By creating a four-member Lokayukta, Narendra Modi has defeated the machinations of the Congress-dominated UPA to use the office of Governor and Chief Justice of the High Court to appoint a Lokayukta known for ideological bias against the Chief Minister. The Congress, in fact, has suffered a long-term defeat because other States, at least the non-Congress ones, are sure to follow the ‘Gujarat model’ and ensure that the Centre does not abuse the office of Governor to impose pliant retired judges as Lokayukta to politically harass their regimes.
Now, the new Lokayukta Commission will include two judicial and two administrative members. To function effectively, the members will have to forge a consensus on all issues. It has to be seen if retired judge RA Mehta will wish to join this enlarged body.
This is payback, Narendra Modi style, ironically inspired by the Congress! When the then Chief Election Commissioner TN Seshan began enforcing rules to make elections fair and free from undue use of money or muscle power or bogus voting, the Congress Government sought to tame him by adding two Election Commissioners to the Commission and forcing Seshan to take decisions unanimously. That the Election Commission went from strength to strength is another story.
Governor Kamla Beniwal had, in consultation with the Chief Justice of the Gujarat High Court, appointed retired judge RA Mehta as Lokayukta in 2011, without the concurrence of the State Government, which claimed that Mehta was biased against it. The appointment was contested, but in January 2013, the Supreme Court upheld the appointment, even though it pointed out that in the constitutional scheme of things, the Governor and President have to act on the advice of the State or Central Government respectively.
Gujarat has been without a Lokayukta since Suresh Soni retired in 2003. After sitting pretty for three years, the State Government became active in 2006, but until 2009, the then Governor Nawal Kishore Sharma sat on the file. In 2009, Beniwal became Governor, and thereafter the Congress tried to ensure an appointee of its choice and frustrated the Chief Minister’s attempts to build consensus on a candidate. The Leader of the Opposition, Shakti Sinh Gohil, failed to attend meetings called for the issue, and when the Chief Justice agreed that former chief justice Kshitij Vyas was a good candidate for the post, the Congress quickly appointed him as head of the Maharashtra Human Rights Commission because he was seen as independent and unbiased.
BJP circles believe that the Congress wanted a Lokayukta who could ‘fix’ the Modi government in a major corruption scandal. It found legal loopholes in the extant Gujarat Lokayukta Act, 1986, which allowed the Governor to appoint the Lokayukta in consultation with the Chief Justice and the Leader of Opposition. They selected Mehta, overriding the regime’s objections against his pronounced leftist bias and antipathy towards it.
Mehta made no secret of his ideological affiliations. In 2010, he served as an informal judge at an informal court organised by an NGO in Ahmedabad to highlight the Gujarat Government’s injustice to Muslim victims of the 2002 riots. Further, in the wake of Hindu-Christian clashes in Kandhamal, Odisha, after the murder of Swami Laxmanananda, he joined a fact-finding mission of leftists to “expose the role of the RSS and its sister organisations in fomenting the riots”. Mehta is known to be close to Shankar Sinh Vaghela, and reportedly helped him scuttle an income tax enquiry into the funding of the Khajuraho episode when the BJP state unit split in 1997.
The new Gujarat Lokayukta Aayog Bill, 2013, has nixed the role of the Governor and the Chief Justice of the High Court in appointing the ombudsman. Instead, there will be a seven-member selection panel headed by the Chief Minister, which will recommend the candidate for Lokayukta and the Governor’s role shall be confined to ratifying the candidate. The panel will include a minister nominated by the Chief Minister, the Speaker, the Leader of the Opposition, a High Court judge nominated by the Chief Justice (after consulting five senior High Court judges), and the State Vigilance Commissioner.
The new Act proposes to bring the entire government machinery, including Chief Minister and council of Ministers, councillors, and elected representatives of all local bodies, within its purview. Complaints are to be looked into within six months, and recommendations submitted to the chief minister.
The new legislation has been criticized on the ground that the Lokayukta will need the government’s permission before acting on a complaint, and its report will not be binding on the government. Frivolous complaints can be punished with fines of Rs. 2000 to Rs. 25,000 and perhaps six months in jail.
The Supreme Court’s verdict upholding the appointment of Mehta was viewed by many constitutional experts as having created an imbalance in the constitutional separation of powers, and an infringement in the powers of the elected government. Gujarat’s new Act ensures that an elected State Government cannot be bypassed in the appointment of a Lokayukta, and that neither the Judiciary nor the Governor (both unelected posts) can henceforth eliminate the role of the elected representatives and the elected government.
NitiCentral, 5 April 2013
http://www.niticentral.com/2013/04/05/modis-multi-member-lokayukta-payback-62312.html