Supreme Court of India
STATE OF GUJARAT & ANR.versusHONBLE MR. JUSTICE R. A. MEHTA (RETD) & ORS.
- Citation
- 2013 INSC 1
- Decided
- 2 January 2013
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The appointment of Justice R.A. Mehta as Lokayukta is valid because Section 3’s ‘consultation’ confers primacy to the Chief Justice’s opinion, the consultation process was complete, and the Governor must act on the aid and advice of the Council of Ministers, rendering the Chief Minister’s objections non‑cogent.
Summary
The Gujarat Lokayukta post remained vacant since 2003 and the State Government sought to appoint Justice R.A. Mehta under the Gujarat Lokayukta Act, 1986. The Act requires the Governor to appoint the Lokayukta after "consultation" with the Chief Justice of the High Court and, where applicable, the Leader of Opposition. The Chief Minister raised objections to the Chief Justice’s recommendation, and the Governor, after consulting the Attorney General, appointed Justice Mehta without the Council of Ministers’ advice. The State challenged the appointment, arguing that the Governor could act independently as a statutory authority and that the Chief Justice’s opinion did not have primacy. The Supreme Court held that "consultation" must be given effect to by granting primacy to the Chief Justice’s opinion, that the Governor must act on the aid and advice of the Council of Ministers except in limited discretionary situations, and that the consultation process was complete with three of four statutory authorities approving the name. Consequently, the Chief Minister’s objections were deemed non‑cogent, there was no scope for judicial review, and the appointment of Justice Mehta was upheld. The appeals were dismissed and Justice Mehta may now assume office as Lokayukta.
Issues considered
- The meaning of 'consultation' under Section 3 of the Gujarat Lokayukta Act, 1986
- Whether the opinion of the Chief Justice has primacy in the appointment of the Lokayukta
- Whether the Governor must act on the aid and advice of the Council of Ministers in appointing the Lokayukta or can act as a statutory authority independently
- Whether the objections raised by the Chief Minister render the recommended candidate ineligible or disqualified
- Whether the appointment process is amenable to judicial review
Legislation cited
- Constitution of Indias. Article 163, s. Article 163(1), s. Article 163(2), s. Article 163(3), s. Article 166, s. Article 166(3), s. Article 200, s. Article 356, s. Article 361
- General Clauses Act, 1897s. Section 3(60)(c)
- Gujarat Lokayukta Act, 1986s. 12, s. 2(8), s. 3, s. 4, s. 6, s. 8(3)
Subjects
Lokayuktaappointmentconsultationprimacy of opinionGovernorCouncil of Ministersbiasjudicial reviewstatutory constructionpurposive interpretation
Judgment
[2013] 1 S.C.R. 1
STATE OF GUJARAT & ANR. A
v.
HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS.
(Civil Appeal Nos. 8814-8815 of 2012)
JANUARY 2, 2013
B
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Gujarat Lokayukta Act, 1986:
c
s.3 - Appointment of Lokayukta - 'Consultation' -
Connotation of - Primacy of opinion of Chief Justice of State
- Held: Section 3 must be construed in the light of meaning
given by courts to the word 'consultation' so as to give effect
to the provisions of the statute to make it operative and
0
workable - Statutory construction of provisions of the Act itself
mandates primacy of opinion of the Chief Justice - In a
situation where one of the consultees has primacy of opinion
under the statute, either specifically contained in a statutory
provision, or by way of implication, consultation may mean E
concurrence - Interpretation of statutes - Purposive
construction.
s.3 -Appointment of Lokayukta - Process of consultation
- Chief Justice of State recommending the name of a retired
Judge of High Court to Governor and Chief Minister - Leader F
of opposition in the House intimating that he had been
consulted by Governor and he had agreed to the appointment
- Held: Process of consultation stood complete as 3 out of 4
statutory authorities had approved the name of the respondent
and Chief Justice replied to Chief Minister regarding his G
objections with respect to appointment of respondent as
Lokayukta.
s.3 - Appointment of Lokayukta - Held: Chief Justice
1 H
2 SUPREME COURT REPORTS [2013] 1 S.C.R.
A recommending only one name, instead of a panel of names,
is in consonance with the law laid down by Supreme Court,
and there is no cogent reason not to give effect to the said
recommendation.
s. 3 - Delay in appointment of Lokayukta - Held:
8
Statutory provisions make it mandatory on the part of the State
to ensure that the office of Lokayukta is filled up without any
delay.
Constitution of India, 1950:
c
Arts. 163 and 166 - Manner in which Governor acts -
Explained - Held: Where Governor acts as the Head of the
State, except in relation to areas which are earmarked under
the Constitution as giving discretion to the Governor, the
0 exercise of power by him, must only be upon the aid and
advice of the Council of Ministers - Therefore, appointment
of Lokayukta can be made by the Governor, as Head of the
State, only with aid and advice of Council of Ministers, and
not independently as a Statutory Authority
E Administrative Law:
Bias - Appointment of Lokayukta - Chief Minister raising
objections to recommendation of name of respondent by Chief
Justice - Held: An apprehension of bias against a person,
F does not render such person, ineligible/ disqualified, or
unsuitable for the purpose of being appointed to a particular
post, or at least for the purpose of which, the writ of quo
warranto is maintainable - Objections raised by State
Government, are not cogent enough to ignore the primacy of
G opinion of Chief Justice in this regard - Views of Chief
Minister may not resonate with those of the public at large and,
thus, such apprehension is misplaced - The reasons
discussed by Chief Justice appear to be rational and based
on facts - The issue appears to have been dealt with
H objectively - There is no scope of judicial review so far as the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 3
MEHTA (RETD) & ORS ..
process of decision making is concerned - Judicial review - A
Constitution of India, 1950 - Art. 226.
Judgments:
Judgment of High Court - Use of harsh language against
authorities - Held: Judges must not use strong and carping B
language, rather they must act with sobriety, moderation and
restraint - In the instant case, the Judge ought to have
maintained a calm disposition and should not have used
harsh language against a Constitutional authority, i.e. the
Chief Minister - Judicial restraint. C
SUPREME COURT RULES, 1966:
0. 7, r. 2 - Reference to larger bench - Factors to be
taken into account - Explained.
D
WORDS AND PHRASES:
Words 'by and under' - Connotation of.
The appointment of respondent no. 1 as Lokayukta
was challenged by the State Government in a writ petition E
before the High Court. There being difference of opinion
between the two Judges of the High Court comprising
the Bench, the matter was referred to the third Judge. The
writ petition was ultimately dismissed as per majority
opinion. F
In the instant appeal filed by the State Government,
it was contended for the appellants that the Governor was
bound to act only in accordance with the aid and advice
of the Council of Ministers, headed by the Chief Minister; G
that the consultation by the Governor with the Attorney
General of India being alien to the Gujarat Lokayukta Act,
1986, runs contrary to the statutory provisions of the said
Act; that the Chief Justice ought to have recommended
a panel of names for consideration by the other H
4 SUPREME COURT REPORTS [2013] 1 S.C.R.
A consultees, i.e., the Chief Minister and Leader of
Opposition, and that he could not recommend only one
name, as the same would cause the entire process to fall
within the ambit of concurrence, rather than tllat of
consultation; that the Chief Justice ought to have taken
B into consideration, the objections raised by the
appellants, qua the recommendation made by the Chief
Justice with respect to the appointment of respondent
no. 1; and that the third Judge made unwarranted and
uncalled for remarks in carping language in connection
c with the Chief Minister which tantamounted to
resounding strictures, and the same required to be
expunged.
Dismissing the appeals, the Court
D HELD: 1.1. These appeals raise legal issues of great
public importance, such as, what is the meaning of the
term 'consultation' contained in S.3 of the Gujarat
Lokayukta Act, 1986 (the Act), and also whether the
opinion of the Chief Justice has primacy with respect to
E the appointment of the Lokayukta. However, a two-
Judges bench in the case of Suraz Trust India has
entertained the questions raised while doubting the
correctness of the larger bench decisions and the same
is pending consideration before a three-Judges bench.
F [para 5] [26-G; 27-B-C]
Suraz Trust India v. Union of India & Anr. (2011) 4
SCALE 252 - referred to.
1.2. It is, evident that before making a reference to a
G larger Bench, the Court must reach a conclusion
regarding the correctness of the judgment delivered by
it previously, and adjudge the effect of any error therein,
upon the public, what inconvenience, hardship or
mischief it would cause, and what the exact nature of the
H infirmity or error that warrants a review of such earlier
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 5
MEHTA (RETD) & ORS.
judgments. In the instant case, there is no such A
compelling circumstance that may warrant a review, and
thus, taking into consideration the facts of the case, it
cannot be said that the matter requires a reference to a
larger Bench. [para 7) [28-F-H]
8
The Keshav Mills Co. Ltd., Pet/ad v. The Commissioner
of Income-tax, Bombay North, Ahmedabad 1965 SCR 908 =
AIR 1965 SC 1636 - relied on.
2.1. In Gujarat Revenue Tribunal Bar Association's
case*, this Court has held that, the object of consultation C
is to render its process meaningful, so that it may serve
its intended purpose. The meaning of consultation varies
from case to case, depending upon its fact-situation and
the context of the statute, as well as the object it seeks
to achieve. In a situation where one of the consultees has o
primacy of opinion under the statute, either specifically
contained in a statutory provision, or by way of
implication, consultation may mean concurrence. The
court must examine the fact-situation in a given case to
determine whether the process of consultation, as E
required under the particular situation did in fact, stand
complete. [para 9 and 16) [31-C; 36-A-C]
*State of Gujarat & Anr. v. Gujarat Revenue Tribunal Bar
Association & Anr., JT 2012 (10) SC 422; UOI v. Sankalchand
Himatlal Sheth & Anr. 1978 (1) SCR 423 = AIR 1977 SC F
2328; State of Kera/a v. Smt. A. Lakshmikutty & Ors. 1987
(1) SCR 136 =AIR 1987 SC 331; High Court of Judicature for
Rajasthan v. P.P Singh & Anr., 2003 (1) SCR 593 = AIR
2003 SC 1029; UO/ & Ors. v. Kali Dass Batish & Anr., 2006
(1) SCR 261 = AIR 2006 SC 789; Andhra Bank v. Andhra G
Bank Officers & Anr., AIR 2008 SC 2936; and Union of India
v. R. Gandhi, President, Madras Bar Association 2010 (6)
SCR 857 = (2010) 11 SCC 1; Chandramou/eshwar Prasad v.
The Patna High Court & Ors., 1970 (2) SCR 666 =AIR 1970
SC 370; Centre for PIL & Anr. v. Union of India & Anr., 2011 H
6 SUPREME COURT REPORTS [2013] 1 S.C.R.
A (4) SCR 445 =AIR 2011 SC 1267; Justice K.P. Mahapatra
v. Sri Ram Chandra Nayak & Ors., AIR 2002 SC 3578; Ram
Chandra Nayak v. State of Orissa AIR 2002 Ori 25; Indian
Administrative Service (S.C.S.J Association, U.P. & Ors. v.
Union of India & Ors., 1992 (2) Suppl. SCR 389 = (1993)
B Supp.1 SCC 730 - referred to
2.2. The statutory construction of the provisions of
the Gujarat Lokayukta Act, 1986 itself mandates the
primacy of the opinion of the Chief Justice for the simple
reason that S.3 provides for the consultation with the
C Chief Justice. The purpose of giving primacy of opinion
to the Chief Justice is for the reason that he enjoys an
independent Constitutional status, and also because the
person eligible to be appointed as Lokayukta is from
among the retired Judges of the High Court and the
D Chief Justice is, therefore, the best person to judge th.iir
suitability for the post. Besides, s. 6 provides for the
removal of Lokayukta, and lays down the procedure for
such removal. The same can be done only on proven
misconduct in an inquiry conducted by the Chief Justice/
E his nominee with respect to specific charges. Section 8(3)
further provides for recusal of the Lokayukta in a matter
where a public functionary has raised the objection of
bias, and whether such apprehension of bias actually
exists or not, shall be determined in accordance with the
F opinion of the Chief Justice. [para 56) [61-A-E]
N. Kannadasan v. Ajoy Khose & Ors. 2009
(7) SCR 668 = (2009) 7 SCC 1; Ashish Handa, Advocate v.
Hon'ble the Chief Justice of High Court of Punjab & Haryana
G & Ors., 1996 (3) SCR 474 =AIR 1996 SC 1308; and Ashok
Tanwar & Anr. v. State of H.P. & Ors., 2004 (6) Suppl.
SCR 1065 =AIR 2005 SC 614; Supreme Court Advocates-
on-Record Association & Anr. v. Union of India, 1993 (2)
Suppl. SCR 659 =AIR 1994 SC 268 - referred to.
H 2.3. The doctrine of purposive construction may be
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 7
MEHTA (RETD) & ORS.
taken recourse to for the purpose of giving full effect to A
statutory provisions, and the courts must state what
meaning the statute should bear, rather than rendering
the statute a nullity, as statutes are meant to be operative
and not inept. The courts must refrain from declaring a
statute unworkable. In the process of statutory B
construction, the court must construe the Act before it,
bearing in mind the legal maxim ut res magis va/eat quam
pereat- which means - it is better for a thing to have effect
than for it to be made void, i.e., a statute must be
construed in such a manner, so as to make it workable. C
The court must give effect to the purpose and object of
the Act for the reason that legislature is presumed to
have enacted a reasonable statute. [para 66 and 67] [65-
B-C-F-G; 66-E]
M. Pentiah & Ors. v. Mudda/a Veeramallappa & Ors. D
1961 SCR 295 = AIR 1961 SC 1107; S.P. Jain v. Krishna
Mohan Gupta & Ors., 1987 (1) SCR 411 =AIR 1987 SC 222;
Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Ors., 1987 (2) SCR 1 =AIR 1987 SC
1023; Tinsukhf3 Electric Supply Co. Ltd. v. State of Assam E
& Ors., 1989 (2) SCR 544 =AIR 1990 SC 123; UCO Bank &
Anr. v. Rajinder Lal Capoor 2008 (5) SCR 775 = (2008) 5
SCC 257; and Grid Corporation of Orissa Limited & Ors. v.
=
Eastern Metals and Ferro Alloys & Ors., 2010 (10) SCR 779
(2011) 11 SCC 334- referred to. F
Nokes v. Doncaster Amalgamated Collieries Ltd., (1940)
3 All E.R. 549; Whitney v. Inland Revenue Commissioner,
1926 AC 37 - referred to
2.4. It is evident from the Preamble of the Act, 1986 G
that the Lokayukta has two duties, firstly, to protect
. honest public functionaries from false complaints and
allegations, and secondly, to investigate charges of
corruption filed against public functionaries. The office of
the Lokayukta is very significant for the people of the H
8 SUPREME COURT REPORTS [2013) 1 S.C.R.
A State, as it provides for a mechanism through which, the
people of the State can get their grievances heard and
redressed against maladministration. Thus, the
Lokayukta Act may be termed as a pro-people Act. If a
political party in power succeeds in its attempt to appoint
B a pliant Lokayukta, the same would be disastrous and
would render the Act otiose. A pliant Lokayukta,
therefore, would render the Act completely meaningless/
ineffective, as he would no doubt reject complaints u/s 7
of the Act, at the instance of the government, taking the
C prima facie view that there is no substance in the
complaint, and further, he may also make a suggestion
u/s 20 of the said Act, to exclude a public functionary, from
the purview of the Act, which may include the Chief
Minister himself. Thus, s.3 of the Act must be construed
in light of the meaning given by the courts to the word
0
'consultation', so as to give effect to the provisions of the
statute to make it operative and workable. [para 8, 61 and
69) [29-B; 61-C-D-E; 67-A-C]
Vineet Narain & Ors. v. Union of India & Anr., 1997 (6)
E Suppl. SCR 595 = AIR 1998 SC 889; State of Madhya
Pradesh & Ors. v. Shri Ram Singh 2000 (1) SCR 579 =AIR
2000 SC 870; State of Maharashtra thr. CBI, Anti Coffuption
Branch, Mumbai v. Balakrishna Dattatrya Kumbhar JT 2012
(10) SC 446; and Dr. Subramanian Swamy v. Dr. Manmohan
F Singh & Anr. 2012 (3) SCR 52 =AIR 2012 SC 1185; re:
Special Courts Bill, 1978, AIR 1979 SC 478 - referred to.
2.5. The Gujarat Lokayukta Act, 1986 stipulates that
the institution of Lokayukta must be demonstrably.
G independent and impartial. Proviso to sub-s. (1) of s.3
envisages the appointment of the Lokayukta when the
Legislative Assembly has been dissolved, or when a
Proclamation of Emergency under Art. 356 of the
Constitution is in operation, upon consultation with the
Chief Justice of the State and the Leader of Opposition.
H However, such consultation with the Leader of
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 9
MEHTA (RETD) & ORS.
Opposition also stands dispensed with, if the Assembly A
is dissolved or suspended. Thus, it is evident that the
Governor can appoint a Lokayukta, even when there is
no Council of Ministers in existence. [para 38] [52-C-D-F]
2.6. The facts of the instant case make it crystal clear
8
that the process of consultation stood complete as on
2.8.2011, as 3 out of 4 statutory authorities had approved
the name of the respondent. The Chief Minister had
certain objections regarding the appointment of
respondent No.1, as Lokayukta, and his objections were C
duly considered by the Chief Justice, after which, it was
also explained to the Chief Minister that the said
objections raised by him, were in fact, completely
irrelevant, or rather, not factually correct. This Court has
reached the inescapable conclusion that none of the
objections raised by the Chief Minister could render D
respondent no.1 ineligible/ disqualified or unsuitable for
appointment to the post of Lokayukta. [para 45, 46) [56-
D-G; 57-C-D]
2.7. As t:-i<.? ~hief Justice has primacy of opinion in E
the matter, the non-acceptance of such
recommendations, by the Chief Minister, remains
insignificant. Thus, it clearly emerges that in the instant
case, the Governor, u/s 3 of the Act, 1986 has acted upon
the aid and advice of the Council of Ministers. Section 3 F
of the Act, 1986, does not envisage unanimity in the
consultative process. In such a situation, the
appointment of respondent no.1 cannot be held to be
illegal. Thus, there is no scope of judicial review so far
as the process of decision making in this case is G
concerned. [para 46, 57 and 74) [57-E; 61-G; 71-E]
2.8. The recommendation of the Chief Justice
suggesting only one name, instead of a panel of names,
is in consonance with the law laid down by this Court,
and there is no cogent reason not to give effect to the H
10 SUPREME COURT REPORTS [2013] 1 S.C.R.
A said recommendation. If the Chief Justice sends a panel
of names, and the Governor selects one from them, then
it would obviously become the primacy of the Governor
and would not remain the primacy of the Chief Justice,
which is the requirement under the law. [para 11 and 74)
B [33-B; 70-H; 71-A]
N. Kannadasan v. Ajoy Khose & Ors. 2009
(7) SCR 668 = (2009) 7 SCC 1; Ashish Handa, Advocate v.
Hon'ble the Chief Justice of High Court of Punjab & Haryana
C & Ors., 1996 (3) SCR 474 =AIR 1996 SC 1308; and Ashok
Tanwar & Anr. v. State of H.P. & Ors. 2004 (6) Suppl.
SCR 1065 =AIR 2005 SC 614 - referred to.
2.9. The statutory provisions make it mandatory on
the part of the State to ensure that the office of the
D Lokayukta is filled up without any delay, as the Act
provides for such filling up, even when the Council of
Ministers is not in existence. In the instant case,
admittedly, the office of the Lokayukta has been lying
vacant for a period of more than 9 years i.e. from
E 24.11.2003 till date. [para 38) (52-F-G]
3.1. Absence of bias can be defined as the total
absence of any pre-conceived notions in the mind of the
Authority/Judge, and in the absence of such a situation,
it is impossible to expect a fair deal/trial and no one would
F therefore, see any point in holding/participating in one,
as it would serve no purpose. The Judge/Authority must
be able to think dispassionately, and sub-merge any
private feelings with respect to each aspect of the case.
The apprehension of bias must be reasonable, i.e., which
G a reasonable person would be likely to entertain. [para 34)
[49-D-F]
3.2. Bias is one of the limbs of natural justice. The
doctrine of bias emerges from the legal maxim - nemo
H debet esse judex in causa propria sua. It applies only when
. STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 11
MEHTA (RETD) & ORS.
the interest attributed to an individual is such, so as to A
tempt him to make a decision in favour of, or to further,
his own cause. While considerf ng the issue of bias, the
Court must bear in mind the impression which the public
at large may have, and not that of an individual. (para 34]
[49-F; 50-C] B
S. Parthasarathi v. State of Andhra Pradesh, 1974 (1)
SCR 697 = AIR 1973 SC 2701; State of Punjab v: V. K.
Khanna & Ors., 2000 (5) Suppl. SCR 200 = AIR 2001 SC
343; N.K. Bajpai v. Union of India & Anr., 2012 (2) SCR 433 = C
(2012) 4 SCC 653; and State of Punjab v. Davinder Pal
Singh Bhullar & Ors. etc. 2011SCR540 =AIR 2012 SC 364
- referred to
3.3. There are sufficient safeguards in the Statute
itself, to take care of the pre-conceived notions in the D
mind, or the bias of the Lokayukta, and so far as the
suitability of the person to be appointed as Lokayukta is
concerned, the same is to be examined, taking into
consideration the interests of the people at large, and not
those of any individual. [para 74] [71-C-D] E
3.4. It is a settled legal proposition that a judgment
of this Court is binding, particularly, when the same is that
of a co-ordinate bench, or of a larger bench. It is also
correct to state that, even if a particular issue has not
been agitated earlier, or a particular argument was F
advanced, but was not considered, the said judgment
does not lose its binding effect, provided that the point
with reference to which an argument is subsequently
advanced, has actually been decided. (para 35] [50-F-G]
Smt. Somavanti & Ors. v. The State of Punjab & Ors.,
1963 SCR 774 =AIR 1963 SC 151; Ba//abhdas Mathuradas
Lakhani & Ors. v. Municipal Committee, Malkapur, AIR 1970
SC 1002; Ambika Prasad Mishra v. State of U.P. & Ors. 1980
(3) SCR 1159 = AIR 1980 SC 1762; and Director of
12 SUPREME COURT REPORTS [2013] 1 S.C.R.
A Settlements, A.P. & Ors. v. M.R. Apparao & Anr., 2002 (2)
SCR 661 = AIR 2002 SC 1598; Bidi Supply Co. v. Union of
India & Ors. 1956 SCR 267 = AIR 1956 SC 479 - referred
to
4.1. Under the scheme of our Constitution, the
8
Governor is synonymous with the State Government, and
can take an independent decision upon his/her own
discretion only when he/she acts as a statutory authority
under a particular Act, or under the exception(s), provided
in the Constitution itself. Where the Governor acts as the
C Head of the State, except in relation to areas which are
earmarked under the Constitution as giving discretion to
the Governor, the exercise of power by him, must only
be upon the aid and advice of the Council of Ministers,
for the reason that the Governor, being the custodian of
D all executive and other powers under various provisions
of the Constitution, is required to exercise his formal
Constitutional powers, only upon, and in accordance
with, the aid and advice of his Council of Ministers. He
is, therefore, bound to act under the Rules of Business
E framed under Art. 166 (3) of the Constitution. The
expression, 'Business of t~e Government of India' In·
clause (3) of Art. 77, and the expression, 'Business of the
Government of the State' in clause (3) of Art. 166, include
all executive business. In the of Rules of Executive
F Business, the topic involving the appointment of a
Lokayukta, must be brought before the Council of
Ministers. [para 21, 22, 25 and 74] [40-F-H; 41-A-E; 44-H;
45-A; 70-0-E]
G Samsher Singh v. State of Punjab & Anr., 1975 (1)
SCR 814 =AIR 1974 SC 2192; Brundaban Nayak v. Election
Commission of India & Anr., 1965 SCR 53 = AIR 1965 SC
1892; Election Commission of India & Anr. v. Dr.
Subramanian Swamy & Anr., 1996 (1) Suppl. SCR 637 =
H AIR 1996 SC 1810; Pu Myllai Hlychho & Ors. v. State of
Mizoram & Ors., 2005 (1) SCR 279 = AIR 2005 SC 1537;
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 13
MEHTA (RETD) & ORS.
Ram Nagina Singh & Ors. v. S. V. Sohni & Ors., AIR 1976 Pat A
36; Ram Nagina Singh & Ors. v. S. V. Sohni & Ors., AIR 1976
Pat 36; Bhuri Nath & Ors. v. State of J & K & Ors., 1997 (1)
SCR 138 = AIR 1997 SC 1711 - referred to
4.2. While Art. 163 provides that there shall be a
8
Council of Ministers with the Chief Minister as the head,
to aid and advise the Governor, in the exercise of his
functions, an exception has been carved out with respect
to situations wherein, he is, by or under the Constitution,
required to perform certain functions by exercising his
own discretion. The exceptions carved out in the main C
clause of Art. 163(1), permit the legislature to entrust
certain functions to the Governor to be performed by him,
either in his discretion, or in consultation with other
authorities, independent of the Council of Ministers. The
meaning of the words 'by or under' is well settled. D
Whenever the Constitution intends to confer discretionary
powers upon the Governor, or to permit him to exercise
. his individual judgment, it has done so expressly. [Arts.
200; 239(2); 371-A(1 )(b); 371-A(1 )(a); 371-A(2)(b); and 371-
A(2)(f), VI Schedule, Para 9(2) (and VI Schedule, Para E
18(3), until omitted with effect from January 21, 1972].
[para 17, 26 and 28] [37-C-D; 45-D-E; 46-E]
Dr. lndramani Pyarelal Gupta & Ors. v. WR. Natu & Ors.,
1963 SCR 721 = AIR 1963 SC 274 - relied on F
Chandra Mohan v. State of U.P. & Ors., AIR 1966 SC
1987; and Rajendra Singh Verma (dead) thr. Lrs. & Ors. v.
Lt. Governor (NCT of Delhi) & Ors. 2011 (12) SCR 496 =
(2011) 10 SCC 1; Hardwari Lal v. G.D. Tapase & Ors., AIR
1982 P & H 439; Vice-Chancellor, University of Allahabad G
& Ors. v. Dr. Anand Prakash Mishra & Ors., 1996 (10) Suppl.
SCR 175 = (1997) 10 SCC 264; M. P. Special Police
Establishment v. State of M.P. & Ors., 2004 (5} Suppl.
SCR 1020 = AIR 2005 SC 325; State of Maharashtra v.
Ramdas Shrinivas Nayak & Anr., 1983 (1) SCR 8 =AIR H
14 SUPREME COURT REPORTS [2013) 1 S.C.R.
A 1982 SC 1249; Rameshwar Prasad (VI) v. Union of India
2006 (1) SCR 562 = (2006) 2 SCC 1 - referred to.
4.3. The judgments of this Court do not leave any
room for doubt with respect to the fact that, when the
Governor does not act as a statutory authority, but as the
8
Head of the State, being Head of the executive and
appoints someone under his seal and signature, he is
bound to act upon the aid and advice of the Council of
Ministers. Thus, the law as evolved and applicable can
be summarised to the effect that the Governor is bound
C to act on the aid and advice of the Council of Ministers,
unless he· acts as, "persona designata" i.e. "eo nomine",
under a particular statute, or acts in his own discretion
under the exceptions carved out by the Constitution
itself. Therefore, the appointment of the Lokayukta can
D be made by the Governor, as the Head of the State, only
with the aid and advice of the Council of Ministers, and
not independently as a Statutory Authority. [para 33,42
and 74) [49-C; 54-C-D; 70-E-F]
E State of Maharashtra v. Ramdas Shrinivas Nayak & Anr.,
1983 (1) SCR 8 =AIR 1982 SC 1249; Narmada Bachao
Ando/an v. State of Madhya Pradesh 2011 (12) SCR 84
=AIR 2011 SC 3199; Maru Ram, Bhiwana Ram etc. etc. v.
Union of India & Ors. etc., AIR 1980 SC 2147; State of U.P.
F & Ors. etc. v. Pradhan Sangh Kshettra Samiti & Ors. etc.,
1995 (2) SCR 1015 =AIR 1995 SC 1512; S.R. Chaudhuri v.
State of Punjab & Ors., 2001 (1) Suppl. SCR 621 =AIR 2001
SC 2707 - referred to.
4.4. In the instant case, the Governor has misjudged
G her role and has insisted that under the Act of 1986, 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 High Court and the Leader of Opposition. Such
H attitude is not in conformity, or in consonance with the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 15
MEHTA (RETD) & ORS.
democratic set up of government envisaged in our A
Constitution. The Governor consulted the Attorney
General of India for legal advice, and communicated with
the Chief Justice of the High Court directly, without taking
into confidence, the Council of Ministers. In this respect,
she was wrongly advised to the effect that she had to act B
as a statutory authority and not as the Head of the State.
However, it is evident that the Chief Minister had full
information and was in receipt of all communications
from the Chief Justice, whose opinion is to be given
primacy as regards such matters, and can only be C
overlooked, for cogent reasons. [para 74) [70-D-H]
5.1.. Courts should not make any undeservi'1g or
derogatory remarks against any person, unless the same
are necessary for the purpose of deciding the issue
involved in a given case. Even where criticism is justified, D
the court must not use intemperate language and must
maintain judicial decorum at all times. Maintaining judicial
restraint and discipline are necessary for the orderly
administration of justice. Therefore, while formation and
expression of honest opinion and acting thereon, is a E
necessity to decide a case, courts must always ac~ within
the four-corners of the law. [para 71 and 73)
State of M.P. & Ors. etc.etc. v. Nandlal Jaiswal & Ors.
etc.etc., 1987 (1) SCR 1=AIR1987 SC 251; AM. Mathur F
v. Pramod Kumar Gupta, 1990 (2) SCR 110 =AIR 1990 SC
1737; State of Bihar & Anr. v. Nilmani Sahu & Anr., (1999) 9
SCC 211; In the matter of: "K" a Judicial Officer, 2001 (1) SCR
959 = AIR 2001 SC 972; In the matter of: "RV~ a Judicial
Officer, 2004 (5) Suppl. SCR 129 =AIR 2005 SC 1441; and G
Amar Pal Singh v. State of U.P. & Anr., AIR 2012 SC 1995 -
referred to.
5.2. In the instant case, it appears that the third Judge
of the High Court has used harsh language against the
Chief Minister, after examining the various letters written H
16 SUPREME COURT REPORTS [2013] 1 S.C.R.
A by him. At an earlier stage, the Chief Minister had taken
a stand to the effect that a retired Judge, who has been
given some other assignment, should not be considered
for appointment to the post of Lokayukta. However, with
respect to the case of another retired Judge, he seems
B to have taken an altogether different view. This Court is
of the view that the Judge, even if he did not approve of
the attitude adopted by the Chief Minister, ought to have
maintained a calm disposition and should not have used
such harsh language against a Constitutional authority,
C i.e. Chief Minister. [para 73) [67-G; 68-B-C; 69-G-H; 70-A]
Case Law Reference:
. -:(2011) 4 SCALE 252 referred to para 5
1965 SCR 908 relied on para 6
D
JT 2012 (10) SC 422 referred to para 9
1978 (1) SCR 423 referred to para 9
1987 (1) SCR 136 referred to para 9
E 2003 (1) SCR 593 referred to para 9
2006 (1) SCR 261 referred to para 9
AIR 2008 SC 2936 referred to para 9
2010 (6) SCR 857 referred to para 9
F
1970 (2) SCR 666 referred to para 9
2009 (7) SCR 668 referred to para 9
2010 (6) SCR 857 referred to para 9
G 1970 (2) SCR 666 referred to para 10
2009 (7) SCR 668 referred to para 11
1996 (3) SCR 474 referred to para 11
2004 (6) Suppl. SCR 1065 referred to para 11
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 17 .
MEHTA (RETD) & ORS.
! 2011 (4) SCR 445 referred to para 13 A
AIR 2002 SC 3578 referred to para 14
AIR 2002 Ori 25 referred to para 14
1992 (2) Suppl. SCR 389 referred to para 15 B
1975 (1) SCR 814 referred to para 17
2004 (5) Suppl. SCR 1020 8 referred to para 18
1983 (1) SCR 8 referred to para 18
c
1965 SCR53 referred to para 19
1996 (1) Suppl. SCR 637 referred to para 19
1993 (2) Suppl. SCR 659 referred to para 20
2005 (1) SCR 279 referred to para 21 D
AIR 1976 Pat 36 referred to para 22
AIR 1982 P & H 439 referred to para 23
1996 (10) Suppl. SCR 175 referred to para 24 E
1997 (1) SCR 138 referred to para 25
2011 (12) SCR 84 referred to para 25
AIR 1980 SC 2147 referred to para 25
F
1963 SCR 721 relied on para 26
2006 (1) SCR 562 referred to para 27
1966 AIR 1987 referred to para 28
G
2011 (12) SCR 496 referred to para 28
1995 (2) SCR 1015 referred to para 30
2001 (1) Suppl. SCR 621 referred to para 31
1974 (1) SCR 697 referred to para 34 H
18 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 2000 (5) Suppl. SCR 200 referred to para 34
2012 (2) SCR 433 referred to para 34
2011 SCR 540 referred to para 34
B 1963 SCR 774 referred to para 35
AIR 1970 SC 1002 referred to para 35
1980 (3) SCR 1159 referred to para 35
2002 (2) SCR 661 referred to para 35
c
1956 SCR 267 referred to para 55
1997 (6) Suppl. SCR595 referred to para 62
2000 (1) SCR 579 referred to para 62
D
2012 (10) JT 446 referred to para 62
2012 (3) SCR 52 referred to para 62
AIR 1979 SC 478 referred to para 64
E (1940) 3 All E.R. 549 referred to para 66
1926 AC 37 referred to para 66
1961 SCR 295 referred to para 67
F 1987 (1) SCR411 referred to para 67
1987 (2) SCR 1 referred to para 67
1989 (2) SCR 544 referred to para 67
2008 (5) SCR 775 referred to para 67
G
2010 (10) SCR 779 referred to para 67
1987 (1) SCR 1 referred to para 73
1990 (2) SCR 110 referred to para 73
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 19
MEHTA (RETD) & ORS.
(1999) 9 sec 211 referred to para 73 A
2001 (1) SCR 959 referred to para 73
2004 (5) Suppl. SCR 129 referred to para 73
2012 (6) sec 491 referred to para 73
B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
8814-8815 of 2012 etc.
From the Judgment & Order dated 10.10.2011 and
18.01.2012 of the Hig~ Court of Gujarat at Ahmedabad in c
Special Civil Application No. 12632 of 2011.
WITH
SLP (C) Nos.· 2625-2626 & 2687-88 of 2012
D
Rohintion F. Nariman, S.G., K.K. Venugopal, Mukul
Rohtagi, Prakash Jani, Soli J. Sorabjee, Yatin Oza, Dr. Rajeev
Dhawan, Mihir J. Thakore, Dr. A. M. Singhvi, Huzefa.Ahmadi,
Satya Pal Jain, P.P. Rao, Kamal Trivedi, A.G., Sangeeta
Vishen, E.C. Agrawala, Mahesh Agarwal, Ankur Saigal, S. E
Udaya Kumar Sagar, Bina Madhavan, Praseena E. Joseph,
Shaunak Kahsypa, Mehernaz Mehta, Unmesh Shukla, Srushti
Tula (for Mis. Lawyer's Knit & Co.) Sanjay R. Hegde, Amit M.
Panchal, S. Nitin, Anil Kumar Mishra-I, D.N. Ray, Lokesh K.
Choudhary, Sumita Ray, Sanjay Kapur, Anmol Chandan,
Priyanka Das, Ritin Rai, Ashmi Mohan, Kamini Jaiswal, Ezaz F
Maqbool, Mrigank Prabhakar, Sakashi Banga, Aniruddha P.
Mayee, Charudatta Mahindrakar, Pawan Upadhyay, Sarvjit
Partap Singh, Anisha Upadhyay, Sharmila Upadhyay, Naresh
K. Sharma, Abhijit P. Medh, Rajiv Nanda, Padma Lakshmi
Nigam for the appearing parties. G
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the judgments and orders of the High Court H
20 SUPREME COURT REPORTS [2013] 1 S.C.R.
A of Gujarat at Ahmedabad in Special Civil Application No.
12632 of 2011, dated 10.10.2011 and 18.1.2012.
2. The facts and circumstances giving rise to these
appeals are as under:
B A. The legislature of Gujarat enacted the Gujarat Lokayukta
Act 1986 (hereinafter referred to as the, 'Act, 1986'), which
provided for the appointment of a Lokayukta, who must be a
retired Judge of the High Court. The said statute, was given
effect to, and various Lokayuktas were appointed over time, by
C following the procedure prescribed under the Act, 1986, for the
said purpose, i.e., the Chief Minister of Gujarat, upon
consultation with the Chief Justice of the Gujarat High Court,
and the Leader of Opposition in the House, would make a
recommendation to the Governor, on the basis of which, the
D Governor would then issue requisite letters of appointment.
B. The post of the Lokayukta became vacant on
24.11.2003, upon the resignation of Justice S.M. Soni. The
Chief Minister, after the expiry of about three years, wrote a
E letter dated 1.8.2006 to the Chief Justice, suggesting the name
of Justice K.R. Vyas for appointment to the post of Lokayukta.
The name of Justice K.R. Vyas was approved by the Chief
Justice, vide letter dated 7.8.2006, and the Chief Minister, after
completing other required formalities, forwarded the said name,
F to the Governor on 10.8.2006, seeking his approval, as regards
appointment. The file remained pending for a period of 3 years,
and was returned on 10.9.2009, as Justice K.R. Vyas had been
appointed as Chairman of the Maharashtra State Human
Rights Commission, on 21.8.2007.
G C. On 29.12.2009, Private Secretary, to the Governor of
Gujarat, addressed a letter to the Registrar General of the High
Court of Gujarat, requesting that a panel of names be suggested
by the Chief Justice, so that the same could be considered by
the Governor, with respect to their possible appointment, to the
H post of Lokayukta.
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 21
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] ·
D. The Chief Minister, also wrote a letter dated 8.2.2010, A
to the Chief Justice, requesting him to send a panel of names
of three retired Judges for the purpose of consideration of one
of them to be finally appointed as Lokayukta. The Chief Justice,
vide letter dated 24.2.2010, suggested the names of four retired
Judges, taking care to stipulate that the said names were not B
arranged in any order of preference, and that any one of them,
could thus, be chosen by the Governor.
E. The Chief Minister after receiving the aforementioned
letter, made an attempt to consult the Leader of Opposition,
regarding the said names by writing a letter dated 2.3.2010, C
who vide letter dated 3.3.2010, was of the opinion that under
the Act, 1986 the Chief Minister, had no right to embark upon
any consultation, with respect to the appointment of the
Lokayukta. There was some further correspondence of a similar
nature between them on this issue. D
F. The Leader of Opposition, vide letter dated 4.3.2010,
pointed out to the Chief Minister, that the process of cor:isultation
regarding the appointment of the Lokayukta, had already been
initiated by the Governor directly, and thus, the Chief Minister E
should not attempt to interfere with the same. The Leader of
Opposition did not attend any meeting held in this regard, and
the Governor also did not think it proper to indulge in any further
consultation with the Chief Minister with respect to the said
issue. F
G. In the meantime, as has been mentioned above, not
only were the meetings called by the Chief Minister, not
attended by the Leader of Opposition, but it also appears that
simultaneously, the Council of Ministers had already considered
the names as recommended by the Chief Justice, and vide G
letter dated 24.2.2010, had proceeded to approve the name
of Justice J.R. Vora (Retd.), for appointment to the post of
Lokayukta, and the file was sent to the Governor for approval
and consequential appointment. However, no orders were
passed by the Governor. H
22 SUPREME COURT REPORTS [2013] 1 S.C.R.
A H. The Governor instead sought the opinion of the Attorney
General of India, as regards the nature of the process of
consultation, required to be adopted in the matter of
appointment of the Lokayukta. The Governor also addressed
a letter to the Chief Justice dated 23.4.2010, soliciting his
B opinion as to who would be a better choice for appointment to
the post of Lokayukta, between Justice R.P. Dholakia (Retd.),
who was the President of the Gujarat Consumer Disputes
Redressal Commission and Justice J.R. Vora (Retd.), from
among the panel of names that had been sent by the Chief
c Justice, vide letter dated 24.2.2010.
I. The Attorney General in his opinion dated 23.4.2010,
stated that the Chief Justice ought to have suggested only one
name, and that he could not have required to recommend a
panel of names. The Chief Justice on 27.4.2010, wrote to the
D Governor stating that, in his opinion, Justice R.P. Dholakia
(Retd.) would be the more appropriate choice. However,
despite this, the Governor did not issue a letter of appointment
to anyone, and requested the Chief Justice vide letter dated
3.5.2010, to recommend only one name, as opined by the
E Attorney General, vide his letter dated 23.4.2010.
J. In response to the suggestion made by the Governor,
the Chief Justice wrote to the Governor on 29.12.2010,
recommending the name of Justice S.D. Dave (Retd.), for
F appointment to the post of Lokayukta. The Chief Justice also
wrote a letter to the Chief Minister on 31.12.2010,
recommending the name of Justice S.D. Dave, in place of that
of Justice J.R. Vora, as Justice J.R. Vora had already been
appointed elsewhere.
G K. The Chief Minister wrote a letter dated 21.2.2011, to
the Chief Justice by way of which, he re-iterated the request of
the State Government, to appoint Justice J.R. Vora as
Lokayukta, owing to the fact that the process of consultation was
already complete and further that, Justice J.R. Vora had
H expressed his willingness to accept his appointment to the post
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 23
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
of Lokayukta, if the same was offered to him, and in this regard, A
the Chief Minister even wrote a second letter, dated 4.5.2011,
to the Chief Justice, requesting him to reconsider the said
issue.
L. The Chief Justice, vide letter dated 7.6.2011, made a 8
suggestion to the Governor to the effect that, Justice R.A. Mehta
(Retd.) · be appointed as Lokayukta, and the said
recommendation was also sent by the Chief Justice, to the Chief
Minister. The Governor, on the same day, i.e. 7.6.2011,
requested the Chief Minister to expedite the process for the C
appointment of Justice R.A. Mehta, as Lokayukta.
M. The Chief Minister, vide letter dated 16.6.2011,
requested the Chief Justice to consider certain objections
raised by him against the appointment of Justice R.A. Mehta
as Lokayukta, which included among other things, the fact that D ·
Justice R.A. Mehta was above 75 years of age, as also his
association with NGOs and social activist groups, known
for their antagonism against the State Government; and
further, that he possessed a specific biased disposition, against
the Government. To support the apprehensions raised by him, E
the Chief Minister annexed along with his letter, 11 clippings
of newspaper.
N. The Chief Justice, vide letter dated 2.8.2011, replied
to the aforementioned letter of the Chief Minister, pointing out F
that Justice R.A. Mehta was not ineligible for appointment to
the post of Lokayukta on the basis of any of the points raised
by the Chief Minister, and that he was a man of great repute
and high integrity. Justice R.A. Mehta had never made any
public statement detrimental to the society as a whole, nor had
he ever showri any bias either with respect to, or against any G
government, and finally, that he was not a member of any NGO.
Even otherwise, membership of a person of an NGO, or his
social activities, cannot be treated as a basis for his
disqualification, for being appointed to the post of Lokayukta.
H
24 SUPREME COURT REPORTS [2013) 1 S.C.R.
A 0. The Governor, vide letter dated 16.8.2011, requested
the Chief Minister to process the appointment of Justice R.A.
Mehta as Lokayukta. The Leader of Opposition also wrote a
letter dated 16.8.2011, to the Chief Minister, informing him of
the fact that he had already been consulted by the Governor,
B as regards the said issue, and that in connection with the same,
he had agreed to the appointment of Justice R.A. Mehta as
Lokayukta. At this juncture, the Governor issued the requisite
warrant from her office on 25.8.2011, appointing Justice R.A.
Mehta as Lokayukta.
c P. The Gujarat Lokayukta (Amendment) Bill, 2011 was
passed by the Legislative Assembly of the State of Gujarat on
30.3.2011, which primarily sought to widen the definition of the
term, "public functionaries", contained in Section 2(7) of the Act,
1986, by including a large number of other functionaries, within
0 its purview, such as Mayors, Deputy Mayors of the Municipal
Corporation, the President or the Vice-President of
Municipalities, the Sarpanch and Up-Sarpanch of Village
Panchayats etc. The Governor returned the said Bill for
reconsideration, as she realised that the Lokayukta, however
E competent and efficient he may be, would be unable to look
into complaints of irregularities made against such a large
number of persons.
Q. The Governor also refused to issue an Ordinance to
F amend the Act, 1986, wherein Section 3 was to be amended,
which would have changed the composition of the consultees
as contemplated under the Act, 1986, for the purpose of
deciding upon the appointment of the Lokayukta, on the ground
that there was no grave urgency for bringing in such an
G Ordinance, all of a sudden.
R. The State of Gujarat filed writ petition No. 12632 of
2011 dated 5.9.2011, in the High Court of Gujarat, challenging
the appointment of Justice R.A. Mehta to the post of Lokayukta.
The matter was decided vide judgment and order dated
H 10.10.2011, wherein the two Judges while hearing the case
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 25
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
differed in their views to a certain extent. Accordingly, the matter A
was then referred to a third Judge, who delivered his judgment
dated 18.1.2012, dismissing the said writ petition.
Hence, these appeals.
RIVAL CONTENTIONS: B
3. Mr. K.K. Venugopal, Mr. Soli Sorabjee, Dr. Rajeev
Dhavan, Mr. Mihir J. Thakore, and Mr. Yatin Oza, learned senior
counsel appearing for the appellants, have submitted that the
Governor, being a titular head of State, is bound to act only in C
accordance with the aid and advice of the Council of Ministers,
headed by the Chief Minister, and that the actions of the
Governor, indulging in correspondence with, and issuing
directions to other statutory authorities, are contrary to the
principles of Parliamentary democracy, and thus, the Governor D
ought not to have corresponded with, and consulted the Chief
Justice of the High Court of Gujarat directly. It was also
contended that, the Chief Justice ought to have recommended,
a panel of names for consideration by the other consultees,
i.e., the Chlef Minister and Leader of Opposition, and that he E
could not recommend only one name, as the same would
cause the entire process to fall within the ambit Of
concurrence, rather than that of consultation. Furthermore,
consultation by the Governor with the Attorney General of India,
who is alien to the Act, 1986, runs contrary to the statutory F
provisions of the said Act. The Governor is not acting merely
as a statutory authority, but as the Head of the State, and
hence, the entire procedure adopted by her is in clear
contravention of the actual procedure, contemplated by the
statute, for the purpose of selection of the Lokayukta. The Chief
Justice ought to have taken into consideration, the objections G
raised by the appellants, qua the recommendation made by the
Chief Justice with respect to the appointment of respondent no.
1. The third Hon'ble Judge made unwarranted and uncalled for
remarks in carping language in connection with the Chief
Minister which tantamount to resounding strictures, and the H
26 SUPREME COURT REPORTS [2013] 1 S.C.R.
A same require to be expunged. Thus, the appeals deserve to
be allowed and the majority judgments (impugned), set aside.
4. Per contra, Mr. R.F. Nariman, learned Solicitor General
of India, Mr. P.P.Rao, Dr. AM. Singhvi, and Mr. Huzefa Ahmadi,
8 learned senior counsel appearing on behalf of the respondents,
have opposed the appeals, contending that the Governor had
acted as a statutory authority under the Act, 1986, and not as
the head of the State, and thus, she was not required to act in
accordance with the aid and advice of the Council of Ministers.
Furthermore, no fault can be found with the procedure adopted
C by the Governor, as the objections raised by the Chief Minister
were thoroughly considered by the Chief Justice, and no
substance was found therein. The Chief Justice has primacy
of opinion in the matter of consultation, and therefore, the
sending of a panel of names instead of just one name, does
D not amount to a violation of the scheme of the Act. A perusal
of the statute and the sequence of events herein, makes it
crystal clear, that the Governor acted in correct perspective, and
that no fault can be found with the selection of respondent no.
1 to the post of Lokayukta. The appellants have in fact, been
E avoiding the appointment of a Lokayukta for a period of more
than nine years, for which there can be no justification. The
harsh language used by the 3rd Judge was warranted because
of the defiant attitude adopted by the Chief Minister which was ·
appalling, and thus, the remarks do not need to be expunged.
F The appeals hence, lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
These appeals raise legal issues of great public
G importance, such as, what is the meaning of the term
'consultation' contained in Section 3 of the Act, 1986, and
also whether the opinion of the Chief Justice has primacy with
respect to the appointment of the Lokayukta.
H The twin issues of consultation vis-a-vis concurrence and
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 27
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
primacy, have been debated extensively before this Court and A
answered by larger benches while interpreting Article 124(2)
of the Constitution in matters relating to appointment of Judges
of Supreme Court and High Court. The present case also
involves the determination of the meaning of the word
"consultation" in Section 3 of the Act, 1986 in the said context. B
However, a two-Judges bench in the case of Suraz Trust
India v. Union of India & Anr., (2011) 4 SCALE 252, has
entertained the questions raised while doubting the correctness
of the larger bench decisions that is pending consideration C
before a three-Judges bench presided over by Hon'ble the
Chief Justice.
6. In The Keshav Mills Co. Ltd., Pet/ad v. The
Commissioner of Income-tax, Bombay North, Ahmedabad,
AIR 1965 SC 1636, this Court held: D
" ...... When thls Court decides questions of law, its
decisions are, under Art. 141, binding on all Courts within
the territory of India, and so, it must be the constant
endeavour and concern of this Court to introduce and E
maintain an element of certainty and continuity in the
interpretation of law in the country. Frequent exercise by
this Court of its power to review its earlier decisions on
the ground that the view pressed before it later appears
to the Court to be more reasonable, may incidentally F
tend to make law uncertain and introduce confusion
which must be consistently avoided. That is not to say
that if on a subsequent occasion, the Court is satisfied
that its earlier decision was clearly erroneous, it should
hesitate to correct the error; but before a previous decision
is pronounced to be plainly erroneous, the Court must G
be satisfied with a fair amount of unanimity amongst its
members that a revision of the said view is fully justified.
It is not possible or desirable, and in any case it would
be inexpedient to lay down any principles which should
govern the approach of the Court in dealing with the H
28 SUPREME COURT REPORTS [2013] 1 S.C.R.
A question of reviewing and revising its earlier decisions.
It would always depend upon several relevant
considerations:- What is the nature of the infirmity or error
on which a plea for a review and revision of the earlier
view is based? On the earlier occasion, did some patent
B aspects of the question remain unnoticed, or was the
attention of the Court not drawn to any relevant and
material statutory provision, or was any previous decision
of this Court bearing on the point not noticed ? Is the
Court hearing such plea fairly unanimous that there is
c such an error in the earlier view? What would be the
impact of the error on the general administration of law
or on public good ? Has the earlier decision been
followed on subsequent occasions either by this Court or
by the High Courts? And, would the reversal of the earlier
D
decision lead to public inconvenience, hardship or
mischief? These and other relevant considerations must
be carefully borne in mind whenever this Court is called
upon to exercise its jurisdiction to review and revise its
earlier decisions. These considerations become still
more significant when the earlier decision happens to be
E
a unanimous decision of a Bench of five learned Judges
of this Court."
7. It is, therefore, evident that before making a reference
to a larger Bench, the Court must reach a conclusion regarding
F the correctness of the judgment delivered by it previously,
particularly that, which has been delivered by a Bench of nine
Judges or more, and adjudge the effect of any error therein,
upon the public, what inconvenience, hardship or mischief it
would cause, and what the exact nature of the infirmity or error
G that warrants a review of such earlier judgments.
In the instant case, we do not find any such compelling
circumstance that may warrant a review, and thus, taking into
consideration the facts of the present case, we are not
H convinced that this matter requires a reference to a larger
Bench.
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 29
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
8. Before proceeding with the case, it is necessary to refer A
to certain relevant statutory provisions:
It is evident from the Preamble of the Act, 1986 that the
Lokayukta has two duties, firstly, to protect honest public
functionaries from false complaints and allegations, and 8
secondly, to investigate charges of corruption filed against
public functionaries. Hence, investigation of such charges of
corruption against public functionaries is not the only
responsibility that the Lokayukta is entrusted with.
Section 2(8) of the Act,· 1986, defines the term, "Public C
servant", as having the same meaning, that has been given to
it, under Section 21 of the Indian Penal Code, 1860.
Section 3 (1) of the Act, 1986, reads as under:
D
"For the purpose of conducting investigations in
accordance with provisions of this Act, the Governor shall,
by warrant under his hand and seal, appoint a person to
be known as the Lokayukta.
Provided that the Lokayukta shall be appointed after E
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, F
after consultation also with the Leader of the
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." (Emphasis added) G
Section 4 prescribes certain disabilities/disqualifications
with respect to the appointment of the Lokayukta, and stipulates
that he must not be a Member of Parliament or of any State
Legislature, and also that he must not hold any office of trust, H
30 SUPREME COURT REPORTS [2013] 1 S.C.R.
A or profit and even if he does hold any such pos\, that he must
tender his resignation as regards the same, before he is
appointed as Lokayukta, and also further, that he must not be
affiliated with any political party.
8 Section 6 of the said Act, provides that the Lokayukta shall
not be removed from office, except under an order made by
the Governor, on the grounds of proven misbehaviour, or
incapacity, after an inquiry into the same which has been
conducted by the Chief Justice of the High Court of the State,
C or by a Judge nominated by him, in which, the Lokayukta is
informed of the charges against him, and has been given, a
reasonable opportunity of being heard, with respect to the
same.
Section 7 of the Act, 1986 provides for matters which may
D be investigated by the Lokayukta, against public
functionaries, which may include the Chief Minister and the
Council of Ministers also.
Section 12 of the Act, 1986 provides that the Lokayukta,
E after investigation of a complaint against the Chief Minister, if
any substance is found therein, shall submit a written report,
communicating the findings arrived at by him, along with such
relevant materials/documents and other evidence, that are in
his possession, to the Chief Minister himself. Clause 2 thereof
F provides that, the Chief Minister shall then place the said report,
without any delay, before the Council of Ministers.
Section 19 of the Act, empowers the Governor to confer
additional functions upon the Lokayukta, after having
consultation with the Lokayukta, in relation to the eradication
G of corruption, which may be specified, by publishing a
notification with respect to the same, in the Official Gazette.
Section 20 of the Act, deals with the power to exclude
complaints against certain classes of public functionaries.
H Under this Section, the State Government, upon a
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 31
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
recommendation made by the Lokayukta, may exclude, by A
Notification in the Official Gazette, complaints involving
allegations against persons belonging to a particular class of
public functionaries, as has been specified in the said
notification, from under the jurisdiction of the Lokayukta.
B
CONSULTATION- means:
9. In State of Gujarat & Anr. v. Gujarat Revenue Tribunal
Bar Association & Anr., JT 2012 (10) SC 422, this Court held
that, the object of consultation is to render its process
meaningful, so that it may serve its intended purpose. C
Consultation requires the meeting of minds between the parties
that are involved in the cons!Jltative process, on the basis of
material facts and points, in order to arrive at a correct, or at
least a satisfactory solution. If a certain power can be exercised
only after consultation, such consultation must be conscious, D
effective, meaningful and purposeful. To ensure this, each party
must disclose to the other, all relevant facts, for due
deliberation. The consultee must express his opinion only after
complete consideration of the matter, on the basis of all the
relevant facts and quintessence. Consultation may have E
different meanings in different situations, depending upon the
nature and purpose of the statute.
(See also: UOI v. Sankalchand Himatlal Sheth & Anr., AIR
1977 SC 2328; State of Kera/a v. Smt. A. Lakshmikutty & Ors.,
AIR 1987 SC 331; High Cowt of Judicature for Rajasthan v. F
P.P Singh & Anr., AIR 2003 SC 1029; UOI & Ors. v. Kali Dass
Batish &Anr., AIR 2006 SC 789; Andhra Bank v. Andhra Bank
Officers & Anr., AIR 2008 SC 2936; and Union of India v. R.
Gandhi, President, Madras Bar Association, (2010) 11 SCC
1). G
10. In Chandramouleshwar Prasad v. The Patna High ..
Court & Ors., AIR 1970 SC 370, this Court held that,
consultation or deliberation can neither be complete nor
effective, before the parties thereto, make their respective H
32 SUPREME COURT REPORTS [2013] 1 S.C.R.
A points of view, known to the other, or others, and discuss and
examine the relative merits of their views. If one party makes a
proposal to the other, who has a counter proposal in mind,
which is not communicated to the proposer, a direction issued
to give effect to the counter proposal, without any further
8 discussion with respect to such counter proposal, with the
proposer cannot be said to have been issued after consultation.
11. In N. Kannadasan v. Ajoy Khose & Ors., (2009) 7
SCC 1, this Court considered a case regarding the
C appointment of the Chairman of a State Consumer Disputes
Redressal Commission, under the provisions of the Consumer
Protection Act 1986, and examined the communication
between the consultant and consultee, i.e. the State
Government and the Chief Justice of the High Court, and
observed that, where the High Court had placed for
D consideration, certain material against a person, whose name
was proposed by the State Government, for consideration with
respect to his appointment to the post of Chairman of the State
Commission, and no specific explanation was provided for the
non-consideration of such material, then an appointment made
E in light of such circumstances, cannot be held to be an
appointment made after due consultation. The Court held as
under:"But, where a decision itself is thickly clouded by non-
consideration of the most relevant and vital aspect, the ultimate
appointment is vitiated not because the appointee is not
F desirable or otherwise, but because mandatory statutory
requirement of consultation has not been rendered effectively
and meaningfully". Thus, in such a situation, even if a person
so appointed was in theory, eligible for the purpose of being
considered for appointment to the said post, the fact that the
G process of consultation was vitiated, would render the ultimate
order of appointment vulnerable, and liable to questioning. In
this case, this Court also considered its earlier decisions, in
the cases of Ashish Handa, Advocate v. Hon'ble the Chief
Justice of High Court of Punjab & Haryana & Ors., AIR 1996
H SC 1308; and Ashok Tanwar & Anr. v. State of H.P. & Ors.,
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 33
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
AIR 2005 SC 614, and came to the conclusion that, the Chief A
Justice must send only one name, and not a panel of
names for consideration, or else, the word 'primacy' would
lose its significance. If the Chief Justice sends a panel of
names, and the Governor selects one from them, then it would
obviously become the primacy of the Governor, and would not B
remain the primacy of the Chief Justice, which is the
requirement under the law.
The concept of primacy in such a situation, has been
included, owing to the fact that, the Chief Justice of the High C
Court of the concerned State, is the most appropriate person
to judge the suitability of a retired Judge, who will act as the
Lokayukta and the object of the Act would not be served, if the
final decision is left to the executiye. The opinion of the Chief
Justice would be entirely independent, and he would most
certainly be in a position to determine who the most suitable D
candidate for appointment to the said ·office is. This Court has,
therefore, explained that, the primacy of the opinion of the Chief
Justice must be accepted, except for cogent reasons, and
that the term consultation, for such purpose shall mean
concurrence. E
12. In N. Kannadasan (supra), while interpreting the
provisions of Section 16 of the Consumer P~otection Act, 1986,
this Court held that, consultation under the said Act, cannot be
equated with consultation, as contemplated by the Constitution F
under Article 217, in relation to the appointment of a Judge of
the High Court. However, the Court further held, that primacy
will be given to the opinion of the Chief Justice, where such
consultation is statutorily required.
13. In Centre For PIL & Anr. v. Union of India & Anr., AIR G
2011 SC 1267, this Court considered the argument of
unanimity, or consensus, inthe matter of the appointment of the
Central Vigilance Commissioner and observed:
"It was further submitted that if unanimity is ruled out then H
34 SUPREME COURT REPORTS [2013] 1 S.C.R.
A the very purpose of inducting the Leader of the
Opposition in the process bf selection will stand defeated
because if the recommendation of the Committee were
to be arrived at by majority it would always exclude the
Leader of the Opposition since the Prime Minister and
B the Home Minister will always be ad idem.
xx xx xx
We find no merit in these submissions. To accept the
contentions advanced on behalf of the petitioners would
c mean conferment of a "veto right" on one of the members
of the HPC. To confer such a power on one of the
members would amount to judicial legislation."
14. This Court, in Justice K.P. Mahapatra v. Sri Ram
o Chandra Nayak & Ors., AIR 2002 SC 3578, considered the
provisions of Section 3(1 )(a) of the Orissa Lokpal and
Lokayuktas Act, 1995, which are pari materia with those of
Section 3 of the Act, 1986. In the aforementioned case, the
question that arose was with respect to the meaning of
E consultation, as contemplated under the Orissa Act, which
is a verbatim replication of Section 3 of the Gujarat Act, and
upon consideration of the statutory provisions of the Act, this
Court came to the conclusion that:
"12. ....... The investigation which Lokpal is required to
F carry out is that of quasi-judicial nature which would
envisage not only knowledge of law, but also of the
nature and work which is required to be discharged by
an administrator. In this context, the word "consultation"
used in Section 3(1) proviso (a) would require that
G consultation with the Chief Justice of the High Court of
Orissa is a must or a sine qua non. For such
appointment, the Chief Justice of the High Court would
be the best person for proposing and suggesting such
person for being appointed as Lokpal. His opinion would
H be totally independent and he would be in a position to
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 35
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
find out who is most or more suitable for the said office. A
In this context, primacy is required to be given to the
opinion of the Chief Justice of the High Court.
xx xx xx xx xx
16. Applying the principle enunciated in the aforesaid B
judgment, scheme of Section 3(1) of the Act read with the
functions to be discharged by the Lokpal and the nature
of his qualification, it is apparent that the consultation with
the Chief Justice is mandatory and his opinion would
have primacy." (Emphasis added) C
The aforesaid appeal was filed against the judgment of the
Orissa High Court in Ram Chandra Nayak v. State of Orissa,
AIR 2002 Ori 25, wherein the High Court had held that the
Governor, while appointing a person as Lokpal, must act upon
0
the aid and advice of the Council of Ministers, and that there
was no question of him exercising any power or discretion in
his personal capacity. The said judgment was reversed by this
Court on other grounds, but not on this issue.
15. In Indian Administrative Service (S. C. S.) Association, E
U.P. & Ors. v. Union oflndia & Ors., (1993) Supp.1 SCC 730,
this Court explained the term 'Consultation', though the same
was done in the context of the promotion of certain officials
under the provisions of the All India Services Act, 1951. The
Court laid down various propositions with respect to F
consultation, inter-alia:
"(6) No hard and fast rule could be laid, no useful
purpose would be served by formulating words or
definitions, nor would it be appropriate to lay down the G
manner in which consultation must .take place. It is for the
Court to detennine in each case in the light of its facts
and circumstances whether th~action is 'after .
consultation'; 'was, in fact, consulted' or was it a 'sufficient
consultation'."
H
36 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 16. Thus, in view of the above, the meaning of
consultation varies from case to case, depending upon its
fact-situation and the context of the statute, as well as the object
it seeks to achieve. Thus, no straight-jacket formula can be laid
down in this regard. Ordinarily, consultation means a free and
B fair discussion on a particular subject, revealing all material that
the parties possess, in relation to each other, and then arriving
at a decision. However, in a situation where one of the
consultees has primacy of opinion under the statute, either
specifically contained in a statutory provision, or by way of
C implication, consultation may mean concurrence. The court
must examine the fact-situation in a given case to determine
whether the process of consultation, as required under the
particular situation did in fact, stand complete.
THE MANNER IN WHICH THE GOVERNOR ACTS:
D
17. In Samsher Singh v. State of Punjab & Anr., AIR 1974
SC 2192, this Court expounded the universal rule that, the
Governor is bound to act only in accordance with the aid and
advice of the Council of Ministers, headed by the Chief Minister.
E The Rules of Business and allocation of business among the
Ministers, related to the provisions of Article 53 in the case of
the President, and Article 154 in the case of the Governor, state
that executive power in connection with the same, shall be
exercised by the President or the Governor either directly, or
F through subordinate officers. The President is the formal or
Constitutional head of the Executive. The real executive
powers, however, are vested in the Ministers of the Cabinet.
Wherever the Constitution requires the satisfaction of the
President or the Governor, for the purpose of exercise by the
President or the 1'.3overnor, any power or function, such
G satisfaction is not the personal satisfaction of the President, or
of the Governor, in their personal capacity, but the satisfaction
of the President or Governor, in the Constitutional sense as
contemplated in a Cabinet system of Government, that is, the
satisfaction of the Council of Ministers, on whose aid and
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 37
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
advice the President, or the Governor, generally exercise all A
their powers and functions. The President of India is not a
glorified cipher. He represents the majesty of the State, and is ·
at its apex, though only symbolically, and has a different rapport
with the people and parties alike, being above politics. His
vigilant presence makes for good governance if only he uses, B
what Bagshot described as, "the right to be consulted, to warn
and to encourage".
Whenever the Constitution intends to confer discretionary
powers upon the Governor, or to permit him to exercise his
individual judgment, it has done so expressly. For this C
purpose, the provisions of "Articles 200; 239(2); 371-A(1)(b);
371-A(1)(a); 371-A(2)(b); and 371-A(2)(f), VI Schedule, Para
9(2) (and VI Schedule, Para 18(3), until omitted with effect from
January 21, 1972), may be referred to. Thus, discretionary
powers exist only where they are expressly spelt out. D
However, the power to grant pardon or to remit sentence
(Article 161), the power to make appointments including that
of the Chief Minister (Article 164), the Advocate-General
(Article 165), the District Judges (Article 233), the Members of E
the Public Service Commission (Article 316) are in the category
where the Governor is bound to act on the aid and advice of
the Council of Ministers. Likewise, the power to prorogue either
House of Legislature or to dissolve the Legislative Assembly
(Article 174), the right to address or send messages to the F
Houses of the Legislature (Article 175 and Article 176), the
power to assent to Bills or withhold such assent (Article 200),
the power to make recommendations for demands of grants
[Article 203(3)], and the duty to cause to be laid every year the
annual budget (Article 202), the power to promulgate G
ordinances during recess of the Legislature (Article 213) also
belongs to this species of power. Again, the obligation to make
available to the Election Commission, requisite staff for
discharging functions conferred upon it by Article 324(1) and
Article 324(6), the power to nominate a member of the Anglo- H
38 SUPREME COURT REPORTS [2013] 1 S.C.R.
A Indian Community to the Assembly in certain situations (Article
333), the power to authorise the use of Hindi in proceedings
in the High Court [Article 348(2)], are illustrative of the functions
of the Governor, qua the Governor.
The Governor shall act with aid and advice of the Council
B
of Ministers, save in a few well known exceptional situations.
Without being dogmatic or exhaustive, this situation relates
to the choice of the Chief Minister, dismissal of the government,
and dissolution of the House.
C 18. In M.P. Special Police Establishment v. State of M.P.
& Ors., AIR 2005 SC 325, the question that arose was whether,
for the purpose of grant of sanction for the prosecution of
Ministers, for offences under the Prevention of Corruption Act
and/or, the Indian Penal Code, the Governor, while granting
D such sanction, could exercise his own discretion, or act contrary
to the advice rendered to him by the Council of Ministers. The
Court, in this regard, first considered the object and purpose
of the statutory provisions, which are aimed at achieving the
prevention and eradication of acts of corruption by public
E functionaries. The Court then also considered, the provisions
of Article 163 of the Constitution, and took into consideration
with respect to the same, a large number of earlier judgments
of this Court, including the cases of Samsher Singh (supra);
and State of Maharashtra v. Ramdas Shrinivas Nayak & Anr.,
F AIR 1982 SC 1249, and thereafter, came to the conclusion that,
in a matter related to the grant of sanction required to
prosecute a public functionary, the Governor is usually required
, to act in accordance with the aid and advice rendered to him
by the Council of Ministers, and not upon his own discretion.
G However, an exception may arise while considering the grant
of sanction required to prosecute the Chief Minister, or a
Minister, where, as a matter of propriety, the Governor may
have to act upon his own discretion. Similar would be the
situation in a case where, the Council of Ministers disables or
disentitles itself from providing such aid and advice. Such a
H conclusion by the court, was found to be necessary, for the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 39
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
reason that the facts and circumstances of a case involving any A
of the aforementioned fact situations, may indicate the
possibility of bias on the part of the Chief Minister, or the
Council of Ministers.
This Court carved out certain exceptions to the said
8
provision. For instance, where bias is inherent or apparent; or,
where the decision of the Council of Ministers is wholly irrational,
or, where the Council of Ministers, because of some incapacity
or other situation, is disentitled from giving such advice; or,
where it refrains from doing so as matter of propriety; or in the C
case of a complete break down of democracy.
Article 163(2) of the Constitution provides that it would be
permissible for the Governor to act without ministerial advice
in certain other situations, depending upon the circumstances
therein, even though they may not specifically be mentioned in D
the Constitution as discretionary functions; e.g., the exercise of
power under Article 356(1 ), as no such advice will be available
from the Council of Ministers, who are responsible for the break
down of Constitutional machinery, or where one Ministry has
resigned, and the other alternative Ministry cannot be formed. E
Moreover, Clause 2 of Article 163 provides that the Governor
himself is the final authority to decide upon the issue of whether
he is required by or under the Constitution, to act in his
discretion. The Council of Ministers therefore, would be
rendered incompetent in the event of there being a difference F
of opinion with respect to such a question, and such a decision
taken by the Governor, would not be justiceable in any court.
There may also be circumstances where, there are matters,
with respect to which the Constitution does not specifically
require the Governor to act in his discretion, but the Governor, G
despite this, may be fully justified to act so e.g., the Council of
Ministers may advise the Governor to dissolve a House, which
may be detrimental to the interests of the nation. In such
circumstances, the Governor would be justified in refusing .to
accept the advice rendered to him, and act in his discretion.
H
40 SUPREME COURT REPORTS [2013] 1 S.C.R.
A There may even be circumstances where ministerial advice is
not available at all, i.e., the decision regarding the choice of
Chief Minister under Article 164(1), which involves choosing a
Chief Minister after a fresh election, or in the event of the death
or resignation of the Chief Minister, or dismissal of the Chief
B Minister, who loses majority in the House and yet refuses to
resign, or agree to dissolution. The Governor is further not
required to act on the advice of the Council of Ministers, where
some other body has been referred for the purpose of
consultation i.e., Article 192(2) as regards decisions on
c questions related to the disqualification of members of the
State Legislature.
19. In Brundaban Nayak v. Election Commission of India
& Anr., AIR 1965 SC 1892, this Court held that while dealing
with a case under Article 192 of the Constitution, the Governor
D must act in accordance with advice of the Election
Commission, and that he does not require any aid or advice
from the Council of Ministers.
(See also: Election Commission of India & Anr. v. Dr.
E Subramanian Swamy & Anr., AIR 1996 SC 1810).
20. The issue of primacy of the Chief Justice in such cases,
has also been considered and approved by this Court in Ashish
Handa (supra); and Supreme Court Advocates-on-Record
F Association & Anr. v. Union of India, AIR 1994 SC 268.
21. Thus, where the Governor acts as the Head of the
State, except in relation to areas which are earmarked under
the Constitution as giving discretion to the Governor, the
exercise of power by him, must only be upon the aid and advice
G of the Council of Ministers, for the reason that the Governor,
being the custodian of all executive and other powers under
various provisions of the Constitution, is required to exercise
his formal Constitutional powers, only upon, and in accordance
with, the aid and advice of his Council of Ministers. He is,
H therefore, bound to act under the Rules of Business framed
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 41
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.)
under Article 166 (3) of the Constitution. (Vide: Pu Myllai A
H/ychho & Ors. v. State of Mizoram & Ors., AIR 2005 SC
1537).
22. In Ram Nagina Singh & Ors. v. S. V. Sohni & Ors.,
AIR 1976 Pat 36, the Patna High Court considered the issue B
involved herein, i.e., the appointment of the Lokayukta, under
the Bihar Lokayukta Act, 1974, and held that, ordinarily, when
a power is vested, even by virtue of a statute, in the Governor,
he must act in accordance with the aid and advice tendered
to him by the Council of Ministers, for the simple reason that, C
he does not cease to be an Executive Head, as mentioned
under the Constitution, merely because such authority is
conferred upon him by a statute. It would, in fact, be violative
of the scheme of the Constitution, if it was held that the mere
use of the word, "Governor'' in any statute, is sufficient to impute
to the legislature, an intention by it, to confer a power, "eo D
nomine". Any interpretation other than the one mentioned
above, would therefore, be against the concept of parliamentary
democracy, which is one of the basic postulates of the
Constitution.
E
In view of the Rules of Executive Business, the topic
involving appointment of the Lokayukta, must be brought before
the Council of Ministers. Even if the appointment in question,
is not governed by any specific rule in the Rules of Executive
Business, such appointment must still be made following the F
said procedure, for the reason that the Rules of Executive
Business cannot be such, so as to override any bar imposed
by Article 163(3) of the Constitution.
However, a different situation altogether may arise, where
the Governor ex-officio, becomes a statutory authority under G
some statute.
23. In Hardwari Lal v. G.D. Tapase & Ors., AIR 1982 P &
H 439, the powers of the Governor, with respect to the
appointment/removal of the Vice-Chancellor of Maharshi H
42 SUPREME COURT REPORTS [2013) 1 S.C.R.
A Dayanand University, Rohtak under the Maharshi Dayanand
University (Amendment) Act, 1980, were considered, wherein
a direction was sought with regard to the renewal of the term
of the Vice-Chancellor of the said University. Certain promises
had been made in connection with the same, while making such
B appointment. The Court held that, as the Governor was the ex-
officio Chancellor of the University, therefore, by virtue of his
office, he was not bound to act under the aid and advice of the
Council of Ministers. Under Article 154 of the Constitution, the
executive powers of the State are vested in the Governor, which
c may be exercised by him either directly, or through officers
subordinate to him, in accordance with the provisions of the
Constitution. Article 161 confers upon the Governor, a large
number of powers including the grant of pardon, reprieves,
respites or remissions of punishment etc. Such. executive
power can be exercised by him, only in accordance with the
D
aid and advice of the Council of Ministers. Article 162 states
that the executive power of the State, shall extend to all such
matters, with respect to which, the legislature of the State has
the power to make laws. Therefore, the said provision, widens
the powers of the Governor. Article 166(3) of the Constitution,
E further bestows upon the Governor the power to make rules for
more convenient transactions of business, of the Government
of the State, and also for the purpose of allocating among the
Ministers of State, such business.
F There are several ways by which, a power may be
conferred upon the Governor, or qua the Governor, which will
enable him to exercise the said power, by virtue of his office
as Governor. Therefore, there can be no gainsaying that all the
powers that are exercisable by the Governor, by virtue of his
G office, can be exercised only in accordance with the aid and
advice of the Council of Ministers, except insofar as the
Constitution expressly, or perhaps by necessary implication,
provides otherwise.
Thus, in such a situation, the Statute makes a clear cut
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 43
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
distinction between two distinct authorities, namely, the A
Chancellor and the State Government. When the legislature
intentionally makes such a distinction, the same must also be
interpreted distinctly, and while dealing with the case of the
Vice-Chancellor, the Governor, being the Chancellor of the
University, acts only in his personal capacity, and therefore, the B
powers and duties exercised and performed by him under a
statute related to the University, as its Chancellor, have
absolutely no relation to the exercise and performance of the
powers and duties by him, while he holds office as the Governor
of the State. c
24. In Vice-Chancellor, University of Allahabad & Ors. v.
Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264, this
Court dealt with the power of the Governor of the State of U.P.
ex-officio, with respect to all the Universities established under
0
the provisions of the U.P. State Universities Act, 1973
(hereinafter referred to as 'the Act 1973). Section 68 of the Act,
1973 empowers the Chancellor to entertain any question,
related to the appointment, selection, promotion or termination
of any employee in the University. In the meanwhile, the
Legislature of the State of U.P., enacted the U.P. Public E
Serv)ces (Reservation of Schedule Castes, Tribes and
Backward Classes) Act, 1994 (hereinafter referred to as 'the
Act 1994), providing for a particular reservation. This Court held
that, Section 6 of the Act, 1994 enables the State Government
to call for records and direct enforcement of the provisions of F
the said Act. This Court also held that, when the Governor ex-
officio, acts as the Chancellor of a University, he acts under
Section 68 of the Act, 1973, and discharges statutory duties
as mentioned under the Act, 1973, but when the Government
calls for the record of appointment of any employee, to examine G
whether the reservation policy envisaged under the Act, 1994,
has been given effect to or not, and takes action in such
respect, then he acts in his capacity as Governor, under Article
163 of the eonstitution of India and is therefore, bound to act
upon the aid and advice of the Council of Ministers. H
44 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 25. The Constitutional provisions hence, clearly provide
that the Governor does not exercise any power by virtue of his
office, in his individual discretion. The Governor is aided and
advised by the Council of Ministers in the exercise of such
powers, that have been assigned to him, under Article 163 of
B the Constitution. The executive power of the State, is
coextensive with the legislative power of the State, and the
Governor in the Constitutional sense, discharges the functions
assigned to him under the Constitution, with the aid and advice
of the Council of Ministers, except insofar as he is, by or under
c the Constitution, required to exercise such functions in his own
discretion. The satisfaction of the Governor for the purpose of
exercise of his other powers or functions, as required by the
Constitution, does not mean the personal satisfaction of the
Governor, but refers to satisfaction in the Constitutional sense,
under a Cabinet system of Government. The executive must
0
act, subject to the control of the legislature. The executive
power of the State, is vested in the Governor, as he is the head
of the executive. Such executive power is generally described
as residual power, which does not fall within the ambit of either
E legislative or judicial power. However, executive power may
also partake legislative or judicial actions. All powers and
fun_ctions of the President, except his legislative powers as
have been mentioned, for example, in Article 123, viz., the
ordinance making power, and all powers and functions of the
Governor, except his legislative power, as also for example,
F under Article 213, which state that Ordinance making powers
are executive powers of the Union, vested in the President under
Article 53(1) in one case, and are executive powers of the State
vested in the Governor under Article 154(1) in the other case.
Clause (2) or clause (3) of Article 77 are not limited in their
G operation, only with respect to the executive actions of the
Government of India, under clause (1) of Article 77. Similarly,
clause (2) or clause (3) of Article 166 are also not limited in
their operation, only with respect to the executive actions of the
Government of the State under clause (1) of Article 166. The
H expression, 'Business of the Government of India' in clause (3)
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 45
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
of Article 77, and the expression, 'Business of the Government A
of the State' in clause (3) of Article 166, include all executive
business. (Vide: Samsher Singh (supra); Ramdas Shrinivas
Nayak (supra); Bhuri Nath & Ors. v. State of J & K & Ors., AIR
1997 SC 1711; and Narmada Bachao Ando/an v. State of
Madhya Pradesh, AIR 2011 SC 3199). B
In Maru Ram, Bhiwana Ram etc. etc. v. Union of India &
Ors. etc., AIR 1980 SC 2147, a Constitution Bench of this Court
held that, "the Governor is but a shorthand expression for the
State Government, and the President is an abbreviation for the C
Central Government".
26. The exceptions carved out in the main clause of Article
163(1), permit the legislature to entrust certain functions to the
Governor to be performed by _him, either in his discretion, or in
consultation with other authorities, independent of the Council D
of Ministers.
The meaning of the words 'by or under' is well-settled. The
expression, 'by an Act', would mean by virtue of a provision
directly enacted in the statute in question and that, which is E
conceivable from its express language or by necessary
implication therefrom. The words 'under the Act', would in such
·context, signify that which may not directly be found in the statute
itself, but which is conferred by virtue of powers enabling such
action(s), e.g., by way of laws framed by a subordinate law F
. making authority competent to do so under the Parent Act.
(Vide: Dr. lndramani Pyarela/ Gupta & Ors. v. WR. Natu &
Ors., AIR 1963 SC 274).
27. This Court in Rameshwar Prasad (VI) v. Union of India,
(2006) 2 sec 1 held: G
57. The expression "required" found in Arlic/e 163(1) is
stated to signify that the Governor can exercise his
discretionary powers only if there is a compelling
necessity to do so. It has been reasoned that the H
46 SUPREME COURT REPORTS [2013] 1 S.C.R.
A expression "by or under the Constitution" means that the
necessity to exercise such powers may arise from any
express provision of the Constitution or by necessary
implication. The Sarkaria Commission Report further
adds that such necessity may arise even from rules and
B orders made "under" the Constitution.
28. However, there is a marked distinction between the
provisions of Articles 74 and 163 of the Constitution.
The provisions of Article 74 of the Constitution, are not pari
C materia with the provisions of Article 163, as Article 74
provides that there shall be a Council of Ministers, with the
Prime Minister at their head, to aid and advise the President,
who shall, In the exercise of his functions, act in accordance
with such advice as is rendered to him, provided that the
D President may require the Council of Ministers to reconsider
such advice, either generally or otherwise, and the President
shall act in accordance with the advice that is tendered, after
such reconsideration. While Article 163 provides that there shall
be a Council of Ministers with the Chief Minister at their head,
E to aid and advise the Governor, in the exercise of his functions,
an exception has been carved out with respect to
situations wherein, he is by, or under this Constitution,
required to perform certain functions by exercising his
own discretion.
F
The exception carved out by the main clause under Article
163(1) of the Constitution, permits the legislature to bestow
upon the Governor, the power to execute certain functions, that
may be performed by him, in his own discretion, or in
consultation with other authorities, independent of the Council
G of Ministers. While dealing with the powers of the Governor with
respect to appointment and removal, or imposing punishment
for misconduct etc., the Governor is required to act upon the
recommendations made by the High Court, and not upon the
aid and advice rendered by the Council of Ministers, for the
H reason that, the State is not competent to render aid and
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 47
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
advice to the Governor with respect to such subjects. While the A
High Court retains powers of disciplinary control over the
subordinate judiciary, including the power to initiate disciplinary
proceedings, suspend them during inquiries, and also to
impose punishments upon them, formal orders, in relation to
questions regarding the dismissal, removal, reduction in rank B
or the termination of services of judicial officers on any count,
must be passed by the Governor upon recommendations made
by the High Court. (Vide: Chandra Mohan v. State of U.P. &
Ors., AIR 1966 SC 1987; and Rajendra Singh Verma (dead)
thr. Lrs. & Ors. v. Lt. Governor (NCT of Delhi) & Ors., (2011) C
10 sec 1).
29. In Bhuri Nath (supra), the question that arose was in
relation to whether the Governor was bound to act in
accordance with the aid arid advice of the Council of Ministers,
or whether he could exercise his own discretion, independent D
of his status and position as the Governor, by virtue of him being
the ex-officio Chairman of the Shri Mata Vaishno Devi Shrine
Board, under the Shri Mata Vaishno Devi Shrine Act, 1988.
The Shrine Board discharges functions and duties, as have
been described under the Act, in the manner prescribed therein, E
and thus, after examining the scheme of the Act, this Court held
that, "the decision is his own decision, on the basis of his own
personal satisfaction, and not upon the aid and advice of the
Council of Ministers. The nature of exercise of his powers and
functions under the Act is distinct, and different from the nature F
of those that are exercised by him formally, in the name of the
Governor, under his seal, for which responsibility rests only with
his Council of Ministers, headed by the Chief Minister''.
30. In State of U.P. & Ors. etc. v. Pradhan Sangh Kshettra
Samiti & Ors. etc., AIR 1995 SC 1512, this Court dealt with G
the position of the Governor in relation to functions of the State
and held as under:
"Admittedly, the function under Article 243(g) is to be
exercised by the Governor on the aid and advice of his H
48 SUPREME COURT REPORTS [2013] 1 S.C.R.
A Council of Ministers. Under the Rules of Business, made
by the Governor under Article 166(3) of the Constitution,
it is in fact an act of the Minister concerned, or of the
Council of Ministers, as the case may be. When the
Constitution itself thus equates the Governor with
B the State Government for the purposes of relevant
functions, ....... Further, Section 3(60)(c) of the General
Clauses Act, 1897, defines 'State Governmenf' to mean
"Governor", which definition- is in conformity with the
provisions of the Constitution ... The Governor means the
c Government of the State and all executive functions
which are exercised by the Governor, except where he is
required under the Constitution to exercise the functions
in his discretion, are exercised by him on the aid and
advice of Council of Ministers." (Emphasis added)
D 31. In S.R. Chaudhuri v. State of Punjab & Ors., AIR 2001
SC 2707, this Court held as under:
"21. Parliamentary democracy generally envisages (1)
representation of the people, (i1) responsible government,
E and (iii) accountability of the Council of Ministers to the
Legislature. The essence of this is to draw a direct line of
authority from the people through the Legislature to the
executive.
xx xx xx xx
F
40. Chief Ministers or the Governors, as the case may be,
must forever remain conscious of their constitutional
obligations and not sacrifice either political responsibility J
or parliamentary conventions at the altar of "political
G expediency ..... Constitutional restraints must not be
ignored or bypassed if found inconvenient or bent to suit
"political expediency". We should not allow erosion of
principles of constitutionalism."
32. The principle of check and balance is a well
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 49
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
established philosophy in the governance of our country, under A
our Constitution. If we were all to have our way, each person
would be allowed to wage a war against every other person,
i.e., Bel/um Omnium Contra Omnes. This reminds us to abide
by Constitutional law followed by statutory law, otherwise
everybody would sit in appeal against the judgment of B
everybody.
33. In view of the aforesaid discussion, the law as evolved
and applicable herein can be summarised to the effect that the
Governor is bound to act on the aid and advice of the Council
of Ministers, unless he acts as, "persona designata" i.e. "eo
c
nomine'; under a particular statute, or acts in his own discretion
under the exceptions carved out by the Constitution itself.
BIAS:
D
34. Absence of bias can be defined as the total absence
of any pre-conceived notions in the mind of the Authority/Judge,
and in the absence of such a situation, it is impossible to expect
a fair deal/trial and no one would therefore, see any point in
holding/participating in one, as it would serve no purpose. The E
Judge/Authority must be able to think dispassionately, and sub-
merge any private feelings with respect to each aspect of the
case. The apprehension of bias must be reasonable, i.e., which
a reasonable person would be likely to entertain. Bias is one
of the limbs of natural justice. The doctrine of bias emerges
F
from the legal maxim - nemo debet esse judex in causa
propria sua. It applies only when the interest attributed to an
individual is such, so as to tempt him to make a decision in
favour of, or to further, his own cause. There may not be a case
of actual bias, or an apprehension to the effect that the matter
most certainly will not be decided, or dealt with impartially, but G
where the circumstances are such, so as to create a
reasonable apprehension in the minds of others, that there is
a likelihood of bias affecting the decision, the same is sufficient
to invoke the doctrine of bias.
H
50 SUPREME COURT REPORTS [201311 S.C.R.
A In the event that actual proof of prejudice is available, the
same will naturally make the case of a party much stronger, but
the availability of such proof is not a necessary pre-condition,
for what is relevant, is actually the reasonableness of the
apprehension in this regard, in the mind of such party. In case
8 such apprehension exists, the trial/judgment/order etc. would
stand vitiated, for want of impartiality, and such judgment/order
becomes a nullity. The trial becomes "coram non judice".
While deciding upon such an issue, the court must
examine the facts and circumstances of the case, and examine
C the matter from the view point of the people at large. The
question as regards, "whether or not a real likelihood of bias
exists, must be determined on the basis of probabilities that
are inferred from the circumstances of the case, by the court
objectively, or, upon the basis of the impression that may
D reasonably be left upon the minds of those aggrieved, or the
public at large". (Vide: S. Parthasarathi v. State of Andhra
Pradesh, AIR 1973 SC 2701; State of Punjab v. V.K. Khanna
& Ors., AIR 2001 SC 343; N.K. Bajpai v. Union of India & Anr.,
(2012) 4 SCC 653; and State of Punjab v. Davinder Pal Singh
E Bhullar & Ors. etc., AIR 2012 SC 364).
BINDING EFFECT OF THE JUDGMENT:
35. There can be no dispute with respect to the settled
legal proposition that a judgment of this Court is binding,
F particularly, when the same is that of a co-ordinate bench, or
of a larger bench. It is also correct to state that, even if a
particular issue has not been agitated earlier, or a particular
argument was advanced, but was not considered, the said
judgment does not lose its binding effect, provided that the point
G with reference to which an argument is subsequently advanced,
has actually been decided. The decision therefore, would not
lose its authority, "merely because it was badly argued,
inadequately considered or fallaciously reasoned". The case
must be considered, taking note of the ratio decidendi of the
H same i.e., the general reasons, or the general grounds upon
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 51
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
which, the decision of the court is based, or on the test or A
abstract, of the specific peculiarities of the particular case,
which finally gives rise to the decision. (Vide: Smt. Somavanti
& Ors. v. The State of Punjab & Ors., Al R 1963 SC 151 ;
Bal/abhdas Mathuradas Lakhani & Ors. v. Municipal
Committee, Malkapur, AIR 1970 SC 1002; Ambika Prasad B
Mishra v. State of U.P. & Ors., AIR 1980 SC 1762; and
Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr.,
AIR 2002 SC 1598).
36. So far as the judgment in Ram Nagina Singh (supra),
is concerned, para 9 of the said judgment, makes it clear that C
the High Court had summoned the original record of
proceedings, containing communication between the
prescribed statutory authorities therein, wherein the Chief
Minister had made a note, while writing to the Governor, which
reads as under: D
"In this connection, I have already deliberated with you. In
my opinion, it is not necessary to obtain the opinion
of the Council of Ministers in this connection".
(Emphasis added) E
In view of this, the counsel for the State took the same
stand before the High Court. It was the counsel appearing for
the Central Government, who argued otherwise. In fact, the
Governor had appointed the Lokayukta acting upon his own
discretion, without seeking any aid or advice from the Council F
of Ministers. The said judgment was approved by this Court in
Bhuri Nath (supra). Undoubtedly, the provisions of Section 18
of the Act, 1974, which are analogous to the provisions of
Section 20 of the Act, 1986, by virtue of which, the Act enables
the State Government, to exclude complaints made against G
certain classes of public servants, were not considered by the
court, as the same were not brought to its notice. However, on
this basis, it cannot be held that had the said provision been
brought to the notice of the court, the result would have been
different. H
52 SUPREME COURT REPORTS [2013] 1 S.C.R.
A INSTANT CASE :
37. This case must be examined in light of the aforesaid
settled legal propositions, and also taking into consideration,
the scheme of the Act, as provided in its provisions, that have
been referred to hereinabove.
8
38. The Act, 1986 stipulates that the institution of
Lokayukta must be demonstrably independent and impartial.
A conjoint reading of Sections 4 and 6 of the Act, 1986, makes
it clear that the Lokayukta must be entirely independent and
C free from all political and commercial associations. Investigation
proceedings by the Lokayukta, must be conducted in a formal
manner. The appointment must, as far as possible, be non-
political and the status of the Lokayukta, must be equivalent to
that of the highest judicial functionaries in the State. The Act,
.
D 1986 provides for a proviso to sub-section (1) of Section 3 of
Act, 1986, which envisages the appointment of the Lokayukta
when the Legislative Assembly has been dissolved, or when a
Proclamation of Emergency under Article 356 of the
Constitution is in operation, upon consultation with the Chief
E Justice of the State and the Leader of Opposition .. However,
such consultation with the Leader of Opposition also stands
dispensed with, if the Assembly is dissolved or suspended.
Thus, it is evident that the Governor can appoint a Lokayukta,
even when there is no Council of Ministers in existence.
F The aforesaid statutory provisions make it mandatory on
the part of the State to ensure that the office of the Lokayukta
is filled up without any delay, as the Act provides for such filling
up, even when the Council of Ministers is not in existence. In
the instant case, admittedly, the office of the Lokayukta has
G been lying vacant for a period of more than 9 years i.e. from
24.11.2003, when Justice S.M. Soni relinquished the office of
Lokayukta, till date.
39. The facts of the case also reveal that the Government,
H for reasons best known to it, came forward with a request to
STATE OF GUJARAT v. HON'BLE MR. JUSTiCE R. A. 53
MEHTA (RETD) & ORS. [DR. S.S. CHAUHAN, J.]
the Governor, to issue an Ordinance on 17.8.2011. The said A
Ordinance would have changed the manner of appointment of
the Lokayukta, for, if the manner of selection of the Lokayukta
suggested by it would have been accepted, then the institution
of the Lokayukta would have vested in not one, but several
persons, and selection of such persons would have been done B
· by a committee consisting of the Chief Minister, the Speaker
of the Le~islative Assembly, Minister (lncharge of Legal
Department), a sitting Judge of the High Court, as nominated
by the Chief Justice and the Leader of Opposition in the
Legislative Assembly. c
r 40. In a democratic set up of government, the successful
functioning of the Constitution depends upon democratic spirit,
i.e. a spirit of fair play, of self restraint, and of mutual
accommodation of diffeient views, different interests and
different opinions of different sets of persons. "There can be D
no Constitutional government unless the wielders of power are
prepared to observe limits upon governmental powers''.
It is evident that the Governor enjoys complete immunity
under Article 361 (1) of the Constitution, and that under this, his E
actions cannot be challenged, for the reason that the Governor
acts only upon the aid and advice of the Council of Ministers. If
this was not the case, democracy itself would be in peril. The
Governor is not answerable to either House of State, or·to the
Parliament, or even to the Council of Ministers, c::nd his acts F
cannot be subject to judicial review. In such a situation, ur.1ess
he acts uoon the aid and advice of the Council of Ministers, he
will become all powerful and this is an anti-thesis to the concept
of democracy. Moreover, his actions, including such actions
which may be challenged on ground of allegations of malafides, G
are required to be defended by the Union/State. In spite of the
fact that the Governor is immune from any liability, it is open to
him to file an affidavit if anyone seeks review of his opinion,
despite the fact that there is a bar against any action of the
court as regards issuing notice to, or for the purpose of H
54 SUPREME COURT REPORTS [2013] 1 S.C.R.
A impleading, at the instance of a party, the President or the
Governor in a case, making him answerable.
41. The Gujarat Government Rules of Business, 1990,
have been framed under Article 166 of the Constitution, and
B under the same, the Govemm of Gujarat has made several rules
for the convenient transaction of business of the Government
of Gujarat, and the subjects allocated in this context, to the
General Administration Department include the appointment of
High Court Judges (Serial No. 36) and the Lokayukta (Serial
C No. 316A).
42. Be that as it may, the judgments referred to
here!nabove, do not leave any room for doubt with respect to
the fact that, when the Governor does not act as a statutory
authority, but as the Head of the State, being Head of the
D executive and appoints someone under his seal and signature,
he is bound to act upon the aid and advice of the Council of
Ministers. The Governor's version of events, stated in her letter
dated 3.3.2010, to the effect that she was not bound by the aid
and advice of the Council of Ministers, and that she had the
E 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
F insupportable.
43. All the three learned Judges in the judgment under
appeal have recorded the following findings upon the issue with
respect to whether the Governor must act on the aid and advice
of the Council of Ministers, or not:
G
(1) Mr. Justice Akil Kureshi came to the conclusion :
"The Governor under Section 3 of the Act acts
under the aid and advice of the Council of
Ministers."
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 55
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
(2) Ms. Justice Sonia Gokani held as under: A
"As provided under Section 3 of the Lokayukta Act,
appointment is expressly to be done by the
Governor on aid and advice of the Council of
Ministers headed by the Chief Minister who are
8
required to so do it after consultation with the Chief
Justice and the Leader of the Opposition party."
(3) Mr. Justice V.M. Sahai has recorded his finding as
under:
c
"However, 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. The exceptions are where the 0
Governor under the Constitution is required to
exercise functions in his discretion. Therefore, the
Chief Minister as the Head of the Council of
Ministers will automatically figure in the matter of
appointment of Lokayukta under Section 3 of the E
Act. The Governor is the constitutional or formal
Head of the State, and has to make appointment
of Lokayukta with the aid and advice of the Council
of Ministers as provided by Article 163 of the
Constitution ..... The Governor was justified and F
authorised to act under Section 3 of the Act and
exercise her discretionary powers under Article 163
of the Constitution, in the fact-situation of this case
in the manner she did while issuing warrant/
notification appointing Justice (Retired) R.A. Mehta
as Lokayukta of the Gujarat State without or G
contrary to the aid and advice of the Council of
Ministers headed by the Chief Minister to save
democracy and uphold rule of law. I am of the
considered opinion that the answer to the second
point is that the Governor of the State was H ·
56 SUPREME COURT REPORTS [2013] 1 S.C.R.
A authorised to act in a manner she did while issuing
warranUnotification appointing Justice R.A. Mehta
as Lokayukta of the State without the aid and
advice of the Council of Ministers."
44. Such findings have not been challenged by any
8
respondent before this Court. Therefore, the controversy herein,
lies within a very narrow compass, as two of the learned Judges
have held that the consultation process herein, was in fact
complete, and therefore, upon considering the primacy of
opinion of the Chief Justice in this regard, they held that the
C appointment of respondent no.1 to the post of Lokayukta was
valid. However, one learned Judge has differed only as regards
the factual aspect of the matter, stating that on the basis of such
facts, it cannot be said that the consultation process was
complete.
D
45. The facts mentioned hereinabove, make it crystal clear
that the process of consultation stood complete as on 2.8.2011,
as 3 out of 4 statutory authorities had approved the name of
Justice R.A. Mehta and the Chief Justice provided an
E explanation to the Chief Minister regarding the objections raised
by the latter, with respect to the appointment of Justice R.A.
Mehta to the post of Lokayukta, vide letter dated 16.6.2011.
This is because, the Chief Minister had certain objections
regarding the appointment of respondent No.1, as Lokayukta,
F and his objections were considered by the Chief Justice, after
which, it was also explained to the Chief Minister, how the said
objections raised by him, were in fact, completely irrelevant, or
rather, not factually correct. The position was clarified by the
Chief Justice after verifying all relevant facts, which is why, the
Chief Justice took six whole weeks to reply to the letter dated
G 16.6.2011. In the aforesaid letter, it was mentioned that Justice
R.A. Mehta was affiliated with certain NGOs, social activist
groups etc., and may therefore, have pre-conceived notions, or
having prior opinions with respect to certain issues of
governance in the State. It was also mentioned that Justice R.A.
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 57
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
Mehta had shared a platform with such per~ons who are known A
for their antagonism against the State Government. Moreover,
he had been a panelist for such NGOs, social activist groups
etc., and had expressed his dissatisfaction as regards the
manner in which, the present government in the State was
functioning. In support of the allegations regarding the aforesaid B
associations etc., newspaper cuttings were also annexed to the
said letter.
46. We have examined the objections raised by the Chief
Minister and the reasons given by the Chief Justice for not C
accepting the same, and reach the inescapable conclusion that
none of the objections raised by the Chief Minister could render
respondent no.1 ineligible/disqualified or unsuitable for
appointment to the said post. On a close scrutiny, the reasons
discussed by the Chief Justice appear to be rational and
based on facts involved. This establishes an application of mind D
and a reasonable approach with hardly any element of
perversity to invoke a judicial review of the decision making
process. The issue appears to have been dealt with objectively.
If a vigilant citizen draws the attention of the State/Statutory
authority to the apprehensions of the minority community in that E
State, then the same would not amount to a biased attitude of
such citizen towards the State. Thus, there is no scope of
judicial review so far as the process of decision making in this
case is concerned.
F
47. While considering the issue of bias, the Court must
bear in mind the impression which the public at large may have,
and not that of an individual.
LETTERS OF THE CHIEF MINISTER:
G
48. A perusal of the Minutes of the Meeting dated
23.2.2010 regarding the discussion upon the subject o(
consultation for the purpose of appointment of the Lokayukta,
between the Leader of Opposition and the Hon'ble Chief
Minister reveals that, the Chief Minister expressed his view H
58 SUPREME COURT REPORTS [2013] 1 S.C.R.
A stating that in the event a retired Judge has been given
some other assignment, it is not permissible to consider
him for the appointment to the post of Lokayukta in the
State of Gujarat. Furthermore, the Chief Minister also
expressed his view to the effect that in the process of
s consultation, the view of the Hon'ble Chief Justice of the Gujarat
High Court must be given primacy, as also, the requirement of
receiving a name suggested by the Hon'ble Chief Justice, and
finally that the Government, owing to the aforementioned
reasons, should not restart the process of consultation.
c 49. However, the letter dated 4.5.2011 reveals that the
Hon'ble Chief Minister had changed his view as regards the
said issue, and suggested that in spite of the fact that Justice
J.R. Vora was presently engaged with another assignment, his
name could be considered for the purpose of appointment as
D Lokayukta, as the same was required in public interest. It is
further revealed from this letter that Justice J.R. Vora had even
offered to resign if such an offer was made to him.
50. Letter dated 16.6.2011, revealed that while opposing
E the appointment of Justice R.A. Mehta, the Hon'ble Chief
Minister insisted that Justice J.R. Vora may be appointed so
that this long standing issue would finally be resolved.
51. The Hon'ble Chief Minister in his letter dated 18.8.2011
F to the Governor even raised a question as to why the judgment
of this Court in Kannadasan (Supra) be followed in the State
of Gujarat, when the same was not being followed elsewhere,
and in light of this, questioned the insistence of the Chief
Justice, in following the procedure prescribed in the
aforementioned judgment.
G
52. In the letter dated 18.8.2011, written by Hon'ble Chief
Minister to the Chief Justice, a strange situation was created.
The relevant part of the letter reads as under:
H "...... Although, I have no personal reservation against
~
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 59
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
the name of Hon'ble Mr. Justice (Retired) R.A. Mehta, but A
as the Head of the State Government, I am afraid, I may
not be able to accept the name of Hon'ble Mr. Justice
(Retired) R.A. Mehta, who, in my view, cannot be
considered the most suitable choice for the august post
of Lokayukta, Gujarat State ...... "(Emphasis added) B
53. From the above, it, thus, becomes evident, that the
Hon'ble Chief Minister who had spoken, not only about the
primacy of the opinion of the Chief Justice, but had also
expressed his opinion as regards the supremacy of the same, C
and had expressed his solemn intention to accept the
recommendation of a name provided by the Chief Justice, was
now expressing his inability to accept such name.
54. On 16.8.2011, the process of consultation stood
complete as the record reveals, there was nothing left for the D
consultees to do/discuss.
It is pertinent to note that, in order to delay the appointment
of the Lokayukta, an enquiry commission was set up under the
Commission of Inquiry Act by the State Government appointing E
Hon'ble Mr. Justice M.B. Shah, a former Judge of this Court,
as Chairman. In the event of the appointment of such an enquiry
commission, the Lokayukta is restrained under the provision
of the Act, 1986, from proceeding with such cases that the
Commission is appointed to look into.
F
55. The arguments advanced on the basis of the doctrine
of bias in the present case, are irrelevant, so far as the facts
of the instant case are concerned, for the reason that all the
judgments cited at the Bar, relate to the deciding of a case by
the court, and are not therefore, applicable, with respect to the G
issue of appointment of a person to a particular post. Such an
apprehension of bias against a person, does not render such
person, ineligible/disqualified, or unsuitable for the purpose of
being appointed to a particular post, or at least for the purpose
of which, the writ of quo warranto is maintainable. The Act, 1986 H
60 SUPREME COURT REPORTS [2013] 1 S.C.R.
A itself provides for statutory safeguards against bias. Section
8(3) of the said Act for instance, provides that in the event of
reasonable apprehension of bias in the mind of the person
aggrieved, such person is free to raise his grievance, and seek
recusal of the person concerned. Thus, prospective
B investigatees will not be apprehended as potential victims
unnecessarily.
Section 4 of the Act, 1986 makes a retired Judge, who is
elected as a Member of the Parliament, or of a State
Legislature, eligible for the purpose of being appointed as
C Lokayukta, p;ovided that he resigns from the said House, and
severs his relationship with the political party to which he
belongs. It is therefore, difficult to imagine a situation where the
allegations of bias/prejudice with respect to a person would be
accepted, merely on the basis of the fact that such a person
D has some association with a particular NGO. We do not feel
that that objections raised by the State Government, are cogent
enough to ignore the primacy of the opinion of the Chief Justice
in this regard. Thus, we are of the opinion that the views of the
Hon'ble Chief Minister in this regard may not resonate with
E those of the public at large and thus, such apprehension is
misplaced.
The Court has to bear in mind the dicta of this Court in Bidi
Supply Co. v. Union of India & Ors. AIR 1956 SC 479 which
F is as under:
"..... that the Constitution is not for the exclusive benefit of
Governments and States ... It also exists for the common
man for the poor and the humble ... for the 'butcher, the
baker and the candlestick maker' .... It lays down for this
G land 'a rule of law' as understood in the free democracies
of the world."
CHIEF JUSTICE'S OPINION - PRIMACY :
56. Without reference to any Constitutional provision or any
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 61
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
judgment of this Court referred to earlier, even if we examine A
the statutory provisions of the Act, the statutory construction itself
mandates the primacy of the opinion of the Chief Justice for
the simple reason that Section 3 provides for the consultation
with the Chief Justice. Section 6 provides for the removal of
Lokayukta, and lays down the procedure for such removal. The B
same can be done only on proven misconduct in an inquiry
conducted by the Chief Justice/his nominee with respect to
specific charges. Section 8(3) further provides for recusal of the
Lokayukta in a matter where a public functionary has raised the
objection of bias, and whether such apprehension of bias c
actually exists or not, shall be determined in accordance with
the opinion of the Chief Justice.
The purpose of giving primacy of opinion to the Chief
Justice is for the reason that he enjoys an independent
Constitutional status, and also because the person eligible to D
be appointed as Lokayukta is from among the retired Judges
of the High Court and the Chief Justice is, therefore, the best
person to judge their suitability for the post. While considering
the statutory provisions, the court has to keep in mind the
Statement of Objects and Reasons published in the Gujarat E
Gazette (Extraordinary) dated 1.8.1986, as here, it is revealed
that the purpose of the Act is also to provide for the manner of
removal of a person fror:n the office of the Lokayukta, and the
Bill ensured that the grounds for such removal are similar to
those specified for the removal of the Judges of the High Court. F
57. As the Chief Justice has primacy of opinion in the said
matter, the non-acceptance of such recommendations, by the
Chief Minister, remains insignificant. Thus, it clearly emerges
that the Governor, under Section 3 of the Act, 1986 has acted G
upon the aid and advice of the Council of Ministers. Such a view
is taken, considering the fact that Section 3 of the Act, 1986,
does not envisage unanimity in the consultative process.
58. Leaving the finality of choice of appointment to the
Council of Ministers, would be akin to allowing a person who H
62 SUPREME COURT REPORTS [2013] 1 S.C.R.
A is likely to be investigated, to choose his own Judge.
Additionally, a person possessing limited power, cannot be
permitted to exercise unlimited powers.
However, in light of the facts and circumstances of the
B case, it cannot be held that the process of consultation was
incomplete and was not concluded as per the requirements of
the Act, 1986.
59. In M.P. Special Police Establishment (Supra}, this
Court held as under:
c
"11 ... Thus, as rightly pointed out by Mr Sorabjee, a
seven-Judge Bench of this Court has already held that
the normal rule is that the Governor acts on the aid and
advice of the Council of Ministers and not independently
D
or contrary to it. But there are exceptions under which the
Governor can act in his own discretion. Some of the
exceptions are as set out hereinabove. It is, however,
clarified that the exceptions mentioned in the
judgment are not exhaustive. It is also recognised that
the concept of the Governor acting in his discretion or
E
exercising independent judgment is .not alien to the
Constitution. It is recognised that there may be
situations where by reason of peril to democracy or
democratic principles, an actio17 may be compelled
which from its nature is not amenable to Ministerial
F advice. Such a situation may be where bias is inherent
and/or manifest in the advice of the Council of Ministers.
(Emphasis added)
60. In fact, a five Judge Bench of.this Court, in this case
G has explained the judgment of a seven Judge Bench in
Samsher Singh (Supra), observing that in exceptional
circumstances, the Governor may be justified in acting in his
discretion, and that the exceptions enumerated in Samsher
Singh (Supra) are not exhaustive.
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 63
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
Thus, the view taken by the 3rd learned Judge, in which it A
has been stated that it had become absolutely essential
for the Governor to exercise his discretionary powers under
Article 163 of the Constitution, must be read in light of the
above-mentioned explanation.
PURPOSIVE CONSTRUCTION: B
61. The office of the Lokayukta is very significant for the
people of the State, as it provides for a mechanism through
which, the people of the State can get their grievances heard
and redressed against maladministration. The right to c
administer, cannot obviously include the right to maladminister.
(Vide: In Re. Kerela Education Bill, 1957, AIR 1958 SC 956).
In a State where society suffers from moral denigration, and
simultaneously, from rampant corruption, there must be an
effective forum to check the same. Thus, the Lokayukta Act may
0
be termed as a pro-people Act, as the object of the Act, 1986
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. A pliant Lokayukta may not be able to take effective E
and required measures to curb the menace of corruption.
62. Corruption in a civilised society is a disease like
cancer, which if not detected in time, is sure to spread its
malignance among the polity of the country, leading to
disastrous consequences. Therefore, it is often described as F
royal thievery. Corruption is opposed to democracy and social
order, as being not only anti people, but also due to the fact
that it affects the economy of a country and destroys its cultural
heritage. It poses a threat to the concept of Constitutional
governance and shakes the very foundation of democracy and G
the rule of law. It threatens the security of the societies
undermining the ethical values and justice jeopardizing
sustainable development. Corruption de-values human rights,
chokes development, and corrodes the moral fabric of society.
It causes considerable damage to the national economy, H
64 SUPREME COURT REPORTS [2013) 1 S.C.R.
A national interest and the image of the country. (Vide: Vineet
Narain & Ors. v. Union oflndia &Anr., AIR 1998 SC 889; State
of Madhya Pradesh & Ors. v. Shri Ram Singh, AIR 2000 SC
870; State of Maharashtra thr. CBI, Anti Corruption Branch,
Mumbai v. Balakrishna Dattatrya Kumbhar, JT 2012 (10) SC
B 446; and Dr. Subramanian Swamy v. Dr. Manmohan Singh
& Anr., AIR 2012 SC 1185).
63. The adverse impact of lack of probity in public life
leads to a high degree of corruption. Corruption often results
from patronage of statutory/higher authorities and it erodes
C quality of life, and it has links with organized crimes, economic
crimes like money laundering etc., terrorism and serious threats
to human security to flourish. Its impact is disastrous in the
developing world as it hurts the poor disproportionately by
diverting funds intended for development. Corruption generates
D injustice as it breeds inequality and become major obstacle to
poverty alleviation and development. United Nation Convention
Against Corruption, 2003, envisages the seriousness and
magnitude of the problem. December 9 has been designated
. as International Anti-Corruption Day. India is a party to the said
E convention with certain reservation.
64. In re: Special Courts Bill, 1978, AIR 1979 SC 478,
Justice Krishna Iyer observed :
"Corruption and repression - cousins in such situation -
F hijack development process and in the long run lagging
national progress means ebbing people's confidence in
constitutional means to social justice."
65. Corruption in a society is required to be detected and
eradicated at the earliest as it shakes "the socio-economic-
G political system in an otherwise healthy, wealthy, effective and
vibrating society." Liberty cannot last long unless the State is
able to eradicate corruption from public life. The corruption is
a bigger threat than external threat to the civil society as it
corrodes the vitals of our polity and society. Corruption is
H instrumental in not proper implementation and enforcement of
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 65
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
policies adopted by the Government. Thus, it is not merely a A
fringe issue but a subject matter of grave concern and requires
to be decisively dealt with.
66. In the process of statutory construction, the court must
construe the Act before it, bearing in mind the legal maxim ut
res magis va/eat quam pereat - which mean - it is better for 8
a thing to have effect than for it to be made void, i.e., a statute
must be construed in such a manner, so as to make it
workable. Viscount Simon, L.C. in the case of Nokes v.
Doncaster Amalgamated Collieries Ltd., (1940) 3 All E.R. 549,
stated as follows: C
• ...... if the choice is between two interpretations, the
narrower of which would fail to achieve the manifest
purpose of the legislation we should avoid a construction
which would reduce the legislation to futility, the should 0
rather accept the bolder construction, based on the view
that Parliament would legislate only for the purpose of
bringing about an effective result. •
Similarly in Whitney v. Inland Revenue Commissioner,
1926 AC 37, it was observed as under: E
"A statute is designed to be workable, and the
interpretation thereof by a court should be to secure that
object unless crucial omission or clear direction makes
that end unattainable.•
F
67. The doctrine of purposive construction may be taken
recourse to for the purpose of giving full effect to statutory
provisions, and the courts must state what meaning the statute
should bear, rather than rendering the statute a nullity, as
statutes are meant to be operative and not inept. The courts G
must refrain from declaring a statute to be unworkable. The
rules of interpretation require that construction, which carries
forward the objectives of the statute, protects interest of the
parties and keeps the remedy alive, should be preferred,
looking into the text and context of the statute. Construction H
66 SUPREME COURT REPORTS [2013] 1 S.C.R.
A given by the court must promote the object of the statute and
serve the purpose for which it has been enacted and not efface
its very purpose. "The courts strongly lean against any
construction which stands to reduce a statute to futility. The
provision of the statute must be so construed so as to make it
B effective and operative." The court must take a pragmatic view
and must keep in mind the purpose for which the statute was
enacted, as the purpose of law itself provides good guidance
to courts as they interpret the true meaning of the Act and thus,
legislative futility must be ruled out. A statute must be construed
c in such a manner so as to ensure that the Act itself does not
become a dead letter, and the obvious intention of the
legislature does not stand defeated, unless it leads to a case
of absolute intractability in use. The court must adopt a
construction which suppresses the mischief and advances the
remedy and "to suppress subtle inventions and evasions for
0
continuance of the mischief, and pro privato commodo, and to
add force and life to the cure and remedy, according to the true
intent of the makers of the Act, pro bono publico". The court
must give effect to the purpose and object of the Act for the
reason that legislature is presumed to have enacted a
E reasonable statute. (Vide: M. Pentiah & Ors. v. Muddala
Veeramal/appa & Ors., AIR 1961 SC 1107; S.P. Jain v.
Krishna Mohan Gupta & Ors., AIR 1987 SC 222; Reserve
Bank of India v. Peerless General Finance and Investment
Co. Ltd. & Ors., AIR 1987 SC 1023; Tinsukhia Electric Supply
F Co. Ltd. v. State of Assam & Ors., AIR 1990 SC 123; UCO
Bank & Anr. v. Rajinder Lal Capoor, (2008) 5 SCC 257; and
Grid Corporation of Orissa Limited & Ors. v. Eastern Metals
and Ferro Alloys & Ors., (2011) 11 SCC 334).
G 68. Governance in terms of Constitutional perceptions and
limitations is a basic feature of the Constitution, wherein social,
economic and political justice is a Constitutional goal. We must
always keep in mind that the Constitution is a living organism
and is meant for the people, not just for the government, as it
H provides for promotion of public welfare.
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A 67
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
69. A pliant Lokayukta therefore, would render the Act A
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 B
public functionary, from the purview of the Act, which may include
the Chief Minister himself. Thus, Section 3 of the Act, 1986 must
be construed in the light of meaning given by the courts to the
word 'consultation' so as to give effect to the provisions of the
statute to make it operative and workable. c
ROLE OF THE GOVERNOR :
70. In the facts of this case, it may not be necessary for
the court to examine the submissions made on behalf of the
appellants that the Governor should neither have directly sought
0
the opinion of the Attorney General of India, nor should have
directly solicited the opinion of the Chief Justice on the issue,
and further, that after doing so, she should not have asked the
Chief Justice to send only one name in the light of the opinion
of the Attorney General, as such conduct of the Governor ~uld
not be in consonance and conformity with the Constitutional E
scheme. It appears that the Governor had been inappropriately
advised and thus mistook her role, as a result of which, she
remained under the impression that she was required to act
as a statutory authority under the Act, 1986, and not as the
Head of the State. Moreover, the advice of the Attorney General F
was based on the judgments of this Court, referred to
hereinabove, and the Chief Minister was also aware of each
and every development in these regards.
LANGUAGE OF THE JUDGMENT : G
71. It appears that the third learned Juqge has used a
harsh language against the Chief Minister, after examining the
various letters written by him wherein he contradicted himself
as at one place, he admits not just to the primacy of the Chief
Justice, but to his supremacy in this regard, and in another H
68 SUPREME COURT REPORTS [2013] 1 S.C.R.
A letter, he states that the recommendation made by the Chief
Justice would not be acceptable to him, and also reveal~d
his perpetual insistence as regards consideration of the name
of Justice J.R. Vora for appointment to the said post of
Lokayukta.
B At an earlier stage, the Chief Minister had taken a stand
to the effect that a retired Judge, who has been given some
other assignment, should not be considered for appointment
to the post of Lokayukta. However, with respect to the case of
Justice J.R. Vora, he seems to have taken an altogether
C different view.
72. The third learned Judge made numerous observations
inter-alia that a Constitutional mini crisis had been sparked by
the actions of the Chief Minister, compelling the Governor to
exercise his discretionary powers under Article 163 of the
0
Constitution, to protect democracy and the rule of law, while
appointing respondent no.1 as the Lokayukta; that, there was
an open challenge by the Council of Ministers in their non-
acceptance of the primacy of the opinion of the Chief Justice
of the Gujarat High Court, which revealed the discordant
E approach of the Chief Minister; that, the conduct of the Chief
Minister demonstrated deconstruction of democracy and
tantamounts to a refusal by the Chief Minister to perform his
statutory or Constitutional obligation and, therefore, in light of
this, a responsible Constitutional decision was required to be
F taken by the Governor so as to ensure that democracy thrived,
or to preserve democracy and prevent tyranny. The same seem
to have been made after examining the attitude of the Chief
Minister, as referred to hereinabove.
G 73. 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,
.H moderation and restraint, as any harsh and disparaging
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 69
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
strictures passed by them, against any person may be mistaken A
or unjustified, and in such an eventuality, they do more harm
and mischief, than good, therefore resulting in injustice. Thus,
the courts should not make any undeserving or derogatory
remarks against any person, unless the same are necessary
for the purpose of deciding the issue involved in a given case. B
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 the person making
such comments, is also fallible. Maintaining judicial restraint
and discipline are necessary for the orderly administration of c
justice, and courts must not use their authority to "make
intemperate comments, indulge in undignified banter or
scathing criticism". Therefore, while formation and expression
of honest opinion and acting thereon, is a necessity to decide
a case, the courts must always act within the four-corners of 0
the law. Maintenance of judicial independence is characterized
by maintaining a cool, calm and poised mannerism, as regards
every action and expression of the members of the Judiciary,
and not by using inappropriate, unwarranted and contumacious
language. The court is required "to maintain sobriety, calmness, E
dispassionate reasoning. and poised restraint. The concept of
loco parentis has to take foremost place in the mind of a Judge
and he must keep at bay any uncalled for, or any unwarranted
remarks." (Vide: State of MP. & Ors. etc.etc. v. Nandlal Jaiswal
& Ors. etc.etc., AIR 1987 SC 251; A.M. Mathur v. Pramod
Kumar Gupta, AIR 1990 SC 1737; State of Bihar & Anr. v. F
Nilmani Sahu & Anr., (1999) 9 SCC 211; In the matter of: "K"
a Judicial Officer, AIR 2001 SC 972; In the matter of: "RV~ a
Judicial Officer, AIR 2005 SC 1441; and Amar Pal Singh v.
State of U.P. & Anr., AIR 2012 SC 1995).
G
Thus, in view of the above, we are of the view that the
learned Judge, even if he did not approve of the "my-way or
the high way" attitude adopted by the Hon'ble Chief Minister,
ought to have maintained a calm disposition and should not
have used such harsh language against a Constitutional
H
70 SUPREME COURT REPORTS [2013] 1 S.C.R.
A authority, i.e. the Chief Minister.
74. CONCLUSIONS:
(i) The facts of the case reveal a very sorry state of affairs,
revealing that in the State of Gujarat, the post of the Lokayukta
B has been lying vacant for a period of more than 9 years, as it
became vacant on 24.11.2003, upon the resignation of Justice
S.M. Soni from the said post. Since then a few half-hearted
attempts were made to fill up the post of the Lokayukta, but for
one reason or another, the same could not be filled. The present
c Governor has misjudged her role and has insisted, that under
the Act, 1986, 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 High
Court and the Leader of Opposition. Such attitude is not in
conformity, or in consonance with the democratic set up of
0
government envisaged in our Constitution. Under the scheme
of our Constitution, the Governor is synonymous with the State
Government, and can take an independent decision upon his/
her own discretion only when he/she acts as a statutory authority
E under a particular Act, or under the exception(s), provided in
the Constitution itself. Therefore, the appointment of the
Lokayukta can be made by the Governor, as the Head of the
State, only with the aid and advice of the Council of Ministers,
and not independently as a Statutory Authority.
F (ii) The Governor consulted the Attorney General of India
for legal advice, and communicated with the Chief Justice of
the Gujarat High Court directly, without taking into confidence,
the Council of Ministers. In this respect, she was wrongly
advised to the effect that she had to act as a statutory authority
G and not as the Head of the State. Be that as it may, in light of
the facts and circumstances of the present case, it is evident
that the Chief Minister had full information and was in receipt
of all communications from the Chief Justice, whose opinion
is to be given primacy as regards such matters, and can only ·
H be overlooked, for cogent reasons. The recommendation of the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 71
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
Chief Justice suggesting only one name, instead of a panel of A
names, is in consonance with the law laid down by this Court,
and we do not find any cogent reason to not give effect to the
said recommendation.
(iii) The objections raised by the Chief Minister, have been
duly considered by the Chief Justice, as well as by this Court, 8
and we are of the considered view that none of them are tenable,
to the extent that any of them may be labeled as cogent
reason(s), for the purpose of discarding the recommendation
of the name of respondent no.1, for appointment to the post of
~~~. c
(iv) There are sufficient safeguards in the Statute itself, to
take care of the pre-conceived notions in the mind, or the bias,
of the Lokayukta, and so far as the suitability of the person to
be appointed as Lokayukta is concerned, the same is to be
0
examined, taking into consideration the interests of the people
at large, and not those of any individual. The facts referred to
hereinabove, make it clear that the process of consultation
stood complete, and in such a situation, the appointment of
respondent no.1 cannot be held to be illegal.
E
The appeals lack merit and are accordingly dismissed.
75. Before parting with the case, we would like to mention
that as the respondent no.1 did not join the post, because of
the pendency of the case, he may join now. Needless to say
that the appellants shall provide all facilities/office, staff etc., F
required to carry out the work of the Lokayukta. More so, we
have no doubt that appellants will render all co-operation to
respondent no.1 in performance of the work of the Lokayukta.
In view of the above, no separate order is required to be G
passed in SLP (C) Nos. 2625-2626/2012; and 2687-2688/
2012. The said petitions and all IAs, pending, (if any), stand
disposed of in terms of the aforesaid judgment.
R.P. Appeals dismissed.
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Lokayukta"Sign in to search