2012 Supreme(Guj) 1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Dr. Justice B.S. Chauhan & Hon’ble Mr. Justice Fakkir Mohamed Ibrahim Kalifulla
State of Gujarat & Anr.
Versus
Hon’ble Mr. Justice R.A. Mehta (Retd.) & Ors.
Civil Appeal Nos. 8814 of 2012—Decided on 02.01.2013

Point in Issue :
Whether in the facts of the case appointment of Justice R.A. Mehta as Lokayukta is valid.

Headnote:Head Note :

       (a) Gujarat Lokayukta Act, 1986 — Sections 2(7), 2(8), 3, 3(1), 4, 6, 7, 12, 19 & 20 — Penal Code, 1860 — Section 21 — Constitution of India, 1950 — Articles 74, 163(2)(3) & 356(1) — Appointment of Justice R.A. Mehta as Lokayukta — Recommendation of Chief Justice, Leader of Opposite and Council of Minister but not Chief Minister — Writ petition by State against appointment — Dismissed by High Court — Propriety of — Sustainability — Under the Act Governor is to make appointment of Lokayukta on recommendation made after consultation of Chief Minister with Chief Justice and Leader of Opposition in the house — In the matter opinion of Chief Justice has the primacy because he is entirely independent and is in a better portion to determine who retired Judge is most suitable for appointment to said office of Lokayukta — And in the matter consultation shall mean concurrence — The facts in the case make it crystal clear that the process of consultation stood complete as on 16.8.2011 as 3 out of 4 statutory authorities had approved the name of Justice R.A. Mehta and objections raised by Chief Minister were duly replied by Chief Justice — It cannot be said that process of consultation was incomplete and was not concluded as per requirements of the Act — The appointment of Respondent No. 1 cannot be held to be illegal.

       Held :

       The concept of primacy in such a situation, has been included, owing to the fact that, the Chief Justice of the High 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 executive. 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 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. [Para 11]

       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]

       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 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, therefore, bound to act under the Rules of Business framed under Article 166 (3) of the Constitution. [Para 21]

       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 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, 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 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. [Para 38]

       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 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, 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 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 preconceived notions, or having prior opinions with respect to certain issues of governance in the State. It was also mentioned that Justice R.A. Mehta had shared a platform with such persons who are known 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. [Para 45]

       Court has examined the objections raised by the Chief Minister and the reasons given by the Chief Justice for not 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 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 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. [Para 46]

       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 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 investigatees will not be apprehended as potential victims unnecessarily. [Para 55]

       Court does 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, Court is of the opinion that the views of the Hon’ble Chief Minister in this regard may not resonate with those of the public at large and thus, such apprehension is misplaced. [Para 55]

       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 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. [Para 57]

       In light of the facts and circumstances of the case, it cannot be held that the process of consultation was incomplete and was not concluded as per the requirements of the Act, 1986. [Para 58]

       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 be overlooked, for cogent reasons. 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 we do not find any cogent reason to not give effect to the said recommendation. [Para 74(ii)]

       Head Note :

       (b) Gujarat Lokayukta Act, 1986 — Providing for — Appointment of Lokayukta — Construction of the Act — Court must provide purposive construction to clean up augean stables of corruption to bust up national economy, national interest and image of country — Court must construe the Act bearing in mind the legal maxim ut res magis valeal quam pareat meaning thereby to make it workable.

       Held :

       The Lokayukta Act may 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 and required measures to curb the menace of corruption. [Para 61]

       In the process of statutory construction, the Court must construe the Act before it, bearing in mind the legal maxim ut res magis valeat quam pereat – which mean – 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. [Para 66]

       The Courts 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 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 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 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 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 reasonable statute. [Para 67]

       (c) Language of Judgment — Requirement — Judges should not make atrocious remarks against any body — They must not use strong and carping language rather they must act with sobriety, moderation and restraint.

       Held :

       This Court has consistently observed that Judges must act independently and boldly while deciding a case, but should not make atrocious remarks against the party, or a witness, or even against the subordinate Court. Judges must not use strong and carping language, rather they must act with sobriety, moderation and restraint, as any harsh and disparaging strictures passed by them, against any person may be mistaken 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. 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 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 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, 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.” [Para 73]

       Law Laid Down :

       (i) Consultation may have different meanings in different situations depending upon the nature and purpose of statute

       (ii) If the Chief Justice sends a panel of names and Governor selects one from them then it would obviously become primacy of Governor and not of Chief Justice

       (iii) The Governor is bound to act on the aid and advice of Council of Ministers unless he acts as persona designate

       (iv) There can be no constitutional Government unless the wielders of power are prepared to observe limits upon Government powers.

       Case Law Analysis :

       In Re. Kerela Education Bill, 1957, AIR 1958 SC 956 [Para 61];; Vineet Narain & Ors. vs. Union of India & Anr., AIR 1998 SC 889 [Para 62];; State of Madhya Pradesh & Ors. vs. Shri Ram Singh, AIR 2000 SC 870 [Para 62];; State of Maharashtra thr. CBI, Anti Corruption Branch, Mumbai vs. Balakrishna Dattatrya Kumbhar, JT 2012 (10) SC 446 [Para 62];; Dr. Subramanian Swamy vs. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185 [Para 62];; In re: Special Courts Bill, 1978, AIR 1979 SC 478 [Para 64];; Nokes vs. Doncaster Amalgamated Collieries Ltd., (1940) 3 All E.R. 549 [Para 66];; Whitney vs. Inland Revenue Commissioner, 1926 AC 37 [Para 66];; M. Pentiah & Ors. vs. Muddala Veeramallappa & Ors., AIR 1961 SC 1107 [Para 67];; S.P. Jain vs. Krishna Mohan Gupta & Ors., AIR 1987 SC 222 [Para 67];; Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. & Ors., AIR 1987 SC 1023 [Para 67];; Tinsukhia Electric Supply Co. Ltd. vs. State of Assam & Ors., AIR 1990 SC 123 [Para 67];; UCO Bank & Anr. vs. Rajinder Lal Capoor, (2008) 5 SCC 257 [Para 67];; Grid Corporation of Orissa Limited & Ors. vs. Eastern Metals and Ferro Alloys & Ors., (2011) 11 SCC 334 [Para 67].