Ahmedabad: What Chief Minister Narendra Modi was afraid of, finally happened. Gujarat High Court upheld the appointment of retired judge R A Mehta as the state’s lokayukta. This, in many ways, is a historical judgment. A government already entangled in several legal battles related to fake encounters and communal violence will now have one more front to fight on - corruption. There are serious charges of corruption and land scams running into hundreds of crores against the present government.

Modi tried every possible means to derail the appointment of Justice Mehta as the lokayukta of Gujarat. He immediately moved the High Court against the appointment. Later he wrote to the prime minister that the governor be recalled. BJP ran a vicious campaign, calling Raj Bhavan as ‘Congress bhavan’. Senior party leaders stalled Parliament repeatedly over Justice Mehta’s appointment.

Apart from all these external pressure tactics, the chief minister also tried to amend the Lokayukta Act and remove the provision of compulsory consultation with the chief justice of the High Court. Taking serious note of these and many other attempts to derail the appointment of Justice Mehta, Justice Sahai made the following startling observations:

“The pranks of the Chief Minister who is the head of the council of ministers demonstrates a deconstruction of our democracy, and the questionable conduct of stone-walling the appointment of Justice (retd) RA Mehta as Lokayukta threatened the rule of law.

The refusal of the Chief Minister to perform his statutory or constitutional obligations and the effort to metastasise the procedure of the appointment of Lokayukta by issuing Gujarat Lokayukta (Amendment) Ordinance 2011 to amend the Act were deprave actions.

The aforesaid exceptional facts establish that deconstruction of democracy was at work. It was necessary to remove the aporia created by the action of the CM, a responsible constitutional decision was required to be taken by the governor so that democracy can thrive…”

Exactly a week after his mega sadbhavana sabha, on September 25, 2011, Modi, before a huge gathering accused the Centre of running a parallel government through Raj Bhawan by unilaterally appointing the lokayukta. The High Court, however, today ruled that the appointment was valid and constitutional.

The state government has put up a very funny proposal instead; the governor must consult a committee that includes three ministers, the leader of the opposition, and the state’s chief justice.

This number game keeps the equation at 3:2 in the state government’s favour; this means the government can have its own person of choice who’ll investigate charges of corruption against the government. The governor had rejected that proposal.

The core question remains: why is the chief minister afraid of lokayukta, when the lokayukta law itself is so weak. Under this law, the lokayukta has no power to prosecute and it is left to the government whether to take action on the report of the lokayukta or not.

In the harshly worded judgment, the High Court said, “The Constitutional mini-crisis had been sparked by the Chief Minister which compelled the Governor to exercise discretionary powers under Article 163 of the Constitution to protect democracy and rule of law and the Governor appointed Justice (Retired) R A Mehta as Lokayukta on 25.8.2011.”

Perhaps the point of departure comes in the person of Justice Mehta, who is well known for his integrity and honesty and cannot be manipulated at all. Perhaps the fear lies in the fact that the investigation by Justice Mehta of any case of corruption would be believed by the people at large, the very constituency the chief minister addresses himself to. Till now, by careful tailoring, the chief minister has been able to present himself in designer suits. But once Justice Mehta becomes the lokayukta, he feels he’ll lose the façade. What exactly is the reason for this stubborn opposition to the appointment of lokayukta? Was the chief minister resisting the appointment of Justice (retd) R A Mehta as the lokayukta or was he against the functioning of the lokayukta itself? If the opposition was restricted to the appointment of a particular person, it can not explain as to why the chief minister did not appoint a person of his own choice since November, 2003 to June, 2004, the period during which the NDA government was at the Centre and the Gujarat government had a governor of its own party.

But no lokayukta was appointed and the office remained vacant for no cogent reason. In the last phase, the learned Judge Sahai in paragraph 96 of his Judgment has observed that:

“There was no good or cogent reason available to the chief minister for writing letter dated 18.8.2011 for not appointing Justice (Retired) R A Mehta as lokayukta, except adamantly reiterating the trite and stale allegations made earlier on 16.6.2011 which after inquiry had not been accepted by the Chief Justice.”

Perhaps the real reason of the antagonism is the fact that the present chief minister faces very little political opposition in Gujarat and he has no desire to create a statutory opponent.

Despite the fact that the existing Gujarat Lokayukta Act, 1986 is a weak piece of legislation without any teeth, yet the mere existence of a lokayukta can be troublesome. The Act provides that any person can make a complaint against any public functionary regarding any action that is relatable to corruption or any action that lacks integrity.

The definition of ‘public functionary’ includes the chief minister as well as all his ministers. In view of these provisions, the Lokayukta Act has the potential of levelling allegations against the chief minister and scoring political brownies.

The worst scenario of course is when a strong person with a high degree of integrity like Justice Mehta is appointed to the office of lokayukta. A situation like Karnataka may arise; what the entire opposition of Karnataka could not do, the report of Justice Hegde did. It resulted in the exit of chief minister B S Yeddyurappa!

If we take the recent verdict of the court directing Essar to pay more than Rs 9000 crore as tax to the Gujarat government, one can imagine what type of concessions are being given to the rich and an inquiry into one such case by the lokayukta can set the political pot boiling.

With the 2012 elections to the Gujarat assembly round the corner, it is unthinkable that the Gujarat government would risk the appointment of any person as the lokayukta let alone Justice Mehta. True, the judgment of the learned Judge Sahai is highly reasoned and erudite but the path of justice is long and arduous. The judgment is already before the apex court and no one can really predict when the legal journey would be over.

Appointment of commissions to “look into” allegations of corruption may be a much safer bet. Delay is the best gameplan irrespective of whether the allegations are related to riot matters, encounter issues or appointment of lokayukts. The decade-long pendency of the Nanavati commission has established this point. Corruption is a congenital defect of the capitalist mode of production. Globalisation has only metastasised it in every organ of the State.