Paragraph numbers below are the court’s original numbering, recovered from the source text.
32. The principle of check and balance is a well STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 49 MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] established philosophy in the governance of our country, under our Constitution. If we were all to have our way, each person would be allowed to wage a war against every other person, i.e., Bel/um Omnium Contra Omnes. This reminds us to abide by Constitutional law followed by statutory law, otherwise everybody would sit in appeal against the judgment of everybody.
33. In view of the aforesaid discussion, the law as evolved and applicable herein can be summarised to the effect that the Governor is bound to act on the aid and advice of the Council c 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. BIAS:
34. Absence of bias can be defined as the total absence of any pre-conceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to expect a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and sub- merge any private feelings with respect to each aspect of the case. The apprehension of bias must be reasonable, i.e., which a reasonable person would be likely to entertain. Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim – nemo debet esse judex in causa propria sua. It applies only when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided, or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias. In the event that actual proof of prejudice is available, the same will naturally make the case of a party much stronger, but the availability of such proof is not a necessary pre-condition, for what is relevant, is actually the reasonableness of the apprehension in this regard, in the mind of such party. In case such apprehension exists, the trial/judgment/order etc. would stand vitiated, for want of impartiality, and such judgment/order becomes a nullity. The trial becomes "coram non judice". While deciding upon such an issue, the court must examine the facts and circumstances of the case, and examine C the matter from the view point of the people at large. The question as regards, "whether or not a real likelihood of bias exists, must be determined on the basis of probabilities that are inferred from the circumstances of the case, by the court objectively, or, upon the basis of the impression that may reasonably be left upon the minds of those aggrieved, or the public at large". (Vide: S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701; State of Punjab v. V.K. Khanna & Ors., AIR 2001 SC 343; N.K. Bajpai v. Union of India & Anr., (2012) 4 SCC 653; and State of Punjab v. Davinder Pal Singh E Bhullar & Ors. etc., AIR 2012 SC 364). BINDING EFFECT OF THE JUDGMENT:
35. There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding, particularly, when the same is that of a co-ordinate bench, or of a larger bench. It is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument was advanced, but was not considered, the said judgment does not lose its binding effect, provided that the point G with reference to which an argument is subsequently advanced, has actually been decided. The decision therefore, would not lose its authority, "merely because it was badly argued, inadequately considered or fallaciously reasoned". The case must be considered, taking note of the ratio decidendi of the H same i.e., the general reasons, or the general grounds upon STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 51 MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] which, the decision of the court is based, or on the test or abstract, of the specific peculiarities of the particular case, which finally gives rise to the decision. (Vide: Smt. Somavanti & Ors. v. The State of Punjab & Ors., Al R 1963 SC 151 ; Bal/abhdas Mathuradas Lakhani & Ors. v. Municipal Committee, Malkapur, AIR 1970 SC 1002; Ambika Prasad Mishra v. State of U.P. & Ors., AIR 1980 SC 1762; and Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr., AIR 2002 SC 1598).
36. So far as the judgment in Ram Nagina Singh (supra), is concerned, para 9 of the said judgment, makes it clear that the High Court had summoned the original record of proceedings, containing communication between the prescribed statutory authorities therein, wherein the Chief Minister had made a note, while writing to the Governor, which reads as under: "In this connection, I have already deliberated with you. In my opinion, it is not necessary to obtain the opinion of the Council of Ministers in this connection". (Emphasis added) In view of this, the counsel for the State took the same stand before the High Court. It was the counsel appearing for the Central Government, who argued otherwise. In fact, the Governor had appointed the Lokayukta acting upon his own discretion, without seeking any aid or advice from the Council of Ministers. The said judgment was approved by this Court in Bhuri Nath (supra). Undoubtedly, the provisions of Section 18 of the Act, 1974, which are analogous to the provisions of Section 20 of the Act, 1986, by virtue of which, the Act enables the State Government, to exclude complaints made against certain classes of public servants, were not considered by the court, as the same were not brought to its notice. However, on this basis, it cannot be held that had the said provision been brought to the notice of the court, the result would have been different. A INST ANT CASE :
37. This case must be examined in light of the aforesaid settled legal propositions, and also taking into consideration, the scheme of the Act, as provided in its provisions, that have been referred to hereinabove.
38. 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. Thus, it is evident that the Governor can appoint a Lokayukta, even when there is no Council of Ministers in existence. The aforesaid statutory provisions make it mandatory on the part of the State to ensure that the office of the Lokayukta is filled up without any delay, as the Act provides for such filling up, even when the Council of Ministers is not in existence. In the instant case, admittedly, the office of the Lokayukta has G been lying vacant for a period of more than 9 years i.e. from 24.11.2003, when Justice S.M. Soni relinquished the office of Lokayukta, till date.
39. The facts of the case also reveal that the Government, H for reasons best known to it, came forward with a request to STATE OF GUJARAT v. HON'BLE MR. JUSTiCE R. A. MEHTA (RETD) & ORS. [DR. S.S. CHAUHAN, J.] the Governor, to issue an Ordinance on 17.8.2011. The said Ordinance would have changed the manner of appointment of the Lokayukta, for, if the manner of selection of the Lokayukta suggested by it would have been accepted, then the institution of the Lokayukta would have vested in not one, but several persons, and selection of such persons would have been done · by a committee consisting of the Chief Minister, the Speaker of the Le~islative Assembly, Minister (lncharge of Legal Department), a sitting Judge of the High Court, as nominated by the Chief Justice and the Leader of Opposition in the Legislative Assembly. c r
40. In a democratic set up of government, the successful functioning of the Constitution depends upon democratic spirit, i.e. a spirit of fair play, of self restraint, and of mutual accommodation of diffeient views, different interests and different opinions of different sets of persons. "There can be no Constitutional government unless the wielders of power are prepared to observe limits upon governmental powers''. It is evident that the Governor enjoys complete immunity under Article 361 (1) of the Constitution, and that under this, his actions cannot be challenged, for the reason that the Governor acts only upon the aid and advice of the Council of Ministers. If this was not the case, democracy itself would be in peril. The Governor is not answerable to either House of State, or·to the Parliament, or even to the Council of Ministers, c::nd his acts cannot be subject to judicial review. In such a situation, ur.1ess he acts uoon the aid and advice of the Council of Ministers, he will become all powerful and this is an anti-thesis to the concept of democracy. Moreover, his actions, including such actions which may be challenged on ground of allegations of malafides, are required to be defended by the Union/State. In spite of the fact that the Governor is immune from any liability, it is open to him to file an affidavit if anyone seeks review of his opinion, despite the fact that there is a bar against any action of the court as regards issuing notice to, or for the purpose of A impleading, at the instance of a party, the President or the Governor in a case, making him answerable.
41. The Gujarat Government Rules of Business, 1990, have been framed under Article 166 of the Constitution, and B under the same, the Govemm of Gujarat has made several rules for the convenient transaction of business of the Government of Gujarat, and the subjects allocated in this context, to the General Administration Department include the appointment of High Court Judges (Serial No. 36) and the Lokayukta (Serial C No. 316A).
42. Be that as it may, the judgments referred to here!nabove, 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 D 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 E 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 F insupportable.
43. All the three learned Judges in the judgment under appeal have recorded the following findings upon the issue with respect to whether the Governor must act on the aid and advice of the Council of Ministers, or not: (1) Mr. Justice Akil Kureshi came to the conclusion : "The Governor under Section 3 of the Act acts under the aid and advice of the Council of Ministers." STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 55 MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] (2) Ms. Justice Sonia Gokani held as under: "As provided under Section 3 of the Lokayukta Act, appointment is expressly to be done by the Governor on aid and advice of the Council of Ministers headed by the Chief Minister who are required to so do it after consultation with the Chief Justice and the Leader of the Opposition party." (3) Mr. Justice V.M. Sahai has recorded his finding as under: "However, the Chief Minister is the Head of the Council of Ministers. Article 163 of the Constitution of India provides that the Council of Ministers is to aid and advice the Governor in the exercise of all c his functions. The exceptions are where the 0 Governor under the Constitution is required to exercise functions in his discretion. Therefore, the Chief Minister as the Head of the Council of Ministers will automatically figure in the matter of appointment of Lokayukta under Section 3 of the Act. The Governor is the constitutional or formal Head of the State, and has to make appointment of Lokayukta with the aid and advice of the Council of Ministers as provided by Article 163 of the Constitution ….. The Governor was justified and authorised to act under Section 3 of the Act and exercise her discretionary powers under Article 163 of the Constitution, in the fact-situation of this case in the manner she did while issuing warrant/ notification appointing Justice (Retired) R.A. Mehta as Lokayukta of the Gujarat State without or G contrary to the aid and advice of the Council of Ministers headed by the Chief Minister to save democracy and uphold rule of law. I am of the considered opinion that the answer to the second point is that the Governor of the State was H · authorised to act in a manner she did while issuing warranUnotification appointing Justice R.A. Mehta as Lokayukta of the State without the aid and advice of the Council of Ministers."
44. Such findings have not been challenged by any respondent before this Court. Therefore, the controversy herein, lies within a very narrow compass, as two of the learned Judges have held that the consultation process herein, was in fact complete, and therefore, upon considering the primacy of opinion of the Chief Justice in this regard, they held that the C appointment of respondent no.1 to the post of Lokayukta was valid. However, one learned Judge has differed only as regards the factual aspect of the matter, stating that on the basis of such facts, it cannot be said that the consultation process was complete.
45. 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 E 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, F 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 G 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 pre-conceived notions, or having prior opinions with respect to certain issues of governance in the State. It was also mentioned that Justice R.A. STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] Mehta had shared a platform with such per~ons 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. In support of the allegations regarding the aforesaid associations etc., newspaper cuttings were also annexed to the said letter.
46. We have examined the objections raised by the Chief Minister and the reasons given by the Chief Justice for not C 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 E 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.
47. While considering the issue of bias, the Court must bear in mind the impression which the public at large may have, and not that of an individual. LETTERS OF THE CHIEF MINISTER:
48. A perusal of the Minutes of the Meeting dated 23.2.2010 regarding the discussion upon the subject o( consultation for the purpose of appointment of the Lokayukta, between the Leader of Opposition and the Hon'ble Chief Minister reveals that, the Chief Minister expressed his view H stating that in the event a retired Judge has been given some other assignment, it is not permissible to consider him for the appointment to the post of Lokayukta in the State of Gujarat. Furthermore, the Chief Minister also expressed his view to the effect that in the process of s consultation, the view of the Hon'ble Chief Justice of the Gujarat High Court must be given primacy, as also, the requirement of receiving a name suggested by the Hon'ble Chief Justice, and finally that the Government, owing to the aforementioned reasons, should not restart the process of consultation. c
49. However, the letter dated 4.5.2011 reveals that the Hon'ble Chief Minister had changed his view as regards the said issue, and suggested that in spite of the fact that Justice J.R. Vora was presently engaged with another assignment, his name could be considered for the purpose of appointment as Lokayukta, as the same was required in public interest. It is further revealed from this letter that Justice J.R. Vora had even offered to resign if such an offer was made to him.
50. Letter dated 16.6.2011, revealed that while opposing the appointment of Justice R.A. Mehta, the Hon'ble Chief Minister insisted that Justice J.R. Vora may be appointed so that this long standing issue would finally be resolved.
51. The Hon'ble Chief Minister in his letter dated 18.8.2011 to the Governor even raised a question as to why the judgment of this Court in Kannadasan (Supra) be followed in the State of Gujarat, when the same was not being followed elsewhere, and in light of this, questioned the insistence of the Chief Justice, in following the procedure prescribed in the aforementioned judgment.
52. In the letter dated 18.8.2011, written by Hon'ble Chief Minister to the Chief Justice, a strange situation was created. The relevant part of the letter reads as under: " …… Although, I have no personal reservation against STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 59 MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] the name of Hon'ble Mr. Justice (Retired) R.A. Mehta, but A as the Head of the State Government, I am afraid, I may not be able to accept the name of Hon'ble Mr. Justice (Retired) R.A. Mehta, who, in my view, cannot be considered the most suitable choice for the august post of Lokayukta, Gujarat State …… "(Emphasis added)
53. From the above, it, thus, becomes evident, that the Hon'ble Chief Minister who had spoken, not only about the primacy of the opinion of the Chief Justice, but had also expressed his opinion as regards the supremacy of the same, and had expressed his solemn intention to accept the recommendation of a name provided by the Chief Justice, was now expressing his inability to accept such name.
54. On 16.8.2011, the process of consultation stood complete as the record reveals, there was nothing left for the D consultees to do/discuss. It is pertinent to note that, in order to delay the appointment of the Lokayukta, an enquiry commission was set up under the Commission of Inquiry Act by the State Government appointing Hon'ble Mr. Justice M.B. Shah, a former Judge of this Court, as Chairman. In the event of the appointment of such an enquiry commission, the Lokayukta is restrained under the provision of the Act, 1986, from proceeding with such cases that the Commission is appointed to look into.
55. The arguments advanced on the basis of the doctrine of bias in the present case, are irrelevant, so far as the facts of the instant case are concerned, for the reason that all the judgments cited at the Bar, relate to the deciding of a case by the court, and are not therefore, applicable, with respect to the G issue of appointment of a person to a particular post. 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 B investigatees will not be apprehended as potential victims unnecessarily. Section 4 of the Act, 1986 makes a retired Judge, who is elected as a Member of the Parliament, or of a State Legislature, eligible for the purpose of being appointed as C Lokayukta, p;ovided that he resigns from the said House, and severs his relationship with the political party to which he belongs. It is therefore, difficult to imagine a situation where the allegations of bias/prejudice with respect to a person would be accepted, merely on the basis of the fact that such a person D has some association with a particular NGO. We do 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, we are of the opinion that the views of the Hon'ble Chief Minister in this regard may not resonate with E those of the public at large and thus, such apprehension is misplaced. The Court has to bear in mind the dicta of this Court in Bidi Supply Co. v. Union of India & Ors. AIR 1956 SC 479 which is as under: " ….. that the Constitution is not for the exclusive benefit of Governments and States … It also exists for the common man for the poor and the humble … for the 'butcher, the baker and the candlestick maker' …. It lays down for this land 'a rule of law' as understood in the free democracies of the world." CHIEF JUSTICE'S OPINION – PRIMACY :
56. Without reference to any Constitutional provision or any STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 61 MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] judgment of this Court referred to earlier, even if we examine A the statutory provisions of the Act, the statutory construction itself mandates the primacy of the opinion of the Chief Justice for the simple reason that Section 3 provides for the consultation with the Chief Justice. Section 6 provides for the removal of Lokayukta, and lays down the procedure for such removal. The B same can be done only on proven misconduct in an inquiry conducted by the Chief Justice/his nominee with respect to specific charges. Section 8(3) further provides for recusal of the Lokayukta in a matter where a public functionary has raised the objection of bias, and whether such apprehension of bias c actually exists or not, shall be determined in accordance with the opinion of the Chief Justice. The purpose of giving primacy of opinion to the Chief Justice is for the reason that he enjoys an independent Constitutional status, and also because the person eligible to D be appointed as Lokayukta is from among the retired Judges of the High Court and the Chief Justice is, therefore, the best person to judge their suitability for the post. While considering the statutory provisions, the court has to keep in mind the Statement of Objects and Reasons published in the Gujarat E Gazette (Extraordinary) dated 1.8.1986, as here, it is revealed that the purpose of the Act is also to provide for the manner of removal of a person fror:n the office of the Lokayukta, and the Bill ensured that the grounds for such removal are similar to those specified for the removal of the Judges of the High Court.
57. 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 G 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.
58. Leaving the finality of choice of appointment to the Council of Ministers, would be akin to allowing a person who H is likely to be investigated, to choose his own Judge. Additionally, a person possessing limited power, cannot be permitted to exercise unlimited powers. However, 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. c
59. In M.P. Special Police Establishment (Supra}, this Court held as under: "11 … Thus, as rightly pointed out by Mr Sorabjee, a seven-Judge Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which the Governor can act in his own discretion. Some of the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the judgment are not exhaustive. It is also recognised that the concept of the Governor acting in his discretion or exercising independent judgment is .not alien to the Constitution. It is recognised that there may be situations where by reason of peril to democracy or democratic principles, an actio17 may be compelled which from its nature is not amenable to Ministerial advice. Such a situation may be where bias is inherent and/or manifest in the advice of the Council of Ministers. (Emphasis added)
60. In fact, a five Judge Bench of.this Court, in this case has explained the judgment of a seven Judge Bench in Samsher Singh (Supra), observing that in exceptional circumstances, the Governor may be justified in acting in his discretion, and that the exceptions enumerated in Samsher Singh (Supra) are not exhaustive. STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] Thus, the view taken by the 3rd learned Judge, in which it A has been stated that it had become absolutely essential for the Governor to exercise his discretionary powers under Article 163 of the Constitution, must be read in light of the above-mentioned explanation. PURPOSIVE CONSTRUCTION:
61. The office of the Lokayukta is very significant for the people of the State, as it provides for a mechanism through which, the people of the State can get their grievances heard and redressed against maladministration. The right to c administer, cannot obviously include the right to maladminister. (Vide: In Re. Kerela Education Bill, 1957, AIR 1958 SC 956). In a State where society suffers from moral denigration, and simultaneously, from rampant corruption, there must be an effective forum to check the same. Thus, the Lokayukta Act may 0 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.
62. Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to spread its malignance among the polity of the country, leading to disastrous consequences. Therefore, it is often described as royal thievery. Corruption is opposed to democracy and social order, as being not only anti people, but also due to the fact that it affects the economy of a country and destroys its cultural heritage. It poses a threat to the concept of Constitutional governance and shakes the very foundation of democracy and the rule of law. It threatens the security of the societies undermining the ethical values and justice jeopardizing sustainable development. Corruption de-values human rights, chokes development, and corrodes the moral fabric of society. It causes considerable damage to the national economy, [2013) 1 S.C.R. national interest and the image of the country. (Vide: Vineet Narain & Ors. v. Union oflndia &Anr., AIR 1998 SC 889; State of Madhya Pradesh & Ors. v. Shri Ram Singh, AIR 2000 SC 870; State of Maharashtra thr. CBI, Anti Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar, JT 2012 (10) SC B 446; and Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185).
63. The adverse impact of lack of probity in public life leads to a high degree of corruption. Corruption often results from patronage of statutory/higher authorities and it erodes quality of life, and it has links with organized crimes, economic crimes like money laundering etc., terrorism and serious threats to human security to flourish. Its impact is disastrous in the developing world as it hurts the poor disproportionately by diverting funds intended for development. Corruption generates injustice as it breeds inequality and become major obstacle to poverty alleviation and development. United Nation Convention Against Corruption, 2003, envisages the seriousness and magnitude of the problem. December 9 has been designated . as International Anti-Corruption Day. India is a party to the said convention with certain reservation.
64. In re: Special Courts Bill, 1978, AIR 1979 SC 478, Justice Krishna Iyer observed : "Corruption and repression – cousins in such situation – hijack development process and in the long run lagging national progress means ebbing people's confidence in constitutional means to social justice."
65. Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socio-economic- political system in an otherwise healthy, wealthy, effective and vibrating society." Liberty cannot last long unless the State is able to eradicate corruption from public life. The corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 65 MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] policies adopted by the Government. Thus, it is not merely a fringe issue but a subject matter of grave concern and requires to be decisively dealt with.
66. In the process of statutory construction, the court must construe the Act before it, bearing in mind the legal maxim ut 8 res magis va/eat 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. Viscount Simon, L.C. in the case of Nokes v. Doncaster Amalgamated Collieries Ltd., (1940) 3 All E.R. 549, stated as follows: • …… if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility, the should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. • Similarly in Whitney v. Inland Revenue Commissioner, 1926 AC 37, it was observed as under: "A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable.•
67. The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. 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 A 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 B 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 c 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 E reasonable statute. (Vide: M. Pentiah & Ors. v. Muddala Veeramal/appa & Ors., AIR 1961 SC 1107; S.P. Jain v. Krishna Mohan Gupta & Ors., AIR 1987 SC 222; Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors., AIR 1987 SC 1023; Tinsukhia Electric Supply Co. Ltd. v. State of Assam & Ors., AIR 1990 SC 123; UCO Bank & Anr. v. Rajinder Lal Capoor, (2008) 5 SCC 257; and Grid Corporation of Orissa Limited & Ors. v. Eastern Metals and Ferro Alloys & Ors., (2011) 11 SCC 334).
68. Governance in terms of Constitutional perceptions and limitations is a basic feature of the Constitution, wherein social, economic and political justice is a Constitutional goal. We must always keep in mind that the Constitution is a living organism and is meant for the people, not just for the government, as it H provides for promotion of public welfare. STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
69. A pliant Lokayukta therefore, would render the Act completely meaningless/ineffective, as he would no doubt reject complaints under Section 7 of the Act, at the instance of the government, taking the prima facie view that there is no substance in the complaint, and further, he may also make a suggestion under Section 20 of the said Act, to exclude a public functionary, from the purview of the Act, which may include the Chief Minister himself. Thus, Section 3 of the Act, 1986 must be construed in the light of meaning given by the courts to the word 'consultation' so as to give effect to the provisions of the statute to make it operative and workable. c 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 0 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 ~uld 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. LANGUAGE OF THE JUDGMENT :
71. It appears that the third learned Juqge has used a harsh language against the Chief Minister, after examining the various letters written by him wherein he contradicted himself as at one place, he admits not just to the primacy of the Chief Justice, but to his supremacy in this regard, and in another A letter, he states that the recommendation made by the Chief Justice would not be acceptable to him, and also reveal~d his perpetual insistence as regards consideration of the name of Justice J.R. Vora for appointment to the said post of Lokayukta. At an earlier stage, the Chief Minister had taken a stand to the effect that a retired Judge, who has been given some other assignment, should not be considered for appointment to the post of Lokayukta. However, with respect to the case of Justice J.R. Vora, he seems to have taken an altogether C different view.
72. The third learned Judge made numerous observations inter-alia that a Constitutional mini crisis had been sparked by the actions of the Chief Minister, compelling the Governor to 0 exercise his discretionary powers under Article 163 of the Constitution, to protect democracy and the rule of law, while appointing respondent no.1 as the Lokayukta; that, there was an open challenge by the Council of Ministers in their non- acceptance of the primacy of the opinion of the Chief Justice of the Gujarat High Court, which revealed the discordant E approach of the Chief Minister; that, the conduct of the Chief Minister demonstrated deconstruction of democracy and tantamounts to a refusal by the Chief Minister to perform his statutory or Constitutional obligation and, therefore, in light of this, a responsible Constitutional decision was required to be F taken by the Governor so as to ensure that democracy thrived, or to preserve democracy and prevent tyranny. The same seem to have been made after examining the attitude of the Chief Minister, as referred to hereinabove.
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 the subordinate court. Judges must not use strong and carping language, rather they must act with sobriety, .H moderation and restraint, as any harsh and disparaging STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] 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 c 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 0 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 MP. & Ors. etc.etc. v. Nandlal Jaiswal & Ors. etc.etc., AIR 1987 SC 251; A.M. Mathur v. Pramod Kumar Gupta, AIR 1990 SC 1737; State of Bihar & Anr. v. Nilmani Sahu & Anr., (1999) 9 SCC 211; In the matter of: "K" a Judicial Officer, AIR 2001 SC 972; In the matter of: "RV~ a Judicial Officer, AIR 2005 SC 1441; and Amar Pal Singh v. State of U.P. & Anr., AIR 2012 SC 1995). 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 A authority, i.e. the Chief Minister.
74. CONCLUSIONS: (i) The facts of the case reveal a very sorry state of affairs, revealing that in the State of Gujarat, the post of the Lokayukta B 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. The present c 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 0 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 E 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 G and not as the Head of the State. 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 · H be overlooked, for cogent reasons. The recommendation of the STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] 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. (iii) The objections raised by the Chief Minister, have been duly considered by the Chief Justice, as well as by this Court, and we are of the considered view that none of them are tenable, to the extent that any of them may be labeled as cogent reason(s), for the purpose of discarding the recommendation of the name of respondent no.1, for appointment to the post of ~~~. c (iv) There are sufficient safeguards in the Statute itself, to take care of the pre-conceived notions in the mind, or the bias, of the Lokayukta, and so far as the suitability of the person to be appointed as Lokayukta is concerned, the same is to be examined, taking into consideration the interests of the people at large, and not those of any individual. The facts referred to hereinabove, make it clear that the process of consultation stood complete, and in such a situation, the appointment of respondent no.1 cannot be held to be illegal. The appeals lack merit and are accordingly dismissed.
75. Before parting with the case, we would like to mention that as the respondent no.1 did not join the post, because of the pendency of the case, he may join now. Needless to say that the appellants shall provide all facilities/office, staff etc., required to carry out the work of the Lokayukta. More so, we have no doubt that appellants will render all co-operation to respondent no.1 in performance of the work of the Lokayukta. In view of the above, no separate order is required to be passed in SLP (C) Nos. 2625-2626/2012; and 2687-2688/ 2012. The said petitions and all IAs, pending, (if any), stand disposed of in terms of the aforesaid judgment. R.P. Appeals dismissed.