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

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

By Anirban Roy, Advocate

PART III : Some observations on the Gujrat Lokayukta controversy

1. The Gujrat Lokayukta Act, 1986 provided for one Lokayukta who was to be appointed by one dignitary after consultations with two others. It took eight years from 2003 to select one person and soon thereafter the matter landed up in Court. What would possibly happen with the Central Lokpal where nine members are to be selected with 50% reservations and reservations within reservations? And when these nine members are to be selected by a panel of five dignitaries? And what if the Central Model is required to be adopted throughout the country in all the States? Would the institutions under the Lokpal & Lokayukta Bill, 2011, which is supposed to be a panacea for all evils in our country, ever be set up (assuming of course the Bill is passed someday)?
2. Who is responsible for the State of Gujrat not having a Lokayukta for eight years despite having a law in place? Should the Bharatiya Janta Party not own up the moral responsibility, if not the actual responsibility?
3. Wasn’t Shri Narendra Modi adamant on having a candidate of his choice? Did not this attitude significantly contribute, if not solely contribute, to the delay in the process of appointment?
4. Wasn’t Shri Narendra Modi being unreasonable in opposing the appointment of Justice (Retd) R A Mehta solely on the ground that he had been critical of the functioning of the State Government in the past?  Does his being critical of the functioning of the State Government in the past have any bearing on his objectivity, independence, integrity and competence in respect of a corruption case coming before him in future?
5. Doesn’t the ground of objection taken by Shri Narendra Modi tantamount to saying that only a person who is favourably disposed towards the Government is fit and proper for being appointed as a Lokayukta? Is it not inconsistent with the basic philosophy of a Lokpal / Lokayukta?
6. Did not Shri Narendra Modi needlessly create a controversy over the candidature of Justice (Retd) R A Mehta after the Chief Justice of Gujrat High Court had considered his objections and cleared the name?
7. Did not Shri Narendra Modi attempt to do a Smt Indira Gandhi by seeking to bring an Ordinance at the last minute to remove the Chief Justice from the consultation process? (One may recall that during Emergency, the election of Smt Indira Gandhi was set aside by the Allahabad High Court for indulging in corrupt election practices. The same was challenged before the Supreme Court and the matter was to come up for final hearing on August 10, 1978. Not to take any chances of an adverse order, Smt Gandhi introduced a Constitutional Amendment which provided that the election to the office of the Prime minister could not be challenged in any Court. The same was introduced in Lok Sabha on August 7 and passed on the same day. On the next day i.e. on August 8, it was passed in the Rajya Sabha. On the next day i.e. on August 9, it was ratified by the requisite number of State Assemblies and thereby came into force one day before the matter was to be heard by the Supreme Court on August 10 rendering the hearing infructuous).
8. How does the Bhartiya Janta Party, which has raised the pitch for a “strong” Lokpal Bill at the Centre view this Ordinance act of Shri Narendra Modi? What are the views of Shri Lal Krishna Advani, one of the strongest critics of the Emergency?
9. How much of what the Bharatiya Janata Party has been speaking on the Lokpal issue, both inside and outside the Parliament, consistent with what Shri Narendra Modi did in Gujrat?
10. During the Parliamentary debate on December 29, 2012, Shri Arun Jaitley made a strong speech where he raised a strong grievance about the composition of the Selection Committee being tilted towards the Government. He complained that three out of five members were from the Government side namely the Prime Minister, the Speaker and the nominee of the President. And their own Chief Minister sought to bring an Ordinance to amend the law at the last minute and make the Chief Minister the Chairman of the Selection Committee when the law did not even provide for consultation with the Chief Minister and remove a person of the stature of a Chief Justice of the High Court from the selection process.  And the Ordinance provided that the Selection Committee would have five members out of which three namely the Chief Minister, the Speaker and the Law Minister were invariably from the Government. Is it not double standards, to say the least?
11. While the Supreme Court will now decide whether it was proper for the Governor to use his discretion under Article 163 to make the appointment dehors the advice of the Council of Ministers, did this controversy have anything whatsoever to do with “Federalism”? Or was it solely a case of establishing the authority of the Chief Minister and supremacy of his choice and opinion?
12. Was it then proper for the Bharatiya  Janta Party to make a public statement that the Judgment of the Gujrat High Court was a “setback” for “Federalism”?  Did it not give an impression to the general public, who do not have full information at their disposal, that the Gujrat High Court had deliberately supported some grossly unconstitutional act of the Governor?  It is pertinent to note that the statement was made by none other than Shri Arun Jaitley, a very senior and respected lawyer.

Anirban Roy

January 23, 2012

Email : anirban@royslawfirm.com

Twitter: @AnirbanFromRLF

Facebook : Anirban FromRlf