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Updated: January 19, 2012 23:41 IST

Gujarat takes Lokayukta issue to Supreme Court

J. Venkatesan
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The Narendra Modi government on Thursday approached the Supreme Court challenging the state High Court order upholding the appointment of Justice R.A. Mehta as the Lokayukta by the governor. File photo
PTI The Narendra Modi government on Thursday approached the Supreme Court challenging the state High Court order upholding the appointment of Justice R.A. Mehta as the Lokayukta by the governor. File photo

Within a day of the Gujarat High Court upholding the Lokayukta appointment, the Gujarat government on Thursday moved the Supreme Court seeking to set aside the judgment on the ground that in issuing the warrant of appointment of the Lokayukta, the Governor did not follow the constitutional procedure of consultation with the Council of Ministers and hence, the appointment was unconstitutional.

The appeal, filed by advocate E.C. Agrawala, challenges both the split verdict delivered in October last and on Wednesday and seeks an interim stay of the operation of the two judgments.

Tracing the sequence of events, the special leave petition said that as part of the consultation process for Lokayukta appointment, Chief Minister Narendra Modi wrote a letter on March 2, 2010 to the Leader of the Opposition in the Assembly to participate in the meeting to be held at 11 a.m. on March 4, 2010. Unfortunately, the Leader of the Opposition, on March 3, 2010, objected to such process of consultation being initiated by the Chief Minister. Though it was the State government that should initiate the process, curiously the Governor, in the meanwhile, on her own consulted the Leader of the Opposition who, thereafter, informed the government that the consultation process was over.

Subsequently, on receipt of the recommendation of the name of Justice R.A. Mehta from the then Chief Justice of the Gujarat High Court on June 6, 2011, the Chief Minister wrote to him giving reasons why the name recommended by the Chief Justice was not acceptable. Despite the aforesaid developments, to the utter shock and surprise of the State government, the Governor issued the warrant dated August 25, 2011 appointing Justice (retired) R.A. Mehta as Lokayukta.

Finding fault with the High Court verdict for upholding the appointment, the State said “the Governor is always supposed to be aided and advised by the Council of Ministers in exercise of almost all the functions under the Constitution and so is the position with reference to the exercise of powers and functions referred to under Section 3 of the Gujarat Lokayukta Act. The warrant could not have been issued by the Governor without the aid and advice of the Council of Ministers headed by the Chief Minister.”

Assailing the verdict, the State said, “the High Court ought to have appreciated that the entire proceedings leading to the appointment of Justice Mehta as Lokayukta suffered from the basic constitutional infirmity and procedural impropriety along with the exercise of malice in law which go to the root of the matter, whereby, the warrant of appointment under challenge is void ab initio as being ultra vires Section 3 of the GLA Act and Article 163 of the Constitution.”

The State said “the action of the Governor in issuing the warrant despite having been requested by the Chief Minister to await the response of his communication dated August 18, 2011 from the Chief Justice [for the clarifications sought by the government] and without even inquiring about the same from the Chief Justice, and appointing Justice Mehta as Lokayukta, is unconstitutional inasmuch as the situation obtaining at the material time, cannot be considered to be a rare and exceptional one, like perilous to democracy or against the democracy or amounting to breakdown of constitutional machinery.”

The petition said, “The personal discretion exercised by the Governor was unwarranted since there was no aid and advice of the Council of Ministers in that behalf and also because of the fact that such an action was contrary to the aid and advice of the Council of Ministers.”

Maintaining that the judgment had resulted in miscarriage of justice, Gujarat sought the quashing of the impugned judgments and an interim stay of their operation.

The key issue that Gujarat despite 8 years since, hasn't bothered to appoint a Lokayukta judge and that fact is conveniently being swept under the carpet. If the council of ministers and its head, the chief ministers had 8 years to select/ advise a judge to the Governor, why didn't they do it for all those days/months/years? The state is now crying wolf "to the utter shock and surprise"?!! As the third grader here would say, "yeah right"

from:  Krish
Posted on: Jan 20, 2012 at 12:36 IST

Technically the Governnment had the right to appeal in the Supreme
Court,and it did.But morally it should have accepted the verdict of
the High Court,given the nature of the case and the way the High Court
reacted with its verdict especially coming down heavily on the CM and
the council of Ministers.It is sad,if Governments don't have faith on
a courts verdict and accept it gracefully,what examples are they
setting up for the citizens?It is ego,nothing else,there is only a
little chance that the Government may find relief in the Supreme
Court,it is very clear Modi wants to learn the hard way.I find a
simililarity in functioning of Tamilnadu CM and Modi here,both are
egoistic and stubborn to say the least.Ironically they both are
considered probables to lead the Country in the future by some think
tanks!!

from:  Selavaraj
Posted on: Jan 20, 2012 at 12:12 IST

If corruption is no wrong, nothing is wrong in Gujarart. Can the validity of corruption be challenged under the constitution ? Then why the august institution of Lokayukta ?

from:  A. Patrawala
Posted on: Jan 20, 2012 at 07:48 IST

I agree with Mr Modi that for the appointment of Lokayukta, it is necessary for the Governor to consult with the Council of Minsiters, headed by the Chief Minister. How can you appoint a constitutional body, whose origin itself is unconstitutional? A bill becomes a law only if follows the entire legal process, otherwise it will either be amended or it will be thrown away. In the school texts we used to read, that it is the duty of the Governor to consult with the COuncil of Minsiters on every matter, except those dealign with the exclusive power of the Governor.
Only consulting the leader of the Opposition is not enough, it is imperative to take the advise of the Council of Ministers, headed by the CHief Minister.

from:  Aiman Reyaz
Posted on: Jan 20, 2012 at 06:53 IST
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