The Lokpal and Lokayuktas Bill, 2011 was passed by Lok Sabha yesterday. The Bill will be discussed next by Rajya Sabha. Unlike the Lok Sabha, where the UPA government holds a majority in the House, the composition is different in Rajya Sabha. As on 28th December 2011, the total strength of Rajya Sabha is 243 members . The UPA has a combined strength of 95 members in the House, well below the 50% mark. (Of course, there will be some absent members which will change the arithmetic a bit.) The passage of the Bill thus depends on the stand taken by other political parties and their numbers in the House. Here's how the figures stack up:
| Party | Numbers |
| Indian National Congress (INC) | 71 |
| Dravida Munnetra Kazhagam (DMK) | 7 |
| Nationalist Congress Party (NCP) | 7 |
| All India Trinamool Congress (AITC) | 6 |
| Jammu and Kashmir National Conference | 2 |
| Sikkim Democratic Front (SDF) | 1 |
| Rashtriya Lok Dal (RLD) | 1 |
| Total UPA | 95 |
| Bharatiya Janata Party (BJP) | 51 |
| Janata Dal (United) | 8 |
| Shiv Sena (SS) | 4 |
| Shiromani Akali Dal (SAD) | 3 |
| Total NDA | 66 |
| Communist Party of India (Marxist) | 13 |
| Communist Party of India (CPI) | 5 |
| All India Forward Bloc (AIFB) | 1 |
| Total Left | 19 |
| Bahujan Samaj Party (BSP ) | 18 |
| Biju Janata Dal (BJD ) | 6 |
| All India Anna Dravida Munnetra Kazagham (AIADMK ) | 5 |
| Samajwadi Party (SP ) | 5 |
| Rashtriya Janata Dal (RJD ) | 4 |
| Asom Gana Parishad (AGP ) | 2 |
| Bodoland People's Front (BPF ) | 1 |
| Indian National Lok Dal (INLD ) | 1 |
| Lok Janasakti Party (LJP ) | 1 |
| Mizo National Front (MNF ) | 1 |
| Nagaland People's Front (NPF ) | 1 |
| Telugu Desam Party (TDP ) | 4 |
| Nominated | 8 |
| Independent and others | 6 |
| Total | 243 |
The Gujarat High Court is hearing an important case related to the appointment of the Lokayukta in Gujarat. The issue is whether the Governor can appoint the Lokayukta at his discretion or whether appointment can be made only upon obtaining the aid and advice of the Council of Ministers led by the Chief Minister. During the period 2006-2010, the Gujarat state government submitted names of two prospective appointees for the post of Lokayukta to the Governor. But no appointment was made during this period. On August 26, 2011 the Governor appointed retired judge R.A.Mehta as Lokayukta, whose name was not among those submitted by the state government. The Gujarat state government moved the High Court to quash the appointment on the ground that the Governor made the appointment without the aid and advice of the Council of Ministers led by the Chief Minister. Section 3 of the Gujarat Lokayukta Act, provides in part that “the Governor shall by warrant under his hand and seal, appoint a person to be known as Lokayukta”. The Governor acted under this section to make the appointment of Lokayukta. However, the state government has argued that section 3 has to be understood in light of Article 163(1) of the Constitution. Article 163(1) provides that the Governor shall be aided and advised in the exercise of his functions by a Council of Ministers with the Chief Minister at the head. Thus, as per this line of argument, the Governor violated the provision of Article 163(1) when she failed to take the aid and advice of the Council of Ministers led by the Chief Minister before exercising the function of appointing the Lokayukta. At the time of writing this post, news reports suggested that the two judges hearing the case are divided over the issue. It remains to be seen whether this issue will be referred to a larger bench. The outcome of this case could have wider implications on the constitutional role of governors if it sets guideposts on the extent to which they act independent of the advice of the council of ministers.
