The churlish behaviour of the Gujarat government, which forced the Governor-appointed Lokayukta, Justice RA Mehta, to resign this week, does nothing to burnish the good governance credentials of the state’s Chief Minister. For a government which claims to be free of the taint of corruption, the appointment of a clean judge to the office of Lokayukta should have been seen as a useful ally in the fight against sleaze. It’s a pity the government did not.
To be sure, the Gujarat government has always maintained that Justice Mehta had an anti-government "bias" - a charge Mehta strongly refuted in his letter of resignation.
He wrote: "The present controversy has denigrated the office of the Lokayukta and adversely affected its credibility. The appointment has lost all grace and dignity....Some think that if a person is not pro-government he is necessarily anti-government. They cannot accept that there is a third category, neither pro- nor anti-, but independent and neutral." (Read full text of his resignation letter here).
He’s right, but he is not pointing another finger at the larger villains in the piece. If the charge of anti-government bias against him is untenable, he could also have mentioned how the process of his selection too was vitiated by political skullduggery. If the Gujarat government did not cover itself with glory by making Justice Mehta's functioning difficult from the start, surely a large share of the blame must be laid at the doors of other players in this not-so-innocent game.
Justice Mehta's prime reason for withdrawing from the post (“controversy”), is, in fact, an indirect indictment of the way he got appointed through the machinations of Congress-appointed Governor Kamla Beniwal and the Congress leader of the opposition. What effectively happened in the appointment of the Lokayukta was that the elected Chief Minister ended up having no say at all in this matter. It is one thing to say that CMs should not be entitled to appoint toothless lackeys as Lokayuktas, quite another to effectively deny an elected government any say whatsoever in the appointment.
Giving him no say meant allowing his political rivals to appoint his judge and prosecutor.
The brief history of the Lokayukta's appointment runs thus: When the last Lokayukta resigned in 2003, nothing was done for three years. In 2006, Narendra Modi and the then Gujarat High Court Chief Justice approved the name of KR Vyas as Lokayukta. Here’s where the Congress-appointed Governor Naval Kishore Sharma, started playing his tricks. He did nothing for a year; meanwhile, the neighbouring Congress-ruled state of Maharashtra offered KR Vyas the job of Chairman of the Maharashtra Human Rights Commission. Two years later, Sharma sent the file back saying Vyas was not available. How convenient. In 2009, Kamla Beniwal was appointed Governor and started playing her own games. (For a full chronological account of the whole saga, read here).
Beniwal asked the newly-named Gujarat High Court Chief Justice SJ Mukhopadhyay to suggest a panel of names for the Lokayukta, when this was not her call. The Supreme Court confirmed that calling for names was not her job. The CM then got Justice Mukhopadhyay to send four names, which he did. The CM tried to get the leader of the opposition on board, but the latter declined and said the Governor was on the job. The Gujarat cabinet then chose Justice JR Vora for the job, but Beniwal, sent another note to the Gujarat High Court Chief Justice asking for his choice between two names: Justice RP Dholakia and JR Vora. The Chief Justice chose Justice Dholakia, but Beniwal did not accept his name.
In December 2010, on a further letter from Beniwal, the Chief Justice named Justice SD Dave for Lokayukta. Two months later, the CM wrote to the Chief Justice asking him to okay Justice Vora’s name since he was now willing to take up the job, but the Chief Justice offered Justice RA Mehta as his choice. Beniwal lost no time in naming him without reference to the state cabinet.
In this whole episode, three things are clear.
First, the elected government and the Chief Minister effectively had no say in the appointment of Justice RA Mehta as Lokayukta.
Second, the three people who effectively appointed the Lokayukata were the Gujarat High Court Chief Justice SJ Mukhopadhyay, who sent the name to the Governor, the leader of the opposition and the Governor. No choice of the CM was even considered.
Third, the Governor exceeded her brief by keeping the elected government out of the loop altogether in the appointment of the Lokayukta.
The Lokayukta is a creation of the Gujarat legislature, but it ultimately had no say in his appointment. If this is not covert subversion of the mandate of the legislature, the council of ministers and the executive, what is?
It is worth recalling how constitutional posts are decided. The Comptroller and Auditor General is decided by the Central government. The Central Vigilance Commissioner (CVC) is decided by a panel of three people, two representing the government and one the leader of opposition. The government thus has the edge. The CBI chief is largely nominated by the government.
The Lokayukta is, of course, different. It is a creature of the legislature. The Supreme Court, curiously, upheld the appointment of Justice RA Mehta as Gujarat Lokayukta even while rapping Governor Beniwal on the knuckles for exceeding her constitutional role. Now, if she did wrong, how did the appointment of Justice Mehta pass muster?
The Supreme Court bench clearly said that Beniwal had “misjudged her role and has insisted that under the Lokayukta Act, the Council of Ministers has no role to play in the appointment of the Lokayukta and she could, therefore, fill it in consultation with the Chief Justice of the High Court and the Leader of the Opposition. Such an attitude is not in conformity or in consonance with the democratic set-up of government envisaged in our Constitution.”
The bench said: “The appointment of the Lokayukta can be made by the Governor, as head of the State, only with the aid and advice of the Council of Ministers, and not independently as a statutory authority.” (Italics mine)
When the process is vitiated, can the appointment itself stand? When Beniwal did not have the consent of the Gujarat cabinet for appointing Justice RA Mehta, how can her decision to over-ride its role be valid? Why did Justice Mehta not see this as a problem when he was appointed?
In the case of the appointment of CVC PJ Thomas, whose appointment the Leader of the Opposition was opposed to, the Supreme Court struck it down because the process was vitiated by non-transparency on the part of the government. Clearly, even the Supreme Court did not see the contradiction in its own stand when it came to the appointment of the Gujarat Lokayukta.
Given this context, Justice Mehta is right to resign, though this is no reason for the state government to celebrate. Justice Mehta cannot also be let off without a comment. He resigned because he did not want to be tainted by controversy, but surely, given the background, did he have any doubt that his appointment was the handiwork of a vitiated process in which the Governor was a key player? He should have declined the job at the outset.