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 Can the warrant issued by the Governor on the appointment of Justice R.A. Mehta as the Gujarat Lokayukta be withdrawn?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.
Keywords: Gujarat Lokayukta, Parliament Session, Gujarat High Court
The problem arises when the Governor or the Lokayukta become tools of the political parties in their power games, not bwhen people are honest.
The allegation that Gov. acted at behest of centre, even if true, what is wrong with the appointment, if it meets the Gujarat Lokayukta Act, which does not provide for LokAyukta to be from CM's recommendation only. Narendra Modi must have amended the Act in the seven and half years if he wanted his way. Then he can have a LokAyukta who will be his puppet.Which is exactly what Anna Hazare's movement for LokPal and LokAyukta wants to avoid!.Having the government in power,least control in the selection of the appointee. Every CM not only Narendra Modi if he/she were to come under scrutiny by LokAyukta, would want a puppet only as LokAyukta.
If the Governer made a mistake he or she can correct the mistake. It is the elected government at the Federal or State that is supreme.Governers are political tools in the hands of the Central Government.
Let me ask you, what is the difference between the Mr. Anna Hazare’s movement that the Bharatia Janata Party (according to Mr. Gadkari’s own words, “whole-heartedly supports) and what is currently happening regarding the appointment of the Lokayukta in Gujarat? Let me point as glaring similarity. The Mr. Anna Hazare has subverted established institutions and procedures of the constitution in order to try and achieve his objectives. What is his justification? The government’s inaction for the past six decades with corruption. What has the governor done here? Subverted the constitution, why? due to the inaction of the government for the past seven years, with regard to the appointment of a Lokayukta.
The author has not given the answer to the question asked. But the right thing is that governor should not have appointed a lokayukta, not accepted to the state government. The governor by laid down conventions has to concur with the advice of the council of ministers of the state. The real head is the CM and the council of ministers. Barring some situations like appointment of CM, inviting parties to form a government, reserving bills for the president, the governor should not act on its own. The author has also tried to mislead the general population by wrongly interpreting the sections of the Lokayukta Act.
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