Court comes down on Modi's ‘false sense of invincibility'

["The pranks of the Chief Minister demonstrate deconstruction of our
democracy and the questionable conduct of stonewalling the appointment of
Justice Mehta as Lokayukta threatened the rule of law." The Chief
Minister's refusal to perform his statutory or constitutional obligations,
and his efforts at stonewalling the appointment of the Lokayukta by trying
to amend the Act through an ordinance, were "depraved and truculent
actions. The aforesaid exceptional facts establish that deconstruction of
democracy was at work. It was necessary to remove the aporia created by the
action of the Chief Minister and a responsible constitutional decision was
required to be taken by the Governor so that democracy may thrive."]

http://www.thehindu.com/news/national/article2815109.ece

Court comes down on Modi's 'false sense of invincibility'

MANAS DASGUPTA

While dismissing the Gujarat government's petition challenging the
Governor's authority to appoint Justice R. A. Mehta the Lokayukta, the
Gujarat High Court passed strong strictures on Chief Minister Narendra
Modi, terming his efforts to stonewall the appointment of the
anti-corruption ombudsman "spiteful" and demonstrative of his "false sense
of invincibility."

Justice V.M. Sahai said on Wednesday: "The clear refusal of the Chief
Minister to accept the primacy of opinion of the Chief Justice [of the High
Court] had the velocity which had shattered the faith in rule of law which
is the essence of democracy and integrity institution of Lokayukta."

The judge said that looking at the "brazen conduct and irrationality of the
Council of Ministers headed by the Chief Minister," he was of the
"considered opinion" that the Governor (Kamla Beniwal) "rightly exercised
her discretionary powers under Article 163 of the Constitution and
appointed Justice (retired) Mehta as Lokayukta."

Justice Sahai said a "constitutional mini-crisis was sparked off by the
Chief Minister" acting arbitrarily. The Governor's action, appointing
Justice Mehta the Lokayukta "with or without the advice of the Council of
Ministers, was for "preserving our democracy from being beleaguered and to
prevent tyranny."

He said acceptance of the Chief Minister's August 18, 2011 letter to the
Chief Justice and the Governor, in which Mr. Modi made it clear that
Justice Mehta's name was not acceptable to the government and wanted the
Chief Justice to suggest another name, "would have resulted in a complete
breakdown of the rule of law and erosion of principles of democracy."

Justice Sahai's order, after a split verdict by a two-judge Bench on
October 10 last, established that the recommendation of the Chief Justice
of the High Court in the appointment of the Lokayukta must be given primacy
in case of a dispute, and neither the government nor the Leader of the
Opposition had any veto power or authority to initiate the process of
recommendation.

The three points of differences in the split verdict, on which Justice
Sahai's judgment was sought, included whether the consultative process
between the Chief Justice and the Chief Minister had come to a close and
there was a deadlock when the Governor unilaterally appointed Justice
Mehta, whether the Governor was authorised to act in the manner she did in
issuing the notification of the appointment without the aid and advice of
the Council of Ministers and whether the government's petition should be
dismissed.

Justice Sahai said once the Chief Justice "considered and applied his mind"
and overruled the objections, the Chief Minister had no option and,
accepting the primacy of the Chief Justice, should have ensured that his
Council of Ministers formally recommended Justice Mehta's name to the
Governor.

Even the Governor wrote to the Chief Minister seeking a formal proposal in
favour of Justice Mehta, to whose appointment the Leader of the Opposition
had also consented. But the Chief Minister, instead of fulfilling his
obligation under Section 3 of the Gujarat Lokayukta Act and Article 163 of
the Constitution, wrote back to the Chief Justice, seeking a new name, and
to the Governor communicating the government's disapproval of the
recommendation.

Justice Sahai's order pointed out that the appointment of the M. B. Shah
Judicial Commission to probe all allegations of corruption since 1980 and
the subsequent issuance of ordinances, for the signature of the Governor,
curtailing the powers of the Chief Justice showed that the Chief Minister
was under a "false impression that he could turn down the superiority and
primacy of the Chief Justice's opinion, which was binding."

"The case in hand is one of its own kind. Extraordinary situations demand
extraordinary remedies. Open resistance of the Council of Ministers headed
by the Chief Minister in not accepting the primacy of the opinion of the
Chief Justice has created a crisis situation," the order said. Had the
Chief Minister's repeated requests to the Chief Justice to recommend the
name of Justice J. R. Vora for the post been accepted, "it would have set a
pernicious trend and would have propitiated the public functionaries who
were likely to fall under the scanner of the Lokayukta and destroyed the
integrity of the institution as envisaged under the Act." After his
objections to Justice Mehta's name were turned down "on valid grounds," the
"miffed reaction of the Chief Minister showed his discordant approach."

"The pranks of the Chief Minister demonstrate deconstruction of our
democracy and the questionable conduct of stonewalling the appointment of
Justice Mehta as Lokayukta threatened the rule of law." The Chief
Minister's refusal to perform his statutory or constitutional obligations,
and his efforts at stonewalling the appointment of the Lokayukta by trying
to amend the Act through an ordinance, were "depraved and truculent
actions. The aforesaid exceptional facts establish that deconstruction of
democracy was at work. It was necessary to remove the aporia created by the
action of the Chief Minister and a responsible constitutional decision was
required to be taken by the Governor so that democracy may thrive."

Justice Sahai's order said: "For preserving our democracy from being
beleaguered and to prevent tyranny, it became absolutely essential for the
Governor to exercise her discretionary power under Article 163 and to
appoint Justice Mehta as Lokayukta, without or contrary to the aid and
advice of the Council of Ministers headed by the Chief Minister as their
action and conduct were perilous to our democracy and rule of law."

Justice Sahai was of the opinion that the Council of Ministers headed by
the Chief Minister had shown a "hostile attitude towards the primacy of the
opinion of the Chief Justice. The Chief Minister acted under a false
impression that he could turn down the superiority and primacy of the
opinion of the Chief Justice which was binding. The spiteful and
challenging action demonstrates the false sense of invincibility," he said.