Ahmedabad, 2 January 2013

Important points from Lokayukta Judgement of SC

42. Be that as it may, the judgments referred to hereinabove, 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 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, 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 insupportable.

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 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 could not be in consonance and conformity with the Constitutional 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 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.

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 thesubordinate 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 banterer 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.” (Vide: State of M.P. &Ors. etc.etc. v.NandlalJaiswal&Ors.etc.etc., AIR 1987 SC 251; A.M. Mathur v.

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 authority, i.e. the Chief Minister.

Conclusion

The present 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 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 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.

(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 and not as the Head of the State.