In a setback to Gujarat Chief Minister Narendra Modi, the Supreme Court Wednesday upheld the appointment of Justice (retd.) R.A. Mehta as the Lokayukta of the state but noted that the governor "misjudged" her role on the issue.
An apex court bench of Justice B.S. Chauhan and Justice F.M. Ibrahim Kalifulla said that Justice Mehta was appointed as the state's Lokayukta after due consultation with the chief justice of the Gujarat High Court as provided under the statute.
Pronouncing the judgment, Justice Chauhan said: "The facts...make it clear that the process of consultation stood complete, and in such a situation, the appointment of (Justice Mehta) cannot be held to be illegal."
The court said that the points raised in the appeal of the Gujarat government "lack merit and are accordingly dismissed".
The court, however, took a critical view of the way Governor Kamla Baniwal totally disregarded the council of ministers in the appointment of the Lokayukta.
"The present governor has misjudged her role and has insisted that under the act, 1986, the council of ministers has no role to play in the appointment of the Lokayukta, and that she could, therefore, fill it up in consultation with the chief justice of the Gujarat High Court and the leader of opposition," the court said.
"Such attitude" the court said, "is not in conformity, or in consonance with the democratic set up of government envisaged in our constitution," the court said.
Rejecting the state government's contention, the court said: "The objections raised by the chief minister have been duly considered by the chief justice (of the high court), 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 (Justice Mehta) for appointment to the post of Lokayukta."
Addressing the contention of the Gujarat government that Justice Mehta held certain definite views and thus was not free from bias, the court said: "There are sufficient safeguards in the statute itself to take care of the pre-conceived notions in the mind, or the bias, of the Lokayukta..."
"...So far as the suitability of the person to be appointed as Lokayukta is concerned, the same is to be examined, taking into consideration the interests of the people at large, and not those of any individual."
On the governor's role, the court said: "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."
"Therefore, 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 court said.
The court took note that Governor Baniwal had sought the advice of Attorney General G.E. Vahanvati before embarking on the appointment of the Lokayukta and directly communicated with the chief justice of the state high court 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," the judges said.
"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 judges said.
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 court said.
Slamming the Gujarat government over delay in appointment of Lokayukta, the court said: "...the post of the Lokayukta has been lying vacant for a period of more than nine years."
Upholding the appointment of Justice Mehta as the Lokayukta, the court noted that he had not joined the office because of the pendency of the case and said that "he may join now."
The court said it was needless to say that the Gujarat government "shall provide all facilities/office and staff required to carry out the work of the Lokayukta".