Commentary
Around the time that the JanLokpal Movement led by Team Anna was at its peak, controversy over the appointment of the Lokayukta of the state of Gujarat blew up and became the talking point of the nation. Much public angst was sought to be and continues to be directed against the state government of the day. Rather than typecasting it is a typical “people versus government” battle, the issue needs to be examined in light of the complex Constitutional questions it raised.
This article seeks to set the record straight on the facts and the legal debate surrounding the controversy.
The crux of the controversy
Statutory scheme for appointment of State Lokayukta
The crux of the controversy is the interpretation of S.3 of the Gujarat Lokayukta Act, 1986, Clause (1) of which reads as follows:
“Section 3: Appointment of Lokayukta
(1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta:
Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of Opposition in the Legislative Assembly, or if there be no such Leader, a person elected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct.”
It can be seen from the above that consultation is envisaged with two functionaries viz. the Chief Justice of the High Court and, except in the case of dissolution of the Assembly by way of an Emergency, the Leader of Opposition. Notably, the section does not provide that any consultation has to be made with the Chief Minister. However, the Chief Minister is the Head of the Council of Ministers. Article 163 of the Constitution of India provides that the Council of Ministers is to aid and advice the Governor in the exercise of all his functions, with some exceptions. Therefore, the Chief Minister as the Head of the Council of Ministers automatically figures in the matter of appointment of Lokayukta under section 3 of the Act.
Facts surrounding the appointment of Lokayukta
Perhaps the most popular misconception regarding this is issue is that the Gujarat government did not appoint a Lokayukta or takes steps for such appointment for all of seven years. The last Lokayukta was relinquished the office 24.11.2003 and admittedly, no steps were taken to fill the vacancy till 6.8.2006. However, the process of appointment of Lokayukta was initiated by the Chief Minister, i.e. Narendra Modi, himself on 7.8.2006 by writing to the Chief Justice of the Gujarat High Court. From that date till 26.11.2011 (which is the date when the Governor of Gujarat issued the impugned warrant of appointment appointing Justice (Retd.) R. A. Mehta as Lokayukta), the consultation and appointment process has been hit by complex and irresolvable legal/Constitutional issues. In fact, consultation process with respect to other prospective names had been completed on two prior occasions but no appointment was forthcoming from the Governor.
A brief chronology of events is as follows:
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“The wrong policies of the Gujarat Government to fill the dam to its maximum capacity in attempt to avoid shortage of drinking and irrigation waters had caused the floods.”
(People’s Committee on Gujarat Flood2-2006 – A fact-finding Committee set up by two NGOs concluded that the flood was a man-made disaster. The PCGF was headed by Shri R.A. Mehta)
(It may be noted that Shri R.A. Mehta had pre-judged the issue without even verifying the facts. Later on, the Commission headed by Hon. Ms. Justice (Retired) Sugnaben Bhatt came out with different findings in the Report dated 7.7.2008.)
(Source : oneindia.in 10th July, 2007 – copy enclosed)
(Source : NHRC Report, http.WWW.NHIC.IN)
(Shri R.A. Mehta was one of the panelists of Antarik Visthapit Hak Raksha Samiti which held public hearing in February, 2007)
(Source : expressindia.com – copy enclosed)
(Shri R.A. Mehta was a Jury Member for Anhad and Centre for Social Justice which held public hearing on 22nd February, 2011)
(Source : daily.bhaskar.com – copy enclosed)
(Shri R.A. Mehta was a Jury Member at the public hearing “Tracing Lives of Muslims in Gujarat Post – 2002 – organized jointly in Ahmedabad by several Human Rights Associations)
(Source : IMO admin Communalism, Indian State, 17th March, 2011 – copy enclosed)
It can be seen from the above that the question is not of Shri R.A. Mehta maintaining high standards in the society, or of not having made any public statement which is detrimental to the society, but the question is of his preconceived opinion and strong prejudiced mindset against the present political dispensation in the State. While he may be technically eligible for being considered for appointment as Lokayukta, the moot question is whether such a person having a strong biased perspective for the Government in the State if appointed as Lokayukta, will be able to perform his duty with the high level of objectivity, judiciousness and impartiality expected of the Lokayukta. In all fairness, the answer to this question will be in the negative. Although, I have no personal reservation against the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, but as the Head of the State Government, I am afraid, I may not be able to accept the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, who, in my view, cannot be considered the most suitable choice for the august post of Lokayukta, Gujarat State.
The other important aspect of the age is also not in his favour. We need to have a relatively younger person for the office of Lokayukta, Gujarat State, as the term for the Lokayukta is of five years. Hence, it would be in the fitness of things, if you could recommend the name of a Judge who has recently retired from the service.
I am sure you will take the contents of this letter in proper perspective and in right spirit, and recommend another name for the vacant post of Lokayukta, Gujarat State.”
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