On August 26, Gujarat Governor Dr Kamla, bypassing the Narendra Modi-led government, appointed Justice Mehta as the Lokayukta, a post that was vacant since 2003. State government challenged it in the high court on the same day. Advocate General Kamal Trivedi, representing the government, on Wednesday contended that warrant issued by the governor, appointing Mehta, needed to be quashed, as the decision was unconstitutional.
Arguing before the division bench of Justices Akil Kureshi and Sonia Gokani, Trivedi said the governor had taken the decision in haste, as the consultation process for selection of Lokayukta was on. In the parliamentary democracy, governor has to act as per the aid and advice of the council of the ministers, he said, adding that this was not the case here, hence Mehta's appointment was needed to be set aside.
He further said that in February 2010, Chief Justice of the Gujarat high court had suggested names of four retired HC judges for the post of Lokayukta. The governor sent the list back in May 2010, saying that she wanted to ascertain the correctness of the process.
Trivedi said the governor's decision to consult the attorney general of India and then refer the list back to CJ, asking him to suggest only one name, departed from the established process. It was against the constitution.
He contended that in August, the chief minister had conveyed his reservations against Mehta to the CJ, as well as the governor. CM had quoted various speeches made by Mehta at different forums in his letter, Trivedi said.
When the consultation was on, the Governor should have waited, he said. The governor's office had no proper understanding of the provisions of the Constitution, he said. Such actions of personal discretion put the democracy in peril, he added.
To this, Justice Kureshi said the high court did not want to go into the political fall-out of the issue. He asked Trivedi to stick to the legal contentions.
Trivedi further argued that barring six areas mentioned in the Constitution and five areas that had evolved in Supreme Court judgments, in all other matters, the governor had to act as per the advice of the state government.
Trivedi also listed important dates, suggesting that a due process of consultation was followed by the government. He gave earlier instances, where the names were suggested by the CJ, and government recommended one of them to the Governor, who appointed the person as Lokayukta. The arguments would continue on October 3.