Kerala Governor signs Lok Ayukta ordinance

• IAS NEXT, Lucknow
• 09, Feb 2022

Context:

The Kerala governor has signed the ordinance proposing amendments to the Kerala Lok Ayukta Act, 1999, that makes the agency’s orders not binding on the government.

Amendments to the Kerala Lok Ayukta Act, 1999:

• The government can “either accept or reject the verdict of the Lokayukta, after giving an opportunity of being heard”.
• Currently, under Section 14 of the Act, a public servant is required to vacate office if directed by the Lokayukta.

The amendments are being opposed for two reasons:

• The changes are proposed through an ordinance and hence there was no proper discussions on the matter.
• It violates the fundamental spirit of the central Lokpal and Lokayuktas Act, 2013.

Ordinance making power:

• The ordinance making power is the most important legislative power of the President and the Governor. It has been vested in them to deal with unforeseen or urgent situations.
• Article 123 of the Constitution grants the President certain law-making powers to promulgate ordinances during the recess of Parliament.
• These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.
• Likewise, the Governor of a state can issue ordinances under Article 213 of the Constitution, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
• The Constitution permits the central and State governments to make laws when Parliament (or the State Legislature) is not in session.

How long will it be in force?

The Constitution states that the ordinance will lapse at the end of six weeks from the time Parliament (or the State Legislature) next meets.

Concerns associated with the ordinance route:

• Whereas an ordinance was originally conceived as an emergency provision, it was used fairly regularly. In the 1950s, central ordinances were issued at an average of 7.1 per year. The last couple of years has seen a spike, 16 in 2019 and 15 in 2020.
• Repromulgation: A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme.

Judicial Safeguards to avoid re-promulgation of ordinances:

• The Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
• It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
• The Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.