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SC upholds appointment of Gujarat Lokayukta
Setback for Modi as court terms his objections unjustified
Legal Correspondent

The case files The Gujarat Government had come to the SC, challenging the HC’s January 2011 verdict endorsing the appointment of Justice RA Mehta (retd) (in pic) as Lokayukta by Governor Kamla Beniwal on August 25, 2011 The state government had challenged the HC order, contending that it had ignored the vital fact that the Governor had failed to act on the advice of the Council of Ministers on the issue The Governor had also short-circuited the judiciary while making the appointment as the state government was in the process of consulting the HC on the issue, the petition had said Gujarat to implement verdict soon The Narendra Modi government said it would implement the SC verdict soon. The Cabinet discussed seeking legal opinion on whether the order means that the state must issue the official order appointing Justice Mehta as Lokayukta or it could look for options to fill the vacancy.

New Delhi, January 2
Describing as “untenable” Gujarat Chief Minister Narendra Modi’s objections to the appointment of Justice RA Mehta (retd) as Lokayukta by the Governor, the Supreme Court today said a “pliant” ombudsman would not act on corruption charges against the government.

“The objections raised by the Chief Minister have been duly considered by the (Gujarat High Court) Chief Justice as well as by this court and we are of the considered view that none of them is tenable to the extent that any of them may be labelled as cogent reason for the purpose of discarding the name of Justice Mehta for the post of Lokayukta,” a Bench comprising Justices BS Chauhan and FM Ibrahim Kalifulla ruled in an 82-page judgment.

“Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in improper implementation and enforcement of policies adopted by the government and as such it was a subject matter of grave concern and requires to be decisively dealt with,” the SC held while stressing the need for an effective Lokayukta.

The Bench said corruption should be “detected and eradicated at the earliest as it shakes the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrant society.” “Liberty cannot last long unless the State is able to eradicate corruption from public life,” the SC noted.

The Gujarat Government had come to the SC, challenging the HC’s January 2011 verdict endorsing the appointment of the Lokayukta by Governor Kamla Beniwal on August 25, 2011. Today, the apex court upheld the HC verdict.

The state government had challenged the HC order, contending that the HC had ignored the vital fact that the Governor had failed to act on the advice of the Council of Ministers on the issue. The Governor had also short-circuited the judiciary while making the appointment as the state government was in the process of consulting the high court on the issue, the petition had said.

In today’s verdict, the SC, however, did not approve of harsh comments against the CM made by one of the three HC judges who heard the case.

The 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.” 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 SC held.

“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 SC advised.

Pointing out that the post of Lokayukta was lying vacant since November 2003, the apex court asked Justice Mehta, who did not take up his post in view of litigation, to join office and directed the state government to render all cooperation to the ombudsman for performing its work.

The SC also found fault with the Governor for sidelining the state government. “The present Governor has misjudged her role and has insisted, that under the (Gujarat Lokayukta) Act, the Council of Ministers has no role to play in the appointment of the Lokayukta and that she could therefore fill it up in consultation with the Chief Justice of the Gujarat HC and the Leader of Opposition. Such attitude is not in conformity, or in consonance with the democratic set up of government envisaged in our Constitution.”