1.Governor’s role Posted on October 9, 2011 by Prof. Rao Do you think that Modi is correct in defying the Governor who has appointed the Lok Aykuta without consulting him?
14 thoughts on “1.Governor’s role”
As per the Gujarat Lokayukta Act, it says “Governor shall appoint the Lokayukta. But Governor is constitutional head and as per Article 163 (1) of the Constitution, she has to work as per aid and advice of elected council of ministers,”.
Appointment of Lokayukta. ”In earlier five cases where Lokayuktas were appointed, the process was initiated by the office of chief minister. Chief minister writes to chief justice of high court to suggest a panel of three or four names of retire judges to take up the post of Lokayukta,”.
Then, the chief minister begins consultation process with the leader of opposition and finalize the name of Lokayukta, the name is then approved by the council of ministers and recommended to the governor, Saying that the governor’s role is putting the seal of approval, I
In all the process, the role of governor is to just sign the name approved by the council of ministers after consultation with chief justice and leader of opposition”.
Referring to the appointment of Mehta as Lokayukta by the governor, “The governor has written to the chief justice to suggest just one name, while the high Court Chief Justice suggested the name to Gujarat government”. Gujarat government in turn communicated to the chief justice that is has reservations against Justice Mehta due to his “quasi-political” nature of activities. However, he (Mehta) was appointed by a warrant by the governor when this process of consultations was still going on
So overall it looks like there is political inconvenience between the government and the governor of the state.
All this leads to unwanted complications for the people of state.
These are my findings!!!
Please leave your comments…
According to me Gujrat Government defying governor decision to appoint Lok Aykuta is correct based on below points.
1> Governor had to act as per the aid and advice of the council of the ministers in parliamentary system.
2> Chief minister had conveyed his reservations against Mehta to the Chief Justice, as well as the governor quoting various speeches made by Mehta at different forums in his letter. In spite of this, appointing same person by governor through warrant is rude and more suspicious.
But unfortunately the Centre behaves as if Governors are its representatives and they carry out their objectives through the Governor. This is subverting the Constitution and goes against the Federal principles. remember that India is a Union of States and hence both the States and the Union are important. Look at the way Governor Bharadwaj behaves.
In an unprecedented move, the Gujarat Governor Dr. Kamla Beniwal appointed Retd Justice R A Mehta as Lokayukta of the state on August 25 2011, bypassing the Narendra Modi-led BJP government.
There are following constitutional statements need to be observed.
1. According to Rule 3 of Gujarat Lokayukta Act Governor can appoint Lokayukta with the consultation of chief justice of high court and the opposition leader.
2. According to Article 163 (1), there should be council of ministers to aid and advice the Governor except those of the functions under constitution where he can use his discretion powers.
3. Article 163(2) says Governor can take decision on whether to use his discretion powers or not.
4. Article 163(3) says Governor’s decision on use of discretion powers cannot be questioned.
Point 1 and 2 are contradicting though, but 163(1) does not mention weather the council of ministers need to “aid and advice” governor on every matters.
I feel that the appointment of Lokayukta by the governor by passing Gujarat governor is constitutional or not need to be exercised because of their ambiguity. But what he did is correct under the circumstances of
1. Modi’s Government had kept the post vacant for the last seven years which means Modi was not inclined to submit his actions for scrutiny by an independent anti-corruption ombudsmen authority.
2. The fact that Modi wrote a letter to Chief Justice S.J. Mukhopadhaya, objecting to the latter recommending Mehta for the Lokayukta, clearly showed that he was in the know and even tried to amend the Gujarat Lokayukta Act to take away the powers of the governor.
Reply by Prof. Rao . Where is the contradiction between points 1 and 2. We have a Parliamentary system of government in which the representatives of the people are supreme. Hence the Governor has no discretion. he has to act according to the advice of the Council of Ministers. For further comments see reply to Gnanamurthy
The Gujarat Governor’s appointment of the Retd. Justice R.A.Mehta, by bypassing the state govt. And the state government’s petition in the high court against the Act of the governor clearly display the conflict between the governor’s and the government’s interests. Here we need to understand the extent to which a Governor possesses powers.
The two contradicting verdicts on this case are:
1. The Governor is given the power to appoint Lokayukta by consulting the Chief Justice of the High court as in the Lokayukta Act Gujarat. In this particular case, the position of Lokayukta head was vacant for seven years. And there was no progress made by the State Govt. to nominate a particular person. And thus, Governor had used her powers.
2. The Governor is a nominal head and she should act based on the consultations from the Council of Ministers, as pointed out from the Constitution. Therefore, bypassing the State government makes it unconstitutional. And Modi raised petition based on this, which is also correct.
At the base line, does this indicate that the Lokayukta Act’s rule of vesting the total power to the Governor to appoint the head contradict the Constitution that Governor is a nominal head. Or, does it imply that the power to appoint the head of Lokayukta suggested by the Government lies with the Governor.
This contradiction creates an ambiguity. If such an ambiguity exists, why is it that our Act’s do not clearly define procedures is the question. The likely answer to this could be the lack of sufficient time. Now, if just the guidelines are defined in the Acts, does it call for a separate body, that looks into all cases and defines the rules thoroughly abiding to the constitution. This indicates a deep rooted problem in co-ordination, that needs effective methods to be put into use.
It is for the people to punish the Ruling Party. If no Lokayukta was appointed for seven years, let the opposition demand the same in the Assembly. Let the issue go before the people. Who is the Governor to question.
We have a Federal system of government in which the States have their own powers. Unfortunately the Centre interferes with the working of the State governments as Bharadwaj uis doing now. See the PPT on misuse of the Governors powers.
Also see my reply to Jnanamurthy
Governor Dr. Kamala Beniwal issued a warrant appointing Rt. Justice R.A.Mehta as Lokayukta, bypassing the Narendra Modi led BJP government. The appointment of Rt. Justice R.A. Mehta has clearly not followed the conventional procedure. But Justice Akil Kureshi of Gujarat High Court rejected the Government’s plea calling it a peculiar case.
The Lokayukta Act 1986 of Gujarat mentions that the Lokayukta shall be appointed by Governor after consultation with Chief Justice of High Court, and the leader of the Opposition. And it has been correctly pointed out by Chandar that Art 163 specifies that the Governor has to act on the aid and advice of the Council of Ministers. Now the debate is on whether the Governor being a constitutional head holds true in this case as well or not.
The position of Lokayukta has been empty for about 8 years now, and there has been a deadlock between the government and governor of Gujarat on the name of Justice Mehta. Government also claims to have suggested the name of K.R. Vyas after consultation with Chief Justice of High Court in Aug 2006, on which no action was taken until Feb 2009. Again in 2010, government resumed consultation and suggested Chief Justice to suggest for J.R.Vora, which was again rejected by the Governor. Considering the above facts as true, as they have been stated by Justice Gokani in her order, the delay in appointment has not been only on the Government’s part.
The political inconvenience between the Government and the Governor would just lead to prolongation of the case in the Court and the position of Lokayukta would be ambivalent.
But the other judge supported the Modi government. Ultimately we need an amendment like the 42nd amendment which should clearly make the Governor act according to the advice of the State Council of Ministers.
As regards the failure of the State government to appoint the Lok Ayukta, see my reply to Sowjanya.
I think Modi is correct in defying the Governor in this case. As per the Constitution,the role of the Governor is to act on the recommendations of the Council of Ministers for which the Chief Minister is the head.While the Governor can exercise his discretionary powers in exceptional cases,the appointment of the head of the Lokayukta is definitely beyond the mandate given to him. As a Constitutional head of the state, it is important for the Governor to exercise caution and restraint in exercising his discretionary powers as any failure would do so would disturb the basic fabric and the spirit in which the Constitution has been formed.
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With full support to Chanderraj. If the constitutional autority like Governer is used as a wepon for the political ambitions of different political parties, then it will pose a serious threat to the Democaracy. Such acts should be condemed by all irrespective of parties. This further leads to the conflict an endsup in Politics of revange.
Reply: You are correct.
Politics of revenge what is affecting the polity. Both the Congress and the BJP are guilty of this.
There are two different points, both should be seen on merit.
1. Technical issue, per the Act, the governor acted within the powers. The appointment does not appears to be unconstitution or even extra constitutional.
2. Normative concern, shouldn’t she have acted on the advise of the Council of Ministers? Here I think the ground was yielded by the Gujrat Govt to the Governor. The solution lies in Gujrat Govt ammending their act and curtailing the Governor’s powers. This should be done in true federalism spirit cutting across party lines.
Even technically speaking I think it is wrong. Just because over the years the Union Government has perverted he Constitution and made e Governor dance to its tunes, the Governor cannot violate the basic structure of the Constitutions that is the Parliamentary form of government in which the State Council of Ministers must recommend and only on its decision should the Governor act.