The Supreme Court will on Friday hear the petition filed by Gujarat government challenging the state High Court order upholding the appointment of Justice RA Mehta as the Lokayukta by the Governor on the ground that it was unconstitutional and done without the consent of the state government.
The Gujarat High Court had on January 18 upheld the appointment of Justice (Retd) Mehta as the Lok Ayukta while sharply criticising Chief Minister Narendra Modi for his "pranks" that had sparked a "constitutional mini crisis".
In the petition filed on January 19, the state government sought stay of the High Court judgment and also of the August 25, 2011, order of Governor Kamla Beniwal by which the warrant of appointnment of Justice Mehta as Lok Ayukta was passed.
The petition is listed for hearing before a bench comprising Justice BS Chauhan and Justice JS Khehar. The state government had contended the appointment order was passed without following due procedure in a wholly unconstitutional manner which was illegal.
In the petition filed through advocate Mahesh Agarwal, Gujarat government said substantial questions of law have arisen, including that of absence of advice by the council of ministers on the appointment of the Lok Ayukta by the governor.
It also objected to the use of "very harsh expressions and language" against Narendra Modi by the high court.
However, challenging the judgment, the state government said "the governor, while exercising function under section 3 of the Gujarat Lokayukta Act, 1986, is to act on the aid and advice of the council of ministers headed by the chief minister and is not required to exercise the said function in the individual and personal capacity and discretion.
"In the present case, there has never been any advice by the council of ministers for the appointment in question and that, therefore, on this ground alone, the action under challenge deserves to be held constitutionally bad," the petition said.
Gujarat government said the warrant for appointment of Justice Mehta as the Lok Ayukta could not have been issued and that too through the governor without the aid and advice of the council of ministers.
Maintaining that the views and say of the council of ministers of the state cannot be allowed to be "suffocated", the petition said that has been given a total go-by.
The state government said the personal discretion exercised by the governor in unilaterally issuing the warrant of appointment of Lok Ayukta was "unwarranted".
In the petition, the Gujarat government said that when the consultation process for the appointment was on, the leader of the opposition in the Assembly did not on many occasions particpate in the meeting.
A third judge of the high court had rejected the plea of Gujarat government, three months after a two-member bench had given a split verdict.
Justice VM Sahai, who decided the matter as a third judge, said the "pranks" played by the chief minister on the Lok Ayukta issue "demonstrates deconstruction of our democracy".
He said Modi's "questionable" conduct of "stonewalling" the appointment of Justice Mehta threatened the rule of law.
The judgment said there was no good reason to reject the name of Justice Mehta once the objections of the chief minister had been overruled by the Chief Justice.
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