The Narendra Modi government suffered a setback on Wednesday with the Supreme Court upholding the appointment of Justice R.A. Mehta as Lokayukta by the Governor, saying it was done in consultation with the Chief Justice of the Gujarat High Court.

“The facts make it clear that the process of consultation by the Governor with the then Chief Justice stood complete, and in such a situation, the appointment of Justice Mehta cannot be held illegal,” a Bench of Justices B.S. Chauhan and Ibhrahim Kalifulla said, dismissing the State government’s appeal against a 2:1 majority verdict of the High Court.

“It is pertinent to note that, in order to avoid an inquiry by the Lokayukta [anti-corruption ombudsman], an inquiry commission was set up under the Commission of Inquiry Act by the State government, appointing Justice M.B. Shah, a former judge of this court, Chairman.”

Writing the judgment, Justice Chauhan said the case revealed a very sorry state of affairs. The post of Lokayukta had been lying vacant for more than nine years since November 24, 2003 after the resignation of Justice S.M. Soni. A “few half-hearted attempts” were made to fill the post, but for one reason or another it could not be filled.

However, the Bench also criticised Governor Kamla Beniwal who, it said, “has misjudged her role and has insisted that under the Lokayukta Act, the Council of Ministers has no role to play in the appointment of the Lokayukta and she could therefore fill it in consultation with the Chief Justice of the High Court and the Leader of the Opposition. Such an attitude is not in conformity or in consonance with the democratic set-up of government envisaged in our Constitution.”

The Bench said: “The appointment of the Lokayukta can be made by the Governor, as head of the State, only with the aid and advice of the Council of Ministers, and not independently as a statutory authority.”