'Murder of democracy'

An unconstitutional and illegal procedure was adhered to by the governor in appointing the Lokayukta in Gujarat.

Transparency in the process of appointment to such a high post (of Lokayukta) to which such an important duty (watchdog against corruption) has been cast is a sine-qua non. Section 3 of the Gujarat Lokayukta Act, 1986 reads, thus:

“3. Appointment of Lokayukta - (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall appoint the Lokayukta. Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 (President’s rule) of the Constitution is in operation in the State; after consultation also with the Leader of the Opposition in the Legislative Assembly...”

Reading Section 3 of the Lokayukta Act, it is very clear that the proposal has to be initiated by the State Government for consideration of the name or names recommended by the Chief Justice of the High Court and thereafter, there has to be a discussion between the Chief Minister and the Chief Justice of the High Court. The discussion is part of the consultative process and the final decision has to be that of the state government. However, in the K P Mahapatra case in 2002, the Supreme Court accepted the primacy of the opinion of the Chief Justice of the High Court.

In any eventuality, in my opinion, true and correct procedure should be that the Chief Minister and the Chief Justice must sit together and discuss the matter at great length and try to reach a consensus on the name. If not, the state shall be bound by the opinion of the Chief Justice of the High Court.

Govt advice ignored

In the case of Gujarat, the Chief Justice of the High Court, on the request of the Chief Minister, had addressed a letter in February, 2010 in which he had recommended four names. He had made it clear that none of the names should be treated as recommended on priority or by preference, and that the state is free to choose one out of the four.

Accordingly, the cabinet on March 31, 2010 finalised one name from the four suggested by the Chief Justice and forwarded its “advice” to the Governor in accordance with Article 163 (1) of the Constitution. Thus, the process of appointment came to an end and the Governor was duty bound to accept the “aid and advice” of the cabinet, leaving no option to her to act to the contrary. 

Instead, a wholly unconstitutional and per se illegal procedure was adhered to by the figure head of the Constitution. It is still a matter of surprise as to what compelled the Governor to seek opinion from the Attorney General and that too on irrelevant criteria and consideration. Normally, when the Governor is in the realm of doubt, he/she consults the Advocate General. But here, what necessitated, firstly, seeking an opinion, and secondly, from the Attorney General is still a reason which does not come out on record.

Relying on a judgement of the Supreme Court in the case of Kannadasan (2009), which is absolutely inapplicable to the facts of the Gujarat case, the Attorney General opined that the panel of names suggested by the Chief Justice is contrary to the ratio laid down by the Supreme Court of India and advised the Governor that Chief Justice be requested to forward only one name.

Shocking and brutal

What happened thereafter is not only shocking but brutal murder of democracy. Assuming that only one name was required to be forwarded by the Chief Justice, even then the Governor should have referred the files back to the State Government asking it to start a denovo process of appointment.

Instead, the Governor directly wrote to the Chief Justice requesting him to forward just one name. The Chief Justice acted on the letter of the Governor, notwithstanding clear constitutional provisions. The Chief Justice should have written back to the Governor stating that he cannot act on the letter directly addressed to him and that the files may be sent back to the State Government to forward only one name after consultation with the Chief Justice.

The action of the Chief Justice of acceding to the request of the Governor was against the scheme of the Constitution and, thereafter, everything that happened till the appointment of Justice R A Mehta (Retired) as Lokayukta is absolutely unconstitutional.

In all fairness, the Chief Justice should have requested the Governor that she send such a letter to the Government and should have waited till such time that the State Government requested him to forward only one name for appointment as he deems fit.

(The writer is President of Gujarat Bar Council.)


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