SC has muddied the waters in Gujarat Lokayukta case

By Kartikeya Tanna

Yesterday’s Supreme Court judgment in the matter pertaining to the appointment of the Gujarat Lokayukta goes against state government’s stand. At the same time, the judgment holds Governor Kamala Beniwal’s actions in this entire matter as unconstitutional and “not in conformity with the rule of law”.

The question that naturally arises is this – if the Governor’s actions in this appointment process were unconstitutional, why did the Gujarat government end up on the losing side?

This is because, according to the two-judge bench, the Chief Justice’s (CJ) opinion holds primacy over the opinion of the Chief Minister or the Leader of Opposition (LOP). Therefore, regardless of the Governor trying to force her choice, as long as Justice RA Mehta was eligible in the opinion of the CJ, nothing else mattered. Because of this primacy, the requirement of ‘consultation’ under section 3 of the Gujarat Lokayukta Act was met.

(Section 3 gives the Governor the power to appoint, by warrant under his hand and seal, the Lokayukta after consultation with CJ and LOP – Leader of the Opposition)

How did SC conclude that the CJ has primacy? While the Lokayukta Act does not expressly state so, the SC concluded that the CJ’s opinion has primacy by interpreting this section in the light of the objects and purposes of the Act. The CJ is the most appropriate person to judge the suitability of a retired judge and, moreover, his opinion would be entirely independent.

Does the Governor's lack of engagement with the Chief Minister set a bad precedent for other states?

So far, so good. What raises questions is the Supreme Court’s take on the adequacy of the ‘consultation’ process.

What does ‘consultation’ mean? The Supreme Court states that “consultation requires the meeting of minds between parties that are involved in the consultative process, on the basis of material facts and points, in order to arrive at a correct, or at least a satisfactory solution … consultation must be conscious, effective, meaningful and purposeful.”

In cases where the primacy of CJ has to be accepted, the SC held that ‘consultation’ really means ‘concurrence’.

Was there a consultation process? Let us look at the facts of this appointment process:

-          Three years after the resignation of the former Lokayukta in November 2003, Modi sent a letter to CJ recommending Justice KR Vyas. CJ approved Justice Vyas’s name and Modi sent the file to the Governor for issuing necessary appointment orders.

-          This file remained pending for three years. In the meanwhile, Justice Vyas took up another post as a result of which the Governor’s office requested the CJ to suggest a panel of names. Modi did that too.

-          After receiving four recommended names, Modi made attempts to consult the LOP. The LOP responded back saying that the Governor had already initiated the process of consultation and that Modi and the Council of Ministers had no right to embark on this constitutional process. The Governor, Kamla Beniwal, did not think it proper to consult with Modi either.

-          In the meanwhile, the Council of Ministers approved one of the four names (Justice JR Vora) and sent the file to the Governor. She refused to pass any orders. In fact, she sought the opinion of the Attorney General of India. She herself asked the CJ on who would be a better choice between Justice RP Dholakia and Justice Vora.

-          The CJ wrote back stating that Justice Dholakia would be the more appropriate choice. However, the Governor still did not issue a letter of appointment and again requested the CJ to recommend only one name. To which the CJ recommended the name of Justice SD Dave. The CJ also wrote to Modi recommending Justice SD Dave.

-          As one shall observe, a parallel ‘consultation’ was going on between the CJ, on the one hand, and Modi and Governor on the other. Modi wrote back to the CJ requesting appointment of Justice Vora since the consultation process concerning his name had already been gone through.

-          All of a sudden, in June 2011, the CJ recommended Justice RA Mehta to the Governor as well as Modi. This is the first time Justice Mehta’s name came up. The Governor, who otherwise took her own time in this process, asked Modi to expedite the process for appointing Justice Mehta on the same day. Modi wrote a letter objecting to Justice Mehta’s recommendation on grounds of his age and bias against Modi government.

-          In August 2011, the Leader of the Opposition told Modi that he approved Justice Mehta’s name and, soon thereafter, the Governor issued the requisite warrant appointing Justice Mehta as the Lokayukta notwithstanding Modi’s objections – all in two months.

-          In yesterday’s judgment, Supreme Court holds that the consultative process, which went on for a mere two months, was complete at this stage as there was “nothing left for the consultees to do/discuss”.

It is true that Section 3 does not require unanimity in the consultative process since CJ’s opinion has primacy. The Supreme Court’s conclusion, however, on the adequacy of consultation raises questions.

Throughout the judgment as well as in its conclusions in Para 74, the apex court holds that Beniwal “misjudged her role” by insisting that “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 CJ and LOP.

Such attitude was “not in conformity or in consonance with the democratic set up of government envisaged in our constitution” and that the appointment can be made by the Governor “only with the aid and advice of the council of ministers” Therefore, when the Governor consulted the Attorney General for legal advice and communicated with the CJ directly without taking into confidence the council of ministers, she was “wrongly advised”. (emphasis mine)

The question that arises is: if, by ignoring the council of ministers in the consultative process, the Governor “misjudged her role”, wasn’t the consultation process significantly vitiated with the Governor’s refusal to engage with Modi since her taking charge? Can the Governor’s act of unilaterally snapping the process by issuing appointment orders in two months time be called truly conscious, effective, meaningful and purposeful so as to meet the requirement in Section 3?

Sure, the CJ’s opinion has primacy and, in his opinion, Justice Mehta was not ineligible. But, it is important to recognise that the ‘consultation’ requirement is an express one in Section 3 whereas the primacy of the CJ’s opinion is an implied one. Should the operation of the latter completely negate the former which the legislature unequivocally intended?

And then, there is the ‘floodgate’ ramification to this judgment as well. It seems that as long as there exists something that enjoys primacy (like CJ’s opinion in this case), any ham-handed act by the Governor at any stage of the process would indirectly attain legitimacy. With the Centre trying to enforce its whims and fancies through Raj Bhavans in opposition-ruled states, this approach is fraught with dangers.

The appointment of a Lokayukta is, indeed, a welcome development. But the manner in which Supreme Court has legitimised the process gives rise to confusion.