UP Lokayukta row: 'SC took away the executive's powers' - Justice AP Shah

QUICK PILL

The appointment

• Supreme Court has appointed the UP Lokayukta using its extraordinary powers

• The Lokayukta is supposed to be selected by the CM, leader of Opposition and Chief Justice of the High Court

The viewpoint

• According to Justice (retired) AP Shah, the SC has encroached on the executive\'s powers

• He feels that the SC should have left it to the 3 constitutional authorities

More in the story

• What options did the SC have

• Was SC right to threaten the UP government with dire consequences?

• Rajeev Dhavan\'s counterview: why the SC\'s decision was justified

The Supreme Court appointed Justice Virendra Singh, a retired judge of the Allahabad High Court, as the new Lokayukta of Uttar Pradesh on Wednesday. Such a move is unprecedented. The Apex Court invoked the extraordinary powers given to it under Article 142 of the Constitution and cited the "inability of Constitutional authorities" to justify the appointment.

A bench of Justices Ranjan Gogoi and NV Ramana chastised the Uttar Pradesh government for its repeated failure to comply with the court's directives.

Also read - SC appoints UP Lokayukta on its own; expresses disappointment over failure of constitutional authorities to do so

The appointment of the Lokayukta is supposed to be the done collectively by three constitutional functionaries - the Chief Minister, Leader of Opposition and High Court Chief Justice. The three functionaries had been unable to decide on a name.

The Akhilesh Yadav government was keen on appointing Justice Ravindra Singh Yadav as the Lokayukta but this is said to have been opposed by both the Governor and the Chief Justice of the Allahabad High Court.

Even though Justice Yadav opted out of the race voluntarily, the impasse continued.

Justice Singh, the new Lokayukta, was part of the shortlist that was being considered. But was the Supreme Court justified in appointing him on its own, without consulting the three constitutional authorities?

Catch spoke to former Supreme Court judge Justice AP Shah on this matter. Justice Shah was the Chief Justice of Delhi High Court and chairman of the 20th Law Commission of India. Though Justice Shah believes the Supreme Court's intervention was justified, he unequivocally calls it an infringement on the powers of the executive.

The Supreme Court has appointed the new Lokayukta of Uttar Pradesh citing the "inability of constitutional authorities" to take a decision. In your opinion, has the court infringed on the powers of the executive?

The Lokayukta is supposed to be selected by three constitutional functionaries - the chief minister, the leader of the Opposition and chief justice of the high court. The final appointment is made by the Governor. This is a direct encroachment on the powers of the Governor. The Court's intervention was completely justified. But how can it appoint the Lokayukta on its own?

The Apex Court used its extraordinary powers to make the appointment. What are the limits to these powers?

It is very difficult to say whether there are any limits to the extraordinary powers of the Supreme Court as given under Article 142 of the Constitution and the situations in which these powers can be used. But in this case, there were no niceties or subtleties. Straight away, the powers of the executive were taken away.

What should the Supreme Court have done in this case? What options did it have?

It is difficult to understand why the Supreme Court chose this course of action, when it had a number of options before it. It could have recommended a shortlist of names and left it to the constitutional functionaries to select a Lokayukta. It could have even suggested a date on which the functionaries could meet and take a decision.

It could have requested the Governor to appoint a Lokayukta by consulting the chief minister, the leader of the opposition and the chief justice of the high court.

Also read - From crusaders to scamsters: what corrupted the Karnataka Lokayukta

It could even have gone with the majority opinion, in case two out of the three functionaries were of the same opinion.

If there was an impasse between the three constitutional functionaries, then it could have asked for a report on the matter.

Instead of pursuing any of these options, it chose go ahead and appoint the Lokayukta by itself.

On Monday, the Supreme Court reportedly threatened the state government with "dire consequences" if it failed to appoint a Lokayukta within 48 hours? Can it issue such threats?

What are these "dire consequences"? How can it issue a deadline for constitutional functionaries? What could possibly be the consequences if they fail to meet the deadline?

Counterview: There was an impasse. Supreme Court had no choice - Rajeev Dhavan

Catch also spoke to senior Supreme Court lawyer and constitutional expert Rajeev Dhavan, who believes that the Supreme Court was correct in stepping in as there was an impasse between the Governor, the Chief Minister and the Chief Justice of the High Court.

In your opinion, did the Supreme Court's appointment of the Uttar Pradesh Lokayukta constitute an infringement on the powers of the executive?

In normal circumstances, this is a huge infringement on the powers of the executive. But here there was an impasse to which the Chief Justice of the Allahabad High Court was also a party.

The Governor refused to sign the government's Amendment to the Lokayukta Act. The Chief Justice refused to clear the name given by the state government and the state government couldn't succeed in getting its name approved.

Clearly, there was an impasse between three constitutional functionaries. Given the circumstances, the Supreme Court was well within its right to step in and appoint the Lokayukta.