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The Supreme Court judgement is based on this paradox. Gujarat will now have a Lokayukta whom the council of ministers never recommended. Constitutional short-cuts do not establish either good governance or good precedents, says Arun Jaitley.
The judgement of the Supreme Court in the case relating to the appointment of Lokayukta in Gujarat has thrown up two issues; one relating to the primacy of the chief justice of the high court in the matter of appointment of the Lokayukta virtually rendering all other constitutional authorities otiose, and the second relating to the role of the governor in the matter of appointment of the Lokayukta. As a member of India's legislature I offer this comment to protest against the usurpation of executive powers of an elected government.
Several states enacted the Lokayukta laws in 1986. The state legislations were based on a draft law circulated by the Centre. The language of the provisions relating to the appointment of Lokayukta is identical in most states.
Section 3(1) of the Gujarat Act reads is as under:
"For the purpose of conducting investigations in accordance with provisions of this act, the governor shall, by warrant under his hand and seal, appoint a person to be known as 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 of the Constitution is in operation in the state of Gujarat, after consultation also with the leader of the opposition in the legislative assembly, or if there be no such leader, a person elected in this behalf by the members of the opposition in that house in such manner as the speaker may direct."
The language of the section is clear. There is no ambiguity. When the language is clear, the rule of strict interpretation must apply. The section envisages the appointment to be made by the governor. Under our constitutional scheme the governor acts on the aid and advice of the council of ministers.
The role of the governor is a non-activist one. The consultation, therefore, in the name of the governor has to be made by the council of ministers through the chief minister. It is the chief minister who has to consult the chief justice of the high court and the leader of opposition in the legislative assembly.
There are four constitutional authorities involved in the process. The chief minister must consult the chief justice; he must consult the leader of opposition. He must then forward the recommendation to the governor who must act on the aid and advice of the council of ministers. The role of the governor is minimal. The chief justice and the leader of opposition are a part of the consultation process with the chief minister.
This scheme was enacted as a part of the constitutional mechanism where the governor, the opposition and the chief justice are a part of the consultation process. The key instrumentality in the consultation is the chief minister. He has to engage in the consultation.
The governor is the fourth agency who must grant approval on the aid and advice of the council of ministers. The constitutional mandate of separation of powers is intrinsically a part of the constitutional balance which is maintained between the different organs of the state. The interpretation given by the Supreme Court to the "consultation" with the chief justice now implies that there is a primacy of the opinion of the chief justice.
A reading of the judgement of Supreme Court not only gives to the chief justice's opinion a primacy, it gives it an 'exclusivity' thereby rendering the role of the chief minister and the leader of opposition completely redundant and otiose.
The Supreme Court has observed that "the purpose of giving primacy to the opinion of the chief justice is for the reasons that he enjoys an independent status and also because the person eligible to be the Lokayukta is from the retired judges of the high court, the chief justice is therefore the best person to judge suitability for the post.
The chief justice has primacy of the opinion in the said matter. The non acceptance of such recommendation by the chief minister remains 'insignificant'. Thus it clearly emerges that the governor under Section 3 of the Act, 1986 has acted upon the aid and advice of the council of ministers. Such a view is taken considering the fact that Section 3 of the Act 1986 does not envisage unanimity in the consultative process."
As a part of India's legislative and political process I seriously disagree with the observations of the Supreme Court. The act framed by the legislature does not give any primacy to the opinion of the chief justice. The fact that the chief justice is an independent constitutional authority does not imply that the chief minister or the leader of "opposition have no constitutional or statutory role particularly when the power to be exercised is an executive function and not a judicial one. There is no presumption that the chief justice alone is the best judge with regard to the performance of retired judges.
Quite to the contrary, the system of judges alone appointing judges and the judges alone judging judges has not worked satisfactorily in India. Many regard it as a failed system. The demand for a broad based National Judicial Commission is legitimate and logical. It is based on the experience of the system that the existing system of judges appointing judges and judges alone judging judges is not the best system available.
There are other relevant inputs which can be made by the other constitutional authorities. The legislature envisages that these constitutional authorities are to be a part of the consultation process. Their role is of an equal participant and not 'insignificant'. The judgement has evolved the role of the chief justice from being privy to the consultation process to one of 'primacy' and eventually to 'exclusivity' thus rendering role of the other constitutional authorities as 'insignificant'.
The judgement does not stop at that. The direct letter of the chief justice to the governor without an accompanying aid and advice of the council of ministers is now treated as the aid and advice of the council of ministers since the consultation process does not envisage a unanimity. So insignificant is the role of council of ministers that its' dissent is treated as an aid and advice to the governor.
The net and inevitable consequence of the reasoning offered by the judgement is that the opinion of the chief justice of the high court prevails. The opinion of the other constitutional authorities such as the chief minister, the leader of opposition is not relevant. They are unsuitable to give an opinion on retired judges. Only judges can opine on judges.
The judgement creates an imbalance in the separation of powers. The executive function where the chief justice is a participant in the consultation process is converted into a process where it becomes the sole prerogative of the chief justice of a high court to nominate the Lokayukta. The chief minister's role as nucleus of the consultation process is eliminated.
The chief justice's letter to the governor is a substitute for the aid and advice of the council of ministers. Needless to say that the same logic will apply to the opinion of the leader of opposition in the consultation process.
The judgement will have a direct impact on the constitution of the Lokpal. The select committee of the Rajya Sabha in clause 4 has recommended a collegium comprising the prime minister, the speaker of the Lok Sabha, the leader of opposition in Lok Sabha, the chief justice of India or his nominee judge and an eminent jurist to be a collegium which will appoint the chairperson and members of the Lokpal.
If the present reasoning of the Supreme Court is correct, the prime minister, the speaker of Lok Sabha, the leader of opposition in the Lok Sabha and an eminent jurist will be silent spectators on the collegium because the opinion of the chief justice of India would get primacy and exclusivity for the appointment of the chairperson and members of the Lokpal.
This obviously is not the intention of the lawmakers. The Parliament should re-visit this provision. There cannot be a broad based mechanism for appointment of the Lokpal. By judicial interpretation the courts will eliminate the role of other constitutional authorities and give to themselves the exclusive power. I would not like to undermine the judicial institution, similarly I am also not willing to allow the usurpation of the role of the legislature or the elected government in administrative matters.
The role of the judiciary is to interpret the law and decide cases. In the matter of administrative appointments they cannot widen their own jurisdiction and eliminate the role of the legislature or the executive.
The Governor
The governor of Gujarat admittedly acted in an unconstitutional manner. She wanted to usurp the authority of the elected government. The relevant observation of the Supreme court with regard to the governor reads as under:
"The governor's opinion stated in her letter dated 3.3.2010 to the effect that that she was not bound by the aid and advice of the council of ministers and that she had the exclusive right to appoint the Lokayukta, is most certainly not in accordance with the spirit of the Constitution. It seems that this was an outcome of an improper legal advice and the opinion expressed is not in conformity with the rule of law. The view of the governor was unwarranted and logically insupportable.
It appears that the governor has been inappropriately advised and thus mistook her role as a result of which she remained under the impression that she was required to act as a statutory authority under the Act, 1986 and not as head of the state. Moreover, the advice of the attorney general was based on the judgement of this court referred to hereinabove. The chief minister was also aware of each and every development in this regard."
The governor had decided to act on her own. There was no aid or advice offered to her by the council of ministers with regard to the appointment of a particular person as the Lokayukta. The dissenting opinion of the council of ministers has become the aid and advice to the governor.
The judgement is based on this paradox. Gujarat will now have a Lokayukta whom the council of ministers never recommended. Constitutional short-cuts do not establish either good governance or good precedents.