With the Supreme Court giving primacy to the chief justice in the issue of appointment of Lokayukta in its January 2 judgment, the chief minister, Gujarat governor and leader of opposition (LoP) will have no role to play in the issue.
With this, if justice (retired) RA Mehta decides against taking charge of the post, the government will have to start the process afresh and the name suggested by the chief justice for the coveted post would be deemed final.
Speaking on the issue, senior counsel Girish Patel said: “If Mehta declines to assume the post, the CM can forward a list of names but it will be the Gujarat CJ’s primacy over selection of names.” Patel had appeared in the case as an intervener before the Gujarat high court.
Patel further said that after the judgment it is now clear that the CJ has to suggest a name of any retired judge over the request of chief minister, and the top judge’s decision will be the ultimate word on the matter. “It can only change if the state government amends the Act,” he said, adding, that due to these reasons only, Arun Jaitely has showed disagreement over the verdict.
Giving his opinion on the matter, government pleader in HC, PK Jani said, “If Mehta denies assuming the post, the government has to start proceedings afresh and the CJ’s opinion would be final according to the verdict.”
While delivering the verdict on January 2, a bench comprising justices BS Chauhan and FM Ibrahim Kalifulla had observed that, “the Chief Justice must send only one name, and not a panel of names for consideration, or else, the word ‘primacy’ would lose its significance,” they said while citing previous judgments of the Apex court.
The bench further said, “If the Chief Justice sends a panel of names and the governor selects one from them, it would then obviously become the primacy of the governor and not of the Chief Justice, which is the requirement under the law.”
Regarding primacy of the chief justice, the bench said, “The concept of primacy in such a situation, has been included owing to the fact that the Chief Justice of HC of the concerned state, is the most appropriate person to judge the suitability of a retired Judge. This judge will act as the Lokayukta, but if the final decision is left to the executive the object of the Act would not be served.”
Citing Gujarat Lokayukta Act, 1986, the bench said, “Even if we examine the statutory provisions of the Act without reference to any Constitutional provision or any earlier judgment by SC, the statutory construction itself mandates the primacy of the opinion of the Chief Justice. This is due to the simple reason that Section 3 provides for the consultation with the Chief Justice.”
Meanwhile, Leader of Opposition (LoP) in Rajya Sabha Arun Jaitely opined that the executive powers will become redundant if the CJ will give primacy as per the Apex court ruling.
In his article circulated by the BPP, Jaitley said, “Giving primacy to the opinion of the Chief Justice “disturbs” the principle of separation of powers. The Supreme Court judgment renders the role of the chief minister and leader of opposition “completely redundant and otiose”. He said, as per the law, the CM and LoP are to be a part of the consultation process as “equal participants”.
“The judgment has evolved the role of the Chief Justice from being privy to the consultation process to one of primacy and eventually to exclusivity, thus rendering the roles of the other constitutional authorities as insignificant,” he said.