Primacy of Views III: The Lokpal and Lokayuktas Act, 2013

The SC in Mohapatra, (2002) 8 SCC 1 had accorded primacy to the opinion of the Hon’ble Chief Justice in the consultative process for appointment of an Orissa Lokayukta. Justice Lokur in Chandrashekaraiah, (2013) 3 SCC 117 however confined the law laid down in Mohapatra to the facts of that case only. It was held that the views expressed by the Chief Justice of the High Court of Karnataka have no primacy in the process of appointment of the Karnataka Lokayukta. That otherwise consultation with the other Constitutional Authorities would be reduced to a ‘farce’.

That interpretation has been fortified recently in Just Society v. Union of India, [Transferred Case (C) No. 25 of 2015]. A declaration was sought to the effect that certain provisions of The Lokpal and Lokayuktas Act, 2013 are ultra vires the Constitution. The challenge was primarily founded on the ground that the Chief Justice of India or his Nominee Judge of the Supreme Court, under Section 4(1)(d) of the Act, is a mere Member of the Selection Committee and the opinion rendered either by the Chief Justice of India or his Nominee Judge has no primacy in the matter of selection of the Chairperson and Members of the Lokpal.

The SC held, “The fact that primacy of the opinion of the Chief Justice or his Nominee is accorded by certain statutes by use of the expression “in consultation”, which expression has been understood by judicial opinion to confer primacy to the opinion of the Chief Justice, the absence thereof in the Act, by itself, will not render Section 4(1)(d) thereof ultra vires the Basic Structure of the Constitution. If the Legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his Nominee and accord equal status to the opinion rendered by the Chief Justice or his Nominee and treat such opinion at par with the opinion rendered by other members of the Selection Committee, we do not see how such legislative wisdom can be questioned on the ground of constitutional infirmity. It is not the mandate of the Constitution that in all matters concerning the appointment to various offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his Nominee. Whether such primacy should be accorded or not is for the legislature to decide and if the legislative opinion engrafted in the present Act is in contrast to what is provided for in other statute(s), such legislative intention, by itself, cannot be understood to be constitutionally impermissible.”

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