The Supreme Court on Friday admitted a Gujarat government appeal challenging the 2:1 decision of the Gujarat High Court, which upheld the appointment of Justice R.A. Mehta as the Lokayukta.
A Bench of Justices B.S. Chauhan and J.S. Khehar told counsel that important questions of the law of public importance were raised in this special leave petition.
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“We will post the matter for final hearing on March 20,” Justice Chauhan said and asked them to file their response and written submissions in the meantime.
The State said the Governor (Kamla Beniwal) in issuing the warrant of appointment did not follow the constitutional procedure of consultation with the Council of Ministers, and hence the appointment was unconstitutional. The appeal questioned both the split verdict delivered in October last and the January 18 judgment and sought an interim stay of their operation.
The SLP said that as part of the consultation process for the appointment, Chief Minister Narendra Modi on March 2, 2010 wrote to the Leader of the Opposition, asking him to participate in a meeting to be held on March 4. But the Leader of the Opposition on March 3 objected to such a process of consultation being initiated by the Chief Minister. Though it was the government that should initiate it, curiously the Governor in the meantime on her own consulted the Opposition leader and thereafter informed the government that the consultation process had been completed, the SLP said. Subsequently on receipt of the recommendation from the then the Chief Justice on June 6, 2011, the Chief Minister wrote to him why the name of Justice Mehta was not acceptable. Despite these developments, the Governor, to the utter shock and surprise of the government, issued the warrant of appointment, dated August 25, 2011.The State said: “The Governor is always supposed to be aided and advised by the Council of Ministers in exercise of almost all 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.”
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The Governor issuing the warrant of appointment, despite her having been requested by the Chief Minister to await the response, to his August 18, 2011 communication, from the Chief Justice [on the clarifications sought by the government] and without even inquiring about it from the Chief Justice, was unconstitutional “inasmuch as the situation obtaining at the material time, cannot be considered a rare and exceptional one, like perilous to democracy or against the democracy or amounting to a breakdown of the constitutional machinery.”
Senior counsel Harish Salve appeared for the State, and senior counsel Fali Nariman and P.P. Rao and counsel Prashant Bhushan appeared for various interveners.