Recall Governor of Gujarat immediately – BJP

Statement of Smt. Sushma Swaraj , Leader of Opposition, Lok Sabha and Shri Arun Jaitley, Leader of Opposition,Rajya Sabha on the issue of appointment of Lokayukta in Gujrat.

The Governor of Gujarat has violated the Constitution of India and its federal character. The Governor is appointed by the President on the aid and advice of the Council of ministers. In actual practice a Governor now is the nominee of the Central Government who holds the constitutional office and administers the functions assigned to the post. The Governor, except in certain functions, is bound by the aid and advice of the Council of Ministers and cannot act on his/her own.

The State of Gujarat has been without a Lokayukta for a number of years. After consulting the Leader of Opposition and after obtaining the consent of the Chief Justice of Gujarat high Court, the State in 2006 advised to the Governor to appoint Justice Kshitij R. Vyas (Retd) as Lokayukta of the State. Under section 3(1) of the Gujrat Lokayukta Act, 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 intention of the law is not to exclude the Chief Minister of the State. In accordance with Article 163, the Chief minister consults the Chief justice and the Leader of Opposition and makes recommendation to the Governor. The Governor being the Executive head of the State, appoints the Lokayukta. From 2006 to 2009 not much happened except routine correspondence between the State Government and the Governor. The political motive of the Congress party became apparent when Justice Vyas, a retired judge of Gujarat High Court was recommened by the Maharashtra Government to be appointed as the Chairman of Human Rights Commission, Maharashtra so as to enable the Governor who had held the file for three years and returned the file on 2.10.2009 to seek an alternate appointment.

Thereafter, the State Government started the process of consultation once again and on that basis recommended the names of four retired Judges to the Gujarat High Court. The State Government tried consulting the leader of opposition who abstained from consultation meetings. Accordingly, from amongst the names recommended by the Chief justice of Gujarat High Court the State Government recommended the appointment of Justice J.R. Vohra, a retired judge of Gujarat high Court as Lokayukta. Repeated attempts were made to consult the leader of Opposition but he refused to be consulted. The leader of opposition abstained from as many as five meetings. He ultimately took a view on 5/3/2010 that he will not give his opinion to the Chief minister but will speak only to the Governor. The executive role was now being assigned to the Governor rather than the Governor acting on the aid and advice of the Council of Ministers. The Governor even made efforts to hold consultation meetings directly with the Chief minister and the Leader of Opposition, something which was beyond the mandate of the Governor. Finally, the name of justice J.R. Vohra was recommended to the Governor who returned the file on the ground that the Chief Justice of the High Court had sent a panel of names from amongst which the State Government had selected one name. The Governor insisted that the Chief justice of the High Court should send only one name. The Chief Justice meanwhile appointed Justice J R Vohra as the Chairman of the Judicial Academy in Gujrat making him unavailable for LokAyukta.

There was obviously something more than what meets the eye. The Chief Justice now sent the name of Justice S.D. Dave, a retired and ageing judge. Unfortunately, Justice Dave withdrew his name and did not want to be so appointed.

On 7th June, 2011 the Chief justice of the High Court suo motto recommended a new name to the Chief Minister wanting the same to be appointed. The person recommended was Justice R.A. Mehta. The State Government had not sought the consultation of the Chief Justice on this name. The Leader of Opposition unilaterally through a statement made in the State Assembly, supported the proposal of the Chief Justice. The State Government pointed out to the Honourable Chief justice that Justice R.A. Mehta was not acceptable as Lokayukta of Gujarat on several grounds. He had since retirement been an active campaigner on various issues against the State Government. He had publicly criticized the State Government in the matter relating to the management of the Narmada project . He had petitioned to the National Human Rights Commission against the State Government in the year 2002. The Jan Sangharsh Manch, an activist group, had been suggesting the name of Justice R.A. Mehta as a judge to hold inquiry in to the riots of 2002. He had publicly spoken on functions criticizing the policy of the State Government in relation to the victims of riots of 2002 and had been actively participating and making statements. Recently he was an activist in Citizens movement in Gujarat.

Obviously, the Chief Justice of Gujarat High Court ought never to have recommended such a name. He should have only given his opinion on the name/names suggested by the State Government. Regrettably, the Governor without consulting the State Government, on 25/8/2011 has notified the appointment of Justice R.A. Mehta as Lokayukta of Gujarat.

The whole credibility of the institution of Lokayukta in the State has been eroded by such an appointment. A Lokayukta must be politically detached; he must not be a political activist. Such a name should never have been recommended in the first instance. In any case the Chief justice is not entitled to recommend a name without the State Government initiating the process. Additionally, the Governor cannot exercise the power of appointing a Lokayukta without the aid and advice of he Council of Ministers.

The entire federal polity of India stands shaken by the fact that a person who has been a political opponent of the State Government is notified for appointment as Lokayukta without the consent of the State Government. We request your Excellency to intervene in the matter and ensure that the Government of India and the Governor of Gujarat immediately comply with the constitutional requirements and undo the appointment of Justice R.A. Mehta. A Lokayukta appointed in this manner will not carry credibility besides being constitutionally incompatible.

The BJP demands that the Governor of Gujarat be recalled immediately.