Thursday, January 19, 2012

It was a threat to the Constitution…..not to federalism as the BJP is claiming

What threat to federalism is the BJP talking about? This thing about federalism seems to have become a favorite excuse with the party to block important pieces of legislation – especially the ones connected with corruption. They used the same plea in knocking off the proposal to have Lok Ayuktas enacted alongwith the Lokpal. Now they are saying that the Governor appointing the Lok Ayukta in Gujarat without a recco from the Council of Ministers amounts to an attack on federalism. A look at the facts of the case – very well captured in the HC order of yesterday should prove that the Governor has not acted on her own will (or on orders from the Center). She’s been forced to take the step she did.

What are the facts of the case? Take a look and decide for yourself:

1)      From Nov 2003 when the previous Lok Ayukta retired, till August 2006, the CM did not even initiate the process of selecting the new Lok Ayukta for the state. Now, the CM doesn’t have any role to play in the choice of the Lok Ayukta – but the process of getting a new one in place has to be started by the government. The government conveniently “forgot” to work on this. In all previous cases, the new Lok Ayukta was in place soon after the old one retired (within a few weeks). Why not this time?
2)      Eventually when Modi did start the process in August 2006, he totally exceeded his brief. He wrote to the Chief Justice recommending the name of Justice Vyas. Now the job of recommending is the Chief Justice’s. Modi had no role to play in this. Clause 3 of the Gujarat Lok Ayukta Act clearly says that the Governor (no doubt on the recommendations of the Council of Ministers) would appoint the Lok Ayukta in consultation with the Chief Justice and the Leader of the Opposition. It’s not like the CM was left out of this by mistake – in the discussion that took place in the state Assembly before the Act was passed, the BJP (then in opposition) had insisted on the exclusion of the CM. Of course, the Governor has to act on the recommendation of the Government; however the Government is duty bound to recommend the name that is ok with the CJ and the Leader of the Opposition.
3)      Fortunately for Modi, the Chief Justice gave his assent to Justice Vyas. However, Modi had totally forgotten to consult the Leader of the Opposition. The Governor was duty bound to bring this up. In doing this, the Governor also asked for information about what consultation processes were followed by other states. That information took nearly six months to get. Subsequently Justice Vyas got appointed as the Chairman of the Human Rights Commission of Maharashtra and hence was not available. A very convenient misstep by the government – not consulting the Leader of the Opposition – led to the wastage of nearly two and a half years.
4)      Its 2009 now. Nearly six years have elapsed by September 2009 and the Governor now asks for fresh proposals from the CM after consultation with the CJ and the Leader of the Opposition. Nothing moves in the government. Three months later, the Governor is forced to initiate the process with the Chief Justice asking for names. Finally by end-Feb, the CJ provides a panel of 4 names. Justice Vora – Modi’s current favorite – is one of them.
5)      For the next two months, Modi attempts to consult the Leader of the Opposition. But the Leader of the Opposition insists correctly that the CM has no role to play. Eventually, Modi chooses the name himself (How? Under what authority?), gets the name ratified by his Council of Ministers and makes the recommendation to the Governor. It is this arrogance of the CM that has led to the HC issuance such tough strictures against him….
6)      From then on, the Chief Justice (and not the Governor…..there is no political interference unless one assumes that the CJ is a political person) gives three names one after the other as his choice for the Lok Ayukta. First, it is Justice Dholakia, then Justice Dave and finally Justice Mehta. But all along, Modi has kept insisting on just Justice Vora. When he has no role in the choice of the Lok Ayukta, why did he keep pushing one single name? In fact, Justice Vora has also become unavailable because he had taken up another assignment – but Modi still wanted him to be considered.
7)      Modi objected to Justice Mehta’s name on frivolous grounds – again when he had no role in the choice. The CJ responded back and assured Modi there was no such worry in his mind. But even after so much time had elapsed, Modi still kept pushing for Justive Vora. Why?
8)      After August 2011, when the Chief Justice rejected Modi’s worries about Justice Mehta, there was tremendous pressure on Modi. The Leader of the Opposition had accepted Justice Mehta’s name. The CJ and the Governor were both pressurizing Modi to complete the process by recommending Justice Mehta’s name to the Governor. Even at this stage, the ball was with Modi. He could have made the recommendation and averted a constitutional crisis of sorts. It’s only when Modi kept failing to do this that the Governor was forced to make the appointment on her own. Even in doing this, she had all legal opinion backing her decision.
9)      No surprise then that in his order yesterday, Justice Sahai has made very intensely critical observations about Modi. It was the government that created a “constitutional mini crisis” he said. “For preserving democracy and to prevent tyranny, it became absolutely essential for the governor to exercise discretionary power under Article 163 of the Constitution and to appoint Mehta…..” and “The action of the CM and the Council of Ministers were perilous to democracy and the rule of law” – surely this cannot be proud moment for Modi.

In the meanwhile, there are many allegations of corruption against Modi’s government that have gone unattented because the Lok Ayukta has now not been in place for more than eight years. The Times of India lists many of the pending cases – they will now hopefully be investigated. How convenient for Modi not to have had a Lok Ayukta for so long.

Not for a moment am I supporting the part of the Lok Ayukta Act of Gujarat that gives the CM no role at all in the appointment of the Lok Ayukta. I have argued for long that the CM must be part of the team that chooses. The BJP government has been in power for so long – they could have amended the law if they felt strongly about it. But using delaying tactics in this manner is certainly not on.

The real truth is that Modi has played a well thought out role in delaying the appointment of the Lok Ayukta. Sooner or later, the law was bound to catch up with him. This order should serve as a reminder to all CMs and political parties that they must mend their old fashioned ways – and work towards having a strong anti-corruption mechanism in place. Those states that don’t have Lok Ayuktas – including Congress governments – must enact new laws in place at the earliest…..

No comments:

Post a Comment