K. E. ISMAIL Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a member of the Kerala Legislative Assembly. He claims to be "a public spirited citizen, interested in eliminating corruption from public life." He has filed the Original Petition under Art.226 of the Constitution of India challenging the amendment to S.18 of the Kerala Public Men's Corruption (Investigations and Inquiries) Act, 1987 (Act 24 of 1988) (the Act) by Ordinance No. 8 of 1991. Before its amendment, S.18 had provided that where after investigation, the Commission constituted under the Act was satisfied that an allegation against a public man of the nature specified in the various sub clauses of S.2 had been substantiated and that such public man should not continue to hold the post held by him, the Commission shall make a declaration to that effect in Its report submitted under S.17(1), whereupon the competent authority shall accept the declaration and intimate the acceptance to the public man immediately, and then, the public man shall, with effect from the date of intimation resign his office if he is the Chief Minister or a minister or a member of the Legislative Assembly, and be deemed to have vacated his office in the case of other public men. After the amendment, the position is that if the commission is satisfied that the allegation against the public man has been substantiated and proved that he has committed corruption and that he should not continue to hold the post held by him, the Commission shall make a declaration to that effect in its report regarding its findings and recommendations, and communicate it along with the relevant documents, materials and other evidence to the Governor and thereupon the Governor may either accept the 'declaration or reject it; if the declaration is accepted, the Governor shall intimate the fact of acceptance to the public man to be followed by his resignation or vacating of office as under the pre amendment section. The vital difference between the provisions before and after the Amendment is that while there was no option for the competent authority regarding the acceptance of the declaration made by the Commission under the original provision and he was bound to accept it, under the amendment, the declaration in the report of the Commission was made to the Governor, with all relevant documents, materials and evidence, and It was open to the Governor to accept or not accept the declaration. The declaration made by the Commission ceased to have the binding effect, which it had on the competent authority under the unamended provision. Petitioner's submission is that the vesting of such a discretion which according to him is unbridled and uncontrolled, even in a high dignitary like the Governor, defeats the rule of law enshrined in the Constitution besides being arbitrary and discriminatory. It is his case that the Governor may In a given case even act capriciously or unreasonably or arbitrarily or on his whims, in the absence of any guidelines in the provision as to when he should accept, or when he may reject the declaration. For these reasons which have been elaborated in the Original Petition, petitioner seeks a declaration that the amendment to S.18 brought about by Ordinance No. 8 of 1991 is unconstitutional and void. Some other reliefs of general nature following out of this main relief are also prayed for.

(2.) Petitioner relies or various decisions of the Supreme Court in support of his contention regarding the unconstitutionality and Invalidity of the amended S.18. He has also filed and additional affidavit to establish that as a person Interested in the purity of public life, he has the necessary locus standi to maintain the petition.

(3.) It may be that the writ petition is maintainable at the instance of the petitioner. But the question is whether it is necessary to entertain it at this stage. Admittedly the petitioner has not made any complaint about any public man before the Commission, nor has he any case that he has been deterred from moving the Commission because of the amendment, (assuming that that provides a sufficient cause of action for moving this writ petition - something with which I am not prepared to agree). There is no relief claimed by him which will enure to his benefit. What he seeks to achieve is to provide against future possibilities and contingencies by the Governor choosing to act in a particular manner: There is no concrete case nor even an occasion, for that matter at this stage - where the Governor has acted in the manner apprehended by the petitioner. The petitioner has put forward various contentions regarding the vires of the amended section, but he has no case that the Governor has refused to accept any declaration made by the Commission under the powers vested in him under the amended S.18 to entitle him to approach this court with this petition. In fact no such occasion has arisen in as much as the erstwhile commission ceased to function on the promulgation of the Ordinance and no new Commission had been appointed at the time the original petition was filed. The petitioner has filed this original petition only as a safeguard for the future, of the possibility of the Governor acting arbitrarily or capriciously, which will shake the very credibility and the functioning of the system discouraging potential complainants from approaching the Commission with any case.