New Delhi, Jan. 3: BJP central leader Arun Jaitley today said he "seriously" disagreed with the Supreme Court's observations while upholding the appointment of the Gujarat Lokayukta, whose selection the state government had opposed.
The "net and inevitable consequence of the reasoning" it adduced would be that in matters like selecting a state's ombudsman, the high court chief justice's opinion would prevail, Jaitley said, while the views of other constitutional authorities like the chief minister and the Opposition leader would be "redundant".
In a statement on yesterday's verdict, considered a "setback" for Narendra Modi because his government had legally challenged the appointment of R.A. Mehta by governor Kamla Beniwal, Jaitley said: "As a part of India's legislative and political process I seriously disagree with the observations of the Supreme Court."
The state had opposed the nomination of Mehta, a retired judge, for fear of bias but the apex court cleared it largely on the conclusion that the high court chief justice's opinion should be given primacy.
Jaitley, a former law minister, said the Lokayukta act framed by the Gujarat legislature "does not give any primacy to the opinion of the chief justice".
"The fact that the chief justice is an independent constitutional authority does not imply that the chief minister or the leader of Opposition has no constitutional or statutory role, particularly when the power to be exercised is an executive function…" the Rajya Sabha Opposition leader said. "There is no presumption that the chief justice alone is the best judge with regard to the performance of retired judges."
The Gujarat Lokayukta law, enacted in 1986, says the governor would appoint the ombudsman after fulfilling the prelude in which the chief minister would consult the chief justice and the Opposition leader and forward the recommendation to the governor "who must act on the aid and advice of the council of ministers".
"The role of the governor is minimal…. The key instrumentality in the consultation is the chief minister," Jaitley emphasised. "A reading of the judgment…" he said, "not only gives to the chief justice's opinion a primacy, it gives it an 'exclusivity', thereby rendering the role of the chief minister and the leader of Opposition completely redundant".
Jaitley said the judgment had created an "imbalance" in the separation of powers because it "eliminated" the chief minister's role as the "nucleus" of the consultation exercise and warned it would directly impact the constitution of the Lokpal.
A Rajya Sabha select committee had proposed a five-member collegium comprising the Prime Minister, the Lok Sabha Opposition leader, the Speaker, the Supreme Court Chief Justice or a nominee judge and an eminent jurist to appoint the head and members of the central anti-corruption ombudsman.
Jaitley said if the Supreme Court's reasoning was correct, the collegium's other representatives would become "silent spectators" because the chief justice's view would override theirs.
"The role of the judiciary is to interpret the law…. In the matter of administrative appointments, they cannot widen their jurisdiction and eliminate the role of the legislature or the executive," he said.