Gandhinagar, Sep 6 (IANS): The appointment by Gujarat Governor Kamla Beniwal of a Lokayukta or an ombudsman bypassing the state government has whipped up a political storm in the BJP-ruled state and in parliament. While the state government has termed it a subversion of the constitution, legal experts are divided on the matter.

Meanwhile, two contempt of court petitions were filed Monday in the Gujarat High Court against Chief Minister Narendra Modi for writing to Prime Minister Manmohan Singh on the Lokayukta issue when the issue is before the court. Two public suits were also filed over the inordinate delay in filling up the post, lying vacant for over seven years.

All the four petitions, besides the state government's petition challenging the appointment of Justice (retd) R.A.Mehta as the Lokayukta, will come up for hearing on Sep 7.

The Narendra Modi government had, instead of appointing a Lokayukta, appointed a judicial inquiry commission headed by a retired Supreme Court judge M.R. Shah. The position of Lokayukta had been vacant since 2003 when retired high court Judge S.M. Soni, who was appointed by then chief minister Keshubhai Patel in 1998, had stepped down from his position.

Under the Gujarat Lokayukta Act, the state government does not play much role in the appointment of the ombudsman.

Section 3(1) of the Gujarat Lokayukta Act 1986 is very clear: "For the purpose of conducting investigations in accordance with the provisions of this act, the governor shall, by warrant under his hand and seal, appoint a person to be known as Lokayukta."

"Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a proclamation under article 356 of the Constitution is in operation in the state of Gujarat, after the consultation with the leader of the Opposition in the Legislative Assembly, or if there be no such leader a person elected in this behalf by the members of the opposition in that House in such manner as the speaker may direct," it states.

Chief Minister Modi's plea to the court is that "the governor has wrongly appropriated the function of the duly elected state government which is a major subversion of the Constitution. Article 163 of the Constitution is over and above Section 3 of the Lokayukta Act, 1986. The provision of any Act does not have a supremacy over provisions in the Constitution of India." According to Article 163 of the Constitution, the governor has to work on the aid and advice of the Council of Ministers.

Shaktisinh Gohil, leader of the Congress opposition in the Vidhan Sabha, asserts: "Chief Minister Modi's intentions were mala fide right from the beginning. He just does not want to appoint a Lokayukta because then all the wrong doings of the government will be probed."

"Why a toothless commission which reports only to him? Why not a Lokayukta?", he says, referring to the judicial inquiry commission set up by Modi.

Highly placed sources said that the state government had sent an ordinance proposing amendments in the Lokayukta Act. It suggested a committee for the selection of Lokayukta which would include two government members apart from the chief minister, Leader of Opposition and a judge of the high court. The proposed ordinance would have done away with the role of chief justice in the appointment of Lokayukta. However, Governor Beniwal went by the advice of the chief justice and appointed justice (retd) R.A. Mehta as Lokayukta instead of clearing the ordinance.

Lawyer activist Mukul Sinha of the Jan Sangharsh Manch says: "The opinion is that the chief justice's advice is final and binding and it is immaterial whether the appointment is done by the Governor or the state government."

Lawyer Anand Yagnik told IANS that "the post of Lokayukta in the state has been vacant for the last eight years... When corruption charges are against the chief minister, the cabinet is delaying a decision for obvious reasons. As a constitutional head, the governor has done her duty in the larger interest of the public."

Senior Advocate Sudhir Nanavaty, who is also head of the Gujarat Law Society, however differs. "President and Governor are constitutional heads. They are not elected; they are selected. So they alone can't take decisions on matters concerning public interest without the consent of the Council of Ministers... Though the Lokayukta has not been appointed in the state for almost eight years now, the governor should follow the legal procedure. The name for the same post should be recommended and selected by the consent of the cabinet and opposition party," Nanavaty told IANS.

Veteran lawyer Girish Patel said, "In the Constitution it is not clearly mentioned that the governor or president have powers to take independent decisions, but in the past there have been many such cases where president or governor has imposed their decisions. It depends upon the situation and circumstances... Both the parties can interpret the law in the high court from their point of view."

He adds: "We should not be commenting as the high court is seized of the matter and will interpret the law, keeping all facts and circumstances in mind."