“Supreme Court ruling gives primacy to CJ’s opinion in Lokayukta appointment”

A day after the Supreme Court upheld the appointment of Justice R.A. Mehta as Lokayukta in Gujarat, Leader of the Opposition in the Rajya Sabha Arun Jaitley said the judgment has thrown up two issues — one relating to the primacy of the Chief Justice of the High Court in the matter of appointment of the Lokayukta virtually rendering all other constitutional authorities otiose, and the second relating to the role of the Governor in the appointment.

Protesting the “usurpation of executive powers of an elected government,” Mr. Jaitley said Gujarat will now have a Lokayukta the Council of Ministers never recommended. Several States enacted the Lokayukta laws in 1986. The State legislations were based on a draft law circulated by the Centre. The language of the provisions relating to the appointment of the Lokayukta was identical in most States, the senior BJP leader noted.

Mr. Jaitley said the language of Section 3 (1) of the Gujarat Act was without any ambiguity, envisaging the appointment to be made by the Governor.

“Under our constitutional scheme, the Governor acts on the aid and advice of the Council of Ministers. The role of the Governor is a non-activist one. The consultation, therefore, in the name of the Governor has to be made by the Council of Ministers through the Chief Minister. It is the Chief Minister who has to consult the Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly.

“There are four constitutional authorities involved in the process. The Chief Minister must consult the Chief Justice; he must consult the Leader of the Opposition. He must then forward the recommendation to the Governor. The role of the Governor is minimal. The Chief Justice and the Leader of the Opposition are a part of the consultation process with the Chief Minister.

“The key instrumentality in the consultation is the Chief Minister. He has to engage in the consultation. The constitutional mandate of separation of powers is intrinsically a part of the constitutional balance which is maintained between the different organs of the State. The interpretation given by the Supreme Court to the ‘consultation’ with the Chief Justice now implies that there is a primacy of the opinion of the Chief Justice.”

Mr. Jaitley said the judgment also gave to the Chief Justice’s opinion an ‘exclusivity’ thereby rendering the role of the Chief Minister and the Leader of Opposition completely redundant and otiose.

According to him, the inevitable consequence of the reasoning offered by the judgment was that the opinion of the Chief Justice prevailed.

“The opinion of the other constitutional authorities such as the Chief Minister, the Leader of the Opposition is not relevant. They are unsuitable to give an opinion on retired judges. Only judges can opine on judges,” he said.

Mr. Jaitley said the judgment “creates an imbalance in the separation of powers.”

“The Executive function where the Chief Justice is a participant in the consultation process is converted into a process where it becomes the sole prerogative of the Chief Justice of a High Court to nominate the Lokayukta. The Chief Minister’s role as nucleus of the consultation process is eliminated. The Chief Justice’s letter to the Governor is a substitute for the aid and advice of the Council of Ministers. Needless to say that the same logic will apply to the opinion of the Leader of the Opposition in the consultation process.”

Mr. Jaitley said the judgment would have a direct impact on the constitution of the Lokpal. The Select Committee of the Rajya Sabha in clause four had recommended a collegium which would appoint the Chairperson and Members of the Lokpal.

“If the present reasoning of the Supreme Court is correct, the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha and an eminent jurist will be silent spectators on the collegium because the opinion of the Chief Justice of India would get primacy and exclusivity for the appointment of the chairperson and members of the Lokpal. This obviously is not the intention of the law makers. Parliament should re-visit this provision. There cannot be a broad-based mechanism for appointment of the Lokpal. By judicial interpretation the Courts will eliminate the role of other Constitutional authorities and give to themselves the exclusive power.

“The role of the judiciary is to interpret the law and decide cases. In the matter of administrative appointments they cannot widen their own jurisdiction and eliminate the role of the Legislature or the Executive.”

“Unconstitutional”

Mr. Jaitley said the Governor of Gujarat admittedly acted in an unconstitutional manner. She wanted to usurp the authority of the elected government.

“The Governor had decided to act on her own. There was no aid or advice offered to her by the Council of Ministers with regard to the appointment of a particular person as the Lokayukta. The dissenting opinion of the Council of Ministers has become the aid and advice to the Governor. The judgment is based on this paradox. Gujarat will now have a Lokayukta whom the Council of Ministers never recommended. Constitutional short-cuts do not establish either good governance or good precedents,” he said.