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SCOI Analysis: Court misled? UP Lokayukta appointment issue becomes curiouser and curiouser

Court No 7 of Supreme Court was witness to a suspenseful hearing on 20 January as counsel after counsel told the bench comprising justices Ranjan Gogoi and Prafulla C Pant that it had been misled by the Uttar Pradesh Government that Justice Virendra Singh, a former judge of the Allahabad high court, whom it appointed as the Lokayukta of Uttar Pradesh under Article 142 of the Constitution, which gives the court extraordinary powers to do complete justice in a case, was in the list of names being considered by the selection panel.

The selection panel comprised of the chief minister, the leader of the opposition and the chief justice of Allahabad high court. The Supreme Court had to step in as the panel could not agree on an appointee during the past 20 months.

Both TR Andhyarujina, counsel for the Allahabad high court chief justice, and Prashant Bhushan, counsel for the petitioner-journalist, Sachchidanand Gupta ‘Sachchay’ told the bench that the chief minister agreed to drop Justice Virendra Singh’s name, after the Chief Justice of the high court told the other two members of the selection panel that he was not in his favour as he lacked integrity.

The court admitted, in response to a query from Andhyarujina that on 16 December 2015, when it appointed Justice Virendra Singh, it was not told about the Allahabad high court chief justice’s reservations on Justice Virendra Singh’s candidature, and that had it known of the CJ’s concerns on him, the bench would not have appointed him.

Although the court appointed Justice Virendra Singh as the state Lokayukta, he could not be sworn-in, as the petitioner had secured a stay order from the Supreme Court’s Vacation bench during the Christmas holidays, citing the fact that the Gogoi bench had been misled. The case has now returned to the same bench.

On 20 January, the Gogoi bench asked Andhyarujina to inform the bench about the material which the Allahabad high court chief justice relied on to conclude that Justice Virendra Singh lacked integrity.

To this, Andhyarujina could not give a satisfactory reply apart from saying that Justice Virendra Singh’s family had a matrimonial alliance with the Chief Minister’s family.

The bench said it was not willing to recall its 16 December order appointing Justice Virendra Singh, unless the counsel showed it was erroneous.

“We are not questioning the Chief Justice, but let us satisfy ourselves that Justice Virendra Singh lacks integrity”, the bench told Andhyarujina.

When Prashant Bhushan’s turn came up after 2 pm, he told the bench that if it did not recall its 16 December order, two things would follow.

One, it would imply that the bench relied on false statements to the court that Justice Virendra Singh was a candidate, when in fact, his name was dropped from the list by all the three members of the panel.

Second , as the chief justice of the high court may have material which suggests that Justice Virendra Singh lacks integrity, his appointment to the high office by the bench would undermine the credibility of the institution, if any evidence confirming the chief justice’s claims is to emerge after the appointment.

Earlier, when Justice Gogoi asked Kamini Jaiswal, another counsel of the petitioner, as to how she was concerned about the appointment, she said she has a duty, as the officer of the court, to inform the bench, if she believes it has been misled.

The bench expressed its dismay that the leader of the opposition Bahujan Samaj Party in the State, Mayawati, had shifted her position on the suitability of Justice Virendra Singh. She had, according to a counsel, first welcomed the 16 December order, and later admitted that all the three members of the panel had agreed to drop his name from the shortlist.

The bench was clueless about who was responsible for misleading it.

Even Kapil Sibal, who argued for the Uttar Pradesh Government leading to the 16 December order, appeared to have been misled that Justice Virendra Singh was a candidate.

The bench revealed that what they were told that day was that the chief justice had no view on his candidature.

Surprisingly, even as the Gogoi bench wanted to amend its 16 December order by choosing someone else in place of Justice Virendra Singh, his query as to whether the selection panel agrees on any other name, went unanswered.

Surely, even as the selection panel completely failed to select a suitable appointee to the office of the Lokayuktha, the Supreme Court which intervened to select one under Article 142, did not realize that the provision could not be used to appoint someone on whom there was no agreement among the members of the selection panel.

The outcome of this case may perhaps offer the court and its critics a few lessons on the nature and scope of judicial activism.

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