NOTE ON GUJRAT HIGH COURT JUDGMENT ON GUJRAT LOKAYUKTA - PART II

NOTE ON GUJRAT HIGH COURT JUDGMENT ON GUJRAT LOKAYUKTA (Judgment of Justice V M Sahai dated January 18, 2012)

By Anirban Roy, Advocate

PART II : THE COURT BATTLE BEFORE GUJRAT HIGH COURT

The State of Gujrat challenged the appointment of Justice (Retd) R A Mehta as the Lokayukta of Gujrat by the Governor by way of Writ Petition (PIL) No. 104 of 2011. The challenge was primarily on the ground that the Governor acted without or contrary to the aid and advice of the Council of Ministers headed by the Chief Minister, ignoring the letters dated August 18, 2011 written by the Chief Minister.

In October 2011, the Division Bench of the Gujrat High Court gave a split verdict i.e. one of the judges namely Justice Akil Kureshi upheld the appointment and the other namely Justice Sonia Gokani held against the appointment. The matter was then referred by the Acting Chief Justice of the Gujrat High Court to a third judge namely Justice V M Sahai on the points of disagreement.

Justice V M Sahai considered the facts and the sequence of events set out in Part I of this Note and by an Order dated January 18, 2012, upheld the appointment of the Lokayukta by the Governor.

GIST OF THE ORDER OF JUSTICE V M SAHAI

ROLE OF THE CHIEF MINISTER

1. Under the Constitution, the executive powers of the State are vested in the Governor.
2. However under Article 163 of the Constitution, the Council of Ministers headed by the Chief Minister is to aid and advice the Governor in the exercise of all his functions.  The exceptions are where the Governor is required under the Constitution to exercise functions in his discretion.
3. The Gujrat Lokayukta Act, 1986 gives powers of appointment of the Lokayukta to the Governor after consultation with the Chief Justice and the Leader of Opposition. It does not provide for consultations with the Chief Minister.
4. However in view of the provisions of Article 163 of the Constitution of India, the Council of Ministers headed by the Chief Minister automatically figures in the process of appointment of the Lokayukta.

WHAT IS MEANT BY CONSULTATION?

5. The term consultation has different meaning in different situations. However the essence of a process of consultation is that the parties should have sufficient opportunities to express their views along with materials. These should be considered by the other party by application of mind. Thereafter the other party must communicate his view to the party which had given the views in the first place. Only with this, the process of consultation is complete and effective.
6. The legislative intent of the Gujrat Lokayukta Act, 1986 is that the dignitaries who participate in the consultation process shall perform their duties keeping in view the larger interests of the State. However it is nowhere mentioned that there should be unanimity amongst these dignitaries. Nor has any dignitary been given a veto power. If unanimity is insisted upon, the process of appointment would become unworkable.

PRIMACY OF THE OPINION OF THE CHIEF JUSTICE

7. In earlier judgements, the Supreme Court had held that considering the nature of work of Lokayukta, the opinion of the Chief Justice would have primacy. Save and except for cogent reasons, the opinion of the Chief Justice would be final and decisive.
8. A question of primacy of opinion would not arise if a decision is arrived at by consensus without difference of opinion. The question of giving primacy to the opinion of one of the participants of the consultation process would arise only if conflicting opinions arise in the process of appointment.
9. In the scheme of the Gujrat Lokayukta Act, 1986, in case of a breakdown of consultation, the view of the Chief Justice would have primacy and would be binding upon the Council of Ministers and the Leader of the Opposition. If an interpretation is given that the Council of Ministers headed by the Chief  Minister would have the final authority in the appointment of Lokayukta, it would be lying down a trend which would strike at the root of the scheme envisaged under the Gujrat Lokayukta Act, 1986.

WHETHER A DEADLOCK AROSE IN THE PRESENT CASE ON ACCOUNT OF WHICH IT WAS NECESSARY TO INVOKE THE PRINCIPLE OF PRIMACY OF THE OPINION OF THE CHIEF JUSTICE

10. It had been argued on behalf of the State of Gujrat that the Chief Justice had not replied to the letter of the Chief Minister dated August 18, 2011 and accordingly, the process of consultation had not come to an end and hence there was no deadlock to invoke the principal of primacy of opinion of the Chief Justice. 
11. By the letter of the Chief Justice dated August 02, 2011, the consultation process stood concluded.  As on August 18, 2011, there was nothing left to be consulted between the Chief Minister and the Chief Justice. The letter of the Chief Minister dated August 18, 2011 was merely an attempt to frustrate the appointment of the Lokayukta.
12. Since there was no unanimity, there was a deadlock. Accordingly, the opinion of the Chief Justice had to be given primacy.  The Council of Ministers headed by the Chief Minister was left with no other option but to forward the name of Justice (Retd) R A Mehta to the Governer.

WHETHER THE GOVERNOR COULD HAVE USED DISCRETION IN THE MANNER OF APPOINTMENT OF THE LOKAYUKTA

13. There can be matters where the Governor can act in his discretion even though the Constitution does not provide so expressly.
14. In extraordinary and exceptional cases, where the action and conduct of the Council of Ministers headed by the Chief Ministers results in failure of Constitutional Machinery or Democracy itself is in peril, the Governor is under an obligation to exercise his discretionary powers.
15. The case in hand is one of its own kind.  Earlier such typical situations never arose.  Extraordinary situations demand extraordinary remedies. 
16. The Chief Minister had sparked a Constitutional mini crisis which compelled the Governor to exercise his discretionary power. Open resistance of the Council of Ministers headed by the Chief Minister in not accepting the primacy of opinion of the Chief Justice had created this crisis.
17. The pranks of the Chief Minister demonstrates deconstruction of our democracy and the questionable conduct of stonewalling the appointment of Justice (Retd) R A Mehta threatened the rule of law.  The refusal of the Chief Minister to perform the statutory and constitutional obligations and the effort to metastasis the procedure for appointment of Lokayukta by issuing the Gujrat Lokayukta (Amendment) Ordinance, 2011 to amend the Gujrat Lokayukta Act, 1986 were deprave and truculent actions.  The spiteful and challenging action demonstrates a false sense of invincibility.  It was necessary to remove the aporia created by the action of the Chief Minister and a reasonable Constitutional decision was required to be taken by the Governor so that democracy may thrive. 

CONCLUSION

18. In the premises aforesaid, the appointment of the Lokayukta by the Governor was upheld.

There are reports that the State of Gujrat has now challenged the Judgment of the Gujrat High Court before the Supreme Court. The matter has not come up for hearing by the Supreme Court as yet.

Anirban Roy

January 23, 2012

Email : anirban@royslawfirm.com

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