Gujarat govt’s case against Governor:Detailed sequences, and objectionsAugust 30, 2011
Gujarat Governor Kamla Beniwal with Gujarat Congress President Arjun Modhwadia and leader of opposition in assembly Shaktisinh Gohil
Ahmedabad, 30 August, 2011
1. In the changed times, some constitutional authorities are throwing away the constitutional propriety to winds. As envisaged in the Constitution of India, Governor of the State is to act in accordance to the aid and advice given by the Council of Ministers. In the Constitutional democracy, executive power is vested with the Council of Ministers and Governor, who is head of the State, is constitutionally bound to always act in accordance to the advice rendered by the Council of Ministers.
2. As per provisions of the Gujarat Lokayukta Act, 1986, it is the Executive i.e. Chief Minister, who initiates the process for appointment of Lokayukta. In view of this provision, Chief Minster consult the Leader of Opposition and Chief Justice of Gujarat High Court; thereafter the proposal is placed before the Council of Ministers for approval and after such an approval is given, file is put up to H. E. the Governor for appointment of the person as Lokayukta.
3. On 7.8.2006, Chief Minister, Gujarat Shri Narendra Modi held a meeting with the Leader of Opposition (Congress), to consult him on the subject of appointment of a suitable person as Lokayukta, Gujarat State. Chief Minister had suggested the name of Justice (Retired) Shri Kshitij R. Vyas and the Leader of Opposition suggested some other names. At the end of discussions, Chief Minister asked whether the Leader of Opposition had any specific objection against the name suggested by him. The Leader of Opposition specifically mentioned that he had no objection to the name suggested by the Chief Minister but he wanted that the names suggested by him should also be taken into consideration.
4. On the very same day, i.e. 7.8.2006, a letter was sent to Chief Justice, Gujarat High Court as a part of consultation process to know his views on the name suggested by the Chief Minister for appointment as Lokayukta, Gujarat State. On 8.8.2006, Chief Justice, Gujarat High Court conveyed his consent to the name suggested by the Chief Minister for appointment as Lokayukta, Gujarat State.
5. On 10.8.2006, the file was sent to the Governor for appointment of Justice (Retired) Shri Kshitij R. Vyas as Lokayukta, Gujarat State.
6. Thereafter, on 13.9.2006, a letter was received from the Raj Bhavan wherein, it was mentioned that the Governor desired to know the procedure adopted to fulfill the requirement of consultation with the Leader of Opposition and Chief Justice, etc. in the different States like Maharashtra, West Bengal, Kerala, Madhya Pradesh, Uttar Pradesh, Orissa and Tamil Nadu. The Governor specifically desired to know if the procedure/ tradition involves :
i.) specific number of names to be proposed for consultation;
ii.) a joint meeting for consultation to be held with all the dignitaries involved;
iii.) consultation through correspondence with dignitaries one after another;
iv.) consideration of objections / views if raised / expressed against the name / names proposed.
v.) consideration of names if proposed either by the Chief Justice of the High Court or by the Leader of Opposition.
7. Since the information was to be gathered from the different States, apropos the aforesaid inquiry, it consumed some time and ultimately, on 27.2.2007, the information as called for by the Governor vide letter dated 13.9.2006 was sent. After a span of about almost two years, on 6.2.2009, the Governor returned the file with the following observations:
“The person whose name has been recommended by the Government has already been appointed as the Chairman of the Human Rights Commission of the Maharashtra State and he has taken over the charge of the post since long. In view of this development, it appears that the present proposal for his appointment as Lokayukta, Gujarat State cannot now be processed further particularly in the light of the provisions made in section 24(3) of the Protection of Human Rights Act, 1993 which reads as under:
“On ceasing to hold office, a chairperson or a member shall be ineligible for further employment under the Government of a State or under the Government of India.”
In view of the above provision of law, it appears to me that the person suggested by the Government is no longer available for appointment as Lokayukta, Gujarat State since even after his ceasing to hold the office of the Chairman, Human Rights Commission of the Maharashtra State, eh is not eligible for further employment. It is therefore appropriate that the present procedure is treated as closed and the State Government is informed to make a fresh proposal in due compliance with the requirements laid down by law.”
8. The file was thereafter resubmitted to the Governor on 2.7.2009, explaining inter-alia as to how the provisions of section 24(3) of the Protection of Human Rights Act, 1993 do not come in the way of appointment of the person suggested by the Government for appointment as Lokayukta, Gujarat State. The Governor on 10.9.2009 returned the file with the following observation:
In view of sub-section (3) of section 6 of the Protection of Human Rights Act, 1993, since the person recommended by the Government has held the office of the Chairman of the Human Rights Commission of Maharashtra, the Government’s proposal for his appointment as Lokayukta, Gujarat State cannot be agreed to.
9. The then Governor on 10.9.2009, sent a letter to Chief Minister stating that it was not possible to appoint Justice (Retd.) Mr. Kshitij R. Vyas as Lokayukta, Gujarat State in view of the clear provisions of the Protection of Human Rights Act, 1993 and thereafter, the Governor also requested the Chief Minister to send a fresh proposal for appointment of Lokayukta after due consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition in the State Assembly as per the provisions of section 3(1) of the Act.
10. On 8.2.2010, a confidential letter was sent by Chief Minister to the Chief Justice of the Gujarat High Court requesting him to suggest a panel of three retired Judges of the High Court of Gujarat for consideration for appointment of Lokayukta, Gujarat State. The Chief Justice, on 24.2.2010, sent the panel of four retired Judges of High Court of Gujarat for consideration for appointment of Lokayukta, Gujarat State.
11. As a part of consultation process for appointment of Lokayukta, on 2.3.2010, a letter was sent by the Chief Minister to the Leader of Opposition in the State Assembly to participate in the meeting to be held at 11 am on 4.3.2010. Unfortunately, the Leader of Opposition, on 3.3.2010, objected to such process of consultation being initiated by the Chief Minister and refused to participate in the said consultation process. On the very same day, the Chief Minister sent a letter to the Leader of Opposition stating the legal and Constitutional position obtaining in the matter and once again requested him to remain present in the meeting of 4.3.2010.
12. Simultaneously, on 3.3.2010, a confidential letter dated 3.3.2010 was received from the Governor, wherein the Governor mentioned inter alia that the Governor had deemed it appropriate to initiate the matter of appointment of Lokayukta and had decided to hold consultation with the Leader of Opposition on 4.3.2010 at 10.30 am in her office in Raj Bhavan, Gandhinagar. A letter dated 4.3.2010 was received by the Leader of Opposition stating that in the matter of appointment of a Lokayukta, the Chief Minister and the Council of Ministers do not have any say and that requested that Chief Minister to forthwith terminate the process of consultation initiated by him in the matter. It has been further stated that in the aforesaid letter that the Governor had already initiated the process of consultation with the Leader of Opposition and a meeting for the purpose was to take place at 10.30 am on 4.3.2010.
13. On 4.3.2010, Chief Minister sent a letter to the Leader of Opposition once again requesting him to participate in the consultation process and to remain present in the meeting at 1 pm on 5.3.2010. On the same day, another letter was addressed to the Governor inter alia stating that since certain legal and Constitutional issues have been raised in letter dated 3.3.2010, he considers it necessary to have a discussion on the subject with the Governor and further, Chief Minister sought a suitable date and time for such a discussion/ meeting with the Governor.
14. On 4.3.2010, Chief Minister held a meeting as per the schedule at 11 am on 4.3.2010 as a part of consultation process. However, the Leader of Opposition did not remain present in the meeting. On 5.3.2010, a letter dated 4.3.2010 was received from the Leader of Opposition informing that he had already participated in the consultation process at 10.30 am on 4.3.2010 with the Governor of Gujarat and in view of the consultation already held by the Governor of Gujarat, he regretted his inability and unwillingness to be present in the meeting to be held by the Chief Minister at 1 pm on 5.3.2010.
15. On 5.3.2010, a letter was received from the Principal Secretary to the Governor conveying that the Governor had given the time for the meeting with the Chief Minister at 16.00 hrs. on 8.3.2010. On that day, the Chief Minister along with the Minister of State (Law) called on the Governor and discussed the point of issue at length. Chief Minister also gave a folder containing all the relevant details pertaining to the issue and requested to resolve the issue at the earliest.
16. On 18.3.2010, with a view to ensuring that the consultation process with the Leader of Opposition in the State Assembly takes place, Chief Minister sent one more letter to the Leader of Opposition informing that the Chief Minister proposed to hold meeting for consultation process at 11 am on 22.3.2010. The Chief Minister made it clear that sufficient request has been extended to the Leader of Opposition and thus, it may not be possible to further delay the consultation process. The Chief Minister had also quoted all the relevant judgments of various High Courts / Supreme Court including the relevant and operative portion to emphasize the factual, legal and constitutional position in the matter.
17. On 22.3.2010, a letter was received from the Leader of Opposition inter alia informing that the consultation process of appointment of Lokayukta has already been completed by the Governor on 4.3.2010 and that there can never be consultation twice : once by the Governor and second by the Chief Minister and/ or the Council of Ministers. It has been stated in the said letter that the Chief Minister should not persist in undertaking an exercise of consultation by him, which lacks legal, moral and constitutional authority.
18. On 22.3.2010, Chief Minister held the meeting as per schedule at 11 am in his office located in the Vidhan Sabha Complex. However, the Leader of Opposition did not remain present. Thereafter, on 31.3.2010, the name of Justice (Retd.) Mr. J. R. Vora, which was decided by the Chief Minister, was placed before the Council of Ministers in the said meeting and the Council of Ministers accordingly gave approval to the name. On 1.4.2010, the name which was approved by the Chief Minister and the Council of Ministers was sent to the Governor for obtaining approval.
19. On 5.5.2010, the file was returned by the Governor referring the whole matter back to the Chief Justice, Gujarat High Court requesting him to re-examine the matter once again. Lin the Light of a Supreme Court Judgement in the case of N. Kannadasan, Govt. of Tamilnadu V/s Ajay Khose and others 2009-SCC-7-1, 2009(o) GLHEL-SC 43776. On 31.12.2010, the Chief Justice, Gujarat High Court sent the fresh proposal to the State Government recommending only one name of Justice S. D. Dave for appointment as Lokayukta, Gujarat State.
20. On 21.2.2011, the Chief Minister sent a letter to the Chief Justice of the High Court of Gujarat, requesting him to expedite the process of appointment of Lokayukta by appointing the person whose name was recommended earlier by the Government to the Governor, instead of considering a new name. On 22.3.2011, the Chief Justice, Gujarat High Court sent a letter to the Chief Minister stating to consider the name recommended by him vide his letter dated 31.12.2010. It may be noted that on 1.5.2011, the person whose name recommended by the Chief Justice vide letter dated 31.12.2010, sent a Fax Message to the Governor requesting to recall his nomination. Thus, the name of Shri S. D. Dave which was recommended by the Chief Justice, Gujarat High Court vide letter dated 31.12.2010 was not processed further.
21. Immediately thereafter on 4.5.2011, the Chief Minister sent a letter to the Chief Justice inter alia requesting him to recommend the name of the person (Shri J R Vora) in whose case the whole process of consideration had been gone through by the State Government for appointment as Lokayukta, Gujarat State. The matter was pending with the Chief Justice, Gujarat High Court. Thereafter, on 7.6.2011, the Chief Justice, Gujarat High Court recommended another name. (Shri R.A.Mehta)
22. It is further stated that upon receipt of the recommendation from the Chief Justice, on 16.6.2011, the Chief Minister wrote to the Chief Justice inter alia giving the reasons as to why the name recommended by the Chief Justice was not acceptable. On 2.8.2011, Chief Justice, Gujarat High Court has sent a letter and in response to the same, the State Government, in turn, has addressed a letter dated 18.8.2011 to the Chief Justice reiterating its earlier stand. It is pertinent to mention here that this letter is still under consideration of the Chief Justice, Gujarat High Court.
23. Now, in a rare first in the country, Governor of Gujarat has thrown constitutional propriety to winds and has assumed executive power in the matter of appointment of Lokayukta. Ignoring the ongoing process, to utter shock and surprise of all, the Governor issued the warrant dated 25.8.2011 appointing Justice (Retd.) Mr. R. A. Mehta as Lokayukta, Gujarat State. The copy of the warrant has been received along with a letter dated 25.8.2011 addressed to the Principal Secretary to the Chief Minister on 26.8.2011. Justice (Retd.) Mehta is known for his strong opinion against the State Government and has been participating in various activities/ events held against the State Government.
24. In Gujarat, Governor Smt. Kamla Beniwal, a veteran ex-Congress politician from Rajasthan, is known for creating hurdles after hurdles for the State Government. Governor is sitting on a number of legislative proposals passed by the Gujarat Legislative Assembly but on one pretext or the other, she is not giving her assent and has become a stumbling block in the development of the State, which is considered a model State. She has blocked a number of progressive bills initiated by the State Government. In fact, by her action, instead of State Government leaning on her for wisdom, trust her to create obstacles in the development of the State. The Governor House in Gandhinagar has become the place for intrigue and conspiracy against the duly elected State Government. It reminds of the era especially of 1980’s when Governors in various States at the behest of the Central Government were plotting against their non-Congress Governments in various states viz. Andhra Pradesh (against late Sh. N. T. Rama Rao), Karnataka (against late Sh. R. K. Hegde) and Jammu & Kashmir (against Farooq Abdullah) headed by opposition stalwarts.
25. In Gujarat, the Congress party wants the Lokayukta of its own choice and Governor has become a willing tool. In the rest of country, the process adopted by the State Government has been followed but in case of Gujarat, Governor is insisting on this unique process. It is important to note here that in neighbouring State of Maharashtra, with similar Lokayukta Act, the appointment of Lokayukta has been proposed by the State Government in accordance to the decision of the Cabinet after consultation with the Chief Justice of High Court and the Leader of Opposition, and then proposal for appointment of Lokayukta was approved by the Governor. For the appointment of Lokayukta, the Governor always acts as per advice of the Council of Minister. In a highly controversial manner, the Governor of Gujarat decided to ignore the Constitutional propriety, gone ahead and appointed Justice Mehta as Lokayukta, Gujarat State without the recommendation of the State Government/ Council of Ministers.
26. Most interestingly, the reasons given by the Governor for such a unilateral action on 25.8.2011 is based on the representation given by the leaders of the Congress party on 26.8.2011, which clearly shows that Governor is acting at the behest of Congress, and in connivance.
27. It is very obvious that
i.) the action of the issuance of warrant dated 25.8.2011 by the Governor of Gujarat, is ex-facie violative of Article 14 of the Constitution of India.
ii.) the Governor of Gujarat, while exercising function under section 3 of the Act, is to act on the aid and advice of the Council of Ministers headed by the Chief Minister and is not required to exercise the said function in the individual and personal capacity and discretion. In the present case, there has never been any advice by the Council of Ministers for the appointment in question and therefore, on this ground alone, the aforesaid warrant is unconstitutional.
iii.) it is well settled legal position that though constitutionally, the executive power of the State is vested in the Governor, in reality, the Governor is always supposed to be aided and advised by the Council of Ministers in exercise of almost all the functions under the Constitution and so is the position with reference to the exercise of powers and functions referred to under section 3 of the Act. In other words, warrant in question could not have been issued and that too, through the Governor without the aid and advice of the Council of Ministers headed by the Chief Minister;
iv.) in the present context, the following observations of the Apex Court in its judgment rendered in case of Samsher Singh v/s State of Punjab, reported in (1974) 2 SCC 831, should have been appreciated:
“… In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role, he is not a rival centre of power in any sense and must abide by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery.”
The aforesaid observations with reference to the President of the India are equally applicable to the office of the Governor.
v.) That the concept of consultation as flowing from section 3 of the Act is not an empty formality and that the views and the say of the Council of Ministers of the State cannot be allowed to be suffocated. However, vide the action; the views and the say of the State Government have been given a total go-bye. It should have been appreciated that the performance of executive power of the Governor, which is co-extensive with the legislative power, is with the aid and advice of the Council of Ministers headed by the Chief Minister.
28. In the instant case, pursuant to unconstitutional action taken on the part of the Governor of Gujarat, following substantial questions of law have arisen:
i.) In the matter of the appointment of the Lokayukta under Section 3 of the Act, the Governor is required to function on the aid and advice of the Council of Ministers with the Chief Minister at the head. Governor is not required to exercise the said function in her individual and personal capacity and discretion.
ii.) The words “the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta” as used in Section 3 of the Act, cannot aid to be empowering the Governor to straightaway effect the appointment without there being any aid or advice of the Council of Ministers with the Hon’ble Chief Minister at the head.
iii.) The Cabinet system of government is devised under the Constitution for conveniently transacting the business of the executive power of the State in such a manner that though constitutionally, the said power vests in the Governor, she does not personally take the decision, unless Constitution expressly confers on him.
(iv) It is illegal and highly improper for the Governor to suo moto originate a proposal for appointing a particular person to be the Lokayukta, more particularly when the satisfaction of the Governor for the exercise of the said function under the Constitution is not his personal satisfaction but the satisfaction of his Council of Ministers on whose aid and advice, he exercises all his powers and functions, except in some of the limited areas.
(v) The warrant for appointment of Justice (Retd.) Mr. R. A. Mehta as Lokayukta by the Governor issued in the exercise of personal capacity or discretion is, non-est in the eye of law.
29. In the Gujarat Governor’s scheme of things, Government and its functions will be carried out by the Governor without and aid and advice of the Council of Ministers, but in close partnership with Opposition (Congress) Leaders. Imagine a situation, where Governor usurped the powers of the duly elected Government and wants to run on the advice of Opposition leaders. In the appointment, Opposition will decide and Government will not have any role. What’s an interpretation of the Constitution by the Governor?
30. The State Government has gone into appeal against this controversial warrant of appointment issued by the Governor on her own in clear contravention to the provisions of the Constitution of India to appoint Lokayukta, Gujarat State.
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