Jaitley’s unjustified ire at Supreme Court
Posted February 12, 2013on:
Arun Jaitley is the best lawyer among politicians and the best politician among lawyers. He knows how best to use legal jargon to interpret judicial pronouncements to suit his own party’s interests. He criticised the Supreme Court in no mild terms when the apex court dismissed Gujarat chief minister Narendra Modi’s petition challenging the appointment of Justice (retd) R A Mehta as the Lokayukta of the State. A few days later when the appointment of Justice (retd) Chandrasekaraiah as the Up-Lokayukta of Karnataka was quashed, Jaitley accused the apex court of creating ambiguity.
In the latter case, the apex court held that the consultation with the chief justice was mandatory before appointment of Upa-Lokayukta and the chief minister did not hold any “meaningful” consultation with the chief justice. The ground given by Narendra Modi in his petition was that the chief minister (or the council of ministers) was not consulted by the Governor before appointment of the Lokayukta.
Jaitley is a BJP member of Rajya Sabha from Gujarat. While criticising the Supreme Court judgements in the two cases, he conveniently ignored the fact that the law (or procedure) for appointment of Lokayukta (or Up-Lokayukta) in the two States is not the same. Section 3 (2) (a) of the Karnataka Lokayukta Act 1984 says: “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”.
Section 3 (2) (b) says: “A person to be appointed as an Upalokayukta shall be a person who has held the office of the Judge 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”.
The Gujarat Lokayukta Act, enacted two years later, had excluded the involvement of the chief minister or the Speaker of the Assembly in the appointment of the Lokayukta. Section 3 of the Gujarat Lokayukta Act, 1986, that deals with the appointment, says: “For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as Lokayukta: 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 the Opposition in the Legislative Assembly, or if there is no such leader a person elected in this behalf by the members of Opposition in that House in such manner as the Speaker may direct.”
Jaitley pleads that 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.
If that were so, the law-makers would have included this in the Act, particularly when they had before them the Lokayukta Act of Karnataka (possibly of some other States also) specifically mentioning the advice of the chief minister. Moreover, Section 19 of the Gujarat Act empowers the Governor, in consultation with the Lokayukta, to confer on the Lokayukta such additional functions “in relation to the eradication of corruption” as may be specified in the (Governor’s) order. Should one assume that the Governor’s Order in this respect has to be approved by the council of ministers?
The Governor ordinarily discharges his duties on the advice of the council of ministers as laid down in Article 163 (1) of the Constitution. However, this provision is not absolute. Article 163 (2) makes is clear. It says: “If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not have acted in his discretion.”
Besides, specific laws have been enacted in States empowering the Governor to act without the advice of the council of ministers. Governor, designated as Chancellor in Universities Acts in several States, does not have to consult the council of ministers for appointment of vice-chancellors or for issuing orders in respect of the administration of the universities. The Gujarat Lokayukta Act 1986 is also in this category.
A noticeable difference between the two Lokayukta Acts is that the Karnataka Act does not lay down any specific procedure where there is a complaint against the chief minister but the Gujarat Act does. Section 12 of the Gujarat Lokayukta Act empowers the Lokayukta to inquire into the allegations against the Chief Minister and communicate his findings, along with documents, to the Chief Minister who “shall cause the same to be placed, without delay, before the Council of Ministers.” In fact, this is the only reference to the council of ministers in the Gujarat Lokayukta Act 1986.