The Narendra Modi government suffered a setback on Thursday with the Supreme Court refusing to interfere with the Gujarat High Court judgment, upholding the appointment of Justice R.A. Mehta as the State Lokayukta.

A Bench of Justices B.S. Chauhan and Ibrahim Kalifulla dismissed a review petition filed by the State government against the verdict dated January 2.

The Bench said: “The facts make it clear that the process of consultation by the Governor with the then Chief Justice of Gujarat stood complete and in such a situation the appointment of Justice Mehta cannot be held to be illegal.”

It dismissed the appeal filed against a 2:1 majority judgment of the High Court.

The Bench, though, criticised the Governor’s role and said: “The present Governor has misjudged her role and has insisted that under the Act, the Council of Ministers has no role to play in the appointment of the Lokayukta and that she could therefore, fill it in consultation with the Chief Justice of the Gujarat High Court and the Leader of the Opposition. Such an attitude is not in conformity or in consonance with the democratic set-up of the government envisaged in our Constitution. Under the scheme of our Constitution, the Governor is synonymous with the State government and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act or under the exception(s), provided in the Constitution itself.

“The appointment of the Lokayukta can be made by the Governor, as the Head of the State, only with the aid and advice of the Council of Ministers, and not independently as a Statutory Authority. The Governor consulted the Attorney General of India for legal advice and communicated with the Chief Justice of the Gujarat High Court directly, without taking into confidence the Council of Ministers. In this respect, she was wrongly advised to the effect that she had to act as a statutory authority and not as the Head of the State.

“Be that as it may, in the light of the facts and circumstances of the present case, it is evident that the Chief Minister had full information and was in receipt of all communications from the Chief Justice, whose opinion is to be given primacy as regards such matters and can only be overlooked, for cogent reasons.

“The recommendation of the Chief Justice suggesting only one name, instead of a panel of names, is in consonance with the law laid down by this Court, and we do not find any cogent reason to not give effect to the said recommendation. The objections raised by the Chief Minister have been duly considered by the Chief Justice, as well as by this Court, and we are of the considered view that none of them are tenable, to the extent that any of them may be labelled as cogent reason[s], for the purpose of discarding the recommendation of the name of Respondent no.1, for appointment to the post of Lokayukta.”