The Supreme Court on Wednesday made it very clear by their judgement in Lokayukta case that the institution of Lokayukta was important for the society and that two Constitutional entities had wronged Gujarat Chief Minister Narendra Modi but did not offer him any judicial remedy or any other method of redressal.
The apex court did expunge the remarks of Gujarat high court judge against Modi but it said that the conduct of the governor cannot be questioned as per the Constitution.
Even if the judge did not approve of the "my way or the high way attitude adopted by the Hon'ble Chief Minister," he ought to have maintained a "calm disposition and should not have used such harsh language against a Constitutional authority, i.e. the Chief Minister," the bench of justices B S Chauhan and F M Ibrahim Kalifulla held.
The high court judge had observed that Modi had precipitated a "Constitutional mini crisis" and his conduct "demonstrated deconstruction of democracy and tantamount to refusal by the Chief Minister to perform his statutory or Constitutional obligation." This had compelled the Governor to exercise her discretionary powers to appoint the Lokayukta in order to "preserve democracy and prevent tyranny."
"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. Judges must not use strong and carping language, rather they must act with sobriety, moderation and restraint, as any harsh and disparaging strictures passed by them would result in injustice," observed the Bench.
"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 a person making such comments, is also fallible. Maintaining judicial restraint and discipline are necessary for the orderly administration of justice, and courts must not use their authority to make intemperate comments, indulge in undignified banter or scathing criticism," the bench said.
Helpless on the role of governor
The SC said the view of Gujarat Governor Kamla Beniwal that she was not bound by the aid and advice of the Council of Ministers and had the exclusive right to appoint the Lokayukta was "unwarranted and logically insupportable."
"The governor's version of events, stated in her letter of March 3, 2010, to the effect 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.
"It seems that 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."
The apex court also faulted the governor saying she had "misjudged her role" for appointing Mehta without holding consultations with the state government.
It also observed "The Governor is not answerable to either House of the State, or to the 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."
Here lies the danger of a Constitutional position being misused with different political parties in power at Centre and in states. In India, the governor is always a ruling party's person and mostly politicians.
Lokayukta choice cannot be left to CM
The court also emphasized the importance of the institution of lokayukta in fighting corruption and warned against leaving the finality of the choice of Lokayukta to the council of ministers headed by chief minister. It said this "would be akin to allowing a person who is likely to be investigated, to choose his own Judge".
It said the Lokayukta Act, which was enacted to remove corruption from public life, would be rendered meaningless if a pliant Lokayukta was allowed to be appointed by the state government.
"The Lokayukta Act may be termed as a pro-people Act, as the object of the Act is to clean up Augean stables, and in view thereof, if a political party in power succeeds in its attempt to appoint a pliant Lokayukta, the same would be disastrous and would render the Act otiose," the bench said.
"A pliant Lokayukta, therefore, would render the Act completely meaningless/ineffective, as he would no doubt reject complaints under Section 7 of the Act, at the instance of the government, taking the prima facie view that there is no substance in the complaint, and further, he may also make a suggestion under Section 20 of the said Act, to exclude a public functionary, from the purview of the Act, which may include the Chief Minister himself," the apex court said.
The court made the observation while dismissing the state government's plea challenging the appointment of retired Justice R A Mehta as the Lokayukta on the ground that the government had consulted it while appointing him to the post. The bench, however, had upheld the appointment saying it was made in consultation with the Chief Justice of the Gujarat High Court.