While the BJP is making this demand, the Congress is saying the matter is sub judice.
For almost an entire week Parliament has been disrupted several times a day with the Bharatiya Janata Party determined to raise the issue of the appointment of a Lokayukta in Gujarat and the government turning a deaf ear to its slogan chanting.
What is it that the BJP wants? And what can the Centre do under the law, even if one presumes it wants to intervene? Can the warrant issued by the Governor on the appointment of Justice R.A. Mehta as the Gujarat Lokayukta be withdrawn?
There is a strong view that the Lokayukta's appointment — the process is complete, barring the taking of the oath of office by Justice Mehta — cannot be annulled unless the courts find the process of appointment to be vitiated, as happened in the case of the former Central Vigilance Commissioner, P.J. Thomas. The Supreme Court held that the appointment of the CVC was non est in law; that is, the appointment did not exist as the process was vitiated.
The Gujarat State government has already petitioned the Gujarat High Court where the matter is to come up on Wednesday. The BJP's argument, as also that of the State government, is that Governor Kamla Beniwal's action was bad in law in that she had failed to consult or get the approval of the Chief Minister before issuing the warrant and notifying the appointment on August 26.
Party leaders, including Sushma Swaraj and Arun Jaitley, have argued that the Governor could have acted only on the aid and advice of the State government as mandated by Article 163 of the Constitution.
But the Opposition clearly does not want to await the outcome in the High Court. In a memorandum to the President on September 2, the BJP demanded the Governor “cancel the appointment” of the Lokayukta. In Parliament, vociferous BJP MPs have said the Centre should recall the Governor.
Strangely, while the BJP has accused the Congress of having “used” the Governor to foist a Lokayukta on Gujarat — although the name of Justice Mehta came from the Chief Justice of the Gujarat High Court and was then approved by the Governor — it now wants the Centre to give marching orders to the Governor or direct her to cancel the appointment. In short, treat the gubernatorial office as a political tool of the Centre.
In this high-decibel political dispute, the Congress has been saying only one thing: the matter is sub judice and the BJP should await a judicial decision.
But to take the BJP's demand, can the Governor, even if she so wished, arbitrarily cancel the appointment made by her just 12 days ago? If it is bad in law and violates the Constitution, then the High Court will necessarily quash the Governor's order, but can the Governor do anything? Can the Centre “direct” the Governor to take back her warrant for appointment of a Lokayukta?
The Lokayukta's is a quasi-judicial office and the Act states very clearly “the Lokayukta may by writing under his hand addressed to the Governor resign his office” or he may be removed in a manner specified by section 6 of the Act.
Section 6 states: “ The Lokayukta should not be removed from his office except by an order made by the Governor on the ground of proven misbehaviour or incapacity” after an inquiry by the Chief Justice of the High Court or a judge nominated to hold the inquiry by the Chief Justice of the High Court.
Mukul Sinha, whose petition on behalf of Jan Sangharsh Manch, is also before the Gujarat High Court, was of the view that the appointment of the Lokayukta “cannot now be cancelled by the Governor”. Of course, it can be “struck down by the court” if the appointment process is proven to be vitiated. “It is one-way traffic as in the case of judicial and many other quasi-judicial appointments. Removal or cancellation can only be through the procedure laid down in the related statute.”
Justice Mehta was the Acting Chief Justice of the Gujarat High Court from 1995 to 1996 and he was a judge of that court from 1976 to 1988. Mr. Sinha said it was unbecoming of the Gujarat State government to make all sorts of allegations against the judge.