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Updated: January 3, 2013 01:13 IST

‘Governor bound to act on Cabinet’s advice’

J. Venkatesan
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Gujarat Chief Minister Narendra Modi
Gujarat Chief Minister Narendra Modi

Beniwal’s claim of exclusive right to appoint Lokayukta is not in keeping with spirit of Constitution: Bench

The Supreme Court has reiterated that the Governor is bound to act on the aid and advice of the Council of Ministers, unless he acts as persona designata i.e., eo nomine under a particular statute or acts in his own discretion under the exceptions provided for in the Constitution itself.

Upholding the appointment of Justice R.A. Mehta as Gujarat Lokayukta by Governor Kamla Beniwal, a Bench of Justices B.S. Chauhan and Ibrahim Kalifulla said on Wednesday: “It is evident that the Governor enjoys complete immunity under Article 361(1) and that under this, his/her actions cannot be challenged for the reason that the Governor acts only upon the aid and advice of the Council of Ministers. If this was not the case, democracy itself would be in peril. The Governor is not answerable to either the House of the State or Parliament or even to the Council of Ministers, and his/her acts cannot be subject to judicial review. In such a situation, unless he/she acts upon the aid and advice of the Council of Ministers, he/she will become all powerful, and this is an anti-thesis to the concept of democracy.”

Improper advice

Governor Kamla Beniwal’s version, stated in her letter dated March 3, 2010, 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,” the Bench said. “It seems 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.”

Primacy to Chief Justice’s opinion

The Bench said: “The Governor consulted the Attorney-General of India for legal advice and communicated with the Chief Justice of the Gujarat High Court directly, without taking into confidence the Council of Ministers … Be that as it may, it is evident that the Chief Minister had full information and was in receipt of all communications from the Chief Justice, whose opinion is to be given primacy in such matters and can be overlooked only for cogent reasons.”The recommendation of the Chief Justice, “suggesting only one name, instead of a panel of names [for the post of Lokayukta], is in consonance with the law laid down by this court, and we do not find any cogent reason not to give effect to the recommendation.”

As for Chief Minister Narendra Modi’s objection that Justice Mehta was affiliated to certain NGOs, the Bench agreed with the reasoning given by the then Chief Justice of the High Court for rejecting it. “On a close scrutiny, the reasons discussed by the Chief Justice appear rational and based on facts involved. This establishes an application of mind and a reasonable approach with hardly any element of perversity to invoke a judicial review of the decision-making process. The issue appears to have been dealt with objectively.”

The Bench said: “If a vigilant citizen draws the attention of the State/statutory authority to the apprehensions of the minority community in that State, the same will not amount to a biased attitude of such a citizen towards the State. Thus, there is no scope for judicial review so far as the process of decision-making in this case is concerned. While considering the issue of bias, the court must bear in mind the impression which the public at large may have, and not that of an individual… None of the objections raised by the Chief Minister could render respondent no.1 [Justice Mehta] ineligible/ disqualified or unsuitable for appointment to the post.”The Bench said Justice Meha, who did not take up the post because of the pendency of the case, “may join now. Needless to say, the appellants shall provide [him with] all facilities/office, staff etc., required to carry out the work of the Lokayukta. More so, we have no doubt that the appellants will render all cooperation to him in performance of the work of the Lokayukta.”

Underlining the importance of the Lokayukta for having a check on corruption, the Bench said: “Corruption often results from patronage of statutory/higher authorities and it erodes quality of life, and it has links with organised crimes [and] economic crimes such as money-laundering etc., terrorism and serious threats to human security to flourish. Its impact is disastrous in the developing world as it hurts the poor disproportionately by diverting funds intended for development. Corruption generates injustice as it breeds inequality and becomes a major obstacle to poverty alleviation and development…”

Remarks against Modi expunged

The Bench also expunged the remarks made by the High Court against Mr. Modi. “This court has consistently observed that judges must act independently and boldly while deciding a case, but should not make atrocious remarks against the party, or a witness, or even against the subordinate court. The courts should not make any undeserving or derogatory remarks against any person, unless the same are necessary for deciding the issue involved in a case. Even where criticism is justified, the court must not use intemperate language and must maintain judicial decorum at all times, keeping in view always the fact that the person making such comments is also fallible. The concept of loco parentis has to take the foremost place in the mind of a judge, and he must keep at bay any uncalled-for or any unwarranted remarks. We are of the view that the judge, even if he did not approve of the “my way or the high way” attitude adopted by the Chief Minister, ought to have maintained a calm disposition and should not have used such harsh language against a constitutional authority.”

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