1 September, 2011

Chief Minister Narendra Modi today sent a letter to Prime Minister Dr Manmohan Singh to annul the Governor Dr Shrimati Kamla Beniwal’s warrant appointing the Lokayukta for Gujarat and also for immediate recall of Dr. Shrimati Kamla Beniwal as the Governor.

Since a Governor is appointed under Article 155 by the President on the advice of the Council of Minister headed by the Prime Minister, Mr. Modi said that it is the PM’s bounden duty to take note of subversion of the Constitution by the Governor and take remedial action now. The Prime Minister having pledged to hold the Constitution should not allow subversion of the same for some petty gains.

He quoted the Sarkaria Commission recommendations to state that in Opposition ruled States, instead of politicians, scholarly and reputed persons should be appointed as Governors. In a recent judgment of May 2010 too, the Supreme Court headed by the then Chief Justice of India K.G. Balakrishnan also said that “persons of caliber, experience and distinction” be chosen to fill these posts.

Mr. Modi cited certain past instances of how Governors’ dubious omissions and commissions had brought disgrace to the Constitutional positions, making the ordinary people, the backbone of democracy angry, weakening their faith in democracy.

The Chief Minister explaining the situation said that Article 163 of the Constitution is over and above Section 3 of the Lokayukta Act, 1986. The provisions of any Act do not have a supremacy over provisions in the Constitution of India. In the same way, a Governor has to act under Section 3 of the Lokayukta Act but on the aid and advice of the Council of Ministers as laid down in Article 163 of the Constitution.

In Maharashtra too, the State Government had called for a panel of names in 2009 from the Chief Justice under similar provisions in their Lokayukta Act. It was discussed with the Leader of Opposition and thereafter the name was sent to Governor for approval. That was the method followed in the appointment of Lokayukta in Karnataka, Rajasthan and Madhya Pradesh. Interestingly, there is no provision of discussion with the Leader of the Opposition in Andhra Pradesh.

Taking objection to what he described as a sudden, deliberate and unique interpretation by the Governor of Gujarat in the appointment of Lokayukta in the State, the Chief Minister pointed out that the Governor is holding back a number of progressive Bills passed by the Legislative Assembly at the behest of Opposition party, with a view to thwarting the exemplary development of Gujarat despite global slowdown, thanks to contribution of the progressive state government and the people of the state. Unfortunately, she decided to become an instrument in the hands of the Opposition party and the Central Government disallowing the State Government to perform its functions.

Referring to the appointment of the Lokayukta in Gujarat, Mr. Modi said the Governor has issued warrant appointing a person as the Lokayukta who is taking part in quasi-political activities.

The Gujarat Government has written a letter to the Chief Justice of Gujarat pointing out the anti-government stand of Justice R.A. Mehta on various occasions in the past and that such a person with a biased and prejudiced mind against the State Government cannot act independently as a Lokayukta. While the matter was under correspondence, the Governor without consulting the State Government notified the appointment of Justice R.A. Mehta as the Lokayukta of Gujarat on August 25, 2011, eroding the credibility of the institution.

The Chief Minister recalled that way back in 2006 the State Government after consultation with Chief Justice of Gujarat High Court had advised the Governor to appoint Justice Kshitij R. Vyas (retd) as the Lokayukta, but the Governor returned the file on October 2, 2010 after a lapse of three years after Justice Vyas was appointed Chairman of Human Rights Commission in Maharashtra in 2009.

The State Government after receiving a panel of names of Chief Justice of Gujarat High Court recommended the name of Justice J.R. Vohra (retd). The Leader of Opposition did not attend the meetings for consultation. Surprisingly, the Governor now insisted that the Chief Justice of the High Court send only one name, perhaps at the behest of the Central Government and the Congress Party. The Chief Justice snet the name of Justice S.D. Desai who withdrew this subsequently.

On June 7, 2011, the Chief Justice of Gujarat suo-moto suggested the name of Justice R.A. Mehta. Leader of the Opposition unilaterally supported the proposal and his name and then Governor’s warrant.

As far as the role of the Governor is concerned, the Constitution is very clear on Article 163 (1) which reads: “There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his function, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”