Modi and Lokayukta ruling

Constitutional and peoples mandate at crossroads?

manojkumarhs

Manoj Kumar | January 31, 2012



The Gujarat Lokayukta ruling has left constitutional mandate to respect federalism, rights of a popularly elected government and scope of governors’ duties and rights at crossroads in the face of interpretation of the provisions of the Gujarat Lokayukta law.

The Gujarat high court ruling also means the institution of Lokayukta is more isolated than ever, also increasing the challenges in its functioning. This is also a follow-on an earlier write-up on this website relating to the challenges being faced by the Lokayukta and the state government of Delhi and their consequential (mis)coordination.

The ruling has raised questions around complex issues around (i) the authority governor of a state to issue a notification appointing a Lokayukta of a state without the aid and advice of the council of ministers, and (ii) consultative process between the chief minister and chief justice.

The crisscross among the chief minister, the governor and the chief justice of the high court and the rejection spree on recommendations made by the council of ministers has raised issues around what the legislature intended on the  ‘consultative process’ for the appointment of a Lokayukta, and what it did not.

The Gujarat Lokayukta Act, 1986 provides that “…the Lokayukta shall be appointed (read by the governor) after consultation with the chief justice of the high court…”

While the Lokayukta law does not provide any consultation has to be made with the chief minister, the constitution of India provides that the council of ministers is to aid and advice the governor in discharge of his executive functions in the state. The exceptions are where the governor under the constitution is required to exercise functions in his discretion. Therefore, one view has been that the chief minister as the head of the council of ministers automatically has a say in the matter of appointment of Lokayukta under the Gujarat Lokayukta law. Therefore, the governor should make appointment of Lokayukta with the aid and advice of the council of ministers as provided under the constitution.

The judgment however finds that the chief minister had acted in violation of the Gujarat Lokayukta law and the provisions of the constitution by his insistence to recommend the name of Justice (retired) JR Vora for appointment as Lokayukta, who was not accepted by the chief justice since Vora had been appointed director of the Gujarat State Judicial Academy. According to the court, if the choice of the council of ministers headed by the chief minister had been accepted it would have set a pernicious trend and would have propitiated the public functionaries who were likely to fall within the scanner of Lokayukta and destroyed the integrity of institution of Lokayukta as envisaged under the law.

The court found that the chief minister’s 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 the 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.

Finding the conduct of the council of ministers headed by the chief minister brazen and irrational, the court observed that the governor rightly exercised her discretionary powers under the constitution in appointing Justice (retired) RA Mehta as Lokayukta because acceptance of the pleas of the chief minister would have resulted in complete breakdown of the rule of law and erosion of principles of democracy.

On the ‘consultative process, the high court gives primacy to the opinion of the chief justice of the high court and provides that such opinion would be binding and prevail over the view of the council of ministers headed by the chief minister and the leader of opposition.

In the present case, the high court is of the view that the consultative process between the chief justice and the chief minister had come to a close and there was a deadlock between the two dignitaries.

If the way the functioning of Lokayuktas has unfolded in a few states like Karnataka and Delhi, the stage seems to be set for the clash between state governments with their respective Lokayukta to attain new levels in Gujarat.

Constructive oversight or overkill? The manner in which the Lokayukta has been ultimately appointed is bound to widen the gap in the meeting ground between state government and the Lokayukta.

Has too much been read into the Gujarat Lokayukta law on the binding nature of the opinion of the chief justice during the ‘consultative process’ as against the federal structure and the governor’s duty to act in accordance with the advise of the council of ministers set out in our constitution.
While due regard is a must to the opinion of the chief justice of the high court, in a bid to fix the primacy to the opinion, has the constitutional mandate on federalism and the rights of a popularly elected state Government suffered an irreparable loss by the present reading of the scope of governors duties and rights.

An opinion is after all an opinion and not a direction as much as any Lokayukta law is framed under and within the constitution and thus has to be interpreted in a manner consistent with the provisions of the constitution of India which provides that the office of governor is to discharge its executive functions with the aid and advice of the council of ministers headed by the chief minister.

The merits of an inclusive oversight, otherwise widely accepted does not seen to have been intended by the legislature while making the Gujarat Lokayukta law, as per the present ruling. If the legislature intended otherwise, it would need to exhibit its intent more explicitly by making suitable changes to the law.

Pray that;

-    local laws setting up Lokayuktas and the process of appointment set out therein are not read to undermine the constitutional mandate on federalism and the rights of popular elected governments; and
-    the nascent institution of Lokayukta, still in its early days, does not end up fighting the wrong conflicts of its survival in the face of increasing defiance of state governments, more so from state governments using such issues to explain their (mis)coordination and support to the Lokayukta in their respective states;
instead of :
-    Ensuring that democracy prevails and is strengthened, by any name or any law; and

-    The institution of Lokayukta is allowed to take off the ground and deliver a constructive oversight and work towards enabling transparency in the governance process.
 

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