“It Would Not Be Proper to Stay the Amending Acts”: Gauhati High Court Refuses Interim Relief on Nagaland Lokayukta Amendments, Seeks State’s Affidavit
Sanchayita Lahkar
The High Court of Gauhati at Kohima, Division Bench of Justice Devashis Baruah and Justice Budi Habung declined to extend an interim order previously granted in a petition challenging the validity of two legislative amendments to the Nagaland Lokayukta Act. The Court held that a stay on legislative enactments is impermissible in the absence of a prima facie finding of unconstitutionality or lack of legislative competence and directed the State to file its affidavit on or before 25 April 2025.
The petitioners filed a public interest litigation challenging two legislative amendments enacted by the State of Nagaland: the Nagaland Lokayukta (First Amendment) Act, 2019, and the Nagaland Lokayukta (Second Amendment) Act, 2022. The challenge concerned provisions related to the constitution of the Search Committee and the eligibility criteria for appointment as Lokayukta.
According to the petitioners, the State legislature derived its authority to enact the Nagaland Lokayukta Act, 2017, under Section 63 of the Lokpal and Lokayuktas Act, 2013. The original Act of 2013, enacted by Parliament under Entry 12 of List I of the Seventh Schedule to the Constitution, permitted states to establish their own Lokayuktas in conformity with the central legislation.
The petitioners submitted that the impugned amendments—particularly the constitution of the Search Committee under the 2019 Amendment and the eligibility criteria under the 2022 Amendment—were in conflict with the provisions and objectives of the Lokpal and Lokayuktas Act, 2013.
It was argued that by virtue of Section 63 of the 2013 Act, the powers delegated to the states were conditional upon consistency with the central framework. Therefore, any deviation in composition or eligibility inconsistent with the 2013 Act would be ultra vires. The petitioners contended that the Amending Acts of 2019 and 2022 were not in alignment with either the statutory objectives or the constitutional framework and ought to be declared invalid.
On 22 January 2025, the Court had issued notice in the matter. As of the date of the present order, no affidavit had been filed on behalf of the State. During the hearing, the learned Advocate General submitted that the affidavit had been prepared and would be filed within one week.
The petitioners prayed for the extension of an interim order previously granted. The State opposed the prayer, arguing that such a stay was not permissible without a final determination on the legislative competence or validity of the statute.
The Advocate General submitted that the amendments in question were necessitated by practical difficulties, including the non-availability of eligible judicial personnel such as Judges of the Supreme Court or Chief Justices of High Courts within Nagaland. It was contended that the Lokpal and Lokayuktas Act, 2013, was silent regarding the eligibility criteria for appointment as Lokayukta, and the state-level amendments were valid exercises of legislative power.
It was further submitted that the Search Committee's structure under the Nagaland amendments did not contradict the 2013 Act, which mandates such a committee only for the appointment of Lokpal, not for the Lokayukta at the state level.
The State also raised a preliminary objection regarding the maintainability of the petition as a public interest litigation. It was submitted that no personal rights were involved and the petition ought to be dismissed on grounds of non-maintainability.
The Court recorded: “We have given our anxious consideration to the submissions. The law as regards the stay of an enactment of legislature or its amendments is very clear.” It stated that powers under Article 226 of the Constitution may 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.”
The Court observed that such a finding can only be made “at the culmination of the instant proceedings.” It further stated: “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.”
The Court clarified 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 Bench also took note of the State's submission regarding the reasons behind the legislative changes, particularly the “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.”
Addressing the petitioners’ argument based on Section 63 of the 2013 Act, the Court recorded that the contention was that “the Nagaland Lokayukta Act, 2017 cannot be in conflict with the provisions of the Act of 2013.” However, the Advocate General had argued that “the Act of 2013 is silent as regards the eligibility of a Lokayukta” and the state legislature retained the discretion to enact rules to suit local conditions.
The Court also noted the Advocate General’s submission that the legislature’s enactments “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, [or] the State legislature does not have the competence.”
The Court directed: “The affidavit be filed by the State on or before 25.04.2025. The petitioner herein, if so advised, would be at liberty to file reply-affidavit.”
It further ordered: “List the matter on 07.05.2025.”
In conclusion, the Bench held: “Taking into account that this Court has not extended the interim order, the respondents shall file their affidavits on the next date so fixed without fail.”
Advocates Representing the Parties
For the Petitioners: Mr. S. Borgohain, Mr. Tongpok Pongener, Mr. Baplu Chakma
For the Respondents: Mr. K.N. Balgopal, Advocate General, assisted by Ms. Nitya Nambiar, Mr. Vetso Rio, and Mr. Imti Imsong, Additional Advocate General
Case Title: Shri Vikato Shikhu & Anr v. State of Nagaland & Anr
Neutral Citation: GAHC020000072025
Case Number: PIL/1/2025
Bench: Justice Devashis Baruah and Justice Budi Habung
[Read/Download order]
