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

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

By Anirban Roy, Advocate

PART III : Some observations on the Gujrat Lokayukta controversy

1. The Gujrat Lokayukta Act, 1986 provided for one Lokayukta who was to be appointed by one dignitary after consultations with two others. It took eight years from 2003 to select one person and soon thereafter the matter landed up in Court. What would possibly happen with the Central Lokpal where nine members are to be selected with 50% reservations and reservations within reservations? And when these nine members are to be selected by a panel of five dignitaries? And what if the Central Model is required to be adopted throughout the country in all the States? Would the institutions under the Lokpal & Lokayukta Bill, 2011, which is supposed to be a panacea for all evils in our country, ever be set up (assuming of course the Bill is passed someday)?
2. Who is responsible for the State of Gujrat not having a Lokayukta for eight years despite having a law in place? Should the Bharatiya Janta Party not own up the moral responsibility, if not the actual responsibility?
3. Wasn’t Shri Narendra Modi adamant on having a candidate of his choice? Did not this attitude significantly contribute, if not solely contribute, to the delay in the process of appointment?
4. Wasn’t Shri Narendra Modi being unreasonable in opposing the appointment of Justice (Retd) R A Mehta solely on the ground that he had been critical of the functioning of the State Government in the past?  Does his being critical of the functioning of the State Government in the past have any bearing on his objectivity, independence, integrity and competence in respect of a corruption case coming before him in future?
5. Doesn’t the ground of objection taken by Shri Narendra Modi tantamount to saying that only a person who is favourably disposed towards the Government is fit and proper for being appointed as a Lokayukta? Is it not inconsistent with the basic philosophy of a Lokpal / Lokayukta?
6. Did not Shri Narendra Modi needlessly create a controversy over the candidature of Justice (Retd) R A Mehta after the Chief Justice of Gujrat High Court had considered his objections and cleared the name?
7. Did not Shri Narendra Modi attempt to do a Smt Indira Gandhi by seeking to bring an Ordinance at the last minute to remove the Chief Justice from the consultation process? (One may recall that during Emergency, the election of Smt Indira Gandhi was set aside by the Allahabad High Court for indulging in corrupt election practices. The same was challenged before the Supreme Court and the matter was to come up for final hearing on August 10, 1978. Not to take any chances of an adverse order, Smt Gandhi introduced a Constitutional Amendment which provided that the election to the office of the Prime minister could not be challenged in any Court. The same was introduced in Lok Sabha on August 7 and passed on the same day. On the next day i.e. on August 8, it was passed in the Rajya Sabha. On the next day i.e. on August 9, it was ratified by the requisite number of State Assemblies and thereby came into force one day before the matter was to be heard by the Supreme Court on August 10 rendering the hearing infructuous).
8. How does the Bhartiya Janta Party, which has raised the pitch for a “strong” Lokpal Bill at the Centre view this Ordinance act of Shri Narendra Modi? What are the views of Shri Lal Krishna Advani, one of the strongest critics of the Emergency?
9. How much of what the Bharatiya Janata Party has been speaking on the Lokpal issue, both inside and outside the Parliament, consistent with what Shri Narendra Modi did in Gujrat?
10. During the Parliamentary debate on December 29, 2012, Shri Arun Jaitley made a strong speech where he raised a strong grievance about the composition of the Selection Committee being tilted towards the Government. He complained that three out of five members were from the Government side namely the Prime Minister, the Speaker and the nominee of the President. And their own Chief Minister sought to bring an Ordinance to amend the law at the last minute and make the Chief Minister the Chairman of the Selection Committee when the law did not even provide for consultation with the Chief Minister and remove a person of the stature of a Chief Justice of the High Court from the selection process.  And the Ordinance provided that the Selection Committee would have five members out of which three namely the Chief Minister, the Speaker and the Law Minister were invariably from the Government. Is it not double standards, to say the least?
11. While the Supreme Court will now decide whether it was proper for the Governor to use his discretion under Article 163 to make the appointment dehors the advice of the Council of Ministers, did this controversy have anything whatsoever to do with “Federalism”? Or was it solely a case of establishing the authority of the Chief Minister and supremacy of his choice and opinion?
12. Was it then proper for the Bharatiya  Janta Party to make a public statement that the Judgment of the Gujrat High Court was a “setback” for “Federalism”?  Did it not give an impression to the general public, who do not have full information at their disposal, that the Gujrat High Court had deliberately supported some grossly unconstitutional act of the Governor?  It is pertinent to note that the statement was made by none other than Shri Arun Jaitley, a very senior and respected lawyer.

Anirban Roy

January 23, 2012

Email : anirban@royslawfirm.com

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

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

By Anirban Roy, Advocate

PART I : HOW GUJRAT GOT ITS LOKAYUKTA AFTER 8 YEARS

INTRODUCTION

1. Gujrat has its own version of the Lokpal Law in the form of Lokayukta Act, 1986.
2. As per the Lokayukta Act, 1986, a Lokayukta has to be appointed by the Governor of the State after consultation with the Chief Justice of the High Court (hereinafter “CJ”) and the Leader of Opposition (hereinafter “LO”) in the Assembly.
3. Till 2003, Gujrat had three Lokayuktas. The third Lokayukta namely Justice S M Soni retired in November 2003 and thereafter the office fell vacant. There is no information as to whether any steps were taken to fill the vacancy till August 2006. The story starts with the steps taken by Shri Narendra Modi, Chief Minister of Gujrat (hereinafter “NM”) from August 2006 onwards for appointment of Lokayukta.

ROUND I

4. In August 2006, NM wrote to the CJ saying that he proposed to send the name of Justice (Retd.) K R Vyas to the Governor for appointment as the Lokayukta and asked him if the CJ had any objections to the same. The CJ said he did not have any. The file was then sent to the Governor.
5. Issues arose as to whether the LO was consulted in the matter as required by law and the matter was referred by the Governor for legal opinion.
6. In the meantime Justice (Retd) K R Vyas had been appointed as the Chairman, Human Rights Commission, Maharashtra. As per the Protection of Human Rights Act, 1993, a member of the Commission was not eligible for further employment under the Government on ceasing to hold office. Hence Justice (Retd) K R Vyas was ineligible for appointment as a Lokayukta, even if he resigned from the present post.
7. Accordingly, in February 2009, the Governor asked the State of Gujrat to treat the proposal of Justice K R Vyas as closed and make a fresh proposal.
8. The State of Gujrat differed from the view taken by the Governor and the appointment of Justice (Retd) K R Vyas was insisted upon.
9. In September 2009, the Governor wrote to NM reiterating the legal position and repeating that the proposal of Justice (Retd) K R Vyas cannot be considered. NM was requested to send a fresh proposal after consultation with the CJ and the LO.

ROUND II

10. In February 2010, NM wrote to the CJ requesting him to recommend a panel of three retired judges of the Gujrat High Court from whom a Lokayukta can be selected.
11. In February 2010 itself, the CJ recommended a panel of four retired judges. They were 1) Justice (Retd) P M Chauhan 2) Justice (Retd) B C Patel 3) Justice (Retd) R P Dholakia and 4) Justice (Retd) J R Vora.
12. Based on the aforesaid recommendation, NM wrote to the LO to participate in the process of consultation. The LO took a stand that under the provisions of the Lokayukta Act, 1986, there was no scope of consultation with the Chief Minister and that the power of appointment is with the Governor after consultations with the CJ and the LO.
13. Subsequently, the Governor also wrote to NM saying that the process of consultation with the LO was over and meetings at his end be cancelled.
14. NM continued to call the LO for meetings for consultation and the LO continued to say that the process of consultation was over and requested NM to terminate the process of consultation. Eventually the meetings for consultation with the LO were held in the absence of the LO.
15. In April 2010, the State of Gujrat recommended the name of Justice (Retd) J R Vora, out of the panel of four retired judges recommended by the CJ, to the Governor for appointment as Lokayukta.
16. After receiving the proposal from the State Government, the Governor sought the advice of the CJ as to who was a better choice between Justice (Retd) J R Vora (recommended by the State of Gujrat) and Justice (Retd) R P Dholakia. Both were from the panel of four. Out of the other two, one had been selected as a member of National Human Rights Commission and the other at the age of 82 was considered too old.
17. The CJ replied that Justice (Retd) R P Dholakia was a preferred choice.

ROUND III

18. In the meantime, the Governor had received a legal opinion from the Attorney General of India stating the law laid down by the Supreme Court on this aspect.
19. Based on the aforesaid legal opinion, in May 2010, the Governor wrote to NM and the CJ that as per the law laid down by the Supreme Court, the CJ is the best person to advise on the suitability of a person to be appointed as a Lokayukta. It is also desirable to maintain the independence of the judiciary and to avoid a situation where a sitting or retired judge is dependent upon the Executive for an important appointment. Further, in accordance with law, the CJ is required to recommend only one name and not a panel. The State Government was required to take a formal recommendation of a single person from the CJ and submit the same to the Governor formally.
20. In the meantime, in May 2010 itself, the Gujrat High Court had appointed Justice (Retd) J R Vora as a Director of the State Judicial Academy.
21. In December 2010, the CJ wrote to the Governor  and NM recommending the name of Justice (Retd) S D Dave as the Lokayukta.
22. In January 2011, the Governor requested NM to process the matter expeditiously at the Government level and formally submit the name of Justice (Retd) S D Dave to her.
23. In February 2011, NM wrote to the CJ for consideration of the name of Justice (Retd) J R Vora for the post.
24. In March 2011, the Governor wrote to NM that there were press reports stating that the State Government had made a statement on the floor of the Gujrat Legislative Assembly that the Government would process the matter further after receipt of recommendation from the CJ and stated that this was far from truth because the State Government had already received a recommendation from the CJ for Justice (Retd) S D Dave. The State Government was asked to send the proposal of Justice (Retd) S D Dave to the Governor at the earliest.
25. Thereafter, the CJ wrote to NM repeating the recommendation of Justice (Retd) J R Vora.
26. In May 2011, Justice (Retd) S D Dave expressed his inability to take up the assignment for personal reasons.

ROUND IV

27. Immediately after Justice (Retd) S D Dave expressed his inability to take up the assignment, NM wrote to the CJ repeating his request for reconsideration of the name of Justice (Retd) J R Vora.
28. In June 2011, the CJ wrote to NM stating that Justice (Retd) J R Vora cannot be released from his engagement at the State Judicial Academy in the interests of the Judiciary. The CJ this time recommended the name of Justice (Retd) R A Mehta for the post. The same was also communicated to the Governor.
29. Immediately thereafter the Governor also wrote to NM that the matter of appointment of Justice (Retd) R A Mehta be processed expeditiously at the level of the Government in accordance with law.
30. Subsequently NM wrote a letter to the CJ raising issues about the recommendation of Justice (Retd) R A Mehta. He said that Justice (Retd) R A Mehta was over-aged and associated with a few NGOs, Social Activist Groups and therefore may be having a fixed frame of mind  on certain issues relating to governance in the State and further that he had shared platform with people who are known for their antagonism for the State Government and had expressed views against the functioning of the present Government and therefore he would not be able to perform his duties with the amount of objectivity, judiciousness and impartiality expected of a Lokayukta.
31. NM again wanted the proposal of Justice (Retd) J R Vora to be reconsidered.
32. On August 02, 2011, the CJ wrote to NM that he had gathered details of the activities of Justice (Retd) R A Mehta and found nothing that made him ineligible for the post of Lokayukta. A copy of the letter was sent to the Governor.
33. On August 16, 2011, the Governor wrote to NM and once again requested him to send the proposal of Justice (Retd) R A Mehta for formal appointment.
34. On August 16, 2011, the LO also wrote to NM that the LO had given consent to the Governor on the proposal of Justice (Retd) R A Mehta.
35. On August 17, 2011, the State Government prepared the Gujrat Lokayukta (Amendment) Ordinance 2011 for amendment of the Gujrat Lokayukta Act, 1986 and sent the same for promulgation to the Governor. The Ordinance primarily aimed at removing the CJ from the consultation process. It provided that the Governor shall appoint the Lokayukta with the aid and advice of the Council of Ministers. The appointment was to be made after obtaining recommendation of a committee consisting of 1) The Chief Minister as the Chairperson 2) The Speaker of the Gujrat Legislative Assembly 3) The Minister in Charge of the Legal Department 4) A sitting judge of the Gujrat High Court nominated by the CJ and 5) the LO.
36. On August 18, 2011, the aforesaid Ordinance was returned by the Governor to the State Government with an observation that there was no urgency for bringing about such an Ordinance all of a sudden. It was noted that the CJ had already forwarded a proposal and the same was at the final stage of issuance of notification.
37. On August 18, 2011, the aforesaid Ordinance was one again sent to the Governor. But the Governor did not act on the same.
38. On August 18, 2011, NM once again wrote to the CJ raising issues as regards the recommendation of Justice (Retd) R A Mehta.
39. On August 18, 2011, NM also wrote to the Governor that the legal position set out in the legal opinion of the Attorney General of India were not applicable to the appointment of Lokayuktas.

APPOINTMENT

40. On August 25, 2011, the Governor issued a warrant of appointment appointing Justice (Retd) R A Mehta as the Lokayukta of the State of Gujrat. 

 Anirban Roy

January 23, 2012

Email : anirban@royslawfirm.com

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