Read: Modi's letter to PM on Gujarat Lokayukta issue

Image: Gujarat CM Narendra Modi

Gujarat Chief Minister Narendra Modi shot off a letter to Prime Minister Manmohan Singh, asking for the "immediate recall" of Governor Kamla Beniwal for bypassing the state government and appointing Justice (retired) R A Mehta as the Lokayukta. Here's the full text dated September 1, 2011.

I am writing this letter to raise a matter, which has an important bearing on our system of governance and federal polity of India. The Governor of Gujarat in collusion with the Leader of Opposition issued warrant of appointment of a person who has been participating in quasi-political activities and campaigning against the state government, as Lokayukta of the state without the advice of the council of ministers. The Governor of Gujarat has wrongly appropriated the function of the duly elected state government, which is a major subversion of the Constitution of India.

The state government initiated the process of appointing Lokayukta way back in 2006. After consulting the Leader of Opposition and obtaining consent of the Chief Justice of the Gujarat high court, the state government advised the governor to appoint Justice Kshitiji R Vyas (Retd.) as Lokayukta of the state. From 2006 to 2009, not much happened except routine correspondence between the state government and the governor. In 2009, when Justice Vyas was appointed as chairman of the Human Rights Commission in Maharashtra, the governor after a lapse of three years returned the file on 2.10.2009, asking for an alternate appointment.

The state government once again sought a panel of names from Chief Justice of the Gujarat high court and recommended the name of Justice JR Vohra, a retired judge of Gujarat high court as Lokayukta. 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 Central Government and the Congress party.

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Recall Gujarat governor: Modi in letter to PM

Image: Prime Minister Manmohan Singh

The chief justice then sent the name of Justice SD Dave, who withdrew this subsequently as he did not want to be appointed. On June 7, 2011 the chief justice of the Gujarat high court suo-moto suggested the name of Justice RA Mehta. The Leader of Opposition unilaterally supported the proposal of the chief justice. The state government wrote a letter back to the chief justice pointing out the anti-government stand of Justice RA Mehta on various occasions in the past and pointed out that a person with a biased and prejudiced mind against the state government cannot act independently as a Lokayukta.

While the matter was under correspondence, regrettably, the governor without consulting the state government on August 25, 2011 notified the appointment of Justice RA Mehta as Lokayukta of Gujarat. The credibility of the institution of Lokayukta has been eroded by such an appointment.

Sir, so far as role of the governor is concerned, the Constitution is very clear. Article 163 (1) reads as "There shall be a Council of Ministers with the Chief Minister at 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".

From this, it is very clear that discretion is to be used to exercise those functions or any of them as prescribed in the Constitution, and not under any other statute or the state law. All functions of the state are carried out by the executive in the name of governor. Thus, there is no discretion with the governor to exercise the function to appoint Lokayukta on her own except to act as per aid and advice of the council of ministers headed by the chief minister of the state.

Perusal of the Gujarat Lokayukta Act, 1986 clearly shows that the word "governor" in Section 3 of the Acts means, the "government" and there are any number of Supreme Court judgments which clarifies that the governor has to act on the 'aide and advice of the council of ministers'. There are no discretionary powers with the governor to appoint the Lokayukta without specific recommendations of the council of ministers.

Recall Gujarat governor: Modi in letter to PM

Image: Gujarat Governor Kamala Beniwal

In Maharashtra, with similar provision in the Lokayukta Act, in 2009, the state government had called for a panel of names from the chief justice and it was discussed with the Leader of Opposition and thereafter the name was sent to the governor for approval. Recently, in Karnataka also the name was sent by the chief minister to the governor for approval. In no other states in India, Lokayukta's appointment is done without the advice of the council of ministers. Even in Rajasthan, the Lokayukta Act and Madhya Pradesh Lokayukta Act, similar provisions are there. It will be interesting to note that in Andhra Pradesh Lokayukta Act, there is no provision for discussion with the Leader of Opposition.

Sir, you are fully aware of the constitutional provisions. The Article 163 of the Constitution is over and above Section 3 of the Lokayukta Act, 1986. The provision of any act does not have a supremacy over provisions in the Constitution of India. In the same way, Lokayukta Act, 1986 is giving power to the governor under Section 3 of the Lokayukta Act but at the same time, the governor has to work on the aid and advice of the council of ministers as laid down in Article 163 of the Constitution.

It is obvious that all of sudden, there is a deliberate 'unique interpretation' by the governor of Gujarat in the matter of appointment of Lokayukta of the state. The governor of Gujarat is holding back a number of progressive Bills passed by the Legislative Assembly at the behest of Opposition Party to thwart the exemplary economic growth and development achieved by the state even in such a worldwide troubled economic scenario. As you are fully aware, the progressive government and people of Gujarat have been contributing their mite much beyond their proportion in the national economy. Unfortunately, she decided to become an instrument in the hands of the Opposition party in the state and the central government by denying the state government to perform its function.

Recall Gujarat governor: Modi in letter to PM

Image: Justice (retired) RA Mehta

In the past, many of the governors by their dubious omissions and commissions, brought disgrace to the Constitutional position. Subversion of the Constitution makes ordinary people, the backbone of democracy angry and weakens their faith in the democracy. I take this opportunity to urge you that as a prime minister having pledged to hold the Constitution of India, kindly should not allow the subversion of the very same Constitution for petty gains. It may not be out of place to mention here that Sarkaria Commission also recommended that in Opposition party ruled states, instead of politicians, scholarly and reputed persons should be appointed as governor.

The recent judgment of the Supreme Court on May 2010, headed by the then Chief Justice of India KG Balakrishnan also said that "persons of caliber, experience and distinction are chosen to fill these posts". Since the governor is appointed under Article 155 by the President on the advice of the council of ministers headed by the prime minister, it is your bounden duty to take note of subversion of the Constitution by the governor and take remedial action.

In view of this, may I request you to take necessary action for the annulment of aforesaid warrant of appointment and immediate recall of Smt Kamla Beniwal as governor of Gujarat. I look forward to your prompt and decision action in the matter.

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