Lok Ayukta: Political agenda with legal overtones

In 1885, AV Dicey, author of a legal classic 'An Introduction to the Law of the Constitution' prophetically wrote, "In a written federal constitution, every political question tends to be converted into a legal question". This is best illustrated by present controversy surrounding appointment of the Lok Ayukta under Gujarat Lok Ayukta Act 1986. Here is a case where Government of Gujarat headed by CM Modi, which has flagrantly violated Gujarat Lok Ayukta Act 1986 by not appointing Lok Ayukta for last eight years under one pretext or another, approached Gujarat High Court complaining against the Governor of violating the Constitution and the Act in appointing Justice (Retd) RA Mehta as Lok Ayukta in exercise of her constitutional and statutory obligation.

Here is a case where the CM, who has converted parliamentary system of government into Chief Minister's Government, accuses the Governor of acting in violation of the principles of parliamentary system, because she accepted primacy of Chief Justice's opinion against CM's objection as per Supreme Court judgement.
Here is a case where Modi brazenly refused "to perform is statutory and constitutional obligation and attempts to metastatisise procedure for appointment of Lok Ayukta by issuing Gujarat Lok Ayukta (Amendment) Ordinance 2011 to amend the Act" and yet raises the bogey of arbitrary action of the centrally-appointed Governor, and threat to the federal principle. The defiant, arrogant and dishonest conduct of the CM "to hamstrung mandatory appointment of Lok Ayukta (a post vacant for more than eight years) under Gujarat Lok Ayukta Act 1986 and to defeat provisions of the Act and the compelling circumstances under which Governor had no option but to accept name suggested by Chief Justice and to appoint Justice RA Mehta are sought to be perversely projected under garb of high-sounding constitutional principles of cabinet system and federalism. What a mockery of law and Constitution! What a shameless abatement of the principles of public and constitutional morality and probity.

This tendency on the part of political forces under a written federal constitution with human rights and judicial review to convert political question into constitutional and legal question imposes a very heavy burden upon the judiciary. It calls for principled commitment to the constitutional law and constitutional morality, political maturity and wisdom and sagacity to decide where to intervene and where to abstain in the exercise of its power of judicial review so as to ensure respect for political majority and to check its overenthusiastic myopic majoritarianism. On the one hand, judiciary must allow full play for waking out of policy choices by the people and their elected representatives and must not allow the democratically defeated political forces or others to thwart or undo the democratic choices of the majority. The courts must respect democratic majority and its policy choices. On the other hand, political majority or electoral victory cannot be allowed to run amok and crush minority view or dissenting voice or to undermine the Constitution or the duly enacted laws. It is the duty of the Courts to protect voices of dissent or protest and to defend and uphold the Constitution and laws. The Courts must not allow violations or the defaulters or the dishonest or power-hungry or megalomaniac to invoke high-sounding Constitutional principles or legal fog to hide their illegalities, immoralities, abuses or excesses. The court must have courage and readiness to tell bluntly, "Enough is enough".

Justice Sahai's judgement pinches through the legal fog of high constitutional principles sought to be created by Gujarat Government and exposed the brazen conduct of the Council of Ministers headed by the CM suffering from a "false sense of invincibility". This is what principles judicial review should be.

The author is a city-based lawyer and human rights activist