OPINIONS ON THE JUDGEMENT OF MR.JUSTICE V.M.

SHAI
STATE OF GUJARAT THROUGH CHIEF SECRETARY IN HIS CAPACITY-PETITIONERS VERSUS THE GOVERNOR OF GUJARAT THROUGH PRINCIPAL SECRETARY (SINCE DELETED) AND OTHERS-RESPONDENTS This case is regarding appointment of R.A.Mehta as Lokayukta,State Of Gujarat by the governor without taking proper aid of council of minister which includes chief minister as head. This judgement includes two main issues and they are as follow as: (1) Whether the consultative process between the Honable Chief Justice and the Hon'ble the Chief Minister had come to a close and there was a deadlock between the two dignitaries ? (2) Whether the governor of Gujarat acted in a authorized manner while issuing notification regarding appointment of Justice R.A.Mehta as Lokayukta of Gujarat without the aid and advice of council of ministers.? FIRST ISSUE

CONCURRENT OPINION
As given in constitution and section 3 of the Gujarat Lokayukta Act, 1986, Lokayukta shall be appointed after the consultation with Chief Justice of High Court and except where such appointment is to be made at a time when the legislative assembly has been dissolved or under the proclamation of emergency under Article 356 is in operation in state of Gujarat , after consultation with leader of opposition as well as with council of ministers headed by chief minister. Under section 3 of the act, the expression consultation means a conference between two or more people to consider a particular question and reach to a agreeable or meaningful decision which is accepted by all. The expression consultation may have different meanings at different time depending upon the nature of the statue. As given in cases like S.P.Gupta V. Union Of India & Ors. which laid down several rules regarding consultation. (1)Equal opportunity should be given to both sides so that concerned authorities can express their views by tendering advice regarding subject matter. (2)Application of mind is most necessary exercise in purview of reaching a satisfactory conclusion. Accroding to the legislative intent of section 3 of the act, consultation is necessary and obligatory in order to reach on a positive decision. It also states to that the three dignitaries shall perform their statutory duty keeping in mind the larger interest of the state and people collectively but at the same time this act

doesnt give supreme power to council of ministers or leader of opposition because it would make the functioning of section 3 completely impossible because it may lead to arbitrariness and unfair. Hence this power is actually given to the Chief justice of Supreme Court as decided in case of Justice K.P.Mohapatra V. Shri Ram Chandra Nayak & Ors. It was held that opinion of Chief Justice should held primacy. The apex court further held that the way of carrying on duty or investigation is quasi-judicial in nature which not only consist of question of law as well as nature of work which is executed by administrators. For such appointment chief justice of High Court is best person for suggesting such person being appointed as lokpal. His opinion would not be biased and independent in such important matter and he is the only one who could well understand that which person is best for such post. Hence in this context primacy is required to be given to the Chief Justice of High Court. On the point of consultation with Governor, Council of ministers headed by Chief Minister, it should not be contradicted on unreasonable ground like having lokayukta of their choice which would be against the spirit of act. Once the consultation is made the name on which they agree upon or decided by Chief Justice of High Court then the matter should be referred to the governor. The consultation in this case between Chief Minister and chief judge came to an end when the objection raised by chief minister regarding the appointment of R.A.Mehta was clarified by the chief justice by inquiring in the objections and applying his mind ,on 2.8.2011 wrote a letter to chief minister that there is no such activity done by R.A.Mehta which is against the government and hence he is recommending the name of R.A.Mehta for appointment of lokayukta. The justice refered to decision of Apex court in Ashish Handa v.Chief Justice of High Court Of P &H in which it was held that executive need to approach chief justice for the purpose of such appointment and name suggested by chief justice would have to be accepted.

DISSENTING OPINION REGARDING JUDGEMENT

In this case, on the view of consultation between Chief Justice and Chief Minister is still going on because the letter sent by chief minister to chief justice on 18.8.2011 was not answered by chief justice. If chief justice had replied to the letter then the consultation process may have come to an end but in absence of reply it cannot be taken as closure of consultation. The process of consultation couldnt be stopped or break suddenly or abruptly when the lokayukt act contemplates government as a prosper for appointment to the post of lokayukta.

SECOND ISSUE Whether the governor of Gujarat acted in a authorized manner while issuing notification regarding appointment of Justice R.A.Mehta as Lokayukta of Gujarat without the aid and advice of council of ministers.? CONCURRENT OPINION As per article 163 of the constitution, the governor must act in accordance to the aid and advice of council of ministers. If both sections i.e., Section 3 of the lokayukta act read with section 163 of the constitution then naturally governor could not have acted without the advice of council of ministers. In the rare of rarest cases, the governor has power to act under his discretion and in such cases decision of governor would be final and no one can question his decision making power in this regard. The constitution expressly provide that in some cases the governor could act on his discretion but it would not lead to an inference that governor could only exercise his discretionary power where constitution expressly provides. In this regard, Article 163(2) expressly provides that governor can exercise his discretion even though constitution had not expressly provided. Other than article 163(2), under article 356 and article 200 the governor could exercise his discretionary powers without any aid of council of ministers. These powers could only exercised in the case of extraordinary or exceptional one where the action or conduct of council of minister which may endangered democracy then governor is under statutory obligation to exercise discretionary powers under article 163(1) & (2) of the constitution of India. DISSENTING OPINION As in the following case, the steps of issuing notification as done by governor is not a rarest case and whatever done by him/her is uncalled for. The Governor is the constitutional or formal head of State and exercise all powers and function conferred on him by or aid of council of ministers. The governor acts on the aid and advice of council of ministers in all matters whether it is executive or legislative in character. It cannot exercise any power personally. The power to appoint lokayukt is vested with governor but it has to be appointed only on the aid and advice of the council of ministers headed by Chief Minister. The behaviour of leader of opposition is very contradictory as he didnt take part in discussion as according to him chief minister is not eligible for such consultation and according to him he should not be a part of such consultation. Without informing Chief Minister he simply agree on the name of Justice R.A.Mehta .