Full text of BJP’s memorandum to President on Gujarat Governor issue





New Delhi, 3 September, 2011

Following is BJP’s memorandum to President of India Pratibha Patil demanding recall of Gujarat Governor.

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BHARATIYA JANATA PARTY
11, Ashoka Road, New Delhi 110001
02.09.2011

Mahamahim Rashtrapati ji,

We are constrained to bring to your notice the gross Constitutional improprieties committed by the Governor of Gujarat while appointing the Lokayukta of the State vide notification dated 26th August, 2011. The Governor has taken the decision to appoint Justice R A Mehta as Lokayukta without the aid and advice of the elected Government of the State as mandated by Article 163 of the Constitution. This exercise of power by the Governor is a gross violation of the Constitutional provisions and as the facts outlined hereinafter would clearly demonstrate, has caused an irreparable damage to the federal polity of this country. As is stipulated in the Constitution of India, the Governor is appointed by the President on the aid and advice of the Union Council of Ministers. In actual practice, a Governor is the nominee of the Union 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 of the State and cannot act on his/her own.

2. The State of Gujarat has been without a Lokayukta for a number of years. After consulting the Hon’ble Leader of Opposition in the State Assembly and after obtaining due consent of the Hon’ble Chief Justice of Gujarat High Court, the State Government in 2006 advised to the Governor to appoint Justice (Retd.) Kshitij R. Vyas as Lokayukta of the State.

3. Under Section 3(1) of the Gujarat Lokayukta Act, the Governor can appoint a Lokyukta 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 as, in accordance with Article 163 of the Constitution of India, 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.

4. From 2006 till 2009 the issue of appointment of the Lokayukta, as above, remained dormant as the Governor refrained from taking the necessary step. The political motive of the Congress party, the dominant party in the ruling coalition at the Centre, became apparent when the Maharashtra Government, where also the Congress Party is the leading partner in the coalition government, recommended Justice Vyas to be appointed as the Chairman of Human Rights Commission, Maharashtra. This move by the Congress led Government in Maharashtra was mischievously orchestrated by the Congress high command only to enable the Governor of Gujarat who had for three long years held back the file relating to appointment of Justice Vyas as Lokyaukta, to return the file back on 2nd October, 2009 to Gujarat Government and seek an alternate appointment.

5. Thereafter, the Government of Gujarat started de novo the process of consultation and on that basis recommended the names of four retired Judges to the Gujarat High Court. However, in this occasion, the endeavour of the State Government to consult the Leader of Opposition in the State Assembly failed as he choose to abstain from all the five meetings convened for this purpose. Repeated attempts were made to consult the Hon’ble Leader of Opposition but he refused to be consulted in this regard and finally responded on 5th March, 2010 suggesting that he would not give his opinion to the Chief Minister but would only speak to the Governor. While the Leader of Opposition made all-out efforts to thwart a Constitutional process, the Governor, who is expected to rise above party politics and act in a bipartisan manner , instead chose to play ball in accordance with the diktats of the Congress party and in the process trampled upon well established democratic conventions and constitutional norms. The Governor, in utter violation of the Constitutional mandate, tried to usurp the powers conferred on the Council of Ministers headed by the Chief Minister by even making efforts to hold consultation meetings directly with the Chief Minister and the Leader of Opposition.

6. Finally, from amongst the names recommended by the Chief Justice of Gujarat High Court, the State Government recommended the appointment of Justice (Retd.) J.R. Vohra as the State Lokayukta to the Governor. But the Governor 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 selected one name. The Governor insisted that the Chief Justice of the High Court should send only one name.

7. The Chief Justice, meanwhile, appointed Justice (Retd.) J R Vohra as the Chairman of the Judicial Academy in Gujarat, thus, pre-empting the possibility of his appointment to the office of the State Lokayukta.

8. Thereafter, Chief Justice sent the name of Justice S D Dave, a retired and ageing Judge, who informed his unwillingness to be appointed as Lokayukta.

9. On 7th June, 2011 the Chief Justice of the Gujarat High Court suo motto recommended a new name, Justice (Retd.) R A Mehta, to the Chief Minister wanting him to be appointed as Lokayukta albeit the State Government did not seek consultation with the Chief Justice on the said name. The State Government informed the Chief Justice its inability to accept the name of Justice Mehta for appointment as Lokayukta mainly because his prejudice against the State Government stood demonstrated by his active participation in the campaigns since his retirement as a Judge.

10. Obviously, the Chief Justice of Gujarat High Court ought never to have recommended a person with manifest prejudice against the incumbent Government to function as Lokayukta, a position which warrants fairness and impartiality as the pre-requisite for eligibility. In any case, the Chief Justice is not entitled to recommend a name without the State Government initiating the process nor the Governor can exercise the power of appointing a Lokayukta without the aid and advice of the Council of Ministers.

11. Instead of intervening in the matter and stopping such an unconstitutional process of appointment, the Governor has gone ahead and on 26th August, 2011 notified the appointment of Justice (Retd.) R A Mehta as Lokayukta. The entire federal polity of India stands shaken by the fact that Governor has chosen to exercise power to appoint the Lokayukta without consultation with the State Government and moreover, has unilaterally chosen a person who has been a political opponent of the State Government, to be notified for appointment as Lokayukta. Such a malafide act of the Governor has raised serious apprehension in the minds of the people of the State about the malicious objective of the Central Government vis-à-vis the popular elected Government of State.

Under the circumstances, we most humbly urge upon your Excellency to intervene in the matter and redeem the Constitution and prevent the assault on the federal character of our polity for which it is imperative that the Governor who has failed to discharge her duties in a bipartisan manner be immediately recalled. The facts narrated above show the Governor has brought serious disrepute to the high constitutional status attached to the office of the Governor and her continuance would only further demean and denigrate this august office. We urge you to act with expedition in the interest of preserving the federal balance of our Nation as per the Constitution, which has provided safeguards against undue interference by the Centre in the affairs of the State by manipulating through the office of Governor. We further urge you to cancel the appointment of Justice (Retd.) R A Mehta as it is in contravention of the provisions of the Constitution of India.

Yours sincerely,

(L.K. ADVANI) (SUSHMA SWARAJ) (ARUN JAITLEY) (GOPINATH MUNDE) (S.S. AHLUWALIA)

Shrimati Pratibha Devisinh Patil
Hon’ble President of India,
Rashtrapati Bhavan,
Raisina Hills,
New Delhi
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