Choice of Lokayuktas: Consultation can't be perfunctory

In Karnataka, the unseemly controversies regarding appointments to the institution of Lokayukta, violating the sanctity of the legislature, communalising the school text books and so on give rise to an important question:

Is the BJP government accountable to the constitution, the courts or the legislature? With one or two honourable exceptions, the ministers seem to believe that propriety, the due process of law or indeed the rule of law itself are all open to compromise. That  the rule of law embodies a principle of institutional morality implying a certain restraint on the exercise of power, be it in the matter of appointments or changes in school textbooks has not been recognised. How far can we go in claiming people’s mandate in pursuit of such basic decisions?

It was evident that the government was desperate to see the back of justice Santosh Hegde who had submitted an honest, uncompromising report on illegal mining, in the face of unbecoming, sometimes even personalised innuendos by political bigwigs, triggering a crisis in the government. His retirement offered breathing space to a government which felt besieged by an efficiently working Lokayukta, a special court and a probing governor.

The institution of Lokayukta is similar to the Central Vigilance Commission and with broadly similar objectives of tackling corruption and recommending or initiating a process leading to punishment if need be. The Karnataka Lokayukta has powers to investigate allegations of corruption against ministers and officers. Although it is created by the state legislature, it is in the nature of an independent institution which can investigate without fear or favour. Independence also implies impartiality of the institution. The special character and objectives of such institutions require that only persons with impeccable integrity and background are appointed to the office and for this reason they have come to be called ‘integrity institutions.’

People with tainted service record including retired judges cannot be appointed to work in such institutions. That was the main grounds on which the appointment as Chief Vigilance Commissioner of a retired senior IAS officer from Kerala, P J Thomas was struck down by the Supreme Court in 2010. Thomas had been directly associated with a high profile case involving import of palmolein oil. The court also suggested that the bio-data of candidates for such positions couldn’t be the sole basis for selection but that the governments should keep in view “the larger perspective of institutional integrity…institutional competence and functioning” of the institution.

The recent sordid story of Karnataka’s Lokayukta really began with the proposed appointment of Justice Bannurmath, former chief justice of Kerala high court.  The government appeared desperately keen on his selection but the governor had other ideas.  This went on for some months until the new chief justice of Karnataka, apparently, also disapproved his nomination. I believe that the government should have saved public embarrassment to Bannurmath much earlier.

Self interest

Worse still, former chief minister Yeddyurappa said in Bidar recently that Bannurmath was refused the post because he was a Lingayat, a remark that was entirely unwarranted since the same governor had approved justice Shivraj Patil’s appointment without question. Politicians can be brazen when their self interest needs to be advanced, in this case politics of (caste) identity, even if it creates social bitterness. But did the government learn from this setback?

Look at the ugly episode concerning Upa Lokayukta. Sec 3 (2) (a) and (b) provide for appointment by the governor of the Lokayukta “on the advise tendered by the chief minister,” but after consultation with the chief justice, the presiding officers of the Assembly and Legislative Council and leaders of opposition in the two Houses. The bone of contention between the governor and the chief justice on the one hand and the government on the other is the meaning of the notion of ‘consultation’ as interpreted by courts of law. The chief justice has in a particularly candid letter to the chief minister, expressed his anguish at having been completely left out of the loop of consultation and at the constitutional position of the chief justice being slighted; that he came to know of justice Chandrashekaraiah’s appointment only from the invitation to the latter’s swearing-in to the office; and that the government proceeded with the appointment despite a communication from the governor that consultation with the chief justice was mandatory.  

The chief minister and the law minister have, on the other hand, directly and repeatedly contradicted the chief justice’s contention and asserted that they have followed the stipulated procedures and that they carry no responsibility beyond this! Is someone misrepresenting facts?  We, the people, have now to choose one of the two versions, and that too regarding an ‘integrity’ institution! Why then did the chief minister think it fit to announce that he would begin consultations with the chief justice as well as the others?  The government cannot hide behind the smoke screen of ‘past practice’.

The Supreme Court has clearly ruled in the case of Prasad vs Patna high court (1969) that “Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer, the direction to give effect to the counter proposal without anything more cannot be said to have been issued after consultation.” Surely, the panoply of law officers including the law minister can appreciate that consultation must involve advice and information given and received, doubts, difficulties and objections raised and removed in deliberations?

(The writer is a former minister and former chairman of Legislative Council)

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