Wednesday, January 2, 2013
SC rejected the plea that Governor is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister
Dismissed Pleas and Contention, raised by 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, State of Gujarat in CIVIL APPEAL NOS. 8814-8815 OF 2012 in respect of the appointment of Lokayukta in Gujarat before the Apex Court were in general as such that " the Governor, being a titular head of State, is bound to act only in 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 ought not to have corresponded with, and consulted the Chief Justice of the High Court of Gujarat directly." Per contra, Mr. R.F. Nariman, learned Solicitor General of India, Mr. P.P.Rao, Dr. A.M. Singhvi, and Mr. Huzefa Ahmadi, 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. And it is a fact that the appellants State of Gujarat and others have in fact, been avoiding the appointment of a Lokayukta for a period of more than nine years, for which there can be no justification. After considering rival submissions of both the parties to this appeal, the Hon'ble Supreme Court of India, marked this appeal as matter of legal issues of great public importance, such as, what is the meaning of the term ‘consultation’, for which SC said that no straight-jacket formula can be laid down in this regard, but 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. The Hon'ble Apex Court has also brought more light over the Preamble of the Gujarat Lokayukta Act, 1986 that 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. Hence, investigation of such charges of corruption against public functionaries is not the only responsibility that the Lokayukta is entrusted with. And under such significant circumstances, 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 dis-entitles itself from providing such aid and advice. So the Apex Court summarized 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 nomine”, under a particular statute, or acts in his own discretion under the exceptions carved out by the Constitution itself. The Apex Court emphasized with this observation while adjudicating this legal battle and concluded that "Leaving the finality of choice of appointment to the Council of Ministers, would be akin to allowing a person who is likely to be investigated, to choose his own Judge." The Hon'ble Apex Court finally concluded with harsh observations that a very sorry state of affairs, revealing that in the State of Gujarat, the post of the Lokayukta 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 and 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 none of the objections raised by the Chief Minister, are tenable at all, hence This appeals lack merit and are accordingly dismissed.
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