The Gujarat Lokayukta case
The Gujarat High Court is hearing an important case related to the appointment of the Lokayukta in Gujarat. The issue is whether the Governor can appoint the Lokayukta at his discretion or whether appointment can be made only upon obtaining the aid and advice of the Council of Ministers led by the Chief Minister.
During the period 2006-2010, the Gujarat state government submitted names of two prospective appointees for the post of Lokayukta to the Governor. But no appointment was made during this period. On August 26, 2011 the Governor appointed retired judge R.A.Mehta as Lokayukta, whose name was not among those submitted by the state government. The Gujarat state government moved the High Court to quash the appointment on the ground that the Governor made the appointment without the aid and advice of the Council of Ministers led by the Chief Minister.
Section 3 of the Gujarat Lokayukta Act, provides in part that “the Governor shall by warrant under his hand and seal, appoint a person to be known as Lokayukta”. The Governor acted under this section to make the appointment of Lokayukta. However, the state government has argued that section 3 has to be understood in light of Article 163(1) of the Constitution. Article 163(1) provides that the Governor shall be aided and advised in the exercise of his functions by a Council of Ministers with the Chief Minister at the head. Thus, as per this line of argument, the Governor violated the provision of Article 163(1) when she failed to take the aid and advice of the Council of Ministers led by the Chief Minister before exercising the function of appointing the Lokayukta.
At the time of writing this post, news reports suggested that the two judges hearing the case are divided over the issue. It remains to be seen whether this issue will be referred to a larger bench. The outcome of this case could have wider implications on the constitutional role of governors if it sets guideposts on the extent to which they act independent of the advice of the council of ministers.
The Governor is the custodian of the constitution in the state. He/she cannot overlook it just by citing a part of the lokayukta act. Moreover the act doesnot restrict the governor to consult the CM and his ministers and take independent decisions. It is unclear on that issue. It is always the governor who appoints the ministers, that does not mean he chooses them on his own. The principles of the federal nature and section 163(1) must be respected.
Governor cannot appoint anyone (Lokayukta or a vice chancellor).He/she can only rubber stamp the cabinet’s nominee.Even the selection of the name from a list submitted by a search committee will be done by the government.The left front government of West Bengal successfully got its nominee accepted as a vice chancellor,even though the governor claimed the prerogative of appointment.
Do other Governers follow this or must they be asked to follow the suit by President if this is the right course. So now Governers will be responsible for Governance in States and President for Center ?
Not related with the topic. But didn’t find any option for feedback. The Constitution amendments given in the site are very useful. It would have been really good if you could also provide the latest full text of constitution. Thanks.
The Governor shall be aided and advised in the exercise of his functions by a Council of Ministers with the Chief Minister at the head.
From the above, I do not see that the Governor is bound by the advice of the Council of Ministers with the Chief Minister at the head. It is natural that the one giving advice has no authority on the one to whom the advice is given. The Council of Ministers with the Chief Minister at head cannot order the Governor. If the Council of Ministers with the Chief Minister could order the Governor, then the complaint of the Gujarat Government has some merit. An advice might be accepted; sent for reconsideration; or even be rejected.
In a special situation in which the continuation of the Council of Ministers with the Chief Minister at the head is injurious to public interest, the Governor should indeed dismiss the Council of Ministers with the Chief Minister at the head ignoring their self-centered advice that they should continue in power. The Lokayukta has to decide on corruption of the Council of Ministers with the Chief Minister at the head and demanding that the potential culprits appoint their own judge is indeed prepostrous.