Around the time that the JanLokpal Movement led by Team Anna was at its peak, controversy over the appointment of the Lokayukta of the state of Gujarat blew up and became the talking point of the nation. Much public angst was sought to be and continues to be directed against the state government of the day. Rather than typecasting it is a typical “people versus government” battle, the issue needs to be examined in light of the complex Constitutional questions it raised.

This article seeks to set the record straight on the facts and the legal debate surrounding the controversy.

The crux of the controversy

Statutory scheme for appointment of State Lokayukta

The crux of the controversy is the interpretation of S.3 of the Gujarat Lokayukta Act, 1986, Clause (1) of which reads as follows:

“Section 3:  Appointment of Lokayukta

(1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta:

Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of Opposition in the Legislative Assembly, or if there be no such Leader, a person elected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct.”

It can be seen from the above that consultation is envisaged with two functionaries viz. the Chief Justice of the High Court and, except in the case of dissolution of the Assembly by way of an Emergency, the Leader of Opposition. Notably, the section does not provide that any consultation has to be made with the Chief Minister. However, the Chief Minister is the Head of the Council of Ministers. Article 163 of the Constitution of India provides that the Council of Ministers is to aid and advice the Governor in the exercise of all his functions, with some exceptions. Therefore, the Chief Minister as the Head of the Council of Ministers automatically figures in the matter of appointment of Lokayukta under section 3 of the Act.

Facts surrounding the appointment of Lokayukta

Perhaps the most popular misconception regarding this is issue is that the Gujarat government did not appoint a Lokayukta or takes steps for such appointment for all of seven years. The last Lokayukta was relinquished the office 24.11.2003 and admittedly, no steps were taken to fill the vacancy till 6.8.2006. However, the process of appointment of Lokayukta was initiated by the Chief Minister, i.e. Narendra Modi, himself on 7.8.2006 by writing to the Chief Justice of the Gujarat High Court. From that date till 26.11.2011 (which is the date when the Governor of Gujarat issued the impugned warrant of appointment appointing Justice (Retd.) R. A. Mehta as Lokayukta), the consultation and appointment process has been hit by complex and irresolvable legal/Constitutional issues. In fact, consultation process with respect to other prospective names had been completed on two prior occasions but no appointment was forthcoming from the Governor.

A brief chronology of events is as follows:

  • The Chief Minister first proposed the name of Justice (Retd.) Kshitij R.Vyas, and this was consented to by the then Chief Justice. However, the Governor had some reservations about the procedure for arriving at a consensus on the proposed appointment. The issue of soliciting consultation with the Opposition Leader was also raised. The law and conventions were examined, including those in other states. Legal opinion was sought. Approximately two years were spent in this exercise. Meanwhile, Shri Vyas was appointed as the Chariman, Human Rights Commission of Maharashtra State. Thereafter, a debate ensued on whether he was eligible for appointment as Lokayukta of Gujarat under the relevant provisions of the Gujarat Lokayukta Act, 1986 read with provisions of Protection of Human Rights Act, 1993. The Governor was convinced that Shri Vyas was not eligible for further appointment and that fresh proposals for appointment ought to be made. The Government, on the other hand, cited reasons supporting the eligibility of Shri Vyas and requested for a reconsideration of the Governor’s decision. The Governor, however, finally disapproved the proposed appointment of Shri Vyas.
  • Thereafter, the Chief Minister requested the Chief Justice to suggest a panel of three retired Judges of the High Court of Gujarat for consideration for appointment as Lokayukta, on receipt of which, the formal procedure for appointment as stipulated in the Act would be undertaken afresh. The Chief Justice proposed four names: 1. Mr. Justice Pravinsingh Motisinh Chauhan 2. Mr. Justice Babulal Chandulal Patel 3. Mr. Justice Ramesh Prabhudas Dholakia 4. Mr. Justice Jayprakash Ramakant Vora (in no order of preference)
  • The Chief Minister then requested the Leader of Opposition to participate in the process of consultation for appointment of Lokayukta. However, the latter raised an objection that under the provisions of the Gujarat Lokayukta Act, there is no scope for consultation with the Chief Minister of the State either by the Governor or by the leader of opposition. Around the same time, the Governor also communicated to the Chief Minister that she had initiated the process of consultation and pursuant thereto, consultation with the Leader of Opposition had already been held. She further stated that the Chief Minister could not hold consultation with the Leader of Opposition as such a process was not envisaged under the Act. Nevertheless, the Chief Minister again requested the Leader of Opposition to attend a meeting for consultation process. The latter declined to participate and requested the Chief Minister to terminate the process of consultation forthwith as the Governor had already held the necessary consultation.
  • The Chief Minister then privately met the Governor to discuss the above contentious issue. Thereafter, he again sought the presence of the Leader of Opposition in a meeting for the purpose of consultation. The Leader of Opposition declined and reiterated his previous stand. The proposed meeting was held in his absence.
  • In the said meeting, the name of Justice (Retd.) Jayprakash Ramakant Vora (one of the four names recommended by the Chief justice earlier) was proposed for appointment as Lokayukta. The said candidature was approved by the Council of Ministers and the file containing the recommendation was sent to the Governor for appointment.
  • The Governor wrote to the Chief justice soliciting his expert opinion as to who was a better choice for appointment to the post of Lokayukta – Justice (Retired) Vora (the name recommended by the Council of Ministers) or Justice Dholakia (one of the four names recommended by the Chief Justice earlier). The Chief Justice replied endorsing the name of Justice (Retired) R.P. Dholakia.
  • Meanwhile, the Governor had made a reference to the Attorney General for India seeking his expert legal opinion on the subject of the correctness of the nature of process of consultation to be adopted in such cases. According to the legal opinion received, the Chief Justice was considered the most suitable person to know about the suitability of the person to be appointed as the Lokayukta and once a name was proposed by the Chief Justice, it was binding to the Government. The Council of Ministers has to forward the same to the Governor for appointment. It was also observed that sending a panel of four names by the Chief Justice in this case is not in accordance with the law as laid down by the courts. Accordingly, in light of the opinion received, the Governor then referred the whole matter back to the Chief justice, requesting him to recommend only one suitable name for consideration by the Government. Simultaneously, the Governor conveyed this to the Chief Minister as well and returned the file recommending Justice Vora’s name for appointment.
  • Meanwhile, Justice Vora was appointed as the Director, Legal Workshop and Training, Gujarat State Judicial Academy by the High Court of Gujarat for a period of three years and his name could no longer be considered. In this background, the Chief Justice recommended the name of Justice (Retd.) S. D. Dave for appointment to the post.
  • The Governor then requested the Chief Minster to process the matter expeditiously at the Government level and send a formal recommendation to her of the name proposed by the Chief Justice for the appointment to the post.
  • The Chief Minister then addressed a letter to the Chief Justice raising a concern that since the entire procedure for the appointment of Shri Vora as Lokayukta has been gone through; it will be in the public interest if Justice Vora is consulted on his continued willingness to be considered for the post of Lokayukta. The reason given was that the entire process of consultation, etc. for a new name may not have to be gone through afresh, as per Section 3 of the Gujarat Lokayukta Act, 1986 and this would ensure speedy filling up of the vacancy of post of Lokayukta. The Chief Justice, however, reiterated his request to consider the name of Justice (Retd.) S.D. Dave for appointment to the post of Lokayukta and to take up the matter with the Governor and Opposition leader.
  • Soon thereafter, Justice (Retd.) S. D. Dave requested the Governor to recall his nomination on the ground of his personal difficulties.
  • Consequently, the Chief Minister once again requested the Chief Justice to consider the name of Justice (Retd.) J.R.Vora who, when consulted had expressed his willingness to be considered for the said post. The Chief Minister indicated that as the consultation process concerning his name had already been gone through, it would help expedite the process of appointment.
  • The Chief Justice, however, expressed inability in considering Justice Vora’s name and instead, recommended the name of Justice (Retd.) R.A. Mehta as being suitable for appointment to the post.
  • The Governor, having received the proposal from the Chief justice, requested the State Government to make a formal recommendation of the suggested name for appointment.
  • Thereafter, the Chief Minister wrote to the Chief Justice raising certain objections about the recommendation of Justice (Retd.) R.A. Mehta. One was that he had crossed the age of 75 years and may not be suitable for the arduous duties of Loayukta. Second concern was his apparent association with certain NGOs and social activist groups and fora which put him at the risk of having a pre-disposed frame of mind as regards the State government. The Chief Justice responded by saying that there was nothing on record which would make Shri Mehta ineligible for the post of Lokayukta.
  • Meanwhile, the Governor sent further reminders to the State Government to expeditiously send a formal recommendation to her as regards Shri Mehta’s name for appointment. The Leader of Opposition also conveyed to the Chief Minister that he had already given his consent to the Governor on the recommendation of name of Shri Mehta.
  • The Chief Minister, on 18.82011, once again, addressed a letter to the Chief Justice raising several issues with respect to the recommendation of Justice (Retired) R.A.Mehta for the post of Lokayukta. In the said letter, the Chief Minister indicated and cited instances which, according to him, displayed a certain pre-judged bias on part of Shri R.A. Mehta against the present administration. The Chief Minister further stated that the recommendation of Justice (Retired) R.A. Mehta was not acceptable and that a name of another recently retired judge may be recommended. The contents of the above letter dated 18.8.2011 are worth reproducing in full:

“Kindly refer to your confidential d.o. letter dated 2nd August, 2011 wherein you have again recommended the name of Hon’ble Mr. Justice (Retired) R.A. Mehta for appointment as Lokayukta, Gujarat State.While there cannot be any question of “ineligibility” of a person for appointment to the post of Lokayukta, Gujarat State merely because of his association with one or more NGOs, nor can it be said that a person who is working for a social cause after retirement would be “disqualified” for appointment to the post of Lokayukta. But the question in the case of Hon’ble Mr. Justice (Retired) R.A. Mehta is of his evident preconceived notion of bias against the present political dispensation. I am not making this statement without any basis. You may like to peruse some of the utterances of Hon’ble Mr. Justice (Retired) R.A. Mehta in different public fora:-

  • “The marooning of Surat city and district and other areas of Gujarat could have been averted if the release of Narmada water from Ukai dam had been started 36-42 hours earlier with a nationalised flow rather than releasing 9 lakh cusecs of water from August 7 that was increased to 11 lakh cusecs within 24 hours.”

“The wrong policies of the Gujarat Government to fill the dam to its maximum capacity in attempt to avoid shortage of drinking and irrigation waters had caused the floods.”

(People’s Committee on Gujarat Flood2-2006 – A fact-finding Committee set up by two NGOs concluded that the flood was a man-made disaster. The PCGF was headed by Shri R.A. Mehta)

(It may be noted that Shri R.A. Mehta had pre-judged the issue without even verifying the facts. Later on, the Commission headed by Hon. Ms. Justice (Retired) Sugnaben Bhatt came out with different findings in the Report dated 7.7.2008.)

(Source : oneindia.in 10th July, 2007 – copy enclosed)

  • In March 2002, Shri R.A. Mehta had called on the Chairperson of the NHRC and given an assessment of the situation highlighting the prevailing sense of insecurity in the community in general and the minority community in particular.

(Source : NHRC Report, http.WWW.NHIC.IN)

  • You may also recall that Jan Sangharsh Munch had suggested the name of Hon’ble Mr. Justice (Retired) R.A. Mehta for Inquiry Commission headed by Hon’ble Mr. Justice Nanavati, after Hon’ble Mr. Justice K.G. Shah, passed away. This is an indirect testimony of the fact that Hon’ble Mr. Justice (Retired) R.A. Mehta’s acceptability with the detractors of the State Government is very high.
  • “What we witnessed today must be just a glimpse of the condition of internal displacement in Gujarat due to shameful 2002 violence. We as a panel collectively say that there can be no denial that these people have been internally displaced as a direct result of the communal riots of 2002. The position taken by the State Government that all affected people were rehabilitated is clearly not borne out. And this public hearing is proof that the State Government has not fulfilled its responsibility. For five years the rights of these internally displaced people have been denied to them.”

(Shri R.A. Mehta was one of the panelists of Antarik Visthapit Hak Raksha Samiti which held public hearing in February, 2007)

(Source : expressindia.com – copy enclosed)

  • “After hearing the jury concluded that the depositions and related stories suggest gross cover up and the spreading of a myth that there is no fear amongst the minority community in Gujarat and that the dark nights of 2002 should be forgotten as a nightmare. There is an intense, almost universal, sentiment of fear and growing despair among Muslims in the State.”

(Shri R.A. Mehta was a Jury Member for Anhad and Centre for Social Justice which held public hearing on 22nd February, 2011)

(Source : daily.bhaskar.com – copy enclosed)

  • “There is an intense, almost universal sentiment of fear and growing despair among Muslim citizens of Gujarat”

(Shri R.A. Mehta was a Jury Member at the public hearing “Tracing Lives of Muslims in Gujarat Post – 2002 – organized jointly in Ahmedabad by several Human Rights Associations)

(Source : IMO admin Communalism, Indian State, 17th March, 2011 – copy enclosed)

It can be seen from the above that the question is not of Shri R.A. Mehta maintaining high standards in the society, or of not having made any public statement which is detrimental to the society, but the question is of his preconceived opinion and strong prejudiced mindset against the present political dispensation in the State. While he may be technically eligible for being considered for appointment as Lokayukta, the moot question is whether such a person having a strong biased perspective for the Government in the State if appointed as Lokayukta, will be able to perform his duty with the high level of objectivity, judiciousness and impartiality expected of the Lokayukta. In all fairness, the answer to this question will be in the negative. Although, I have no personal reservation against the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, but as the Head of the State Government, I am afraid, I may not be able to accept the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, who, in my view, cannot be considered the most suitable choice for the august post of Lokayukta, Gujarat State.

The other important aspect of the age is also not in his favour. We need to have a relatively younger person for the office of Lokayukta, Gujarat State, as the term for the Lokayukta is of five years. Hence, it would be in the fitness of things, if you could recommend the name of a Judge who has recently retired from the service.

I am sure you will take the contents of this letter in proper perspective and in right spirit, and recommend another name for the vacant post of Lokayukta, Gujarat State.”

  • The Chief Minister simultaneously addressed a letter to the Governor refuting allegations of delay on behalf of the State Government and further pointing out that delay was owing to a number of Constitutional, legal and procedural issues raised from time to time by the different functionaries involved in the process of the appointment. The Chief Minister further pointed out that the Governor’s view that the Chief Justice must recommend a single name for the concerned Lokayukta post instead of a panel of names was misplaced as it was not being followed by any of the other States while appointing Lokayukta. Finally, it was pointed out that the State Government had raised certain specific and valid reasons for not accepting the recommended name and which had been communicated to the Chief Justice as well as the Governor and a response was awaited.
  • On 25th August, 2011, the Governor issued the impugned warrant of appointment appointing Justice (Retired) R. A. Mehta as Lokayukta of Gujarat.
  • The State government filed a writ petition in the High Court of Gujarat challenging the appointment of Justice (Retired) R.A.Mehta as Lokayukta, State of Gujarat issued the Governor of Gujarat as being without or contrary to the aid and advice of the Council of Ministers headed by the Chief Minister and therefore unconstitutional.
  • A Division Bench (2-Judge Bench) heard the matter and gave a split decision, with Justice Akil Kureshi holding the appointment to be valid and constitutional and Justice Sonia Gokani in favour of quashing the appointment. Consequently, the Chief Justice nominated a third Judge, Justice V.M. Sahai to hear and decide the matter. Justice Sahai, on 18th January, 2012 gave a judgment, concurring with Justice Akil Kureshi, and consequently the appointment of Justice (Retd.) R.A. Mehta was upheld. The State Government has filed an SLP to the Supreme Court challenging the decision of the High Court which is now hearing and adjudicating upon the matter.