The Supreme Court’s verdict upholding the appointment of Justice (Retd) RA Mehta’s appointment as Gujarat Lokayukta is a setback to Narendra Modi. The order comes less than a week after he took over as Chief Minister for the fourth time, after a thumping victory at the polls.
Though the legal battle was fought in the Supreme Court, the issue had gained a larger political dimension as underlying it all was the long-standing fight between Governor Kamla Beniwal and Modi. If Congress and civil rights activists went into an instant celebration mode, BJP leaders chose to stay mum. The leadership is yet to take a view on the matter - officially, that is.
The BJP is unhappy with the judgment and its leaders are privately raising several question-marks about the implications it may have for federalism. But the party will take its time to respond and may consider seeking a larger bench to review the verdict. In the meanwhile, since a clear direction has been given by the bench of Justice BS Chauhan and FM Ibrahim Kalifulla, the Gujarat government would be bound to issue a notification for the appointment of a Lokayukta.
After the verdict came in the morning, Lokayukta-designate Justice RA Mehta chose not to comment on the issue but said everyone, including the state government, wanted to have a Lokayukta. Congress leaders, ranging from party spokesperson Rashid Alvi, to Information and Broadcasting Minister Manish Tewari and Gujarat Congress chief Arjun Modwadia, took the opportunity to blast Modi and the BJP for “double-speak”. Known civil right activists joined in. They asserted that Gujarat under Modi was a corrupt state. The politics around this verdict is bound to heat up further in the days to come.
The Supreme Court upheld Governor Kamla Beniwal’s 26 August 2011 decision to appoint Mehta in consultation with the Gujarat High Court Chief Justice, but the court also maintained that the Governor was bound to act with the aid and advice of the council of ministers. The Supreme Court also expunged some adverse observations made against Modi and his government by the high court.
The Modi government's complaint against the appointment was based mainly on two grounds: that the Governor, in a federal structure, could not act independently of an elected state government. And secondly, Justice Mehta was deeply prejudiced against the Modi government and thus could not discharge his duties as Lokayukta impartially. That had formed the ground for top BJP leaders to seek the recall of Governor Beniwal. Among others, LK Advani had petitioned the then President Pratibha Patil seeking a recall of Beniwal and the annulment of Mehta’s appointment.
“The state government informed the Chief Justice of its inability to accept the name of Justice Mehta for appointment as Lokayukta mainly because his prejudice against the state government stood demonstrated by his active participation in the campaigns since his retirement as a judge”, the BJP’s petition to the President had said.
“Obviously, the Chief Justice of the Gujarat High Court ought never to have recommended a person with manifest prejudice against the incumbent government to function as Lokayukta, a position which warrants fairness and impartiality as the pre-requisite for eligibility. In any case, the Chief Justice is not entitled to recommend a name without the state government initiating the process, nor the Governor can exercise the power of appointing a Lokayukta without the aid and advice of the council of ministers. This exercise of power by the Governor is a gross violation of the constitutional provisions and as the facts outlined hereinafter would clearly demonstrate, has caused an irreparable damage to the federal polity of this country", the petition further said.
While the Congress had been accusing Modi of allowing the state to remain without a Lokayukta since 2003, the BJP counter-claimed that its attempts to take the Leader of the Opposition in the state assembly on board failed on a number of occasions.
Gujarat BJP leaders say that the state government, in consultation with the Chief justice and the Leader of the Opposition, had in 2006 advised the Governor to appoint Justice Kshitij R Vyas as Lokayukta. The Governor returned the file in 2009 seeking an alternate name. Justice Vyas, in the meanwhile, was appointed as Chairman, Human Rights Commission of Maharashtra.
The Gujarat government’s process of consultation was left in the lurch when Opposition leader Shakti Sinh Gohil chose, on five occasions, not to participate in meetings called to finalise the names of one of the four judges recommended by the high court. He finally informed the state government in March 2010 that he would give his opinion to the Governor and not to Modi.
Amongst the names recommended by the Chief Justice of the Gujarat High Court, the state government recommended the appointment of Justice (Retd) JR Vohra as Lokayukta to the Governor. The Governor returned the file on the ground that the Chief Justice had sent a panel of names from amongst which the state government selected one name. The Governor insisted that the Chief Justice should send only one name. Justice Vohra, meanwhile, was appointed as Chairman of the Judicial Academy in Gujarat.
In June 2011, the Chief Justice of the Gujarat High Court suo motu recommended the name of Justice (Retd) RA Mehta to the Chief Minister. The Governor notified the appointment on 26 August 2011.
At the root of it all was Section 3(1) of the Gujarat Lokayukta Act, which said the Governor can appoint a Lokayukta in consultation with the Chief Justice of the High Court and in consultation with the Leader of Opposition of the State Assembly. The court obviously did not agree with the Modi government’s interpretation of this clause that the intention of the law was not to exclude the Chief Minister of the state.
Less than a fortnight back, Modi had a thumping win in the elections, but the Congress is relishing Modi’s embarrassment and is hoping the Lokayukta will help skeletons to tumble out of the Modi closet.