
and Section 9 (Provisions relating to complaints and
investigations) of the KLAA make it abundantly clear that the
functions of the Lok Ayukta are investigative in nature. Section
12(1) of the KLAA empowers Lok Ayukta to submit a report
W.P.(C) Nos.18749 & 11107 of 2024
after investigation on a complaint involving grievance. Section
14 of the KLAA enables the Lok Ayukta to submit a report after
investigation into a complaint involving an allegation.
27. The above provisions reiterate that the functions of the
Lok Ayukta are only investigative in nature. It is also trite and
settled law that the nature and functions of Lok Ayukta and
Upa-Lok Ayukta are investigative and that Lok Ayukta or Upa
Lok Ayukta is neither a court nor a Tribunal. It is also settled
that Lok Ayukta or Upa Lok Ayukta was not placed on the
pedestal of a judicial authority rendering a binding decision and
that Lok Ayukta did not function as a Court of law, but as an
investigating functionary. A report or a declaration by the Lok
Ayukta does not partake the character of a judicial order. In
this regard, the learned Advocate General has relied upon the
following decisions:
(i) State of Kerala v. Bernard7; and
(ii) Justice Chandrashekaraiah v. Janekere C. Krishna and
others8.
2002 KHC 765
(2013) 3 SCC 117
W.P.(C) Nos.18749 & 11107 of 2024
28. In so far as the function of the Lok Ayukta is essentially of
investigative nature, it cannot be said that the amendment to
Section 14, as per the impugned amendment, will result in
executive encroachment into the domain of the judiciary or in
Executive becoming the Appellate Authority against the
declaration passed by the Lok Ayukta or will be violative of the
doctrine of separation of powers.
29. The composition of Lok Ayukta provided for in Section 3 of
the KLAA; the mandate of Section 4 of the KLAA; the manner
for removal of Lok Ayukta, prescribed under Section 6 of the
KLAA; the provisions of Section 11(3) of the KLAA; the power
conferred on the Lok Ayukta and Upa Lok Ayukta, as per the
KLAA, to issue warrant and enabling gathering of evidence; and
the powers conferred or the Lok Ayukta and the Upa Lok
Ayukta under Sections 18 and 19 of the KLAA will not make the
Lok Ayukta a judicial body or a Court or a Tribunal or part of
the judicial organ of the State.
W.P.(C) Nos.18749 & 11107 of 2024
30. It is submitted that the amendment to Section 14 of the
KLAA by way of the Amendment Act, does not confer any
appellate power on the Executive, as contended by the
petitioners. It only enables the competent authority to take a
call on the report of the Lok Ayukta, after affording the public
servant an opportunity of being heard. The amendment only
makes Section 14 of the KLAA compatible with constitutional
provisions, as explained hereinafter.
31. The learned Advocate General in justification of the
amendment to Section 14 has submitted that a public servant,
as defined in the KLAA, takes in, inter alia, Chief Minister of the
State, Ministers of the State, Members of the Legislature and
Government servants. Article 163(1) of the Constitution of India
provides that there shall be a Council of Ministers headed by
the Chief Minister to aid and advice the Governor. Article 164(1)
of the Constitution provides that a Chief Minister shall be
appointed by the Governor and that the Ministers shall be
appointed by the Governor on the basis of the advice of the
W.P.(C) Nos.18749 & 11107 of 2024
Chief Minister. It is also provided therein that Ministers shall
hold office during the pleasure of the Governor. Thus, the
appointment of a Minister is in accordance with the pleasure of
the Governor, which in turn, is dependent on the advice of the
Chief Minister. The discretion of the Governor in the
appointment of the Chief Minister is circumscribed by the
limitation that the leader enjoying the majority in the State
Legislature has necessarily to be selected.
32. Article 164 of the Constitution of India also provides for
other provisions as regards the Ministers. Article 164(4)
envisages that a Minister, who for any period of six consecutive
months, is not a Member of the Legislature of the State shall at
the expiration of that period cease to be a Minister. Thus, the
qualification for the Minister, inter alia. is that he must be
either a Member of the Legislature or become a Member within
six months of assumption of office. A person thus qualified to
be a Minister will be disqualified to be so if he ceases to be a
W.P.(C) Nos.18749 & 11107 of 2024
Member of the Legislature on account of any of the provisions
of Articles 190 to 193 of the Constitution.
33. It is trite and well-settled law that once an office
dependent on pleasure is held under a valid title, its
continuance is also dependent on the doctrine of pleasure.
Thus, the Ministers, inclusive of the Chief Minister, are entitled
to hold office as long as they enjoy the pleasure of the
Governor, which pleasure is dependent on the advice of the
Chief Minister in the case of Ministers and confidence of the
majority of the House in the case of the Chief Minister. This is a
constitutional mandate which cannot be overridden by a
Legislation of the State Legislature.
34. Similarly, Articles 190 to 193 of the Constitution of India
provide for disqualification of Members of the State Legislature.
Apart from the various disqualifications stated therein, Article
191(1)(e) provides that a person shall be disqualified for being
chosen as, and for being, a Member of the Legislature if he is so
disqualified under or by any law made by the Parliament.
W.P.(C) Nos.18749 & 11107 of 2024
Provisions in any State Legislation, inclusive of pre-amended
Section 14 of the Act, cannot entail disqualification from the
membership of the Legislature.
35. The report and findings submitted by the Lok Ayukta and
Upa Lok Ayukta under Section 12 of the KLAA are
recommendatory in nature. However, sub-section (1) of Section
14 of the KLAA stipulates that the Competent Authority shall
accept the declaration made by the Lok Ayukta in terms of the
report under sub-section (3) of Section 12, which stipulation is
mandatory in nature. This contradiction between Sections 12
and 14 of the KLAA had to be rectified. Further, Section 14 of
the KLAA was to be brought into conformity with the
constitutional provisions. Moreover, there is no provision
analogous to the erstwhile Section 14 of the KLAA in similar
statues of other States. All these factors necessitated
amendment to Section 14.
36. In distinguishing the decisions relied upon by the learned
Senior Counsel, Mr. George Poonthottam, it is submitted that
W.P.(C) Nos.18749 & 11107 of 2024
the analogy attempted to be drawn by the petitioners with
regard to the declaration of Article 371-D (5) to be violative of
basic structure doctrine is not applicable in the facts and
circumstances of the case at hand, in so far as the function of
the Lok Ayukta, for the reasons mentioned above, is only
investigative in nature and cannot be by any stretch, equated at
par with a Tribunal or a Court.
37. The decision of the Hon'ble Supreme Court in Madras Bar
Association v. Union of India and Others 9 is not applicable
to the facts and circumstances of the present case, as the
Amendment Act, amending Section 14 of the KLAA cannot, for
the reasons aforementioned, be stated to make inroads into the
judicial sphere or to violate the principles of separation of
powers, judicial independence and the Rule of Law. Likewise,
the decisions in Samba Murthy v. State of Andhra
Pradesh10, M.P. High Court Bar Association v. Union of
India and Others11 and Amrik Singh Lyallpuri (supra) are
(2022) 12 SCC 455
AIR 1987 SC 663
AIR 2005 SC 4114
W.P.(C) Nos.18749 & 11107 of 2024
also inapplicable to the facts and circumstances of the present
case.
38. In the conspectus of these facts and circumstances of the
case and the arguments advanced by the learned Senior
Counsel for the petitioner and Mr. N. Prakash, the party-in-
person, the validity of the amendments to Sections 3 and 14 of
the KLAA is required to be considered.
39. The Kerala Lok Ayukta Act, 1999 came into force on 4 th
March 1999. The statement of objects and reasons of KLAA
would show that the State Government in order to eliminate
corruption in public service and strengthen the existing
vigilance measure in the State and in consideration of the
Kerala Public Men's Corruption (Investigations and Inquiries)
Act, 1987 (for short, the 'KPMCA') in force in the State decided
to bring about this legislation since the KPMCA was found to be
not sufficient to effectively prevent the corruption among public
servants. Hence, the Government considered it necessary to
widen the ambit of the legislation by including all the
W.P.(C) Nos.18749 & 11107 of 2024
Government servants, the members and the person in service of
local authority, statutory and non-statutory bodies and Co-
operative Societies within the purview of the Act. The KLAA
thus is a comprehensive new legislation for the effective enquiry
and investigation of complaints against public servants and
matters connected therewith or ancillary thereto.
40. The said Act was amended by Act 2 of 2000. Noticing
certain inconsistencies between Section 22 of the KLAA and
Rule 37 of the Kerala Government Servants Conduct Rules
1960, an amendment was brought to exclude the Last Grade
employees of the Corporation, Boards etc., who are already
governed by Rule 37 of the Kerala Government Servants
Conduct Rules, 1960. The purpose to the said legislation, as
would appear from the Preamble, is to make provision for the
appointment and functions of certain authorities for making
enquires into any action (including an omission or commission
in connection with or arising out of such action) relating to
matter specified in List II or List III of the Seventh Schedule of
W.P.(C) Nos.18749 & 11107 of 2024
the Constitution of India taken by or on behalf of the
Government of Kerala or certain public authorities in the State
of Kerala in certain cases and for matters connected therewith
and ancillary thereto. The said Act is a complete code
irrespective of the matters concerning enquiry into the
allegation or grievance made by a person before the Lok Ayukta
and the Lok Ayukta has been invested with all the powers of
investigation, enquiry and for initiation of prosecution after
investigation.
41. In order to appreciate the quality of the merits of challenge
of the writ petitions, it is necessary to refer to few of the
provisions of the said KLAA in order to understand the nature
of the amendments carried out to such provisions and whether
such amendments are legally permissible or could be a subject
matter of challenge in a writ petition.
42. To start with, we may refer to the unamended definition of
"competent authority", that is to say, as it was in the Statute
from 1999 until 2nd March 2024. "Competent authority" is
W.P.(C) Nos.18749 & 11107 of 2024
defined under Section 2(d) of the KLAA, which reads as follows:
"(d) "competent authority", in relation to a public
servant, means-
(i) in the case of the Chief Minister or a Member of
the State Legislature, or an office bearer of a political
party, at the State level, the Governor acting in his
discretion;
(ii) in the case of a Minister or Secretary, the Chief
Minister;
(iii) in the case of an officer of the All India services,
employed in connection with the affairs of the State,
the Minister concerned;
(iv) in the case of any other public servant, such
authority, as may be prescribed."
(emphasis supplied)
43. Pursuant to the Kerala Lok Ayukta (Amendment) Act,
2022, amongst others, the said definition clause was amended
in the manner as follows:
"(a) for the existing item (i), the following shall be
substituted, namely:-
W.P.(C) Nos.18749 & 11107 of 2024
"(i) in the case of the Chief Minister, the State
Legislative Assembly;"
(b) after item (i), the following items shall be
inserted, namely:-
"(ia) in the case of Member of the State Legislative
Assembly, the Speaker of the State Legislature
Assembly:"
(emphasis supplied)
44. Similarly, Section 14 has been amended which essentially
has replaced the heading of the Section from "Public Servant to
vacate office if directed by the Lok Ayukta etc." to
"Recommendation of the Lok Ayukta or Upa Lok Ayukta and
action thereon" (emphasis supplied).
45. The original and the amended sections are given in a
tabular form as under:
Pre-amendment Post-amendment
"14. Public Servant to vacate "14. Recommendation of the
office if directed by Lok Ayukta Lok Ayukta or Upa-Lok Ayukta
etc." and action thereon-
(1) Where, after investigation (1) Where, after investigation
into a complaint, the Lok into a complaint, the Lok
W.P.(C) Nos.18749 & 11107 of 2024
Ayukta or an Upa-Lok Ayukta Ayukta or an Upa-Lok Ayukta
is satisfied that the complaint is satisfied that the complaint
involving an allegation against involving an allegation against
the public servant is the public servant is
substantiated and that the substantiated and the public
public servant concerned servant is not fit to hold the
should not continue to hold the post as such, the Lok Ayukta
post held by him, the Lok or Upa-Lok Ayukta, as the case
Ayukta or the Upa-Lok Ayukta, may be, shall make a
as the case may be, shall make recommendation to the
a declaration to that effect in competent authority to that
his report under sub-section (3) effect in its report under sub-
of Section 12. Where the section (3) of Section 12.
competent authority is the
Governor, the Government of (2) The competent authority
Kerala or the Chief Minister, he shall examine the
or it shall accept the recommendation made by the
declaration. In other cases, the Lok Ayukta or Upa-Lok Ayukta,
competent authority concerned as the case may be, and
shall send a copy of such communicate to the Lok
report to the Government, Ayukta or Upa-Lok Ayukta, as
which shall accept the the case may be, within a
declaration. period of ninety days from the
date of receipt of the report, the
(2) When the declaration so action taken or proposed to be
made is accepted, the fact of taken on the basis of the
such acceptance shall recommendation or the reasons
immediately be intimated by for not taking any action on the
registered post, by the said recommendation:
Governor, the Government or
the Chief Minister, if any of Provided that where the
them is the competent competent authority is the
authority and the Government, State Legislative Assembly, in
in other cases and then, computing the period of ninety
days, any period during which
W.P.(C) Nos.18749 & 11107 of 2024
notwithstanding anything the State Legislative Assembly
contained in any law, order, is not in session, shall be
notification, rule or contract of excluded.
appointment, the public
servant concerned shall, with (3) In the case of a public
effect from the date of servant falling under items (iv)
intimation of such acceptance to (vii) of clause (o) of section 2,
or deemed acceptance of the the appointing authority shall
declaration- initiate appropriate action in
accordance with the rules or
(i) if he is the Chief Minister or regulations applicable to the
a Minister, resign his office of service of such public servants.
Chief Minister or Minister, as
the case may be; (4) If the public servant is a
member of All India Service as
(ii) if he is a public servant defined in section 2 of the All-
falling under items (v) and (vi), India Services Act, 1951
but not falling under items (iv) (Central Act 61 of 1951), the
and (vii) of Clause (o) of Section Government shall take
2, be deemed to have vacated appropriate action in
his office; and accordance with the rules or
regulations applicable to his
iii) if he is a public servant service."
falling under items (iv) and (vii)
of Clause (o) of Section 2, be
deemed to have been placed
under suspension by an order
of the appointing authority and
the appointing authority shall
initiate appropriate action in
accordance with the rules
applicable to such public
servant:
Provided that if the public
servant is a member of an All
W.P.(C) Nos.18749 & 11107 of 2024
India Service as defined in
Section 2 of the All India
Services Act, 1951 (General Act
61 of 1951), the Government
shall take action to keep him
under suspension and initiate
appropriate action in
accordance with the rules or
regulations applicable to his
service.
(emphasis supplied)
46. While in the definition of "competent authority", the power
of the "Governor" acting in his discretion has been replaced
with the "State Legislative Assembly" in relation to the Chief
Minister, the imperative and compulsive force of the report of
the Lok Ayukta prepared following the procedure as prescribed
in Sections 9 and 10 of the KLAA is now to be treated as
"recommendation" instead of "declaration". The Legislature has
thus diluted the efficacy and enforceability of the report of the
Lok Ayukta from a "declaration" to a "recommendation".
However, as would appear from Section 14(2), the Legislature in
the case of the "Chief Minister" would be required to examine
W.P.(C) Nos.18749 & 11107 of 2024
the recommendation within a period of 90 days from the date of
receipt of the report, the action taken or proposed to be taken
on the basis of the recommendation or the reasons for not
taking any action on the said recommendation and in
computing the period of 90 days any period during which the
State Legislative Assembly is not in session would be excluded.
This change in the entire complexion of the Statute, from its
initial strong enforceability being diluted to a recommendation
and to be left to the discretion of the State Legislature, has been
criticized and objected to by the writ petitioners as it is
perceived to be against the rule of law and the Preamble of the
said Statute.
47. Based on such perception and understanding of the
original and the unamended sections of the KLAA and the
objects it seeks to achieve, it has been strenuously argued that
conferring power on the Executive to exercise appellate
jurisdiction over a "declaration" now changed to
"recommendation" would be against the fundamental concept of
W.P.(C) Nos.18749 & 11107 of 2024
the rule of law, independence of Judiciary and separation of
powers as envisaged in the Constitution of India.
48. The argument that the amendments thus bring about a
fundamental alteration in the nature and effective enforceability
of the powers of the Lok Ayukta under the KLAA is clearly
visible from the amendments itself.
49. The principal contention of the writ petitioners is that, by
reason of the amendments introduced to Sections 3 and 14 of
the KLAA, the efficacy of the institution has been substantially
diluted. Put pithily, it would mean that the statutory provisions
now have been rendered virtually toothless -- it may bark, but
can no longer bite. According to the petitioners, the
substitution of a binding declaration with a mere
recommendation denudes the Lok Ayukta of its effective
authority and reduces its determinations to advisory opinions,
dependent entirely upon executive acceptance.
50. The amendments thus reflect a paradigm shift regarding
the nature of enforceability of the reports under the KLAA. Now,
W.P.(C) Nos.18749 & 11107 of 2024
let us examine the true nature and character of the Lok Ayukta.
It is a statutory authority created to inquire into allegations of
corruption, maladministration, or abuse of office against public
servants. It is empowered to conduct investigations, summon
witnesses, receive evidence and render findings based on the
material placed before it; its powers are circumscribed by the
statute that constitutes it. The Hon'ble Supreme Court in
Justice Chandrashekaraiah v. Janekere C. Krishna and Ors. 12,
has discussed similar provisions and held as follows:
"Provisions of Sections 9, 10 and 11 clearly
indicate that Lokayukta and Upa Lokayukta are
discharging quasi-judicial functions while
conducting the investigation under the Act. Sub-
section (2) of Section 11 of the Act also states that
for the purpose any such investigation, including
the preliminary inquiry Lokayukta and Upa
Lokayukta shall have all the powers of a Civil Court
while trying a suit under the Code of Civil
Procedure, 1908, in the matter of summoning and
enforcing the attendance of any person and
examining him on oath. Further they have also the
(2013) 3 SCC 117
W.P.(C) Nos.18749 & 11107 of 2024
power for requiring the discovery and production of
any document, receiving evidence on affidavits,
requisitioning any public record or copy thereof
from any court or office, issuing commissions for
examination of witnesses of documents etc. Further,
Sub-section (3) of Section 11 stipulates that any
proceedings before the Lokayukta and Upa
Lokayukta shall be deemed to be a judicial
proceeding within the meaning of Section 193 of the
Indian Penal Code. Therefore, Lokayukta and Upa
Lokayukta, while investigating the matters are
discharging quasi-judicial functions, though the
nature of functions is investigative".
*** (emphasis supplied)
51. In the course of examining the distinction between courts,
tribunals and other statutory authorities and while referring to
the decision of the Constitution Bench in The Bharat Bank
Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi 13, the
Hon'ble Supreme Court has characterised the Lok Ayukta and
Upa-Lokayukta as sui generis quasi-judicial authorities. The
Court observed that the final decision rendered by the Lok
(1950) SCR 459
W.P.(C) Nos.18749 & 11107 of 2024
Ayukta or Upa-Lokayukta, described as a report, may not bear
the stamp of a judicial decision as would that of a court or, to a
lesser extent, a tribunal. Nevertheless, in formulating such a
report, the Lok Ayukta and Upa-Lokayukta are required to
consider the point of view of the person complained against and
to ensure that the investigation reaches its logical conclusion,
one way or the other, without any interference and without fear.
At the same time, the Court clarified that the report of the Lok
Ayukta does not determine the rights of either the complainant
or the person complained against. It is for this reason that the
Hon'ble Supreme Court held that the Lok Ayukta and the Upa-
Lokayukta cannot be regarded as courts or tribunals, but are
best described as sui generis quasi-judicial authorities.
52. Therefore, in our view, the mere fact that the Lok Ayukta
follows a procedure resembling adjudication does not ipso facto
elevate it to the status of a court or tribunal exercising plenary
judicial power and for this reason, it occupies a distinct
position as a sui generis quasi-judicial authority under the
W.P.(C) Nos.18749 & 11107 of 2024
statutory scheme.
53. The submission made by the petitioners that the impugned
amendments trench upon the domain of a judicial or quasi-
judicial authority cannot be accepted. The amendments were
enacted to harmonise the provisions of the Lok Ayukta Act with
the constitutional framework, rather than to subvert it. The
constitutional scheme relating to Ministers, as embodied in
Articles 163 and 164 of the Constitution, makes it abundantly
clear that Ministers hold office during the pleasure of the
Governor, and their continuance in office cannot be rendered
mechanically contingent upon the findings or recommendations
of a statutory authority. The argument of the learned Advocate
General that to that extent, the pre-amended Section 14, which
mandated resignation upon acceptance of a declaration made
by the Lok Ayukta, did give rise to issues of constitutional
incongruity, might operate harshly. Therefore, the said
amendment seeks to remove such inconsistency and align the
statutory mechanism with constitutional mandates.
W.P.(C) Nos.18749 & 11107 of 2024
54. We also took note of the judgments relied upon by the
petitioners in the cases of Madras Bar Association, M.P. High
Court Bar Association (supra) and Amrik Singh Lyallpuri
(supra) where the court solely deals with executive
encroachment upon core judicial functions, particularly in the
context of tribunals exercising powers previously vested in
constitutional courts. The present case does not involve such a
transfer or dilution of judicial power.
55. Though the Lok Ayukta and the Upa-Lokayukta perform
quasi-judicial functions and occupy a unique position as sui
generis quasi-judicial authorities, they are neither courts nor
tribunals exercising plenary judicial power. Their reports,
however, arrived at through a fair and independent process, do
not determine the rights of parties in the manner of judicial
adjudication. Consequently, the substitution of a binding
declaration with a recommendation, coupled with an obligation
on the competent authority to record and communicate
reasons, cannot be construed as conferring appellate powers on
W.P.(C) Nos.18749 & 11107 of 2024
the executive or as an impermissible encroachment into the
judicial domain.
56. The impugned amendments do not dilute the independence
of the Lok Ayukta, nor do they interfere with the administration
of justice. On the contrary, the impugned amendments seek to
bring the statutory framework in consonance with the
constitutional scheme, as discussed earlier, under which,
Ministers hold office during the pleasure of the Governor and
cannot be compelled to demit office solely on the basis of a
statutory declaration. The Legislature was well within its
competence to re-calibrate the consequences flowing from a
report of the Lok Ayukta, without denuding the institution of its
essential character or effectiveness.
57. The apprehension of bias founded on the doctrine of nemo
judex in causa sua is equally untenable. The amendment does
not institutionalise bias nor does it immunise executive action
from judicial scrutiny. Any arbitrary, mala fide, or
unreasonable decision taken by the competent authority in
W.P.(C) Nos.18749 & 11107 of 2024
response to a recommendation of the Lok Ayukta remains
amenable to judicial review.
58. The amendment also does not offend the requirements of
procedural fairness. The investigative and quasi-judicial
process before the Lok Ayukta remains intact, including
adherence to principles of natural justice and reasoned
decision-making. Under the substituted Section 14, the
competent authority is not vested with unbridled discretion; it
is obligated to examine the recommendation and communicate
the action taken or the reasons for declining to act. Such a
decision is amenable to judicial review. Therefore, the statutory
scheme, as amended, preserves fairness at both stages -- at the
level of inquiry and at the level of executive response -- and
cannot be characterised as arbitrary or procedurally unjust.
59. In view of the foregoing discussion, we hold that the
amendment to Section 14 of the Kerala Lok Ayukta Act, 1999
does not violate the doctrine of separation of powers, the
principle of judicial independence or the basic structure of the
W.P.(C) Nos.18749 & 11107 of 2024
Constitution. The writ petitions, therefore, fail and are
accordingly dismissed.
60. The learned Senior Counsel Mr. George Poonthottam has in
all fairness concede to the situation that the legislative
competence is not in question and it cannot be argued that the
Legislature do not have the power to bring about such
amendments. But, he would rather contend that such
legislation has to be tested on the ground of arbitrariness or
effect offence of any of the Articles of the Constitution.
61. In the background of the aforesaid submissions, it is
necessary to refer to few paragraphs from the decision of the
Hon'ble Supreme Court in Anjum Kadari (supra) where the
ground on which a Statute can be declared ultra vires. The
elaborate discussions on these issues are discernable from
paragraphs 48 to 56 as follows:
"48. The Constitution imposes certain limitations
on the legislative powers of Parliament and the State
Legislatures. Article 13(2) provides that the State shall
W.P.(C) Nos.18749 & 11107 of 2024
not make any law that takes away or abridges the
rights conferred by Part III. Statutes enacted by the
State Legislatures must be consistent with the
fundamental rights enumerated under Part III of the
Constitution. Further, Article 246 defines the scope
and limitations of the legislative competence of
Parliament and State Legislatures. A statute can be
declared ultra vires on two grounds alone: (i) it is
beyond the ambit of the legislative competence of the
legislature; or (ii) it violates Part III or any other
provision of the Constitution. [ State of A.P. v. McDowell
& Co., (1996) 3 SCC 709, pp. 737-38, para 43 "43. ...
The power of Parliament or for that matter, the State
Legislatures is restricted in two ways. A law made by
Parliament or the legislature can be struck down by
courts on two grounds and two grounds alone viz. (1)
lack of legislative competence; and (2) violation of any
of the fundamental rights guaranteed in Part III of the
Constitution or of any other constitutional provision.";
State of Kerala v. Peoples Union for Civil Liberties,
(2009) 8 SCC 46, para 45]
49. In Indira Nehru Gandhi v. Raj Narain [Indira
Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1], the
Allahabad High Court disqualified the then Prime
W.P.(C) Nos.18749 & 11107 of 2024
Minister for indulging in corrupt practices according to
the Representation of the People Act, 1951. To nullify
the decision of the High Court, Parliament enacted the
Representation of the People (Amendment) Act, 1974
and the Election Laws (Amendment) Act, 1975 and
placed them under the Ninth Schedule to the
Constitution. The issue before this Court was whether
the amendments violated the basic structure of the
Constitution.
50. A.N. Ray, C.J. in Indira Nehru Gandhi
case [Anshuman Singh Rathore v. Union of India, 2024
SCC OnLine All 857] held that the constitutional
validity of a statute depends entirely on the existence of
the legislative power and the express provision in
Article 13. Since the legislation is not subject to any
other constitutional limitation, applying the basic
structure doctrine to test the validity of a statute will
amount to "rewriting the Constitution". [Indira Nehru
Gandhi case, 1975 Supp SCC 1, paras 134 and 137]
The learned Judge further observed that application of
the undefinable theory of basic structure to test the
validity of a statute would denude legislatures of the
power of legislation and deprive them of laying down
legislative policies. [Indira Nehru Gandhi case, 1975
W.P.(C) Nos.18749 & 11107 of 2024
Supp SCC 1, p. 61, para 136 "136. The theory of basic
structures or basic features is an exercise in
imponderables. Basic structures or basic features are
indefinable. The legislative entries are the fields of
legislation. The pith and substance doctrine has been
applied in order to find out legislative competency, and
eliminate encroachment on legislative entries. If the
theory of basic structures or basic features will be
applied to legislative measures it will denude
Parliament and State Legislatures of the power of
legislation and deprive them of laying down legislative
policies. This will be encroachment on the separation of
powers."] K.K. Mathew, J. similarly observed that the
concept of a basic structure is "too vague and indefinite
to provide a yardstick to determine the validity of an
ordinary law". [Indira Nehru Gandhi case, 1975 Supp
SCC 1, para 357] Y.V. Chandrachud, J. (as the learned
Chief Justice then was) observed that constitutional
amendment and ordinary laws operate in different
fields and are subject to different limitations. [Indira
Nehru Gandhi case, 1975 Supp SCC 1, pp. 261-62,
paras 691 and 692"691. ... The constitutional
amendments may, on the ratio of the Fundamental
Rights case [Kesavananda Bharati v. State of Kerala,
W.P.(C) Nos.18749 & 11107 of 2024
(1973) 4 SCC 225], be tested on the anvil of basic
structure. But apart from the principle that a case is
only an authority for what it decides, it does not
logically follow from the majority judgment in
the Fundamental Rights case [Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225] that
ordinary legislation must also answer the same test as
a constitutional amendment. Ordinary laws have to
answer two tests for their validity: ( 1) The law must be
within the legislative competence of the legislature as
defined and specified in Chapter I, Part XI of the
Constitution, and (2) it must not offend against the
provisions of Articles 13(1) and ( 2) of the Constitution.
"Basic structure", by the majority judgment, is not a
part of the fundamental rights nor indeed a provision of
the Constitution. The theory of basic structure is woven
out of the conspectus of the Constitution and the
amending power is subjected to it because it is a
constituent power. "The power to amend the
fundamental instrument cannot carry with it the power
to destroy its essential features" -- this, in brief, is the
arch of the theory of basic structure. It is wholly out of
place in matters relating to the validity of ordinary laws
made under the Constitution."]
W.P.(C) Nos.18749 & 11107 of 2024
51. The majority in Indira Nehru Gandhi [Indira
Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1] held
that the constitutional validity of a statute cannot be
challenged for the violation of the basic structure
doctrine. However, M.H. Beg, J. (as the learned Chief
Justice then was) dissented with the majority view by
observing that the basic structure test can be used to
test the validity of statutes because statutes cannot go
beyond the range of constituent power. [ Indira Nehru
Gandhi v. Raj Narain, 1975 Supp SCC 1, para 622]
52. In State of Karnataka v. Union of India [State of
Karnataka v. Union of India, (1977) 4 SCC 608, para
238], N.L. Untwalia, J. (writing for himself, P.N.
Shinghal, J., and Jaswant Singh, J.) reiterated that the
validity of a statute cannot be tested for violation of the
basic structure of the Constitution. Y.V. Chandrachud,
J. (as the learned Chief Justice then was) also observed
that a statute cannot be invalidated on supposed
grounds so long as it is within the legislative
competence of the legislature and consistent with Part
III of the Constitution. [State of Karnataka case, (1977)
4 SCC 608, para 197] However, M.H. Beg, C.J.
observed that testing a statute for violation of basic
structure does not "add to the contents of the
W.P.(C) Nos.18749 & 11107 of 2024
Constitution". [State of Karnataka case, (1977) 4 SCC
608, para 128] He held that any inference about a
limitation based on the basic structure doctrine upon
legislative power must co-relate to the express
provisions of the Constitution. [ State of Karnataka
case, (1977) 4 SCC 608, para 123]
53. In Kuldip Nayar v. Union of India [Kuldip
Nayar v. Union of India, (2006) 7 SCC 1, p. 67, para
107 "107. The basic structure theory imposes
limitation on the power of Parliament to amend the
Constitution. An amendment to the Constitution under
Article 368 could be challenged on the ground of
violation of the basic structure of the Constitution. An
ordinary legislation cannot be so challenged. The
challenge to a law made, within its legislative
competence, by Parliament on the ground of violation of
the basic structure of the Constitution is thus not
available to the petitioners."] a Constitution Bench held
that ordinary legislation cannot be challenged for the
violation of the basic structure of the Constitution.
Statutes, including State legislation, can only be
challenged for violating the provisions of the
Constitution. [Ashok Kumar Thakur v. Union of India,
(2008) 6 SCC 1 : 3 SCEC 35, para 116] However,
W.P.(C) Nos.18749 & 11107 of 2024
in Madras Bar Assn.v. Union of India [Madras Bar
Assn. v. Union of India, (2014) 10 SCC 1, p. 190, para
109 : (2014) 187 Comp Cas 426 : (2014) 368 ITR 42 :
(2014) 29 GSTR 12 : (2014) 75 VST 12 "109. ... This
Court has repeatedly held that an amendment to the
provisions of the Constitution would not be sustainable
if it violated the "basic structure" of the Constitution,
even though the amendment had been carried out by
following the procedure contemplated under "Part XI" of
the Constitution. This leads to the determination that
the "basic structure" is inviolable. In our view, the
same would apply to all other legislations (other than
amendments to the Constitution) as well, even though
the legislation had been enacted by following the
prescribed procedure, and was within the domain of
the enacting legislature, any infringement to the "basic
structure" would be unacceptable."] a Constitution
Bench applied the basic structure doctrine to test the
validity of parliamentary legislation seeking to transfer
judicial power from High Courts to tribunals. J.S.
Khehar, J. (as the learned Chief Justice then was),
writing for the Constitution Bench, held that the basic
structure of the Constitution will stand violated if
Parliament does not ensure that the newly created
W.P.(C) Nos.18749 & 11107 of 2024
tribunals do not "conforms with the salient
characteristics and standards of the court sought to be
substituted". [Madras Bar Assn. case, (2014) 10 SCC 1,
p. 218, para 136 : (2014) 187 Comp Cas 426 : (2014)
368 ITR 42 : (2014) 29 GSTR 12 : (2014) 75 VST
12"136. ... (iii) The "basic structure" of the Constitution
will stand violated if while enacting legislation
pertaining to transfer of judicial power, Parliament does
not ensure that the newly created court/tribunal
conforms with the salient characteristics and
standards of the court sought to be substituted."]
54. In Supreme Court Advocates-on-Record
Assn. v. Union of India [Supreme Court Advocates-on-
Record Assn. v. Union of India, (2016) 5 SCC 1] this
Court had to decide the constitutional validity of the
Constitution (Ninety-ninth Amendment) Act, 2014 and
the National Judicial Appointments Commission Act,
2014. J.S. Khehar, J. (as the learned Chief Justice then
was) built upon his reasoning in Madras Bar
Assn. [Madras Bar Assn. v. Union of India, (2014) 10
SCC 1 : (2014) 187 Comp Cas 426 : (2014) 368 ITR 42 :
(2014) 29 GSTR 12 : (2014) 75 VST 12] by observing
that a challenge to ordinary legislation for violation of
the basic structure would only be a "technical flaw"
W.P.(C) Nos.18749 & 11107 of 2024
and "cannot be treated to suffer from a legal infirmity".
[Supreme Court Advocates-on-Record Assn. v. Union of
India, (2016) 5 SCC 1, para 381] He observed that the
determination of the basic structure of the Constitution
is made exclusively from the provisions of the
Constitution. The observations of the learned Judge are
instructive and extracted below: (Supreme Court
Advocates-on-Record Assn. [Supreme Court Advocates-
on-Record Assn. v. Union of India, (2016) 5 SCC 1,
para 381], SCC p. 451, para 381)
"381. ... when a challenge is raised to a
legislative enactment based on the cumulative
effect of a number of articles of the
Constitution, it is not always necessary to refer
to each of the articles concerned when a
cumulative effect of the said articles has
already been determined as constituting one of
the "basic features" of the Constitution.
Reference to the "basic structure" while dealing
with an ordinary legislation would obviate the
necessity of recording the same conclusion
which has already been scripted while
interpreting the article(s) under reference
harmoniously. We would therefore reiterate
that the "basic structure" of the Constitution is
inviolable and as such the Constitution cannot
be amended so as to negate any "basic
features" thereof, and so also, if a challenge is
raised to an ordinary legislation based on one
of the "basic features" of the Constitution, it
would be valid to do so. If such a challenge is
W.P.(C) Nos.18749 & 11107 of 2024
accepted on the ground of violation of the
"basic structure", it would mean that the
bunch of articles of the Constitution (including
the Preamble thereof, wherever relevant), which
constitute the particular "basic feature", had
been violated. We must however credit the
contention of the learned Attorney General by
accepting that it would be technically sound to
refer to the articles which are violated, when an
ordinary legislation is sought to be struck
down as being ultra vires the provisions of the
Constitution."
55. However, Lokur, J. in Supreme Court
Advocates-on-Record Association [Supreme Court
Advocates-on-Record Assn. v. Union of India, (2016) 5
SCC 1] differed with J.S. Khehar, J. on the issue of
testing the validity of a statute for violation of the basic
structure doctrine. Lokur, J. followed the view of the
majority in State of Karnataka [State of
Karnataka v. Union of India, (1977) 4 SCC
608. SupremeCourt Advocates-on-RecordAssn. v. Union
of India, (2016) 5 SCC 1, p. 621, para 795" 795. For the
purposes of the present discussion, I would prefer to
follow the view expressed by a Bench of seven learned
Judges in State of Karnataka v. Union of India, (1977) 4
SCC 608 [seven-Judge Bench] that it is only an
amendment of the Constitution that can be challenged
on the ground that it violates the basic structure of the
W.P.(C) Nos.18749 & 11107 of 2024
Constitution--a statute cannot be challenged on the
ground that it violates the basic structure of the
Constitution. [The only exception to this perhaps could
be a statute placed in the Ninth Schedule to the
Constitution.] The principles for challenging the
constitutionality of a statute are quite different."] that a
statute cannot be challenged for violating the basic
structure doctrine.
56. From the above discussion, it can be concluded
that a statute can be struck down only for the violation
of Part III or any other provision of the Constitution or
for being without legislative competence. The
constitutional validity of a statute cannot be challenged
for the violation of the basic structure of the
Constitution. The reason is that concepts such as
democracy, federalism, and secularism are undefined
concepts. Allowing courts to strike down legislation for
violation of such concepts will introduce an element of
uncertainty in our constitutional adjudication.
Recently, this Court has accepted that a challenge to
the constitutional validity of a statute for violation of
the basic structure is a technical aspect because the
infraction has to be traced to the express provisions of
the Constitution. Hence, in a challenge to the validity of
W.P.(C) Nos.18749 & 11107 of 2024
a statute for violation of the principle of secularism, it
must be shown that the statute violates provisions of
the Constitution pertaining to secularism."
*** (emphasis supplied)
62. Applying the aforesaid principle to the present legislation,
which is admittedly an ordinary law and as observed in the
aforesaid judgment, the validity of a Statute cannot be
challenged for the violation of the basic structure of the
Constitution, which, in fact, has reaffirmed the view expressed
in State of Karnataka v. Union of India 14, as referred to in
paragraph 52 of the Anjum Kadari (supra).
63. Both sides have relied on Justice Chandrashekar (Retd)
(supra) in support of their respective arguments. The main
issue that came up for consideration before the Hon'ble
Supreme Court was whether the views expressed by the Chief
Justice of the High Court of Karnataka has got primacy while
making appointment to the posts of Lok Ayukta or Upa Lok
Ayukta by the Government of Karnataka in exercise of powers
(1977) 4 SCC 608
W.P.(C) Nos.18749 & 11107 of 2024
conferred on them under Section 3(2)(a) and (b) of the
Karnataka Lokayukta Act, 1984. In deciding the said issue, the
Hon'ble Supreme Court has considered Sections 7, 8, 9, 11 and
12 of the Karnataka Lokayukta Act, which are in pari materia
with Sections 7, 8, 9, 11 and 12 of the present Act. In fact,
most of the States have same and/or similar provisions that are
covered by the aforesaid Sections.
64. However, unlike Section 13 of the Karnataka Lokayukta
Act, the original unamended Section 14, which is pari materia
to Section 13 of the aforesaid Act, has bestowed power upon the
competent authority either to accept or reject the declaration
made by the Lok Ayukta or Upa Lok Ayukta under sub-section
(3) of Section 12 of the Karnataka Lokayukta Act. For better
appreciation, Section 13 of the Karnataka Lokayukta Act and
unamended Section 14 are given in the following table.
Section 13 of the Karnataka Unamended Section 14 of the
Lokayukta Act KLAA
"13. Public servant to vacate "14. Public Servant to vacate
office if directed by Lokayukta office if directed by Lok
W.P.(C) Nos.18749 & 11107 of 2024
etc.-" Ayukta etc.
1. Where after investigation (1) Where, after investigation
into a complaint the into a complaint, the Lok
Lokayukta or an Ayukta or an Upa-Lok Ayukta
Upalokayukta is satisfied that is satisfied that the complaint
the complaint involving an involving an allegation against
allegation against the public the public servant is
servant is substantiated and substantiated and that the
that the public servant public servant concerned
concerned should not should not continue to hold
continue to hold the post held the post held by him, the Lok
by him, the Lokayukta or the Ayukta or the Upa-Lok
Upalokayukta shall make a Ayukta, as the case may be,
declaration to that effect in his shall make a declaration to
report under sub-section (3) of that effect in his report under
section 12. Where the sub-section (3) of section 12.
competent authority is the Where the competent
Governor, State Government authority is the Governor, the
or the Chief Minister, it may Government of Kerala or the
either accept or reject the Chief Minister, he or it shall
declaration after giving an accept the declaration. In
opportunity of being heard. In other cases, the competent
other cases, the competent authority concerned shall send
authority shall send a copy of a copy of such report to the
such report to the State Government, which shall
W.P.(C) Nos.18749 & 11107 of 2024
Government, which may accept the declaration.
either accept or reject the
(2) When the declaration so
declaration. If it is not rejected
made is accepted, the fact of
within a period of three
such acceptance shall
months from the date of
immediately be intimated by
receipt of the report, or the
registered post, by the
copy of the report, as the case
Governor, the Government or
may be, it shall be deemed to
the Chief Minister, if any of
have been accepted on the
them is the competent
expiry of the said period of
authority and the Government,
three months.
in other cases and then,
2. If the declaration so made notwithstanding anything
is accepted or is deemed to contained in any law, order,
have been accepted, the fact notification, rule or contract of
of such acceptance or the appointment, the public
deemed acceptance shall servant concerned shall, with
immediately be intimated by effect from the date of
Registered post by the intimation of such acceptance
Governor, the State or deemed acceptance of the
Government or the Chief declaration-
Minister if any of them is the
(i) if he is the Chief Minister or
competent authority and the
a Minister, resign his office of
State Government in other
Chief Minister or Minister, as
cases then, notwithstanding
the case may be;
anything contained in any
W.P.(C) Nos.18749 & 11107 of 2024
law, order, notification, rule or (ii) if he is a public servant
contract of appointment, the falling under items (v) and (vi),
public servant concerned but not falling under items (iv)
shall, with effect from the date and (vii) of Clause (o) of
of intimation of such Section 2, be deemed to have
acceptance or of the deemed vacated his office; and
acceptance of the declaration,
iii) if he is a public servant
i. if the Chief Minister or a falling under items (iv) and (vii)
Minister resign his office of of Clause (o) of Section 2, be
the Chief Minister, or deemed to have been placed
Minister, as the case may be; under suspension by an order
of the appointing authority
ii. if a public servant falling
and the appointing authority
under items (e) and (f), but not
shall initiate appropriate
falling under items (d) and (g)
action in accordance with the
of clause (12) of section 2, be
rules applicable to such public
deemed to have vacated his
servant:
office; and
Provided that if the public
iii. if a public servant falling
servant is a member of an All
under items (d) and (g) of
India Service as defined in
clause (12) of section 2, be
Section 2 of the All India
deemed to have been placed
Services Act, 1951 (General
under suspension by an order
Act 61 of 1951), the
of the appointing authority.
Government shall take action
Provided that if the public
W.P.(C) Nos.18749 & 11107 of 2024
servant is a member of an All to keep him under suspension
India Service as defined in and initiate appropriate action,
section 2 of the All India in accordance with the rules or
Services Act, 1951 (Central regulations applicable to his
Act 61 to 1951) the State service.
Government shall take action
to keep him under suspension
in accordance with the rules
or regulations applicable to
his service.
(emphasis supplied)
65. However, unlike Section 13(1) of the Karnataka Lokayukta
Act, 1984, where there is a provision for "deemed acceptance" of
the declaration, there is no similar provision in Section 14(2) of
the KLAA where the Statute is silent as to what happens in the
event the State Legislature fails to take any decision upon
expiry of 90 days. It cannot be the intention or desire of the
Legislation and, in fact, it is not so to keep the matter
suspended or sit over it indefinitely, otherwise, the period of 90
days would not have been mentioned in Section 14(2) of the
W.P.(C) Nos.18749 & 11107 of 2024
KLAA as amended.
66. It appears that while the State Legislature was considering
of diluting the efficacy of the report from declaration to a
recommendation on a consideration that there may be a
violation of principles of natural justice for the person against
whom the report has been filed by the Lok Ayukta or Upa Lok
Ayukta as a declaration would be a fait accompli without any
recourse as no appellate authority is prescribed under the said
Act, it has never been the intention of the Legislature to make a
mockery of the entire system or to make the entire process go
for a toss. It was never intended to be an entirely wasteful and
unnecessary exercise involving public exchequer. After all, it
cannot be denied that the office of the Lok Ayukta has
solemnity attached to it as being presided over by a retired
Judge of the Hon'ble Supreme Court or the retired Chief Justice
of a High Court, now replaced by a retired Judge of the High
Court and it involves a detailed exercise to be carried out before
it culminates into a report.
W.P.(C) Nos.18749 & 11107 of 2024
67. However, the reason for the amendment as argued by the
learned Advocate General is a plausible reason for the
amendment and the Court cannot in a judicial review decide
the quality of such amendment and does not depend upon the
perception of the Judge. It has to be tested on the anvil of the
tests as laid down in Anjum Kadari (supra) to consider the
quality and merits of such objections in deciding the
constitutional validity of the Statute. However, as observed
earlier, it is a duty upon the State Legislature, like the
provisions made in the Karnataka Legislation under Section 13
with regard to deemed acceptance of such report in the event it
is not accepted within the time frame as prescribed in Section
14(2) as amended. In fact, the learned Advocate General true to
the tradition of the Bar and the Office that it commands has
also fairly conceded to the fact that the said provision is
required to be read into the same sub- section to give
effectiveness to the Statute.
68. The Statute does not exclude judicial review of the action
W.P.(C) Nos.18749 & 11107 of 2024
taken or proposed to be taken or the rejection of the
recommendation by the State Legislature. While the Lok Ayukta
or Upa Lok Ayukta may not be a person aggrieved in the
context of the report being rejected and no action is taken, it is
always open for the complainant to file a writ petition
challenging the decision of the State Legislature in not
accepting the said recommendation of the Lok Ayukta on the
grounds that may be available to such complainant. In fact,
Section 12 used the word "recommendation" in sub-section (5)
as opposed to a "declaration" which, however, in the
unamended provision of Section 14, was considered to be a
"declaration" although Section 12(3) refers to "recommendation"
and not a "declaration". When Section 12(3) is read with Section
14(1) unamended, there appears to be a dichotomy between the
binding nature of the report, as it appears that at the stage of
Section 12(3), it is only a recommendation which cannot be said
to be of a binding nature, as it would not give any option unlike
similar statues of having a re-look at the said report, as it is
W.P.(C) Nos.18749 & 11107 of 2024
treated as a "declaration" and is of a binding nature. It does not
require any further deliberation or consideration, as envisaged
in similar Statutes, nor does it require an opportunity of being
heard. The said unamended provision is also likely to cause
serious prejudice against whom an action is proposed. In fact,
the Karnataka Lokayukta Act gives power to the competent
authority either to accept or reject after giving an opportunity of
being heard. The consequences are of a far sweeping nature
given the wordings of Sections 12 and 14 as unamended.
However, the amended provision in Section 14(2) contemplates
a reason to be given by the Sate Legislature, which makes the
State Legislature accountable for its decisions. The State
Legislature shall be presumed to act bona fide upholding the
Constitutional values and keeping in mind the object of the said
Act profess in considering such recommendation.
69. There is another significant aspect in this matter which
also requires a special mention. Under Section 12, the Lok
Ayukta would be required to submit a report. Section 12(3)
W.P.(C) Nos.18749 & 11107 of 2024
contemplates action to be taken by the competent authority on
the basis of the findings and recommendations made by the
Lok Ayukta. At this stage, if it is in relation to the Chief
Minister, then now by reason of the amendment, it has to be
considered by the competent authority and under Section 12(4),
the State Legislature would be required to examine the report
within three months of the date of receipt of the report and
intimate or cause to be intimated to the Lok Ayukta the action
taken or proposed to be taken on the basis of the said report.
However, the Lok Ayukta has been given power under Section
12(5) to either accept the action taken or proposed to be taken
on the basis of the recommendation or can make a special
report to the Governor expressing his reservation and also shall
communicate to the State Legislature (now the competent
authority in relation to the Chief Minister) and the complainant.
The most significant provision is Section 12(7) which has not
been amended that gives power to the Governor to forward such
report which, after amendment, would be the State Legislature
W.P.(C) Nos.18749 & 11107 of 2024
in the case of the Chief Minister together with "an explanatory
memorandum" to be laid before the Legislative Assembly.
70. Now, by virtue of the amendment, the report under Section
12(3) would not be considered any further as a declaration and
it is now required to be placed before the State Legislature in
the case of the Chief Minister to be considered in accordance
with Section 14(2) of the Act as amended. Section 12(7) still
retains the power of the Governor to make "an explanatory
memorandum" in the event the recommendations are accepted
by the State Legislature, but not implemented.
71. We, accordingly, are of the view that the State Legislature
is competent to make such amendments, however, we make it
clear that Section 14(2) contemplates that in the event said
report is not rejected within the period of 90 days from the date
of receipt of the report or the copy of the report, as the case
may be, it shall be deemed to have been accepted on the expiry
of the said period of three months and if it is deemed to have
been accepted, the procedure under Section 12(5) would
W.P.(C) Nos.18749 & 11107 of 2024
immediately trigger. In fact, Sections 12(4) and 14(2) of the
KLAA, in relation to the Chief Minister viz-a-viz the State
Legislation, contemplate such procedure to be followed and any
other interpretation to the said provisions would render Section
14(2) otiose, as in absence of "deemed acceptance", Section
12(5) stage would never come and make the other provisions
redundant. In the absence of any amendment being carried out
to the said sections and keeping in mind the laudatory object of
the said Act, "deemed acceptance" beyond the time stipulated
in Section 14(2) is a necessary corollary and an obvious
consequence to follow. It completely aligns with Section 12(4) as
it, by reason of amendment to Section 14(2), mandates the
State Legislature to examine the report within three months
and if Section 12(5) is read harmoniously with Sections 12(4)
and 14(2) as amended, it is incumbent upon the State
Legislature to intimate the Lok Ayukta the action taken or
proposed to be taken on the basis of the report. The words
"deemed acceptance" are read into the amended Section 14(2)
W.P.(C) Nos.18749 & 11107 of 2024
to make it effective and in consonance with the object of the Act
and the other provisions of the Statute.
72. The power of the Court in exceptional circumstances to
read into a Statute, has been recognised, inter alia, in the
decision of the Hon'ble Supreme Court in X (Juvenile) v. State
of Karnataka15, wherein, at paragraph 38, it was held as
follows:
"38. The rule of casus omissus i.e. "what has
not been provided in the statute cannot be
supplied by the courts" is the strict rule of
interpretation. However, there are certain
exceptions thereto. Para 19 of the judgment of
this Court in Surjit Singh Kalra v. Union of
India [Surjit Singh Kalra v. Union of India,
(1991) 2 SCC 87 : (1991) 1 SCR 364 : 1991
INSC 36] throws light thereon. The same is
extracted below : (SCC p. 98)
"19. True it is not permissible to read words
in a statute which are not there, but "where
the alternative lies between either supplying
by implication words which appear to have
been accidentally omitted, or adopting a
(2024) 8 SCC 473
W.P.(C) Nos.18749 & 11107 of 2024
construction which deprives certain existing
words of all meaning, it is permissible to
supply the words' (Craies Statute Law, 7th
Edn., p. 109). Similar are the observations
in Hameedia Hardware Stores v. B. Mohan
Lal Sowcar [Hameedia Hardware Stores v.
B. Mohan Lal Sowcar, (1988) 2 SCC 513] ,
SCC at pp. 524-25 wherein it was observed
that the court construing a provision should
not easily read into it words which have not
been expressly enacted but having regard to
the context in which a provision appears
and the object of the statute in which the
said provision is enacted the court should
construe it in a harmonious way to make it
meaningful. An attempt must always be
made so as to reconcile the relevant
provisions as to advance the remedy
intended by the statute. (See : Siraj-ul-Haq
Khan v. Sunni Central Board of Wakf [Siraj-
ul-Haq Khan v. Sunni Central Board of
Wakf, 1958 SCC OnLine SC 27 : 1959 SCR
1287 : AIR 1959 SC 198] , SCR at p. 1299)".
***
73. Similarly, in Rajbir Singh Dalal v. Chaudhari Devi Lal
University16, the Hon'ble Supreme Court held as follows:
"13.......where the alternative lies between
either supplying by implication words which
appear to have been accidentally omitted, or
(2008) 9 SCC 284
W.P.(C) Nos.18749 & 11107 of 2024
adopting a strict construction which leads to
absurdity or deprives certain existing words of
all meaning, and in this situation it is
permissible to supply the words (vide Principles
of Statutory Interpretation by Justice G.P.
Singh, 9th Edn., pp. 71-76)."
***
The said principles are also equally applicable to bring out
the essence of the legislation, as without such "deemed
acceptance", the purpose of the Statute would stand defeated.
74. Considering the nature of the complaint, it is desirable that
the original provision with regard to the appointment of a
person who has held the office of the Chief Justice of the High
Court may be restored as it appears that the original Act has
equated a retired Judge of the Supreme Court with that of the
retired Chief Justice of the High Court and the amendment has
only replaced the retired Chief Justice of the High Court by a
retired Judge of the High Court. We could not find any rational
basis for such changes being made in Section 3(2). However, it
is for the Legislature to decide taking into consideration the
W.P.(C) Nos.18749 & 11107 of 2024
observations made in this judgment.
75. The writ petitions are disposed of with the above
clarification and interpretation of Section 14(2) of the KLAA in
relation to the enforceability of the recommendations. The
challenge to the constitutional validity of Sections 3 and 14 (as
amended) herein fails.
Sd/-
SOUMEN SEN,
CHIEF JUSTICE
Sd/-
SYAM KUMAR V.M.,
JUDGE
uu/eb/jjj
W.P.(C) Nos.18749 & 11107 of 2024
APPENDIX OF WP(C) NO. 11107 OF 2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE KERALA LOK AYUKTA
(AMENDMENT) ACT, 2022, ACT 7 OF 2024
PUBLISHED IN KERALA GAZETTE EXTRAORDINARY
NO.805 DATED 2.3.2024 VIDE NOTIFICATION
NO.1482/LEG.E2/2022/LAW DATED 2ND MARCH,
W.P.(C) Nos.18749 & 11107 of 2024
APPENDIX OF WP(C) NO. 18749 OF 2024
PETITIONER EXHIBITS
Exhibit -P1 A TRUE COPY OF THE LOK AYUKTA AMENDMENT
ACT 2022 (ACT 7 OF 2024) PUBLISHED IN THE
GAZETTE BEARING NO. 1482/LEG.E2/2022/LAW
DATED 02.03.2024
