Choosing Lokayukta for Goa

By Cleofato A Coutinho
04 November 2012 20:02 IST

As the mining issue took center stage, the appointment of lokayukta for the state of Goa receded  to the back ground. After framing the rules under the Goa lokayukta Act, the Chief Minister who had earlier promised to bring a lokayukta for the state of Goa within 100 days, announced the appointment of a search committee headed by ehe Advocate General to choose a lokayukta for the state of Goa.  In the present season of accountability, it is imperative that the institution of lokayukta is set up in a most transparent manner and that institutional competence and integrity is maintained.

After the departure of justice Santosh Hegde as the lokayukta of Karnataka, the state which showcased the institution for a brief period, the institution has now almost fallen into a state of paralysis due to the government  and the Chief Justice not being able to work out suitable person/s for lok ayukta and upa lokayukta. The Karnataka Act mandates the appointment of the lokayukta by the Governor on the advice tendered by the Chief Minister in consultation with the Chief Justice of the high court and the chairpersons and leaders of opposition of the two houses. The Goa Act also mandates the appointment of the lokayukta by the Governor on the advice tendered by the Chief Minister in consultation with the Chief Justice and the leader of opposition. Both the Karnataka and the Goa Acts have not framed rules in the matter of procedure of appointment.

In Karnataka the appointment of former Supreme Court judge justice Shivraj Patil was appointed as the lokayukta without consulting the Chief Justice and the then Chief Minister B.S. Yedurappa had profusely apologized to the Chief Justice and had assured that a proper system would be put in place on the line suggested by the Chief Justice. The issue of how the consultation with the Chief Justice should take place and who should make the first move in short listing of candidates was the subject matter of a division bench decision of the Karnataka High Court consisting of justices N. Kumar and H.S. Kempanna. The bench quashed the appointment of justice Chandrashekhariah as the upalokayukta of Karnataka who was recommended by the previous Chief Justice (but not appointed earlier).  The next Chief Justice did not recommend Justice Chandrashekhariah.

The division bench held that the name has to emanate from the Chief Justice and once the Chief Justice makes the recommendation the presumption is that, the judge whom he has recommended is suitable for the said post. Basically the division bench of the Karnataka High Court has given   supremacy to the primacy of recommendation of the Chief Justice in selecting suitable candidates. The division bench of Karnataka has detailed out procedure which makes the recommendation of the Chief Justice highly persuasive as the other functionaries have to justify their disagreement by giving cogent reasons in writing. And in case of disagreement between the Chief Minister and the Chief Justice, the Chief Justice shall make a fresh recommendation but the entire consultation process as formulated by the Karnataka bench makes it almost mandatory for the name to emanate    from the Chief Justice. Basically the consultation process triggers by the Chief Minister requesting the Chief Justice to name the lokaykta or the uplokayukta. The scheme proposed by the Karnataka bench which analysed the consultative  process and rejected the system of short listing candidates and seeking consultation thereafter. In a way there is no scope for a panell of names.

The division bench opined that the procedure recommended by them would ensure transparency reposed in the administrative principles and the collective expression of the constitutional authorities which would strengthen and enhance the reputation in the institution which has assumed great importance currently. The institutional integrity is the primary consideration which the Chief Minister requires to consider while tendering advice to the governor and it was the view that the Chief Justices can best perform the task held the bench.

That is the mechanism that is currently in place for appointment of judges to the High Courts and the Supreme Court after it was noted (by the Supreme Court in 1993), that judicial independence could be best achieved that way. No doubt that the mechanism has also come under strain in present times and the clamour for an institution called National Judicial Commission is heard, but no such acceptable institution has come into place so far. Various alternatives are currently under discussion .

Some activists have appreciated the Uttarkhand lokayukta Act for its search committee which shortlist candidates and place them in the public domain but currently when the country is grappling  for an alternative  mechanism for selecting judges.The current system in place would have to be honoured as somehow the society has immense faith and trust in our judges and particularly the judges at the higher level. There is no doubt that the Chief Justice may also create a undesirable situation but in such a case it is expected that the other constitutional functionaries like the Chief Minister and the presiding officers of houses and the leaders of opposition shall intervene and assert themselves in the larger public interest. As the Karnataka bench puts it “The Chief Justice being the highest constitutional authority in the state, has a right of primacy if  not supremacy, accorded to his opinion, whenever a judge of the high court is to be appointed to hold the post where legal knowledge is required apart from independence”.

For us in the state of Goa it would be prudent if in the interest of institutional integrity and competence the Chief Minister requests the Chief Justice of the Bombay High Court to make a recommendation of a name to be appointed as the Lokayukta which name could thereafter be discussed by the Chief Minister with the leader of opposition in terms of Sec. 3 of the Goa Act. That would go along with in upholding the institutional independence, so important in this season of accountability. 

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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