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Sunday, December 08, 2019

Simply put: Continuing drama over UP Lokayukta appointment

Govt failed to provide a name, SC used Art 142 to appoint a Lokayukta. It will now hear the matter on Jan 4. SHYAMLAL YADAV recalls the controversy.

Written by Shyamlal Yadav | Published: December 21, 2015 12:19:23 am
UP lokayukta, supreme court, virendra singh, akhilesh yadav, UP government, samajwadi party, new UP lokayukta New UP Lokayukta Virendra Singh. (Source: Express photo by Vishal Srivastav)

Why is the appointment of the Lokayukta in Uttar Pradesh in the news?

On December 16, the Supreme Court took the extraordinary step of appointing Justice (retd) Virendra Singh, a former judge of the Allahabad High Court, the new Lokayukta of Uttar Pradesh after its deadline to the government to make the appointment passed. Justices Ranjan Gogoi and N V Ramana said the failure to comply with its orders since April 2014 — the state had missed at least three deadlines over the last year — indicated “the inability of the constitutional authorities” and “a failure, if not recusal, to comply with the orders of the highest court of the land”. UP Governor Ram Naik had been returning recommendations made by the Chief Minister’s Office, insisting the name must come from the Selection Committee, as per rules. A day after the SC order, Allahabad High Court Chief Justice D Y Chandrachud — who is part of the Selection Committee — wrote to the Governor to protest the inclusion of Justice (retd) Singh’s name in the list of candidates given to the Supreme Court; this, the Chief Justice said, was done despite his objections, and an assurance from Chief Minister Akhilesh Yadav that Virendra Singh would not be on the panel. On Saturday, UP deferred the swearing-in of the new Lokayukta after the Supreme Court questioned it on the HC Chief Justice’s objections.

So, has UP been without a Lokayukta?

On the contrary, the UP Lokayukta is the country’s longest serving. N K Mehrotra, a retired judge of the Allahabad High Court, was appointed Lokayukta on March 16, 2006, when Mulayam Singh Yadav was Chief Minister. His six-year term ended on March 15, 2012, but the Akhilesh government, which had taken charge that same day, issued an ordinance to give him a two-year extension. The extended term too ended in 2014, but Mehrotra remained in his post because the UP Lokayukta (Amendment) Act, which was passed by the House in July 2012, also said that the “Lokayukta shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.” In all, Mehrotra served for 9 years and 9 months.

When and how did the Supreme Court get involved in this matter?

The Amendment Act was challenged in court, but on April 24, 2014, the Supreme Court (Mohd Saeed Siddiqui vs State of UP and Another) ruled that the “extension of the term of Lokayukta and Up-Lokayukta from six years to eight years is a matter of legislative policy”. But, importantly, the court also said: “However, we direct the State to take all endeavours for selecting the new incumbent for the office of Lokayukta and Up-Lokayuktas as per the provisions of the Act preferably within a period of six months from today.”

In July 2015, the Supreme Court took note of a contempt petition alleging non-compliance with its April 2014 order, and directed the state to do the needful within 30 days. On December 14, the court gave the UP government two days to appoint the Lokayukta. After the government failed again, on December 16, the court picked Virendra Singh to be the Lokayukta from the list of five names that were being considered by the Selection Committee.

What is the process of appointment of the Lokayukta in UP?

Under the UP Lokayukta Act, a committee comprising the CM, High Court Chief Justice and Leader of Opposition in the Assembly must pick the Lokayukta, and a recommendation must then be made to the Governor. In August, the CMO recommended Justice Ravindra Singh, recently retired from the Allahabad High Court, for the post, but without going through the Selection Committee. Governor Naik returned the file twice, making it clear that he would give his assent only to a name sent by the Selection Committee.

The government responded by bringing an amendment Bill on August 28, removing the requirement to consult the HC Chief Justice in the selection of the Lokayukta. The amendment, which was cleared by the Assembly, said the Selection Committee would be headed by the CM and would have the Speaker, LOp and a retired judge — to be nominated by the committee chairperson in consultation with the Speaker — as its members. This amendment Bill is pending for approval with the Governor.

In September, however, the government decided to start the selection process under the existing Act by inviting the Chief Justice for consultations. However, the CJ raised questions over the “validity” of the procedure. Following the December 14 rap by the Supreme Court, the CM, LOp and CJ had two marathon meetings over consecutive days, but still failed to reach a consensus.

What is Article 142 of the Constitution, on which the Supreme Court relied?

Article 142 says: “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” The court said it was compelled to invoke its extraordinary powers under Article 142 owing to “astonishing” circumstances, and because all “hopes and expectations of this court have gone in vain and remained unheeded”.

What happens now? Can the SC order be challenged?

Following the December 16 SC order, Virendra Singh was supposed take oath on Sunday. But on Saturday, a Bench led by Justice A K Goel, which heard a petition filed by one Sachidanand Gupta, took note of reports of the CJ’s unhappiness over the selection, and asked the UP government if it was willing to defer the swearing-in. After UP opted to do so, the Bench ordered “the matter be listed before the appropriate Bench on 4th January 2016”. The SC has in the past reviewed its orders passed under Art 142.

Has a state government disagreed with the Governor on the Lokayukta’s appointment earlier?

Controversies have arisen on several occasions — the crux of the matter being that Governors, being central government nominees, often have views that are at variance with Chief Ministers who would like to have an anti-corruption ombudsman of their choice. In August 2011, then Gujarat Governor Kamla Beniwal appointed Justice R A Mehta as Lokayukta of Gujarat without consulting the state government headed by Narendra Modi. A major controversy followed, and there was much delay in the appointment.

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