Somewhere in Gujarat....

The Full Text Of Justice (Retd) R A Mehta’s Letter Explaining Why He Was Not Able To Take Charge As Gujarat Lokayukta
 6th August 2013
Your Excellency, the Governor of Gujarat, Dr. Smt. Kamlaji and Hon’ble the Chief Justice of Gujarat, Mr. Justice Bhaskar Bhattacharya,
I am thankful for putting confidence in me for the high office of the Gujarat Lokayukta.
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 country.
Soon it became clear that the public functionaries (whose conduct the Lokayukta may have to investigate) had strong objections against my appointment as the Gujarat Lokayukta. It was said that I had ‘anti-government bias’. From that moment I have been brooding: To be or not to be the Lokayukta? The answer has not been easy.
Highly respected elders and friends have with great force and persuasion suggested that I must accept. My thinking is to the contrary. I owe an explanation.
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 courts 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.
A lot of awareness and public expectations are generated from the 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!
I have 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.
The mind-set and attitude displayed by the State Government are counter significant, e.g.; “not acceptable to me”, “my way or highway”;
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).
Referring a large number of complaints against the public functionaries to a Commission of Inquiry (so as to exclude them from being investigated by the Lokayukta);
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 after three judgments of the Supreme Court, the reluctance of the State Government to 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 at my Ahmedabad residence while I was is 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!
I humbly believe that the high office of Lokayukta and its occupant (who 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 them 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.
May be there is lesson for the new Lokpal & Lokayukta Bills to 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 functionaries to decide who is to be their investigator, would give an impression that the 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.
I am reminded of the famous Transfer of Judges Case of Justice S H 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.
I am averse to any controversy and try to keep away. The present controversy has denigrated the office of the Lokayukta and adversely affected its credibility. The appointment has lost all the grace and dignity. The objection alleging anti-govt bias (though negative by the courts), really hurts. Some think that that if a person is not pro-government, he is necessarily anti-government. 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.
The office of Lokayukta 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 form the government about the infrastructure, staff, budget etc of the Lokayukta. I was given one page sanctioned set up of staff of 9 gazetted officers (most of them vacant) and 18 non-gazetted persons (including 11 Class IV). The current and next budget estimates were not given.
If the Lokayukta 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 the high public expectations.
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 linger 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.
I had consented under a belief (proved wrong) that the invitation to be Lokayukta would be without any dissent and controversy.
I am grateful to the judiciary that the allegation of bias is rejected, but the psychological sting remains.
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, and 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 unwanted by the government cannot get all the necessary and timely support and cooperation fro 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.
I frankly admit that I will not be able to fulfill the public duty, public need and high public expectation from the Lokayukta in the circumstances. 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 hat to investigate? Finding and recommendations – for or against a public functionary – will always be under question mark.
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.
I humbly withdraw my consent for the appointment as the Gujarat Lokayukta and decline to assume the office. Kindly accept my request and relieve me.
I sincerely with to be excused by all for this anti-climax and great public inconvenience and embarrassment. I genuinely with I could have avoided that.
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’
I am not sure whether I am right in declining the appointment as the Lokayukta.
With highest personal regards,
Most sincerely,
(R A Mehta)