Gauhati High Court Declines Stay On Amendments To Nagaland Lokayukta Act Regarding Provisions On Eligibility, Constitution Of Search Committee

The Gauhati High Court at Kohima recently denied to stay the two amendment Acts of 2019 and 2022, respectively to the Nagaland Lokayukta Act, 2017.

The division bench of Justice Devashis Baruah and Justice Budi Habung observed:

“The law as regards the stay of an enactment of legislature or its amendments is very clear. The power under Article 226 of the Constitution can be exercised when this Court is of the opinion that the impugned enactment is ultra vires to the Constitution, or ultra vires the Central act, or the State does not have the legislative competence. This finding can only be arrived at the culmination of the instant proceedings.”

The Court was hearing a PIL challenging the Nagaland Lokayukta (First Amendment) Act, 2019, (Amending Act of 2019) whereby the Nagaland Lokayukta Act, 2017 was amended. The challenge made to the said Amending Act of 2019 is to the composition of the Search Committee. The petitioners had also assailed the Nagaland Lokayukta (Second Amendment) Act, 2022 (Amending Act of 2022) whereby the persons eligible to be appointed as Lokayukta was put to challenge.

The Court issued notice to the State respondents on January 22, 2025, however, no affidavit has been filed on behalf of the State.

The Counsel appearing for the petitioners submitted that the challenge made to both the above-mentioned Amending Acts, are on the ground that the said Amending Acts are in conflict with the Lokpal and Lokayukta Act, 2013 (Act of 2013).

It was argued that the constitution of the Search Committee as well as eligibility of the person to be appointed as Lokayukta are in conflict with the Act of 2013. It was further submitted that as the power which have been conferred upon the State legislature is on the basis of Section 63 of the Act of 2013, the Nagaland Lokayukta Act, 2017 cannot be in conflict with the provisions of the Act of 2013.

On the other hand, the Advocate General submitted that the said amendments were made in the year 2019, as well as in the year 2022, on account of non-availability of Judges of Supreme Court, Chief Justices of the High Court as well as the Judges of the High Court in the State of Nagaland. It was argued that the Act of 2013, is silent as regards the eligibility of a Lokayukta.

It was also submitted that the Search Committee to select the names which are to be referred to the Selection Committee is also not in conflict with the Act of 2013, as the Act of 2013 mandates the Search Committee only for the post of Lokpal.

The Advocate General for the State submitted that taking into account the separation of powers between the Executive, the Legislative and the Judiciary, an act of the Legislature, be it the Principal enactment or the Amending act, ought not to be stayed till a finality is reached that the Act in question is in violation to Article 13 of the Constitution, ultra vires to the Central law, the State legislature does not have the competence, as well as the said legislative enactment was not made in accordance with the procedure established.

The Court noted:

“Taking into account the doctrine of separation of powers between the Executive, the Legislative as well as the Judiciary, in our opinion it would not be proper to stay the Amending Acts of 2019 and 2022. This Court however observes that if any appointment is made on the basis of the Amending Act of 2019, as well as the Amending Act of 2022, the same shall be subject to the outcome of the present proceedings.”

The Court directed the State to file affidavit by April 25. It did not extend the interim order.

The matter is again listed on May 7.

Case Title: Shri Vikato Shikhu & Anr. v. State of Nagaland & Anr.

Case No.: PIL/1/2025

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