Gujarat Lokayukta issue to now go to a 3rd Judge

Ahmedabad: In the wake of a split verdict by the Gujarat High Court on the controversial appointment of Lokayukta by the Governor, the issue is now likely to go to a third judge for breaking the tie.

Justice Akil Kureshi, who had on Monday upheld the appointment of Justice RA Mehta by Governor Kamla Beniwal, on Tuesday said that in case where there is a difference of opinion among the judges of a division bench, the practise is that the Chief Justice sends the matter to a third judge.

Meanwhile, Justice Sonia Gokani, who had on Monday differed with Justice Kureshi on the appointment of the Lokayukta, quashed the warrant of appointment issued on August 25, holding that the Governor had "overreached" herself and that her action was not in accordance with parliamentary democracy.

"The appointment of Mehta was not in accordance with parliamentary democracy and the Governor overreached her powers," she said.

Justice Gokani said no court would want such an important post to remain vacant for a long time and directed the government to appoint Lokayukta in four months.

On Monday, Justice Kureshi had upheld the appointment of Mehta, saying that normally the Governor has to act as per aid and advice of the council of ministers but this was a peculiar case.

Rejecting state government's contention that the governor did not act as per the advice of the council of ministers, Kureshi had said that in this case it cannot be said that Governor had acted in her discretion or without the aid and advice of the council of ministers.

"Without authority, appointment on such a vital post should not be allowed as per the Constitution and section 3(1) of the Gujarat Lokayukta Act. Neither in the name of delay nor in the name of growing demand any short cut should be made permissible," Justice Gokani observed in her order.

"Since no exception has been carved out by the constitution or by Supreme Court judgements, this decision of the Governor was taken by sending parliamentary process on to a back seat. Any authority that overreaches constitutional provision needs to be contained. The court cannot permit the disturbance in democratic setup and constitutional scheme," she further observed.

Justice Gokani also observed that it cannot be said that there was a stalemate between the Chief Justice and the Chief Minister on the name of Mehta as Lokayukta as the consultation process was going on.

She said that after the Chief Justice suggested the name of Mehta, the CM had raised objection citing Mehta's links with NGOs and social activist groups opposed to the state government.

This does not mean the consultation process was over and there was a stalemate, she added.

Justice Kureshi had on Monday said there was a deadlock on the name of Mehta, between the Chief Justice and the CM.

In that case, opinion of the Chief Justice should have been considered final, he had said.

Justice Gokani also observed that the post of Lokayukta was not equivalent to that of a judicial officer so the Governor's move to ask the Chief Justice to name just one person was not appropriate.

The Governor had on May 3, 2010, after seeking opinion of Attorney General GE Vahanvati, asked the Chief Justice to suggest only one name for the post of Lokayukta.

Justice Gokani said the state government had attempted twice to fill the post of Lokayukta after fulfilling the procedure laid down in the Act.

In 2006, the Chief Minister started the consultation process and the Chief Justice had sent a panel of names, Justice Gokani said. Justice KR Vyas' name was finalised by the Council of Ministers and sent to the Governor, who had returned the file in 2009.

Again in 2010, the government made a request to the Chief Justice of the High Court, who finalised the name of Justice JR Vora which was sent to the Governor for approval. That was also rejected, she noted.