Wednesday, August 7, 2013

wind up the show -नहीं बनेंगे लोकायुक्त




my way or highway

Letter of Gujarat Lokayukta  Justice Mehta to Governor 

6"' August 20 13
Your Excellency, the Governor of Gujrat, Dr. Smt. Kamlaji, and
Hon'ble the Chief Justice of Gujarat, Mr. Justice Bhaskar Bhattacliarya,
1. I am thankful for putting confidence in me for the high office of the
Gujarat Lokayukta.
2. When Hon'ble the then Chief Justice Mr. Justice S J Mukhopadhyay
kindly invited me two years ago for my consent for this purpose, and
discussed, I was not interested, having no ambition or desire, and was
reluctant, being averse to any controversy. With kindness and great persuasion
I was given to understand that the choice would be unanimous and without any
objection from any quarter including the State Government. I had my own
reason to believe
that (it has turned out to be wrong) and I had consented at
some personal sacrifice thinking that I could serve very useful public purpose
and having a hope that the Gujarat Lokayukta Act, 1986, could be upgraded
and made really effective and strong in line with universal public opinion and
consensus in the cozntry.
3. Soon it became clear that the public functionaries (whose conduct the
Lokayukta may have ro investigate) had strong objections against my
appointment as the Gujarat Lokayukta. It was said that I had 'anti-government
bias'. 'From that r r~o~nenI t have been brooding: To be or not to be the
Lokayukta? The answer has not been easy.
4. Highly respected elders and friends have with great force and
persuasion suggested that I must accept. My thinking is to the contrary. I owe
,

5. They have given various reasons, such as,

Highest judicial authority in the State (the Chief Justice) and the
constitutional authority (the Governor) have reposed faith in me.
The highest caul-ts in the State and in the country have upheld
the appointment and repeatedly negatived all contentions (including
that of bias) against my appointment as the Lokayukta.
There is acute need of such Lokayukta in Gujarat as in all the
States.
There has been no Lokayukta in  Gujarat since almost a decade.
e A lot of awareness and public expectations are generated from
t h e Lokayukta and  it should not be frustrated.
Forty-five of crores of public money is said to have been spent
by the Gujarat Government in this litigation. Humongously
disproportionate figure by any standard.
I may be called hyper-sensitive, touchy, timid, shirking and what
not. Some may even allege that I have been won over, purchased,
threatened and what not!
6. I nave very great respect for their views. I have been seriously
considering all along, but I could not persuade myself to accept the office of
Lokayukta.
7. The mind-set and attitude displayed by the State Government are
counter-significant, e.g.;
P "not acceptable to me", "my way or highway";

9 The draft Ordinance, during the pendency of the petition, to amend
the scheme of the appointment of Lokayukta (to exclude the Chief
Justice and load the selection committee with majority of the ruling
party and giving primacy to the political executive); (Not assented
to by the Governor).
9 Referring a large number of complaints against the public
functionaries to a Commission of Inquiry (so as to exclude them
fro111 being investigated by the Lokayukta);
Page 2 of 7
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P Persistently and tenaciously approaching the Supreme Court (SLP
Review Petition, and Curative Petition) at huge public expense. It
may be compared to the budget for the' Lokayukta office or even of 
the High Court (which deals with lacs of cases every year). It
would be an eye-opener.
> The new Lokayukta Bill passed by the Gujarat Legislative
Assembly (again to exclude the Chief Justice and load the selection
committee with majority of the ruling party and giving primacy to
the political executive); (Not assented to by the Governor).
); Even afier three judgements of the Supreme Court,the reluctance
of the State Gover~lmentt o notify the Lokayukta appointment in
the official Gujarat Government Gazette is surprising but not
unexpected.
> The letter of the Gujarat Government dated July 26, 2013
(delivered slt my Ahmedabad residence while I was in USA) does
not indicate any invitation or interest by the Government. It states
that "the Hon'ble Governor of Gujarat has appointed you as the
Lokayukta . . . The swearing in ceremony for the purpose needs to
be organized at the Raj Bhavan . .. to enable you to assume the
office." As if the Government has no interest or role in the matter!
No invitation and no notification by the government!

8. I humbly believe that the high office of Lokayukta and its occupant
(wlio is expected to inquire into the complaints against high pubic
functionaries  including the Chief Minister) are entitled to utmost respect,
dignity and grace to enable thein to function effectively and perform the great
public duty and to carry public credibility of the institution. When powerful
elements do not care to maintain that effectiveness and credibility, the
institution and its occupant suffer in their credibility, effectiveness and utility.


9. May be there is a lesson for the new Lokpal and Lokayukta  Bills
consider whether and to what extent the public functionaries who are potential
subjects of inquiry, should have any voice in the selection and appointment.
Giving a  voice and primacy to  such public f'unctionaries to decide who is to be
their investigator, would give an impression that they want it to be their 'caged
parrot' and the institution of the Lokayukta would lose all credibility and
respect of the people and deter many judges from accepting.
10. I am reminded of the famous  Transfer of Judges Case of Justice
S I4 Sheth during the Emergency. When the specially constituted full bench of
Gujarat High Court started the hearing; the Central Government raised a
question: Whether the Hon'ble Judges would like to hear the case or recluse 
themselves (as they had already expressed an opinion against the transfer)?
The judges asked to approach the Chief Justice who had constituted the special
full bench for hearing this momentous case.
When the Chief Justice (who was also a transferee) was approached
with a galaxy of counsels, he shot back instantly:If the Government has no
confidence in the  judges, wind up the show.Within minutes, everyone was
out of the CJ chamber and the matter proceeded. I was present as the Junior
Standing Counsel for the Central Government.
11. I am averse to any controversy and try to keep away. The
present controversy has denigrated the office of the Loltayukta and adversely
affected its credibility. The appointment has lost all the grace and dignity. The
objection alleging anti-govt bias (though negatived by the courts), really hurts.
Some.think that that if a person is not pro-government, he is necessarily antigovernment.
They can't accept that there is third category, neither pro nor anti,
but independent and neutral. Their mind set is clear - their way or no other
way.
12. The office of Lolcayukta is a lot dependent on the co-operation
and support of the government for the infrastructure, proper and adequate staff,
independent investigators, budget etc for its effective functioning. I had
inquired from the government about the infrastructure, staff budget etc of the
Lokayultta. I was given one page sanctioned set up of staff of 9 gazetted
officers (most of them vacant) and 18 non- gazetted persons (including ! 1
Class IV). The current and next budget estimates were not given.
13. If the Loltayukta has to depend on the reluctant non-cooperative
government for all infrastructure, staff, budget etc, and to beg or fight for it, it
is not in my nature. In this scenario the Lokayukta will not able to function
effectively and to fulfill high public expectations.
14. A lot of public awareness is generated about corruption of
public functionaries. Allegations are widely made. In absence of any
independent credible investigation, the allegations may lingsr and stick. Many
eminent public spirited and honest people are averse to becoming public
functionaries in such climate of public life. An independent Lokayukta can
clear & protect such people, and expose the ones found involved in wrong
doing.
15. I had consented under a belief (proved wrong) that the invitation
to be Loltayultta would be without any dissent and controversy.
16. I am grateful to the judiciary that the allegation of bias is
rejected, but the psychological sting remains.
17. For effective functioning and for satisfying the great public
expectation of cleansing public life, the office of Lokayukta is required to be
treated and accepted with due grace, dignity and respect and free from any
controversy, anti with whole-hearted support. In fact it should be a common
cause between the Lokayukta and the government (distinct from the public
functionaries) as seen from the legislative intent. Unfortunately this cause does not appear to be shared by the government. A Lokayukta unwartec! by the
government cannot get all the necessary and timely support and cooperetion
from the reluctant government. The Lokayukta will be rendered ineffective,
and the great public expectations would be frustrated; and I would be at the
receiving end for being ineffective and failure.
18. I franlcly admit that I will not be able to fulfill the pubiic duty,
public need and high public expectation from the Lokayukta in the
cir.cumstances. How can I take the responsibility and become the Lokayukta
when my objectivity and credibility are not accepted by the government and by
the public functionaries whose conduct the Lokayukta may have to
investigate? Findings and recommendations - for or against a public
functionary- will always be under question mark.
19. While offending so many very good, well-meaning and highly
respected elders and friends, I feel greatly relieved and feel free to do what I
like and support the social causes I share. I take as compliment the allegation
of so-called 'bias of being 'anti-government' because of my support to such
social causes. If there is perceived injustice to vulnerable people at the hands
of the government, I sympathise with them, try, in a small way, to serve,
support and help their causes. A judge should have such sensitivity for justice
and that does not make him biased and he does not lose his objectivity and he
remains true to his oath to do justice without fear or favour. I derive
satisfaction from such sensitivity and such work. Every human being should
have such heart and feelings, more particularly those who have to render
justice.
20. I humbly withdraw my consent for the appointment as the
Gujarat Loltayulita and decline to assume the office. Kindly accept my
request and relieve me.
Page 6 of 7
21. I sincerely wish  to be excused  by all for this anti climax and great public inconvenience and embarrassment. I genuinely wish I could have
avoided that.
22. I hope that in future the judiciary would decline to participate in
recommending  or accepting any such appointment (it should originate from
judiciary) if it is subject to overruling by the public functionaries whose
conduct/misconduct could be the matter of investigation by him. There is clear
conflict of interest of public functionaries and the appointee may get an
undeserving label of 'caged parrot'.
23. I am not sure whether I am right in declining the appointment as
the Lokayukta.

With highest personal sincere regards,
Most sincerely,
(R k Mehta)

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