The Gujarat High Court has upheld the Governor’s right to appoint the Lokayukta in the state. Last year after the Governor made the appointment the Gujarat government challenged the appointment because it had not been consulted by the Governor. Now the court has upheld the appointment. In other words the Governor has the authority to act on his own without consulting the cabinet in relation to matters under jurisdiction of the Lokayukta. The Lokayukta deals with corruption which deals with violation of due law and process.
The BJP government has criticized the decision saying that it violates the federal structure and very spirit of the Constitution. The BJP is mistaken. The judgment regarding the Governor’s powers is fully in keeping with the provisions of the Constitution. Where the BJP has erred is in not attacking the government for subverting the system as revealed by this judgment.
The President of India is the ultimate authority under oath to preserve and protect the Constitution and law. All other ministers are required under oath to abide by the Constitution. BJP leader of opposition in the Rajya Sabha Mr. Arun Jaitley told a TV channel that the Governor as the appointee of the central cabinet should not be allowed to infringe on the powers of the state government because that vitiates federalism. What he should have questioned is why and how can the Governor be the appointee of the central cabinet.
According to the Supreme Court ruling in the Dr Raghulal Tilak case (1979), the Governor in no manner can be “subordinate or subservient” to the Union cabinet. Therefore the Governor is accountable to the President who formally appoints him. If the Governor is not subservient to the cabinet he must obviously function under orders of the President who appoints him and to whom he is accountable. As the final protector and preserver of the Constitution and law throughout the nation the President appoints his Governors to the states to likewise preserve and protect the Constitution and law under his direction.
That being so, if the Lokayukta is to be appointed solely by the Governor in the state, why should not the Lokpal be appointed solely by the President at the centre? The issue about the President’s unused powers is like an elephant in the room. Politicians and jurists may look from side to side or up and down to avert the sight, the elephant will not disappear. Its presence will continue to make a mockery of the system and ruin governance. Until the President plays the role indicated for the office in the Constitution disputes such as the one between Gujarat government and the Governor, the Chief Election Commissioner and the Law Ministry, the Army Chief and the cabinet, will recur with increasing frequency.