Lokayukta battle lines drawn

It’s a legal and political battle which has seen several twists and turns. At the heart of the controversy is the appointment of the Lokayukta for Gujarat.

A post lying vacant for the last seven years!

Gujarat Chief Minister Narendra Modi suffered a legal blow recently when a third judge of the Gujarat High Court rejected his government’s plea challenging the appointment of retired judge R A Mehta as the Lokayukta by the state governor bypassing the  government.

The third judge gave the ruling after a two-judge bench had earlier given a split verdict. The controversy dates back to November 2003 when Justice R M Soni, another retired judge, completed his tenure as the Lokayukta. Importantly, no steps were taken by the state government till 2006 for filling up of the post.

It was in August 2006, that the Chief Minister proposed the name of Justice K R Vyas for the post, which was seconded by the Chief justice of the High Court. However, the Governor raised a query whether the Leader of the Opposition had been involved in the process. And then followed years of technical and legal wrangling which left the post vacant.

The first issue to crop up was who would propose the name and who would be involved in the consultation process. It was finally in 2011 that the Chief Justice had proposed the name of Justice Mehta. The Chief Minister took objection to the name claiming that Justice Mehta had a pre-conceived bias towards his government since he was on the panel of several anti-government NGOs. The Chief Justice, however, replied that he found nothing objectionable against the retired judge.

Despite vehement protests by the Chief Minister, Governor Kamla Beniwal issued the order appointing Justice Mehta, bypassing the state government, on August 25 last year. Modi government cried foul and approached the two-judge bench of the High Court. The Opposition Congress took the governor’s side and claimed that she used her special powers to issue the notification appointing Justice Mehta as the Lokayukta because the state government had failed to do so.

The Congress argument has been that as per the Gujarat state Lokayukta Act, 1986, the state Lokayukta is appointed by the governor in consultation with the chief justice and leader of Opposition in the state assembly. But the Modi government has stressed that the process of appointing the Lokayukta should be initiated by the state government, which will seek a shortlist of names from the chief justice and select a name from it.

In fact, the Modi government had in August 2011, tried to promulgate an ordinance to effect changes in the Lokayukta Act which could have effectively ejected Chief Justice from the consultation process. The ordinance was sent back by the governor and a week later she issued the order appointing Justice Mehta. The Gujarat High Court, while delivering the order, also cited the move by the CM to promulgate an ordinance, and stated that attempts were on to take the CJ out of the consultation process, rendering the Lokayukta Act weak.

Questions were also raised over the appointment of a judicial commission to probe allegations of corruption against the Chief Minister levelled by the opposition. The Congress alleged that the move was to effectively scuttle any Lokayukta probe in future against the CM and his council of ministers.

But many believe that even the present Act is toothless. “The Lokayukta office in Gujarat remains a toothless tiger and a lot needs to be done to make it as effective as in Karnataka,” former Lokayukta Justice S M Soni said, adding, “Most have similar provisions under which the Lokayukta can only report its findings to the Cabinet. I had even suggested an amendment where the Lokayukta could make the report public, but to no avail.”

“The Lokayukta Act in Gujarat does not give the ombudsman any power to take action even in the case of proven corruption charges against the chief minister, his ministers or the chairmen and directors of other public offices. According to the present Act, his role is to prepare a report on the inquiries made by him into corruption-related complaints and submit these to the state Cabinet for a final decision. But even if the Lokayukta recommends action against the chief minister, which minister will dare to speak against the CM?” asked Justice Soni.

“Lokayukta can ask (regarding action taken) only two months after submitting his report. If the government does not respond, he can do nothing. That’s why, I had suggested amending the Act and empowering the Lokayukta to take penal action against corrupt constitutional office bearers,” Justice Soni said.

Points of reference

Thus, even as changes were suggested and the process continued to be in courts, Gujarat High Court in a 2 to 1 majority upheld the appointment by the Governor. A division bench came up with a split verdict with justice Akil Kureshi concluding that the consultation process between the CM and the chief justice was over and the appointment was not illegal, particularly looking at the fact that the post was vacant for more than eights years. Justice Sonia Gokani in the bench had a dissenting view and quashed the appointment. Following which, a third judge, Justice V M Sahai was asked to give his ruling.

The points of reference formulated by the division bench included looking at the nature of consultation required for appointment of Lokayukta under Section 3 of the Gujarat Lokayukta Act and whether the Governor was authorised to appoint Justice R A Mehta as Lokayukta without the aid and advice of the council of ministers.

After hearing the case, Justice V M Sahai agreed with Justice Kureshi’s view and held that the governor's decision was legal. With the third judge’s opinion, the government’s petition has been dismissed. And on expected lines, the Modi government has approached the apex court over the issue.

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