While dismissing the Gujarat government's petition challenging the Governor's authority to appoint Justice R. A. Mehta the Lokayukta, the Gujarat High Court passed strong strictures on Chief Minister Narendra Modi, terming his efforts to stonewall the appointment of the anti-corruption ombudsman “spiteful” and demonstrative of his “false sense of invincibility.”
Justice V.M. Sahai said on Wednesday: “The clear refusal of the Chief Minister to accept the primacy of opinion of the Chief Justice [of the High Court] had the velocity which had shattered the faith in rule of law which is the essence of democracy and integrity institution of Lokayukta.”
The judge said that looking at the “brazen conduct and irrationality of the Council of Ministers headed by the Chief Minister,” he was of the “considered opinion” that the Governor (Kamla Beniwal) “rightly exercised her discretionary powers under Article 163 of the Constitution and appointed Justice (retired) Mehta as Lokayukta.”
Justice Sahai said a “constitutional mini-crisis was sparked off by the Chief Minister” acting arbitrarily. The Governor's action, appointing Justice Mehta the Lokayukta “with or without the advice of the Council of Ministers, was for “preserving our democracy from being beleaguered and to prevent tyranny.”
He said acceptance of the Chief Minister's August 18, 2011 letter to the Chief Justice and the Governor, in which Mr. Modi made it clear that Justice Mehta's name was not acceptable to the government and wanted the Chief Justice to suggest another name, “would have resulted in a complete breakdown of the rule of law and erosion of principles of democracy.”
Justice Sahai's order, after a split verdict by a two-judge Bench on October 10 last, established that the recommendation of the Chief Justice of the High Court in the appointment of the Lokayukta must be given primacy in case of a dispute, and neither the government nor the Leader of the Opposition had any veto power or authority to initiate the process of recommendation.
The three points of differences in the split verdict, on which Justice Sahai's judgment was sought, included whether the consultative process between the Chief Justice and the Chief Minister had come to a close and there was a deadlock when the Governor unilaterally appointed Justice Mehta, whether the Governor was authorised to act in the manner she did in issuing the notification of the appointment without the aid and advice of the Council of Ministers and whether the government's petition should be dismissed.
Justice Sahai said once the Chief Justice “considered and applied his mind” and overruled the objections, the Chief Minister had no option and, accepting the primacy of the Chief Justice, should have ensured that his Council of Ministers formally recommended Justice Mehta's name to the Governor.
Even the Governor wrote to the Chief Minister seeking a formal proposal in favour of Justice Mehta, to whose appointment the Leader of the Opposition had also consented. But the Chief Minister, instead of fulfilling his obligation under Section 3 of the Gujarat Lokayukta Act and Article 163 of the Constitution, wrote back to the Chief Justice, seeking a new name, and to the Governor communicating the government's disapproval of the recommendation.
Justice Sahai's order pointed out that the appointment of the M. B. Shah Judicial Commission to probe all allegations of corruption since 1980 and the subsequent issuance of ordinances, for the signature of the Governor, curtailing the powers of the Chief Justice showed that the Chief Minister was under a “false impression that he could turn down the superiority and primacy of the Chief Justice's opinion, which was binding.”
“The case in hand is one of its own kind. Extraordinary situations demand extraordinary remedies. Open resistance of the Council of Ministers headed by the Chief Minister in not accepting the primacy of the opinion of the Chief Justice has created a crisis situation,” the order said. Had the Chief Minister's repeated requests to the Chief Justice to recommend the name of Justice J. R. Vora for the post been accepted, “it would have set a pernicious trend and would have propitiated the public functionaries who were likely to fall under the scanner of the Lokayukta and destroyed the integrity of the institution as envisaged under the Act.” After his objections to Justice Mehta's name were turned down “on valid grounds,” the “miffed reaction of the Chief Minister showed his discordant approach.”
“The pranks of the Chief Minister demonstrate deconstruction of our democracy and the questionable conduct of stonewalling the appointment of Justice Mehta as Lokayukta threatened the rule of law.” The Chief Minister's refusal to perform his statutory or constitutional obligations, and his efforts at stonewalling the appointment of the Lokayukta by trying to amend the Act through an ordinance, were “depraved and truculent actions. The aforesaid exceptional facts establish that deconstruction of democracy was at work. It was necessary to remove the aporia created by the action of the Chief Minister and a responsible constitutional decision was required to be taken by the Governor so that democracy may thrive.”
Justice Sahai's order said: “For preserving our democracy from being beleaguered and to prevent tyranny, it became absolutely essential for the Governor to exercise her discretionary power under Article 163 and to appoint Justice 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.”
Justice Sahai was of the opinion that the Council of Ministers headed by the Chief Minister had shown a “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,” he said.