Legal experts in Gujarat disagree with the State government's claim that Governor Kamala Beniwal bypassing it to appoint the Lokayaukta is violative of the Constitution.

They said the Governor had only exercised her constitutional powers. Pointing out that the Gujarat Lokayukta Act, 1986, under which the retired High Court judge, R.A. Mehta,was appointed Lokayukta, did not provide for any “consultation” with the government, they said there was no question of the government having been bypassed.

Under the Act, the Governor was the “appointing authority” and he or she should consult the Chief Justice of the High Court and the leader of the Opposition of the Assembly, and in the absence of a leader, any representative chosen by the Opposition party for the purpose. The relevant clause did not name the State government at any place.

“Why should the State government be consulted for appointing the Lokayukta,” asked veteran advocate Girish Patel. As the Lokayukta was supposed to investigate its misdeeds, if any, the government, if consulted, would always try to put up a person of its own “choice and convenience,” instead of accepting the choice of others, Mr. Patel said.

Clause 3(1) on the appointment of the Lokayukta clearly stated: “For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as Lokayukta.” The conditions the Act laid down for the appointment said, “Provided that the Lokayukta shall be appointed after consultations with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a proclamation under Article 356 of the Constitution is in operation in the State, after consultation also with the Leader of the Opposition in the Legislative Assembly, of if there be no such Leader, a person elected in this behalf by the members of the Opposition in that House in such manner as the speaker may direct.”

In the appointments of the heads or members of most other autonomous bodies, even where the Governor was made the appointing authority, like the State Human Rights Commission, the relevant acts provided for “consultation with the Chief Minister or the State government, but, in the appointment of the Lokayukta, no condition had been provided for “consulting” the State government or the Chief Minister.

No one was prepared to be quoted on the issue since the matter had become sub-judice with the State government challenging in the High Court the Governor's powers to appoint the Lokayukta, the hearing for which is scheduled to begin on August 30. The High Court, however, has refused to grant a stay on the appointment.

Meanwhile, several cities and towns in the State observed a day's bandh in support of social activist Anna Hazare's agitation.

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