New Delhi, Jan 2: Has the Supreme Court taken literal meaning of Gujarat Lokayukta Act and set a dangerous precedent? It seems like Gujarat Chief Minister Narendra Modi has been done in by a drafting error.
Governor Kamla Beniwal had on August 25, 2011 appointed Justice Mehta to the post as Lokayukta, which had been lying vacant for the last eight years. However, the Gujarat state government had opposed the appointment on the grounds that the governor did not act as per the advice of the council of ministers.
The contentious Section 3 in the Lokayukta act of Gujarat says that "Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of Opposition in the Legislative Assembly, or if there be no such Leader, a person elected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct."
The section does not provide that any consultation has to be made with the Chief Minister, and that seems to be the error committed by the person who drafted the law. The Chief Minister is the Head of the Council of Ministers. Article 163 of the Constitution of India provides that the Council of Ministers is to aid and advice the Governor in the exercise of all his functions, with some exceptions. Therefore, the Chief Minister as the Head of the Council of Ministers should figure in the matter of appointment of Lokayukta under section 3 of the Act.
However, there is no ambiguity in the law enacted by the Karnataka government.
Appointment of Lokayukta under Karnataka Lokayukta Act
(1) For the purpose of conducting investigations and enquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upalokayukta or Upalokayuktas.
(2) (a) A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly.
Since there is no clear role for the chief minister in the Gujarat the Supreme Court said that the governor was bound to act under advice of Council of Ministers but in this case the appointment wasn't wrong since it was done in consultation with the Chief Justice of the Gujarat High Court.
Why Gujarat opposed appointment of Lokayuta
The appointment had acquired a political hue with Narendra Modi writing a letter to the Gujarat High Court opposing the appointment of Mehta, saying that he was prejudiced against the government and that he was too old to take office. Modi has openly opposed decisions by the Gujarat governor in the past.
SC was fair in removing remarks against Modi
The Supreme Court today has agreed to expunge the critical remarks made against the Gujarat Chief Minister. Justice VM Sahai of Gujarat High Court had slammed Modi for creating a constitutional crisis and held that the Governor had the discretionary power to make the appointment.
He had said the "pranks" played by the Chief Minister on the Lokayukta issue "demonstrates deconstruction of our democracy".
In its appeal to the Supreme Court, the Gujarat state government had contended that the personal discretion exercised by the Governor in unilaterally issuing the warrant of appointment of Lokayukta was "unwarranted."
It had also objected to the use of "very harsh expressions and language" against Modi by the High Court and had sought removal of those remarks.
Gujarat did try to appoint lokayukta
The last Lokayukta was relinquished the office 24.11.2003 and no steps were taken to fill the vacancy till 6.8.2006. However, the process of appointment of Lokayukta was initiated by Modi on 7.8.2006. The governor issued the impugned warrant of appointment appointing Justice (Retd.) R. A. Mehta as Lokayukta on 26.11.2011.