Guj Lokayukta tussle: Raj Bhavan pushes the envelope

On August 25,Kamla (she uses her first name) issues a warrant appointing Justice (retd) R A Mehta as the Lokayukta. It is the first time the governor has directly issued a warrant appointing a person as the Lokayukta in her name. Generally,the warrant for the appointment of a Lokayukta is issued by the state government in the name of the governor.

The Reaction

The Gujarat government moves the high court against the action of the governor,who is the constitutional head of the state. Incidentally,the court itself calls the situation unparalleled as the petition by the government against the appointment makes the governor a party-respondent to the petition. The court tells the government to remove the name of the governor as a respondent,with hearing adjourned for September 5.

The Law

The Governor’s warrant,dated August 25,reads: “By virtue of the power vested in me by sub-section (1) of section 3 of the Gujarat Lokayukta Act,1986… I,Dr Shrimati Kamla,Governor of Gujarat,do hereby appoint,Shri Justice (Retd) Ramesh Amritlal Mehta to be the Lokayukta…”

The sub-section (1) says: “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.”

The Arguments

The Narendra Modi government says it was never consulted by Beniwal while appointing Justice Mehta,though a governor has to act on the “aid and advice” of Council of Ministers headed by the Chief Minister.

The Modi government has asked the court whether it is legal and proper for a governor to suo motu originate a proposal for appointing a particular person to be the Lokayukta,more particularly when the satisfaction of the governor for the exercise of the said function under the Constitution is not his personal satisfaction but the satisfaction of the Council of Ministers.

Kamla has cited the delay in appointment of a Lokayukta by the state government and claimed she acted as she was not in favour of amendments proposed by the Modi government to the Lokayukta Act,that would have give power of suggesting a name for the post to a committee headed by the Chief Minister.

The Timeline

As per the government’s petition:

* August 7,2006: Three years after S M Soni’s term ended,the state government initiates process to appoint a new Lokayukta. CM Modi suggests name of Justice (retd) K R Vyas to Leader of the Opposition,who gives another name. The government also seeks views of the Chief Justice of High Court on Vyas.

* August 8,2006: The Chief Justice clears Vyas’s name; the file is sent to the governor.

* February 6,2009: Following some correspondence in between,the governor returns the file back to the government,saying Vyas cannot be appointed as Lokayukta as he has been made chairman of the Maharashtra State Human Rights Commission. The state again seeks his appointment.

* September 10,2009: The governor tells Modi to send a fresh proposal,after consultation with the Chief Justice and Leader of the Opposition.

* February 8,2010: Modi writes to the Chief Justice requesting him to suggest a panel of three retired judges of the high court for appointment as Lokayukta.

* March 2,2010: Leader of the Opposition is invited for a meeting as part of the consultations and subsequent meetings,refuses to participate. The Opposition’s argument is that the state government has no role to play in appointment of the Lokayukta.

* March 31,2010: The Cabinet approves a name decided by Modi and sends the same to the governor.

* May 5,2010: The governor returns the file,saying that in the wake of a recent judgement,the Chief Justice is not required to send a panel of names but only one name.

* December 31,2010: The Chief Justice sends a fresh proposal to the government recommending only one name.

* February 21,2011: Modi writes to the Chief Justice saying the process can be expedited by appointing the person whose name was recommended by the state government instead of considering a new name.

* June 6,2011: Chief Justice recommends another name.

* June 16,2011 : Modi writes a letter to the Chief Justice explaining why the name is not acceptable.

* August 25,2011: The governor issues a warrant appointing Justice (retd) Mehta.