Gujarat goes to SC: State given ‘total go-bye’ on Lokayukta

Stung by the high court’s remarks that Modi’s “pranks” had sparked a “mini-constitutional crisis”,the Gujarat government has asked in its appeal what “breakdown of constitutional machinery” Beniwal had in mind on August 25,2011 while appointing Mehta in “haste” without a word to the council of ministers led by Modi.

“The situation at the time cannot be considered to be a rare and exceptional one like perilous to democracy or against the democracy or amounting to breakdown of constitutional machinery,” the appeal filed by advocate E C Agarwala says.

The government has contended that Beniwal had not bothered to wait for the outcome of a letter dated August 18,2011 from Modi to the Chief Justice of Gujarat High Court,questioning Mehta’s eligibility to be Lokayukta.

The letter,the petition says,detailed the reservations against Mehta,whose conduct,the chief minister said,betrays a “specific” mindset against the state government through involvement with social activists,NGOs and public speeches.

The appeal has been filed by Gujarat minister of law and justice P B Jadeja and the state government against Justice Mehta and Gujarat High Court. It seeks urgent ex-parte stay on the governor’s warrant of appointment and subsequent decisions of the high court.

“The entire proceedings leading to the appointment of Respondent 1 (Mehta) as Lokayukta has suffered from basic constitutional infirmity and procedural impropriety along with the exercise of malice in law which goes to the root of the matter,” says the appeal.

The appeal interprets Section 3 of the Gujarat Lokayukta Act,which deals with appointment,to conclude that the governor simply acted on her own “personal capacity and discretion”,giving the “views and say of the state government a total go-bye”.

Section 3 of the Act prescribes that the governor appoints the Lokayukta after consultation with the Leader of Opposition and Chief Justice of the Gujarat High Court. The appeal interprets the provision to argue that the “concept of consultation as flowing from section 3 is not an empty formality and that the views and the say of the Council of Ministers of the State cannot be allowed to be suffocated”.

The appeal argues that though the executive power of the state is vested in the Governor,any decision or warrant from the gubernatorial office should not be without the aid and advice of the council of ministers headed by the chief minister.

“The Governor is always supposed to be aided and advised by the Council of Ministers in exercise of almost all the 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 Act,” it states.

Referring to Article 163 of the Constitution,the appeal said the performance of the executive power of the Governor,which is co-extensive with the legislative power,is with the aid and advice of the council of ministers headed by the chief minister.

Gujarat High Court had observed on Wednesday that “extraordinary situations demand extraordinary remedies”,and “open resistance of the council of ministers headed by the chief minister in not accepting the primacy of the opinion of the Chief Justice of the Gujarat High Court in the matter of appointment of Lokayukta has created a crisis situation.”