New Delhi: The legal fraternity is divided on the manner in which the Gujarat Governor's discretionary powers have been interpreted in the appointment of retired Judge RA Mehta as the state's Lokayukta.

Last week the Bharatiya Janata Party (BJP) disrupted parliamentary proceedings on two days, seeking the recall of Governor Kamla Beniwal over the appointment of Mehta as the state's anti-corruption ombudsman.

The August 25 appointment by Beniwal has been resisted by Gujarat Chief Minister Narendra Modi. He has accused Mehta of being ‘biased and prejudiced’ against the government and questioned his capacity to act independently as the Lokayukta.

The Chief Minister has also contended that the Governor has eroded the credibility of the institution of Lokayukta.

Supreme Court counsel and former Madhya Pradesh advocate General Anoop Chaudhary felt that the Governor could act independently under the Gujarat Lokayukta Act in the exercise of discretionary powers.

Senior Counsel M.N. Krishnamani contended that Section 3 of the Gujarat Lokayukta Act, which provides for the appointment of Lokayukta by the Governor, is unconstitutional as it is ultra vires of Article 163 of the Indian constitution.

While agreeing that Section 3 of the Act does not expressly say that the governor will appoint the Lokayukta on the recommendation of the state cabinet, Krishnamani said that the expression ‘Governor’ in the section should be inferred to mean the Chief Minister or the cabinet.

He said that construing the section to mean that the Governor could act independent of the state government would run counter to clause (1) of Article 163 of the Indian constitution.

The clause reads: "There shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion."

Krishnamani said that no statute could survive if it was contrary to the mandate of the constitution.

Chaudhary disagreed. He said that the apex court had held in several matters that there could be situations in which the Governor could act independently without the aid and advice of the council of ministers.

He said that in the case of the Gujarat Lokayukta, the statute itself was explicit that the Governor would make the appointment in consultation with the High Court Chief Justice and the leader of the opposition.

Acording to Chaudhary, the fact that Modi wrote a letter to Chief Justice S.J. Mukhopadhaya, objecting to the latter recommending Mehta for the Lokayukta, clearly showed that he was in the know and even tried to amend the Gujarat Lokayukta Act to take away the powers of the Governor.

The Senior Counsel wondered how BJP leaders could reconcile their action of first moving the High Court and then stalling parliamentary proceedings on the issue. He said that if legality of the Governor's action was in question, it had to be settled legally.

Noted Jurist and Jan Lokpal bill drafting committee member Prashant Bhushan said that the entire course of events went to show that Modi was not inclined to submit his actions for scrutiny by an independent authority.

Bhushan said that for seven and a half years, Modi did not allow the appointment of a Lokayukta, and now that it was being done, he was trying to frustrate the efforts by making it a political issue.

"It shows the BJP and Narendra Modi in a poor light that they were unwilling to submit themselves to scrutiny by an independent authority," Bhushan said.