“We accept the verdict of the High Court [upholding Governor appointing Justice R.A. Mehta as Gujarat Lokayukta] but our points remain and we will challenge it [the order] in the Supreme Court after consulting legal experts,” official spokesman of the Gujarat government and Health Minister Jaynarayan Vyas said on Wednesday.

He said they were not opposed to the appointment of a Lokayukta, but objecting to the “manner” in which Justice Mehta was appointed bypassing the government.

Mr. Vyas said the government held the view that the process of consultation between Chief Minister Narendra Modi and the then Chief Justice of the High Court, S.J. Mukhopadhyaya, was not over when Governor Kamla Beniwal unilaterally appointed Justice Mehta since Mr. Modi had only requested Justice Mukhopadhyaya to ‘reconsider' his recommendation.

“The second point we touched upon was even more important as it affected the federal structure of the country,” he said. It was not the question of Gujarat alone, tomorrow the Governor in some other State might unilaterally appoint a Lokayukta. “If the Governors are allowed to function outside the realm of the Constitution, it will become very difficult for the State governments to function,” Mr. Vyas said.

Legal experts critical of the Chief Minister hailed the verdict. A veteran advocate Girish Patel said the verdict proved that the recommendation of the Chief Justice in the appointment of the Lokayukta was more important than that of the State government.

Lawyer Mukul Sinha said it was the first time in the country that a Lokayukta was appointed on the order of the Governor and was held valid by the court.

Lawyer Anand Yagnik described the decision as the “victory of truth over injustice” and said the High Court had “exposed” the Chief Minister who was trying to “mislead” the people on the issue.

“Not acceptable”

The process for the appointment of a Lokayukta in the State began early last year and the then Chief Justice Mukhopadhyaya recommended Justice Mehta's name for the post in April 2011 after the Modi government sounded the Chief Justice twice for the appointment of a particular retired judge for the post. Justice Mehta, however, was not acceptable to Mr. Modi as the watchdog of the State government.

Series of measures

The Governor's August 25, 2011 order unilaterally appointing Justice Mehta as the Lokayukta was a sequel to a series of political measures the government took apparently to block Justice Mehta's appointment whom the ruling party believed to be “unfriendly [to] and biased” against Mr. Modi and was “close” to some voluntary organisations and other “known anti-Modi and anti-BJP” institutions.

In a bid to blunt the Opposition Congress campaign against the Modi government of alleged “large-scale corruption” in the absence of a Lokayukta, the post which had remained vacant since 2003 after the then Lokayukta resigned in the wake of the change of guard when Mr. Modi took over the reins from his predecessor Keshubhai Patel, the Modi government announced constitution of a judicial inquiry commission on August 17, 2011, to probe all allegations of corruption not only against his government but also all the governments, including the previous governments, that held offices in the State since 1980. Also, the government immediately appointed justice M.B. Shah, also a retired judge of the High Court, to constitute the judicial inquiry commission to start functioning immediately.

On August 24, the government appointed a Cabinet sub-committee under the chairmanship of Finance Minister Vajubhai Vala to recommend measures to amend the State Lokayukta Act apparently with the intention to curb the powers of the Governor in appointing the Lokayukta, making consultation with the government obligatory and to limit the Lokayukta's areas of functioning. The appointment of the Cabinet sub-committee was enough to alarm the Governor, who the next day issued an unilateral order accepting the recommendation of Justice Mukhopadhyaya and appointing Justice Mehta as the Lokayukta.

The government the very next day filed a petition in the High Court challenging the Governor's order. The Division Bench of the High Court on October 10 and 11 delivered a split verdict, forcing the High Court to send the matter to a third judge to decide on the issue.

Justice Mehta so far has not resumed office of the Lokayukta since his appointment was challenged the very next day, but after the majority verdict he would be free to take over the charge unless restrained by the Supreme Court.

Justice Mehta refused to comment on the majority verdict of the High Court and said he was “totally indifferent” to the contesting stands of the political parties.

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