Gujarat Lokayukta Controversy – Setting the Record Straight: Part 2

Read the part 1 here

The Verdict

The judgments rendered in this case touch upon a number of significant legal questions but turn on two crucial questions of Constitutional importance:

What is the nature of consultation envisaged for appointment to the post of Lokayukta and more particularly in case of difference of opinion between the Chief Justice and the Chief Minister of the State, whose view would prevail?”

“Whether the Governor of the State was authorized to act in a manner she did while issuing notification appointing Justice R.A. Mehta as Lokayukta of the State without the aid and advice of the Council of Ministers?”

Justice Akil Kureshi and Justice V.M. Sahai both opined that effectively, the consultation process between the Chief Justice and Chief Minister as envisaged under the Act had come to an end. The Chief Minister had, in his final communication to the Chief Justice, conveyed the inability of the State Government to accept the recommendation of appointment of Justice (Retd.) R.A. Mehta for the post of Lokayukta. Consequently, there was a deadlock between the two functionaries and in such an eventuality; the opinion of the Chief Justice had to be given primacy over the view of the Council of Ministers headed by the Chief Minsiter.

Once this had been established, it remained to be examined whether the Governor was empowered or authorized to issue the appointment warrant without the aid and advice of the Council of Ministers, as is the inviolable norm of our Parliamentary system. Both Justice Kureshi and Sahai, while recognizing that A.163(1) required the Governor to act on the aid and advice of the Council of Ministers, held that the situation at hand was a ‘unique’ and ‘extraordinary’ one which warranted an exceptional respondse. In light of this, the exercise of discretionary power by the Governor under S.3 of the Lokayukta Act for appointment to the post was valid and constitutional.

Justice Sonia Gokani, on the other hand, in her dissenting opinion, observed that the ‘consultation’ process envisaged for appointment under the Act, as is the case in other such appointments including those to the judiciary, cannot be merely directory in nature or a mere ordeal. It should be full, effective and purposeful consultation – one which entails examination of all possible details, deliberations, discussions, consideration and finally a decision – even if primacy is accorded to the opinion of the Chief Justice.

In the present case, it could not have been said that the consultation process was over as there was scope for further communication and thus, there was no question of a stalement or deadlock. On the question of Governor’s exercise of independent discretion to appoint the Lokayukta, Justice Gokani found that no exceptional circumstances existed as carved out by the Constitution or otherwise laid down by the decisions of the Apex Court, permitting the appointment of Lokayukta by allowing the settled principles of Parliamentary democracy to take a back seat.

The underlying Constitutional debate

The nature and extent of discretionary powers that can be exercised by the Governor of a State constitutes the question of significant importance under Constitutional law and which will be decided upon by the Supreme Court. Assuming that a situation of deadlock had arisen in the consultative process, could the Governor have acted unilaterally in issuing the appointment warrant, in the absence of any direction from the Council of Ministers headed by the Chief Minster to this effect?

Like the President, the Governor too is a mere titular or Constitutional head of executive and is required to act on the aid and advice of the Council of Ministers. However, as per Article 163(1), the Governor is required to discharge certain functions “in his discretion”, “by or under the Constitution”. The Article provides no guidelines as regards the nature and exercise of this discretion and leaves it to the Governor to decide whether a matter falls under his discretion or not. The phrase “by or under the Constitution” is of a wide import, covering instances where the Constitution specifically provides for certain functions to be exercised by the Governor in his discretion as well as functions which the tone and context of the provisions indicate are ones which the Governor is to exercise in his discretion.

It is with respect to these matters in which the Governor exercises his discretion by necessary implication that a debate regarding the limits of such discretionary power ensues. For instance, the Governor’s power to make a report to the President under Article 356 (proclamation of emergency in a State) irrespective of Ministerial advice; to reserve a Bill for consideration of the President [Article 200]; to appoint the Chief Minister of the State; to dismiss the Ministry on the assumption that it has lost majority and dissolve the House etc. continue to give rise to heated controversies and debates.

The question at hand is whether there is anything to suggest that the Governor’s power of appointment under S.3 of the Lokayukta Act, 1986 justifies a departure from the tenets of Parliamentary democracy for the Court’s to hold that such appointment was not to be done under the aid and advice of the Council of Ministers. Both Justice Kureshi and Justice Sahai have relied greatly upon perceptible need and yearning by the citizens of the country for an effective anti-corruption watchdog to hold that an extraordinary situation had arisen in the case at hand and which served an exception to the general rule that the Governor is act on the aid and advice of the Council of Ministers. In the words of Justice Sahai:

“A new wave of democracy demanding empowerment of ordinary people for fighting corruption is sweeping India. Modern civil society and present day world of globalisation need corruption-free society. The country requires a culture of integrity. An integrity institution, such as Lokayukta, is the dream of the disillusioned and is the hope of people to battle against corruption of public functionaries. The provisions made under the Act must be viewed in context of the socio-economic conditions and aspirations of the people. Constitutional provisions are required to be understood and interpreted with an object oriented approach and not in a narrow and pedantic sense. The Constitutional mini-crises had been sparked by the Chief Minister which compelled the Governor to exercise his discretionary powers under Article 163 of the Constitution to protect democracy and rule of law and the Governor appointed Justice (Retired) R.A.Mehta as Lokayukta on 25.8.2011.”

It is quite regrettable that such a rationale had to be employed to validate the actions of the Governor. The essential issue was how to overcome the deadlock that was held to have arisen between the concerned functionaries on the issue of appointment. The Governor’s exercise of discretionary power to appoint Chief Ministers, dismiss the Ministry, dissolve the House, make a report to the President recommending President’s Rule have been the subject of vigorous debates and controversies in the past.

If such bitter situations rarely arise today, it is because the Courts have, over time, recognized that Governors should resort to well-established Parliamentary/Legislative conventions and/or judicially guidelines in exercising their discretionary powers in such cases. In the present case too, assuming a deadlock had arise, it would have been more apt for the Judges to examine and explore the possibility of certain Parliamentary/Legislative conventions that could have been applicable or attracted to aid in filling the gap, overcoming the deadlock and provide a cue for the Governor to exercise her power of appointment. Justice Gokani took a reasonable view in holding that ‘effective consultation’ was still in progress because the Chief Minister had provided the Chief Justice with certain additional material to justify the stand of the Government and which the Chief Justice did not have the opportunity to respond to because the Governor, in a pre-mature manner, issued the warrant of appointment.

The Constitution, in the institution of Governor, strives to attain a delicate balance between the principle of federalism and the necessity of having a link between the Center and the States. With the emergence of a multi-party democratic system, the Governor’s role and functioning has been fraught with controversies and much caution should be exercised in delineating the boundaries and conventions concerned with this institution. Governors are often seen as agents of the Central government rather than impartial heads of the State and have been guilty of Constitutional indiscretion on many occasions.

Where conventions of the Cabinet system and Parliamentary functioning are clear and unequivocal, the Court ought not to permit disturbance of the vital equilibrium of democratic set up envisaged by the Constitution by allowing any authority to overreach the mandates of the Constitution on superficial grounds – in this case, the nation-wide anger against corruption in public domain.

In the light of the above, what is unfortunate is that Justice Sahai goes a step further by practically framing the constitutional debate as a battle between a ‘tyrannical government’ headed by the Chief Minister versus the ‘people’s aspirations represented by the Governor’. Numerous personal attacks have been leveled against the Chief Minister which tends to turn the entire legal debate into a farce. Some of the observations are made by Justice Sahai are:

“The objections of the Chief Minister were rejected by the Chief Justice and he exercised primacy of opinion which was binding. The primacy of opinion of the Chief Justice was not accepted by the Chief Minister by writing letters dated 18.8.2011 to the Chief Justice and the Governor. The letters dated 18.8.2011 were warning bells for our democratic system. The pranks of the Chief Minister who is the head of Council of Ministers demonstrates deconstruction of our democracy, and the questionable conduct of stonewalling the appointment of Justice (Retired) R.A.Mehta as Lokayukta threatened the rule of law.”

“For preserving our democracy from being beleaguered and to prevent tyranny, it became absolutely essential for the Governor to exercise his discretionary power under Article 163 of the Constitution and to appoint Justice (Retired) R.A.Mehta as Lokayukta, without or contrary to the aid and advice of the Council of Ministers headed by the Chief Minister as their action and conduct were perilous to our democracy and rule of law.”

“The Council of Ministers headed by the Chief Minister had shown hostile attitude towards the primacy of the opinion of the Chief Justice. The Chief Minister acted under a false impression that he could turn down the superiority and primacy of the opinion of the Chief Justice which was binding. The spiteful and challenging action demonstrates the false sense of invincibility.”

“The letter of the Chief Minister dated 18.8.2011 and his action displayed arbitrariness and impudicity which tends to erode the primacy of the opinion of the Chief Justice. The clear refusal of the Chief Minister to accept, primacy of opinion of the Chief Justice had the velocity which had shattered the faith in rule of law which is the essence of democracy and integrity institution of Lokayukta”

Other than the obvious fact that the above observations needlessly and excessively exaggerate the alleged belligerent attitude of the State Government, they also beg the question that if primacy of the opinion of the Chief Justice is a given fact right from the beginning, then the consultation process becomes redundant. The Lokayukta Act does not accord primacy to anybody’s opinion in appointment process. The primacy rule is not a foregone conclusion during the consultation process but comes into operation if there are multiple views or difference of opinions upon the conclusion of such process. This rule does not demand deference of one functionary before the other and it certainly does not preclude a healthy democratic, deliberative consultation process wherein the concerned functionaries have the freedom to make proposals and raise objections.

The Act envisages mandatory consultation with all those functionaries whose views ought to have a bearing on the appointment of Lokayukta and such consultation process must follow true democratic spirit. Ultimately, the effectiveness of the institution of Lokayukta depends on the trust, support and confidence that is forthcoming from important political parties in the one appointed to the post. The Chief Minister was not attempting to defy the Chief Justice’s view or its primacy but was exercising his right under the statute raise reservations on behalf of his government regarding the proposed candidate to others involved in the consultation process. Justice Gokani rightly observes:

“At the cost of reiteration, it needs to be mentioned that in such a selection, the primacy is to the opinion of the Chief Justice of the State but, that would not take away the statutory requirement of the consultation as understood and laid down by the Apex Court. And, even in the appointment of Judges where the final say is of the judiciary process, does not rule out the requirement of purposeful and full consultation, but in fact, insists on such meaningful process.”