New Lokayukta Bill mockery of judicial process: Guj governor

"This is nothing but mockery of the whole judicial process," Gujarat Governor Kamla Beniwal said in stinging remarks against the Narendra Modi government as she returned the new Lokayukta Bill for reconsideration by the legislative assembly.

Beniwal, who has been locked in a protracted turf battle with the Modi government over appointment of Lokayukta, had declined to give assent to the bill.

"I am of the view that the provisions of Gujarat Lokayukta Aayog Bill 2013 are detrimental to the interest of public welfare and the state legislature needs rethinking on the issues mentioned in the interest of the people of Gujarat," she said in the seven-page note.

She termed the procedure proposed in the bill for appointment of the Lokayukta as "faulty".

The bill proposes a six-member selection committee headed by the chief minister for appointing the Lokayukta. The Speaker of the legislative assembly, a minister nominated by the chief minister, Leader of Opposition, a judge of the high court nominated by the chief justice and chief vigilance commissioner of the state will be its other members.

"The above provisions regarding the constitution of the selection committee show that out of six members, four will be definitely and undoubtedly belonging to one political party -- the CM, Speaker, minister appointed by CM, and vigilance commissioner.

"The very constitution of the selection committee suggests that Leader of Opposition and judge would be in minority and their voice would have hardly any significance because their objections could be easily overruled," the Governor said.

"The above provision for the appointment of the Lokayukta cannot stand the scrutiny of any rationality and is in clear violation of the mandate which has been reflected from several decisions of the Supreme Court from time to time," Beniwal said in the note.

She also described as defective the definition of competent authority in the legislation, provisions relating to qualifications for the anti-corruption watchdog, matters not subject to investigation by the Lokayukta besides others.

Under the Gujarat Lokayukta Act 1986, which the new bill seeks to replace, the power of selection of the state's anti-corruption watchdog was vested with the Governor and the chief justice of the high court.

Bypassing the state government, the Governor had on August 25 appointed retired Justice R A Mehta to the post of Lokayukta, which was lying vacant for last eight years then, setting off a prolonged legal tussle between the Modi government and Raj Bhawan.

On April 2, the state Assembly had passed the bill, which aimed at giving sweeping powers to the state government in the appointment of the Lokayukta.

The new bill was brought after the state government finally lost the bitter legal fight with Beniwal when her decision was upheld by the high court and the Supreme Court earlier this year.

However, in a twist to the ongoing row between the state government and Governor Beniwal, Mehta, whose appointment as Lokayukta was opposed by Modi, had on August 7 declined to assume charge, saying the controversy had "denigrated" the office of the anti-graft watchdog.

Slamming the Modi government for calling him "biased" and "anti-government", Mehta, in a letter to Beniwal, had said a Lokayukta unwanted by the government cannot get the necessary and timely support from it.

Listing the faults in the bill, the governor said the legislation had a provision which prevented the Lokayukta from investigating complaints which were excluded from its jurisdiction by virtue of a notification issued by the state government.

"This provision takes away the entire jurisdiction of the Lokayukta Aayog to investigate into any complaint by the virtue of notification. Thus the ultimate powers of getting any allegations investigated by corruption watchdog are kept with the state government only," Beniwal said.

She was also critical of punitive action proposed in the bill for malicious complaints which provided for a jail term of six months or fine of Rs 25,000.

"The above provisions discourage and threaten the complainant from filing any complaint," she said.

She also disapproved of the provisions that made it mandatory for the complainant to have personal knowledge of allegations that he was making against a public functionary.

"Complainant can derive information from anywhere like from government departments or offices or by using Right to Information Act 2005 or that from newspaper reports.”

"It is difficult for any applicant to prove that he has a personal knowledge about the information of irregularity being committed by the public functionary or a minister. The very provision restricts the scope of such complaints that the Lokayukta Aayog will have to investigate," she said.

Beniwal also criticised the provision that the report of the Lokayukta had to be submitted to the Cabinet. Clause 16 of the bill says that the report of the Lokayukta should be submitted before the competent authority and the competent authority can either accept or reject the report.

"The very provision appears to be ridiculous, because the ultimate powers of acceptance of the report of the Lokayukta are with competent authority which is the state government. A situation would be created wherein the Cabinet would be in the position to decide the report of the Lokayukta Aayog," she said.

"There is every possibility that the Cabinet may not accept the report under one excuse or the other and may reject it altogether. The Lokayukta shall have no powers to do anything under the circumstances," Beniwal said.

"The Lokayukta would be totally powerless even if the report has come to the conclusion that serious punitive actions are required to be taken against the guilty. This very provision dilutes the whole purpose of the exercise undertaken by the Lokayukta," she said.

She also objected to the provision which said that Lokayukta shall be a person who is or has been a judge of the Supreme Court or chief justice of a high court.

"A former judge of the Supreme Court or a former chief justice of a high court could not lower down his dignity by submitting his candidature for selection before the selection committee," Beniwal said.

She was also critical of the definition of the competent authority in the Bill, which said it would be the council of ministers in case of irregularity involving a minister and, in case of any other public functionary, it would be as may be prescribed.

"This is a lapse in the bill, because this important provision has been left unspecified in the bill," Beniwal said as she ticked off the state government for its attempt to define the governor in the legislation.

"In clause 2 (5) of the Bill 'Governor' is defined. This is irrational and is not expected from the legislature. Governor is a constitutional authority whose role, responsibilities, qualifications of appointment, functions, powers, have been well defined in the Indian Constitution.

"Such a mention in the bill is an attempt to belittle the dignity of the highest Constitutional office of the state," she said.