2013 Supreme(SC) 1

SUPREME COURT OF INDIA
Dr. B.S. CHAUHAN, FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
State of Gujarat & Anr. - Appellants
Versus
Hon’ble Mr. Justice R.A. Mehta (Retd) & Ors - Respondents
CIVIL APPEAL NOS. 8814-8815 OF 2012
S.L.P(C) Nos. 2625-2626 of 2012 & 2687-2688 of 2012
Decided On : 02 -01-2013

IMPORTANT POINTS
1. Before making a reference to a larger Bench, the Court must reach a conclusion regarding 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 that warrants a review of such earlier judgments.
2. Governor is bound 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.
3. 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 reasonably be left upon the minds of those aggrieved, or the public at large"

Headnote:Gujarat Lokayukta Act 1986-Appointment of Lokayukta- Appointment of Justice R.A. Mehta to the post of Lokayukta -Writ petitions thereagainst-Dismissed-Appeals-Whether Governor, being a titular head of State, was bound to act only in accordance with aid and advice of Council of Ministers, headed by Chief Minister, and that actions of the Governor, indulging in correspondence with, and issuing directions to other statutory authorities, was contrary to principles of Parliamentary democracy, and whether Governor ought not to have corresponded with, and consulted the Chief Justice of the High Court of Gujarat directly-Plea of appellants that consultation by the Governor with the Attorney General of India, who was alien to the Act, 1986, ran contrary to the statutory provisions of said Act-Held when the Governor does not act as a statutory authority, but as the 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- 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 exclusive right to appoint the Lokayukta, was most certainly not in accordance with the spirit of the Constitution- This was an outcome of an improper legal advice and the opinion expressed was not in conformity with the Rule of Law- The view of the Governor was unwarranted and logically insupportable-Appeals dismissed (Para 42)

        Gujarat Lokayukta Act 1986-Appointment of Lokayukta- Appointment of Justice R.A. Mehta to the post of Lokayukta -Writ petitions thereagainst-Dismissed-Appeals -Appointment of Lokayukta can be made by 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- 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 was based on the judgments of this Court, and the Chief Minister was also aware of each and every development in these regards-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 and not as the Head of the State- The recommendation of the Chief Justice suggesting only one name, instead of a panel of names, was in consonance with the law laid down by this Court-No cogent reason to not give effect to said recommendation- Process of consultation stood complete, and in such a situation, appointment of respondent no.1 could not be held to be illegal-Appeals dismissed (Paras 70, 74, 75)

        Words and Phrases-Consultation-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 straightjacket formula can be laid down in this regard- Ordinarily, consultation means a free and 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 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 (Para 16)

        Words and Phrases -Bias - 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 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 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 (Para 34)

       Facts of the Case :

        A.The legislature of Gujarat enacted the Gujarat Lokayukta Act 1986 which provided for the appointment of a Lokayukta, who must be a retired Judge of the High Court. The post of the Lokayukta became vacant on 24.11.2003, upon the resignation of Justice S.M. Soni. Governor issued the requisite warrant from her office on 25.8.2011, appointing Justice R.A. Mehta as Lokayukta herein in the instant case.

        B. Issue in consideration in present appeals was Whether Governor, being a titular head of State, was bound to act only in accordance with aid and advice of Council of Ministers, headed by Chief Minister, and that actions of the Governor, indulging in correspondence with, and issuing directions to other statutory authorities, was contrary to principles of Parliamentary democracy, and whether Governor ought not to have corresponded with, and consulted the Chief Justice of the High Court of Gujarat directly.

       Findings of the Court :

        The Supreme Court opined that Appointment of Lokayukta can be made by 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. 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 was based on the judgments of this Court, and the Chief Minister was also aware of each and every development in these regards.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 and not as the Head of the State. The recommendation of the Chief Justice suggesting only one name, instead of a panel of names, was in consonance with the law laid down by this Court. There was no cogent reason to not give effect to said recommendation. Process of consultation stood complete, and in such a situation, appointment of respondent no.1 could not be held to be illegal.

       Result : Appeals dismissed