NOTE ON GUJRAT HIGH COURT JUDGMENT ON GUJRAT LOKAYUKTA - PART I

NOTE ON GUJRAT HIGH COURT JUDGMENT ON GUJRAT LOKAYUKTA (Judgment of Justice V M Sahai dated January 18, 2012)

By Anirban Roy, Advocate

PART I : HOW GUJRAT GOT ITS LOKAYUKTA AFTER 8 YEARS

INTRODUCTION

1. Gujrat has its own version of the Lokpal Law in the form of Lokayukta Act, 1986.
2. As per the Lokayukta Act, 1986, a Lokayukta has to be appointed by the Governor of the State after consultation with the Chief Justice of the High Court (hereinafter “CJ”) and the Leader of Opposition (hereinafter “LO”) in the Assembly.
3. Till 2003, Gujrat had three Lokayuktas. The third Lokayukta namely Justice S M Soni retired in November 2003 and thereafter the office fell vacant. There is no information as to whether any steps were taken to fill the vacancy till August 2006. The story starts with the steps taken by Shri Narendra Modi, Chief Minister of Gujrat (hereinafter “NM”) from August 2006 onwards for appointment of Lokayukta.

ROUND I

4. In August 2006, NM wrote to the CJ saying that he proposed to send the name of Justice (Retd.) K R Vyas to the Governor for appointment as the Lokayukta and asked him if the CJ had any objections to the same. The CJ said he did not have any. The file was then sent to the Governor.
5. Issues arose as to whether the LO was consulted in the matter as required by law and the matter was referred by the Governor for legal opinion.
6. In the meantime Justice (Retd) K R Vyas had been appointed as the Chairman, Human Rights Commission, Maharashtra. As per the Protection of Human Rights Act, 1993, a member of the Commission was not eligible for further employment under the Government on ceasing to hold office. Hence Justice (Retd) K R Vyas was ineligible for appointment as a Lokayukta, even if he resigned from the present post.
7. Accordingly, in February 2009, the Governor asked the State of Gujrat to treat the proposal of Justice K R Vyas as closed and make a fresh proposal.
8. The State of Gujrat differed from the view taken by the Governor and the appointment of Justice (Retd) K R Vyas was insisted upon.
9. In September 2009, the Governor wrote to NM reiterating the legal position and repeating that the proposal of Justice (Retd) K R Vyas cannot be considered. NM was requested to send a fresh proposal after consultation with the CJ and the LO.

ROUND II

10. In February 2010, NM wrote to the CJ requesting him to recommend a panel of three retired judges of the Gujrat High Court from whom a Lokayukta can be selected.
11. In February 2010 itself, the CJ recommended a panel of four retired judges. They were 1) Justice (Retd) P M Chauhan 2) Justice (Retd) B C Patel 3) Justice (Retd) R P Dholakia and 4) Justice (Retd) J R Vora.
12. Based on the aforesaid recommendation, NM wrote to the LO to participate in the process of consultation. The LO took a stand that under the provisions of the Lokayukta Act, 1986, there was no scope of consultation with the Chief Minister and that the power of appointment is with the Governor after consultations with the CJ and the LO.
13. Subsequently, the Governor also wrote to NM saying that the process of consultation with the LO was over and meetings at his end be cancelled.
14. NM continued to call the LO for meetings for consultation and the LO continued to say that the process of consultation was over and requested NM to terminate the process of consultation. Eventually the meetings for consultation with the LO were held in the absence of the LO.
15. In April 2010, the State of Gujrat recommended the name of Justice (Retd) J R Vora, out of the panel of four retired judges recommended by the CJ, to the Governor for appointment as Lokayukta.
16. After receiving the proposal from the State Government, the Governor sought the advice of the CJ as to who was a better choice between Justice (Retd) J R Vora (recommended by the State of Gujrat) and Justice (Retd) R P Dholakia. Both were from the panel of four. Out of the other two, one had been selected as a member of National Human Rights Commission and the other at the age of 82 was considered too old.
17. The CJ replied that Justice (Retd) R P Dholakia was a preferred choice.

ROUND III

18. In the meantime, the Governor had received a legal opinion from the Attorney General of India stating the law laid down by the Supreme Court on this aspect.
19. Based on the aforesaid legal opinion, in May 2010, the Governor wrote to NM and the CJ that as per the law laid down by the Supreme Court, the CJ is the best person to advise on the suitability of a person to be appointed as a Lokayukta. It is also desirable to maintain the independence of the judiciary and to avoid a situation where a sitting or retired judge is dependent upon the Executive for an important appointment. Further, in accordance with law, the CJ is required to recommend only one name and not a panel. The State Government was required to take a formal recommendation of a single person from the CJ and submit the same to the Governor formally.
20. In the meantime, in May 2010 itself, the Gujrat High Court had appointed Justice (Retd) J R Vora as a Director of the State Judicial Academy.
21. In December 2010, the CJ wrote to the Governor  and NM recommending the name of Justice (Retd) S D Dave as the Lokayukta.
22. In January 2011, the Governor requested NM to process the matter expeditiously at the Government level and formally submit the name of Justice (Retd) S D Dave to her.
23. In February 2011, NM wrote to the CJ for consideration of the name of Justice (Retd) J R Vora for the post.
24. In March 2011, the Governor wrote to NM that there were press reports stating that the State Government had made a statement on the floor of the Gujrat Legislative Assembly that the Government would process the matter further after receipt of recommendation from the CJ and stated that this was far from truth because the State Government had already received a recommendation from the CJ for Justice (Retd) S D Dave. The State Government was asked to send the proposal of Justice (Retd) S D Dave to the Governor at the earliest.
25. Thereafter, the CJ wrote to NM repeating the recommendation of Justice (Retd) J R Vora.
26. In May 2011, Justice (Retd) S D Dave expressed his inability to take up the assignment for personal reasons.

ROUND IV

27. Immediately after Justice (Retd) S D Dave expressed his inability to take up the assignment, NM wrote to the CJ repeating his request for reconsideration of the name of Justice (Retd) J R Vora.
28. In June 2011, the CJ wrote to NM stating that Justice (Retd) J R Vora cannot be released from his engagement at the State Judicial Academy in the interests of the Judiciary. The CJ this time recommended the name of Justice (Retd) R A Mehta for the post. The same was also communicated to the Governor.
29. Immediately thereafter the Governor also wrote to NM that the matter of appointment of Justice (Retd) R A Mehta be processed expeditiously at the level of the Government in accordance with law.
30. Subsequently NM wrote a letter to the CJ raising issues about the recommendation of Justice (Retd) R A Mehta. He said that Justice (Retd) R A Mehta was over-aged and associated with a few NGOs, Social Activist Groups and therefore may be having a fixed frame of mind  on certain issues relating to governance in the State and further that he had shared platform with people who are known for their antagonism for the State Government and had expressed views against the functioning of the present Government and therefore he would not be able to perform his duties with the amount of objectivity, judiciousness and impartiality expected of a Lokayukta.
31. NM again wanted the proposal of Justice (Retd) J R Vora to be reconsidered.
32. On August 02, 2011, the CJ wrote to NM that he had gathered details of the activities of Justice (Retd) R A Mehta and found nothing that made him ineligible for the post of Lokayukta. A copy of the letter was sent to the Governor.
33. On August 16, 2011, the Governor wrote to NM and once again requested him to send the proposal of Justice (Retd) R A Mehta for formal appointment.
34. On August 16, 2011, the LO also wrote to NM that the LO had given consent to the Governor on the proposal of Justice (Retd) R A Mehta.
35. On August 17, 2011, the State Government prepared the Gujrat Lokayukta (Amendment) Ordinance 2011 for amendment of the Gujrat Lokayukta Act, 1986 and sent the same for promulgation to the Governor. The Ordinance primarily aimed at removing the CJ from the consultation process. It provided that the Governor shall appoint the Lokayukta with the aid and advice of the Council of Ministers. The appointment was to be made after obtaining recommendation of a committee consisting of 1) The Chief Minister as the Chairperson 2) The Speaker of the Gujrat Legislative Assembly 3) The Minister in Charge of the Legal Department 4) A sitting judge of the Gujrat High Court nominated by the CJ and 5) the LO.
36. On August 18, 2011, the aforesaid Ordinance was returned by the Governor to the State Government with an observation that there was no urgency for bringing about such an Ordinance all of a sudden. It was noted that the CJ had already forwarded a proposal and the same was at the final stage of issuance of notification.
37. On August 18, 2011, the aforesaid Ordinance was one again sent to the Governor. But the Governor did not act on the same.
38. On August 18, 2011, NM once again wrote to the CJ raising issues as regards the recommendation of Justice (Retd) R A Mehta.
39. On August 18, 2011, NM also wrote to the Governor that the legal position set out in the legal opinion of the Attorney General of India were not applicable to the appointment of Lokayuktas.

APPOINTMENT

40. On August 25, 2011, the Governor issued a warrant of appointment appointing Justice (Retd) R A Mehta as the Lokayukta of the State of Gujrat. 

 Anirban Roy

January 23, 2012

Email : anirban@royslawfirm.com

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