Blow to Modi, SC upholds appointment of Lokayukta
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Justices B S Chauhan and F M Ibrahim Kalifulla held the appointment of the former high court judge was valid in law in view of the "primacy of opinion" of the high court chief justice, who, besides Governor Kamla Beniwal and the leader of opposition, had approved his selection.
In June 2011, Modi had written to the chief justice to reconsider Mehta's name due to what he said was Mehta's association with NGOs and activist groups known to be against his government. The letter, supported by newspaper clippings, alleged Mehta had a "specific biased disposition" against his government. The chief justice responded saying the apprehensions were either irrelevant or not factually correct.
Ratifying the selection process, the apex court said: "As the chief justice has primacy of opinion... non-acceptance of such recommendations, by the chief minister, remains insignificant. Leaving the finality of choice of appointment to the council of ministers would be akin to allowing a person who is likely to be investigated, to choose his own judge."
According to the court, the opinion of the chief justice got primacy as he enjoyed an independent constitutional status and also because the Lokayukta would be a former high court judge, making the chief justice the best person to judge him.
Describing the Gujarat Lokayukta's post lying vacant for more than 9 years as a "sorry state of affairs", the bench asked Mehta to join immediately and directed the government to provide him all facilities.
At the same time, the court also held that the governor could not appoint the Lokayukta independently. It criticised Beniwal for completely bypassing the state government and consulting the Attorney General of India for legal advice and communicating with the chief justice of the high court directly without taking the council of ministers into confidence.
"The present governor has misjudged her role and has insisted, that under the act, the council of ministers has no role to play in the appointment of the Lokayukta, and that she could therefore, fill it up in consultation with the chief justice of the Gujarat high court and the leader of opposition. Such attitude is not in conformity, or in consonance with the democratic set up of government envisaged in our constitution," the bench said.
Censuring the governor for her statement 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, the bench said that it was "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," the court said. The governor's position was synonymous with the state government and that she could take independent decisions only while acting as a statutory authority under a particular act or under the exceptions provided in the constitution, it added.
Terming the explanation given by the chief justice to Modi as rational, the court said: "If a vigilant citizen draws the attention of the state/statutory authority to the apprehensions of the minority community in that state, then the same would not amount to a biased attitude of such citizen towards the state."
The apex court also disapproved of the strictures passed against Modi by the third HC judge, who was referred the petition after a two-judge bench was divided in its opinion. While upholding the appointment of Mehta, the third judge had said that the conduct of the chief minister demonstrated "deconstruction of democracy" and amounted to a refusal to perform his statutory or constitutional obligation. The judge observed that in light of this, a responsible constitutional decision was required to be taken by the governor to preserve democracy and prevent tyranny.
"The learned judge, even if he did not approve of the 'my-way-or-the-highway' attitude adopted by the hon'ble chief minister, ought to have maintained a calm disposition and should not have used such harsh language against a constitutional authority...," the bench said.
Speaking to reporters after the ruling, Mehta said, "This is the victory of Supreme Court. It is not in dispute that we need Lokayukta in Gujarat and even government has accepted it." He also did not say when he would take charge of the post.