In today’s judgment in Sachchidanand Gupta “Sachchey” vs State of UP through Chief Secretary and Others, the Supreme Court bench comprising justices Ranjan Gogoi and Prafulla C Pant replaced ex-judge Virendra Singh, whom it had appointed as the Lokayukta, with another appointee, namely, ex-judge Sanjay Misra, who seemingly faced no controversy.

The court agreed to replace Virendra Singh on the ground that the chief justice of the Allahabad high court, DY Chandrachud – one of the three members of the selection committee, the others being the chief minister of Uttar Pradesh and leader of opposition in the assembly - had opposed his choice, and that the bench was misled by the Uttar Pradesh Government about his opposition.

Today’s judgment, however, showed that the chief justice of the Allahabad high court had also opposed Justice Sanjay Misra’s name, which was proposed by the chief minister.

Paragraph 7 of today’s judgment mentioned that the chief minister suggested four names, other than that of Justice Virendra Singh. These four names were: Justice Zaki Ullah Khan, Justice Sanjay Misra, Justice Kalimullah Khan, and Justice Imtiyaz Murtaza.

Paragraph 8 of the judgment referred to the letter of the chief justice which mentioned that no agreement could be reached on any of the aforesaid names, and therefore, the chief minister suggested the name of Justice AN Mittal, a sitting judge for appointment as Lokayukta, to which the chief justice agreed to revert in the evening of 16 December.

Apparently the chief did not do so, because the Supreme Court had in the meantime chosen Justice Virendra Singh.

The bench wrote:

Four other names were suggested by the Hon’ble Chief Minister which are as follows:

(i) Mr. Justice Zaki Ullah Khan

(ii) Mr. Justice Sanjay Misra

(iii) Mr. Justice Kalimullah Khan

(iv) Mr. Justice Imtiyaz Murtaza

8. In the letter of the Hon’ble Chief Justice it is also mentioned that no agreement could be reached on any of the aforesaid names and the Hon’ble Chief Minister had in these circumstances suggested the name of Shri Justice AN Mittal, a sitting judge for appointment as Lokayukta to which the Hon’ble Chief Justice agreed to revert in the evening of 16th December, 2015. In the meantime the order of this Court was passed.

9. The names that were placed before the court on 16th December, 2015 are as follows:

(i) Mr. Justice Virendra Singh

(ii) Mr. Justice Imtiyaz Murtaza

(iii) Mr. Justice AN Mittal

(iv) Mr. Justice Sanjay Misra

(v) Mr. Justice Kalimullah Khan

Out of the aforesaid names, Serial Nos. (i),(ii) and (iv) were stated to have the consensus of the Hon’ble Chief Minister and the Leader of the Opposition.

The above clearly suggests that the chief justice did not approve the name of Justice Sanjay Misra either.

Further mysteries

Legally India has found the following other mysteries for which there are no readily available answers either in the judgment or elsewhere.

Why did the Chief Justice of the Allahabad high court – one of the three members of the selection committee - feel that Justice Virendra Singh was unsuitable for being appointed as Lokayukta?

The bench had on the day of the previous hearing clearly told the counsel that it would like to be apprised of the reasons for the Chief Justice’s view, and only if the reasons were likely to shake the bench’s conscience, it would review its previous order.

The judgment is silent on those reasons, but concedes that the views of the Chief Justice, according to a previous judgment KP Mohapatra vs Sri Ram Chandra Nayak and others of the Supreme Court, must be given primacy.

The court concedes in the judgment that this is a case of the failure of the constitutional functionaries, if not their refusal, to comply with its repeated orders to fill the post of Lokayukta in time.

But the court appeared to be helpless beyond saying that the matter was deeply regrettable and astonishing.

Can judicial activism be an answer to every such abdication of responsibility by the Constitutional functionaries?

No doubt, the court intervened in the matter by selecting a person on its own for the post – clearly suggesting that judicial activism is justified if the Constitutional functionaries, entrusted with a responsibility, are guilty of abdication.

But does the court not find anything wrong with the manner it went about this task, which resulted in an erroneous choice at the first instance?

The court blamed others for this erroneous choice.

Thus it found fault with the counsel for the Allahabad high court, who was present in Court on 16 December, when it passed the order appointing Justice Virender Singh, for his failure to inform the court about the high court chief justice’s reservations on Justice Virender Singh.

Why did the high court counsel not inform the bench about this that day?

The judgment refers to the letter of the Uttar Pradesh chief minister to the Uttar Pradesh Governor dated on 1 January 2016 in which he claimed that there was agreement between him and the Leader of the Opposition in the assembly on certain names.

But a subsequent letter of the leader of the opposition on 6 January belies the claim, according to the judgment.

Who among these two Constitutional functionaries, is guilty of lying?

The judgment claims that Sanjay Misra’s name appears in the common list of names that were discussed as mentioned in the letters of the Chief Justice of the high court and the chief minister.

But the judgment does not refer to any such common list of names.

Read SC Lokayukta Judgment