I/II.
12 October 2011
Rejecting a petition of the Gujarat government urging the apex court not to oversee the cases as the charge-sheets have been filed and trials had begun, the court, however, said that the trials were being monitored by the Special Investigation Team for the last two years and there was no change in circumstances to go back on that decision, adding that it had been tracking the cases for a long time and would also pass necessary direction later if needed.
While hearing a petition on September 13 filed by former Congress MP Ehsan Jafri's widow Zakia alleging that Chief Minister Narendra Modi and 62 top government officials deliberately refused to take action to contain riots, triggered by the February 27, 2002 Godhra train carnage, the court had refused to pass any order on the alleged inaction and referred the matter back to the trial court in Ahmedabad for a decision. The court had then observed that it would no longer monitor the investigations into the riots cases. Sources toldKhaleej Times that the Gujarat government had filed the plea in the SC after the federal government recently asked the apex court to stop monitoring in the 2G scam case as the charge-sheet had already been filed by the CBI in the trial court.
Meanwhile, Justice Sonia Gokani of the Gujarat High Court has ruled that retired Justice R A Mehta's appointment by the Gujarat Governor as the state Lokayukta (anti-graft ombudsman) was invalid and directed the state government to appoint a new Lokayukta within four months.
She was delivering her judgement on the Gujarat government's petition challenging the appointment of the lokayukta which was dismissed by another judge, Justice Akil Kureshi on Monday but Justice Gokani could not complete her verdict.
II.
http://www.dnaindia.com/india/report_lokayukta-issue-goes-to-third-judge-for-finals_1597876
By Nikunj Soni | Place: Ahmedabad | Agency: DNA
Justice Sonia Gokani of the Gujarat high court on Tuesday took a dissenting view from Justice Akil Kureshi and ruled that the appointment of (retired) Justice RA Mehta as the Lok Ayukta by the Governor was not consistent with the Constitution.
In a descriptive judgment, Justice Gokani also quashed the warrant issued by the state's Governor appointing Justice Mehta as Lok Ayukta. She further directed the state government to complete the appointment of Lok Ayukta within four months. Delivering the judgment, Justice Gokani said: "Appointment by the Governor to such a vital post as Lok Ayukta should not be allowed as per section 3(1) of the Gujarat Lok Ayukta Act-1986."
"The court cannot permit any disturbance in the democratic set-up and the constitutional scheme [for the purpose]. Any authority that overreaches constitutional provisions needs to be contained," the judge said. She further said that any "shortcut" in the appointment of the Lok Ayukta should not be allowed just because there had been a delay or because there was a growing demand for an appointment to the post.
The judge further said that there were no exceptions mentioned by the Constitution or by Supreme Court judgments that allowed the appointment of Lok Ayukta by the Gujarat Governor, a decision that was taken "by sending parliamentary process to the backseat."
Explaining the verdict, government pleader PK Jani said that Justice Gokani had said that the state government was not oblivious to the need to appoint a Lok Ayukta in the state. This was something that the Governor had assumed while appointing Justice Mehta as Lok Ayukta, Jani said.
He further said the judge had also held that the Governor had appointed Lok Ayukta amid ongoing consultations between the chief justice and the chief minister to find an appropriate person for the post.
Justice Gokani has taken a dissenting view from that of her fellow judge Justice Akil Kureshi who on Monday ruled that the Governor's action was valid as the state government had not appointed a Lok Ayukta for the last eight years. He had also said that the chief justice's view should prevail in the matter as he had approved of Justice Mehta's name for the post, saying that he was a man of high repute.The split verdict on the issue means the matter will now be handed over to a third judge by the chief justice of the Gujarat high court. The judge will hear the case from the beginning and deliver a verdict.
Only then will it be final whether the appointment of Lok Ayukta by Governor Dr Kamla bypassing the chief minister, was valid or not. The matter is likely to be sent to a third judge after Diwali.
A political controversy was sparked off when Dr Kamla bypassed the chief minister and appointed Justice Mehta as the Lok Ayukta on August 25. The government had filed a petition against the appointment. During the hearing on the petition, advocate general Kamal Trivedi had argued that the Governor had no constitutional power to appoint the Lok Ayukta without the aid and advice of the chief minister and the council of minsters.
Opposing the government's petition, senior counsel Girish Patel had contended that the Governor can appoint a Lok Ayukta as the post was lying vacant for eight years. Patel further said that the state government had wanted to scrap the chief justice's role from the appointment process by bringing an ordinance which gave the ruling party a dominant role in the matter.Patel had appeared as intervener on behalf of Bhikha Jethva, father of slain RTI activist Amit Jethva in the case.
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