Kerala Lokayukta ‘rescue’ CM without ‘recusing’ themselves

A full Bench of Kerala Lokayukta presiding over a “favouritism case” on Monday rescued Pinarayi Vijayan, Chief Minister of Kerala, and his government, but their decision to do so without “recusing” themselves has now drawn criticism.

SINCE 2018, the Kerala Lokayukta has been hearing a case of the “unnecessary” allotment of funds from the Chief Minister’s Disaster Relief Fund (CMDRF).

These allotments have been made to the relatives of a late member of legislative assembly (MLA) belonging to the Communist Party of India (Marxist) [CPI(M)], a deceased coalition party leader belonging to the Nationalist Congress Party (NCP), and the family of a policeman who died in an accident while escorting the late CPI(M) leader Kodiyeri Balakrishnan.

The allotments have been made without even receiving a request application from the relatives.

The Kerala Chief Minister and his cabinet allotted ₹25 lakh for the family of the NCP leader Uzhavoor Vijayan in 2017, and ₹8.5 lakh to help the wife of late Chengannur CPI(M) MLA Ramachandran Nair reclaim her pledged gold and settle his car loan in 2017.

Additionally, in 2018, ₹20 lakh was paid to the wife of civil police officer P. Praveen, who died when the pilot vehicle of late CPI (M) leader Balakrishnan met with an accident.

Following these allotments, R.S. Sasikumar, a former employee of the University of Kerala, filed a complaint in public interest alleging corruption, nepotism and favouritism. His complaint was against Chief Minister Pinarayi Vijayan and his 18 cabinet ministers who governed the state between 2016 and 2021.

Even though assembly elections were held in 2021, for the first time in four decades, an incumbent government, the Pinarayi-led Left Democratic Front, retained power in Kerala. Pinarayi continues to be the Chief Minister, heading a new council of ministers which was sworn on May 20, 2021.

When the complaint was being investigated by a division Bench consisting of Lokayukta Justice Cyriac Joseph and upa-Lokayukta Justice Harun-ul-Rashid, there was a “difference of opinion” between them.

Therefore, in accordance with Section 7(1) of the Kerala Lok Ayukta Act, 1999, by an Order in March 2023, the case was posted before a full Bench consisting the Lokayukta and both the two upa-Lokayuktas.

According to Section 7(1) of the Kerala Lok Ayukta Act, 1999, when there is a difference of opinion between the Lokayukta and an upa-Lokayukta, the action shall be investigated by the Lokayukta and both the upa-Lokayuktas together and the decision of the majority therein shall prevail.

However, in Monday’s Order, the Lokayukta has said that when all the facts and circumstances are considered, the three impugned decisions were taken arbitrarily.

The finding that the impugned decisions were taken arbitrarily does not necessarily mean that the allegations of abuse of position or power, corruption, favouritism, nepotism and lack of integrity have been substantiated.  There is not sufficient material to conclude that the decisions were taken only on account of political considerations,” the Order read.

Justice Cyriac Joseph says in the Order that despite his finding that the decision-making process was defective, he is not satisfied that by taking the impugned decisions respondent nos. 2 to 18 (Pinarayi and his former cabinet ministers) have abused their position as public servant to obtain any gain or favour to themselves or any other person or to cause undue harm or hardship to any other person.

It has not been substantiated that Pinarayi and his former cabinet ministers were actuated in the discharge of their function as public servants by personal interest or improper or corrupt motive. There is no material or evidence to hold that Pinarayi and his former cabinet ministers are guilty of corruption, favouritism, nepotism or lack of integrity in their capacity as public servants,” Justice Cyriac Joseph says.

He adds that it is one thing to say that the decision-making process was defective and it is a different thing to say that corruption, favouritism, nepotism or lack of integrity was involved in the decision.

The Order reads that since the allegation in the complaint has not been substantiated, the provisions of Section 14 of the Kerala Lok Ayukta Act, 1999 are not attracted in this case and hence there is no basis for making a declaration under Section 14 of the Act that respondent Pinarayi and his former cabinet ministers should not continue to hold the post held by them.

Justice Cyriac Joseph concludes the Order by stating that “in light of the findings recorded above, the complaint is closed.”

Visible connections

Justices Rashid and Babu Mathew P. Joseph (the second upa-Lokayukta) are connected to the late MLA Ramachandran through a memoir released in his name.

Both judges have written forewords to the book, in which they recollect their campaigns with Ramachandran as part of the Student Federation of India, the CPI (M) student body, in the 1970s.

In his foreword, Justice Babu Mathew P. Joseph describes how he met Ramachandran in Thiruvananthapuram while organising protests demanding a stipend for young lawyers.

Justice Rashid , on the other hand, remembers Ramachandran’s days at Thiruvananthapuram Law College and his humility, even after becoming an MLA. Justice Rashid also mentions that Ramachandran did not use his influence to find a job for his educated son.

Interestingly, Ramachandran died in 2018, and his son Prasanth was given a job in the Public Works Department by the Kerala government. However, he was dismissed by the court in 2021.

Meanwhile, Sasikumar, the complainant, told The Leaflet that he expected the verdict and would appeal to the Kerala High Court.

I wasn’t surprised by the verdict. I am meeting my lawyers this evening, and we will appeal to the high court,” Sasikumar said.

He added that other than the Lokayukta, everyone else in Kerala now knows that favouritism occurred in this case.

My case has helped with that. Additionally, the CMDRF has not been used for such things since I filed a case. That is also our victory,” Sasikumar added.

In between, the Pinarayi government has attempted to amend the Lokayukta Act making it less effective.

By amending the Lokayukta Act, Section 14, Pinarayi gave the chief minister the final authority to decide on any damaging recommendation from the Lokayukta.

However, Kerala governor Mohammed Arif Khan has not signed the Bill. The Kerala government and governor are at loggerheads over unsigned Bills.

In April, the Lokayukta and the upa-Lokayuktas were in the news for attending an iftar arranged by Pinarayi, even though cases against him were pending before them.

The Leaflet