Janekere C. Krishna Vs. State of Karnataka and Others - Court Judgment

Excerpt:
indian penal code - section 193, constitution of india - articles 74, 124(2), 163, 217, 217(1), 222, 226, 227, 233 and 233(1), karnataka lokayukta act 1984 - sections 2, 3, 3(2)(a) and (b), 4, 5 to 9 and 6(7), 9(3), 11(2) and (3), 12 to 14, 12(3) and (5) and 13(1) judges (inquiry) act 1968, companies act 1956 - section 617, consumer protection act 1986 - sections 16, 16(1)(a) and 20(1)(a), criminal procedure code 1973, civil procedure code 1908, orissa lokpal and lokayukta act 1995 - sections 2(h) and 3(1), karnataka state vigilance commission rules 1980 -(prayer: these writ petitions are filed under articles 226 and 227 of constitution of india praying to set aside/quash the appointment of respondent no.3 as upa lok ayukta and direct the respondent nos.1 and 2 to appoint a upa lok ayukta after following the mandate in section 3(2)(b) of the karnataka lokayukta act, 1984 within a time frame as this hon’ble court deems fit and etc.,) 1. these two writ petitions are filed by two advocates challenging the appointment of mr. justice chandrashekaraiah (retired) as upa-lokayukta under section 3(2)(b) of the karnataka lokayukta act, 1984. they are taken up for consideration together and disposed of by this common order. 2. for the purpose of convenience, the parties are referred to as they are arrayed to in writ petition nos.4852-53/2012......

Judgment:

(Prayer: These Writ Petitions are filed under Articles 226 and 227 of Constitution of India praying to set aside/quash the appointment of respondent No.3 as Upa Lok Ayukta and direct the respondent Nos.1 and 2 to appoint a Upa Lok Ayukta after following the mandate in Section 3(2)(b) of the Karnataka Lokayukta Act, 1984 within a time frame as this Hon’ble Court deems fit and etc.,)

1. These two writ petitions are filed by two advocates challenging the appointment of Mr. Justice Chandrashekaraiah (Retired) as Upa-Lokayukta under Section 3(2)(b) of the Karnataka Lokayukta Act, 1984. They are taken up for consideration together and disposed of by this common order.

2. For the purpose of convenience, the parties are referred to as they are arrayed to in Writ Petition Nos.4852-53/2012.

FACTUAL MATRIX

3. One Sri. Janekere C. Krishna, an Advocate is the Petitioner in W.P.No.4852-53/2012, whereas Sri. Ananda Murthy R., an Advocate, is the petitioner in W.P.No.4962/2012. They have pleaded that both of them are practicing advocates and public-spirited citizens. Their case is that the third respondent was appointed as Upa Lokayukta without any consultation with the Hon’ble Chief Justice, much less giving any primacy to his opinion. It is widely reported that the Hon’ble Chief Justice of Karnataka has, in a communication to Respondent No.2, recorded his disapproval and displeasure with Respondent No.2’s i.e., Chief Minister advising His Excellency, the Governor of Karnataka to appoint Respondent No.3 as Upa-Lokayukta without consultation with the Hon’ble Chief Justice of Karnataka. The copy of one such report that appeared in the Bangalore Mirror on 9.2.2012 is produced at Annexure-A.

4. It is further contended that, the State of Karnataka does not want an effective, independent, impartial Lok Ayukta or Upa-Lok Ayukta as is evidenced by:

a) The manner in which it forwarded the name of Respondent No.3 for appointment as Upa-Lok Ayukta without consulting the Hon’ble Chief Justice of Karnataka.

b) This is not the first time in recent times that the State Government has not sought/followed the advise of the Hon’ble Chief Justice of Karnataka and the Former Chief Minister had profusely apologized to the then Hon’ble Chief Justice.

c) The intemperate, inappropriate, unwarranted and contumacious public comment that the Hon’ble Chief Justice’s letter questioning Respondent No.3’s appointment was “in total ignorance of law”. The same was prominently published on 11.2.2012 in coloured box on page No.5 of ‘Deccan Herald’, a copy of which is produced at Annexure-B. Such statements which denigrates and lower the image of the judiciary from the Former High Court Judge who is acting as Upa-Lok Ayukta by virtue of illegal appointment, is wholly uncalled for.

d) The needless controversy, which has led to no Lok Ayuktha being appointed till today. The controversy brought into public domain the suitability of Justice Bannurmath (Retired) for the post of Lok Ayukta as recommended by the State Government. This controversy regarding the suitability of Justice Bannurmath (Retired) to be appointed as Lok Ayukta not only lowered the esteem and dignity of post of Lok Ayukta but also the judiciary considering that till very recently Justice Bannurmath (Retired) was a High Court Judge for many years and retired as the Chief Justice of Kerala High Court.

e) The State Government has failed to appreciate that the post of Upa-Lok-Ayukta being a post to bring out transparency in the administration has the responsibility of appointing a person who is above board and is not tainted with allegations or mired in any controversy.

5. Thereafter, the petitioner has set out the contents of the letter said to have been written by the Hon’ble Mr. Justice Michel. F. Saldhana (Retired) to His Excellency the Governor of Karnataka making certain personal allegations against his brother colleague, the third respondent. The respondents in their statement of objections not only have traversed those allegations, but also have made allegations against him. The said allegations and counter allegations cannot be the subject matter of the writ petition in which judicial review is sought regarding the manner in which the appointment to a statutory post is made. We decline even to look into those allegations, as they have no relevance and consequently the same is not extracted. Therefore, we have eschewed all such irrelevant facts from the pleadings.

6. In W.P.No.4962/2012, the entire case of the petitioner is based on the contents of the letter addressed by the Hon’ble Chief Justice to the Chief Minister protesting against the appointment of third respondent to the post of Upa-Lokayukta without his consultation. In fact, the copy of the said letter is produced at Annexure-B to the writ petition. Therefore, in writ petition Nos.4852-53/2012, the petitioner is seeking to issue a writ of certiorari for quashing the impugned order appointing the third respondent as Upa-Lokayuka, whereas, in writ petition No.4962/2012, the petitioner is seeking to issue a writ of quo-warrantto to declare that the impugned notification issued is illegal, unconstitutional and non-est in law and consequently, quash the same.

7. After service of notice, both the State as well as the third respondent have filed separate/detailed statement of objections not only traversing the allegations made in the writ petitions, but also putting forth their case. The first respondent contended that the third respondent has been appointed as Upa Lok Ayukta vide order dated 21.1.2012. His appointment is made strictly in accordance with law and the same has been done after following the procedure contemplated under Section 3(2)(b) of The Karnataka Lokayukta Act, 1984 (for short hereinafter referred to as ‘the Act’). They contended that the newspaper reports produced by the petitioner cannot be relied upon and such newspaper reports cannot be made as basis to decide the validity or otherwise of any action taken in terms of the provisions of the Act, that too, without producing the impugned order.

8. It is their case that for the purpose of appointment of Upa-Lokayukta, the Hon’ble Chief Minister had initiated the process as required by law by writing letters to the constitutional functionaries named in Section 3(2)(b) of the Act to suggest the names for the purpose of advising His Excellency, the Governor of Karnataka, in the matter of appointing Upa-LOkayukta. In response to the said letter, the Hon’ble Chief Justice has suggested the name of Justice Sri. H. Rangavittalachar, Former Judge of the High Court of Karnataka and sent a communication dated 3.11.2011. The Opposition Leader in the Karnataka Legislative Assembly and Karnataka Legislative Council have recommended the name of Sri. Justice Mohammed Anwar, retired Judge of the Karnataka High Court and Sri. Justice Ramanna, Chairman of the Karnataka State Consumer Disputes Redressal Commission. On 31.10.2011, the Chairman of Karnataka Legislative Council has recommended the name of the third respondent herein. On 25.11.2011, the Speaker of the Karnataka Legislative Assembly has recommended the name of the third respondent herein. The second respondent, after considering the recommendations/suggestions made by the different constitutional functionaries, as stated above, has tendered his advise to His Excellency, the Governor to appoint the third respondent as Upa-Lokyukta. On the basis of the advice tendered by the second respondent, His Excellency the Governor, who is the Appointing Authority under the Act, has appointed the third respondent as Upa-Lokayukta.

9. In the matter of appointment of Upa-Lokayukta, consultation to be made with various constitutional functionaries is a procedural requirement and none among them have any primacy in the matter. Ultimately, while tendering advise to His Excellency the Governor for making appointment, the Chief Minister has the primacy in tendering advice. The language of Section 3(2)(b) of the Act is very clear that His Excellency the Governor shall appoint Upa-Lokayukta on the advice tendered by the Chief Minister and the Chief Minister while tendering such advice is only required to consult the constitutional functionaries named in the said Section. Dehors any suggestion or recommendation made by such constitutional functionaries, the Chief Minister has the prerogative to take an independent view in the matter and tender advice to His Excellency the Governor for appointing the Upa-Lokayukta. When such advice is tendered under the scheme of the Act, His Excellency the Governor shall appoint such person as Upa-Lokyukta.

10. Insofar as “consultation” is concerned, it is submitted that when the Chief Minister seeks a panel of names or opinion/suggestion of the constitutional functionaries under the Act and in turn, when such constitutional functionaries send their advise or suggestion, the consultation process gets completed. Thereafter, it is for the Chief Minister to take a decision in the matter notwithstanding any recommendations made by such constitutional functionaries. The Chief Minister can advice His Excellency, the Governor, to appoint any person other than the persons suggested or advised by these constitutional functionaries. The consultation is for very limited purpose of seeking the names for the purpose of appointment as Upa-Lokyukta. Consultation cannot be stretched beyond the same. Suitability of the candidate cannot be an issue in the matter especially when the Act itself prescribes qualification. The person to be appointed as Upa-Lokayukta shall be a Judge or retired Judge of the Hon’ble High Court. The Act itself prescribes the qualifications and disqualification and once a person comes within the qualification criteria prescribed under the Act, it cannot be said that he is unsuitable to hold the post of Upa-Lokayukta. As a matter of fact, insofar as the suitability of the third respondent is concerned, his name figured earlier in the panel of names suggested by the then Hon’ble Chief Justice and Leaders of the Opposition of Legislative Assembly and Legislative Council. Therefore, it cannot be said that the third respondent is unsuitable or disqualified for being appointed as Upa-Lokayukta.

11. In response to the letter written by the Chief Minister seeking the names, the constitutional functionaries have tendered their advice by proposing different names. Insofar as third respondent is concerned, two constitutional functionaries under the Act namely Hon’ble Speaker and the Chairman of the Karnataka Legislative Council have suggested his name. The Leader of Opposition in the Karnataka Legislative Assembly and Council and the Hon’ble Chief Justice have proposed different names. Ultimately, the Chief Minister, after considering these suggestions, felt that the third respondent is suitable to be appointed as Upa-Lokayukta and tendered his advice to His Excellency, the Governor, for making necessary appointment. Therefore, the said appointment cannot be found fault with.

12. The procedure followed for appointing of Upa-Lokayukta is the same procedure followed for all these years, in respect of previous appointments. While appointing either Lokayukta or Upa-Lokayukta earlier, the Chief Minister used to write letters to the constitutional functionaries under Section 3(2)(b) of the Act and in turn, they used to tender their advise in the form of panel of names and thereafter, the Hon’ble Chief Minister, by considering the same, used to tender his opinion/suggestion to His Excellency the Governor. This practice is not adopted for the first time and the same has not been found fault with anybody so far. However, surprisingly, challenging the appointment of the third respondent as Upa-Lokayukta, this Public Interest Writ Petition is filed. There is no public interest involved in the matter. By appointing the third respondent as Upa-Lokayukta, no public interest has suffered for the simple reason that he is not found ineligible or unsuitable by anybody. When the procedure adopted is not found fault with so far and is not questioned by the petitioner earlier, he cannot complain that the procedure followed now is not correct which affects public interest. On this ground alone, the above writ petitions are liable to be dismissed.

13. Respondent No.3 has been appointed as Karnataka Upa-Lokayukta and the said appointment has been made pursuant to the full and effective consultation made with different constitutional functionaries and the mandatory requirement of law as provided under Section 3(2)(b) of the Act, has been complied with. As per the procedure contemplated under Section 3(2)(b) of the Act, the second respondent herein is bound to consult the different constitutional functionaries as stated under Section 3(2)(b) of the Act and thereafter, recommend the name of the person for appointment as Upa-Lokayukta to His Excellency, the Governor of Karnataka. The second respondent after following the procedure contemplated under the Act has tendered the advice to His Excellency, the Governor of Karnataka, who in turn has appointed the third respondent.

14. Respondent No.2 had recommended the name of the third respondent as Upa-Lokayukta to set up effective Lokayukta institution for the purpose of improving the standards of public administration by looking into the complaints against the administration actions including the cases of corruption, favoritism and official indiscipline in administrative functions. The object and spirit behind Constitution of the Lokayukta have been considered by Respondents Nos.1 and 2 herein, before recommending the name of the third respondent as Upa-Lokayukta. Therefore, the writ petitions are devoid of merits and liable to be dismissed.

15. The third respondent has filed a detailed objection, according to which, the appointment of third respondent as Upa-Lokayukta has been made in strict and absolute compliance with the law and particularly, in compliance with the mandate of Section 3(2)(b) of the Act. He has reliably learnt that the Hon’ble Chief Minister had specifically sought the opinion and suggestion of each of the constitutional functionaries denoted in Section 3(2)(b) of the Act, including the opinion and suggestion of the Hon’ble Chief Justice of Karnataka. He has reliably learnt that the Hon’ble Chief Justice had suggested the names of Hon’ble Mr. Justice H. Rangavittalachar, whilst the Hon’ble Leader of the Opposition in the Karnataka Legislative Assembly and the Hon’ble Leader of the Opposition in the Karnataka Legislative Council had recommended the names of Hon’ble Mr. Justice Mohammed Anwar and Hon’ble Mr. Justice Ramanna. The Hon’ble Speaker of the Legislative Assembly and the Hon’ble Chairman of the Legislative Council, both recommended the name of third respondent herein.

16. Upon receipt and consideration of each of the recommendations, the second respondent recommended the candidature of the third respondent to be appointed as Upa-Lokayukta. He also reliably learnt that the consultation process adopted by the Government for the appointment of the third respondent as Upa-Lokayukta, was exactly the same as was previously adopted for appointment of all Lokayuktas and Upa-Lokayuktas, under the Act. Therefore, the allegation that the consultation process mandated under Section 3(2)(b) of the Act has not been complied with, and is therefore devoid of any merit. The allegation that the consultation with the Hon’ble Chief Justice should have primacy, is per se contrary to the mandate of the statute. Pursuant to Section 3 of Act, the Lok Ayukta and Upa-Lokayukta are appointed not for exercise of judicial functions but for conducting investigations and inquires in accordance with law and as per the provisions of the Act. Consequently, the law as regards primacy of the opinion of the Hon’ble Chief Justice for judicial appointment cannot be ipso facto applied to the appointment of Upa-Lokayukta under Section 3 of the Act.

17. The consultation process under Section 3(2)(b) of the Act provides that the Hon’ble Chief Justice is one of five consultees and it is for the Hon’ble Chief Minister to receive the suggestions/recommendations of each of the consultees and thereafter, tender his advise to the Governor. The Hon’ble Chief Minister is not bound by the advise of any of the consultees. It is pertinent to submit that the law regarding the primacy of the opinion that evolved regarding judicial appointments cannot be applied to the appointment of Upa-Lokayukta, who is an investigating/inquiring authority under the provisions of the Act. Section 3(2)(b) of the Act further mandates that the Upa-Lokayukta shall be a person who has held the office of the judge of a High Court. Consequently, primacy would have already been attributed to the higher Judicial functionary of the country for the appointment of a person of a Judge of the High Court. Once the person has been appointed as a Judge of the High Court, post retirement, if such person is to be considered for the appointed to a statutory investigatory post, it would be erroneous to further attribute primacy to the opinion of the Hon’ble Chief Justice. In the consultation process contemplated under Section 3(2)(b) of the Act, the opinion of the Hon’ble Chief Justice is not binding upon the Chief Minister. To accept the contentions of the petitioner would amount to conferment of a veto right on one of the consultees, which clearly is contrary to the express mandates of Section 3(2)(b) of the Act. The Act does not make the advise or suggestion of the Hon’ble Chief Justice binding upon Chief Minister. Any action taken by the Hon’ble Chief Minister, contrary to the advise received from the Hon’ble Chief Justice, will not be illegal and will not become void.

18. On two prior occasions, two predecessors of the present Chief Justice of Karnataka had recommended the name of third respondent for the position of Upa-Lokayukta. On both such occasions, the candidature of the third respondent was unanimously recommended by all the consultees, including the Hon’ble Chief Justice of Karnataka. The respondent was therefore in the reckoning for being appointed as the Upa-Lokayukta even prior to the consultative process, that led to the issuance of the notification dated 21.1.2012, culminating the third respondent being appointed as the Upa-Lokayukta (copy of the relevant proceedings has produced at Annexure-R1). He contends there are no bona fides in the Writ Petition filed, as the petitioner is only a mask and the real person is his former colleague. On that score, he wants the Writ Petitions to be dismissed.

RIVAL CONTENTIONS

19. The learned Counsel for the petitioner in W.P.Nos.4852-4853/12 Sri Navkesh Batra assailing the impugned order contended that the Lokayukta and Upa-Lokayukta are institutions of integrity. Their functions are supposed to be independent of the Executive. The purpose of setting up that institution is to take action against maladministration and improve the vigilance administration of the State. Therefore the person to be appointed to the said post is a Judge of the High Court. Without consulting the Chief Justice, the Chief Minister cannot advice the Governor in the appointment of Upa-Lokayukta or Lokayukta. Therefore, prior consultation is mandatory. Consultation should be candidate specific, time specific and post specific. The letter written by the Chief Justice to the Chief Minister protesting against the appointment of the third respondent to the post of Upa-Lokayukta as he was not consulted before the said appointment makes it clear that the appointment of the third respondent is made in derogation of the mandatory requirement of law as contained in Section 3(2)(b). Therefore it is void, ab initio, non est in the eye of law and is liable to be set aside.

20. The words, ‘in consultation with’ used in Section 3(2)(b) of the Act means, there should be meeting of mind between the Chief Minister and the persons to be consulted, in particular, the Chief Justice, having regard to the nature of functions to be performed by such appointee and the object with which the aforesaid legislation is enacted by the legislature. Consultation is sine quo non for a valid appointment, which is admittedly not there in the instant case. Therefore, he submits that in the scheme of the Act and the nature of duties to be performed, the qualification prescribed for appointment to that post and in view of the law declared by the Apex Court in various contexts, it is fairly well settled that whenever a person to be appointed is a High Court Judge and if there is a mandate of law to the Chief Minister to consult the Chief Justice, the name of the person to be appointed to the said post should emanate from the Chief Justice. It is thereafter, there should be consultation regarding the said name, if there are any other authorities to be consulted and only thereafter, the Chief Minister can advice the Governor for such person being appointed as the Upa-Lokayukta or Lokayukta. He further submits that as the procedure prescribed under law and the mandate of the law has not been followed, the same falls within the four corners of judicial review by this Court. Then it becomes the duty of the Court to strike down the order passed, if it is in violation of those statutory provisions. Therefore, he submits that seen from any angle, the impugned order is void, ab initio and liable to be set aside.

21. Sri Ravishankar Shastry, the learned counsel appearing for the petitioner in the connected Writ Petition contended that, as the definition of ‘public servant’ under the Act includes the Chief Minister, the Chief Minister cannot choose the Lokayukta or Upa-Lokayukta of his choice as he falls under their jurisdiction. He has to make a request to the Chief Justice to suggest the name of the Judge to be appointed, and only in consultation with him he can advice the Governor, which he has not done in the instant case, as such the impugned order is illegal and liable to be set aside.

22. The learned Advocate General Sri S.Vijaya Shankar, appearing for the State contended that the word ‘consultation’ as referred to in Section 3(2)(b) of the Act means, the Chief Minister before he advises the Governor to appoint Upa-Lokayukta, has to request all the Constitutional authorities mentioned in the said provision to give a panel of names. After receipt of those panel of names, it is for the Chief Minister to select one among them and then accordingly advice the Governor for appointment. This procedure according to the State is what ‘consultation’ means, as stipulated in the said provision. Receiving the names from the Constitutional functionaries constitutes ‘consultation’. There need not be any meeting of mind. This practice is followed from inception and therefore there is no need to deviate from the said procedure. He further submitted that the word ‘consultation’ finds place in the Constitution of India. The said word has been the subject matter of various decisions by the Apex Court. The word ‘consultation’ as understood in the context of Constitutional provisions cannot read into the Act in interpreting the word ‘consultation’ in the statute. Therefore, the meaning assigned by the Apex Court to ‘consultation’ and ‘consultation process’ under the Constitution, while discharging their functions under the Constitution can neither be a guide nor binding decision in deciding the meaning of the word ‘consultation’ found in the statutory provision. He also submitted that if the recommendation made by the consultor is not binding on consultee, then the said provision is only directory and not mandatory. Though consultation is mandatory, the recommendation tendered, as it is not binding on the Chief Minister, it has to be held as only directory and even if there is any violation of such directory provision, it would not render the appointment made void ab initio. It would be a case of mere irregularity. Therefore, he submitted that in the instant case, the Chief Minister wrote letters to all the Constitutional functionaries who in turn recommended their candidates and the Chief Minister has chosen a candidate which is recommended by the Constitutional functionaries, which according to him is strictly in accordance with law and therefore no case for judicial review of the selection process is made out.

23. Sri Udaya Holla, learned Senior Counsel and former Advocate General appearing for the third respondent, supporting the stand of the State contended, that the Chief Minister under the aforesaid provisions has to consult not one Constitutional authority but he is expected to consult five Constitutional authorities. There cannot be any discrimination among them. Therefore, the contention that the name has to emanate only from Chief Justice and the recommendation of the Chief Justice should get primacy over others, is without any substance. If such an interpretation is placed, it would run counter to the said provision and gives an impression that role of other Constitutional functionaries is not of much importance. Therefore, he submits that in the context in which the word ‘consultation’ is used in the Section, an obligation is cast on the Chief Minister to consult all the Constitutional functionaries for their opinion in writing and then to take a decision on the basis of their opinion. Therefore, the procedure now followed in appointing the third respondent as Upa-Lokayukta is strictly in accordance with law and therefore cannot be found fault with.

24. He also contended that this is a Public Interest Litigation. The petitioner has not come to the Court with clean hands. He is only a name lender and the person who is enemically disposed towards the third respondent has set up the petitioner. In fact, the confidential letter written by the former Judge of this Court to the Governor is produced and the petitioner has not explained how he came in possession of the said document. It only demonstrates that the person who is prosecuting the matter is not the real person. As held by the Apex Court in more than one judgment, the Court should be cautious in encouraging such private motivated litigation in the garb of Public Interest Litigation. Therefore, he submits that as the Writ Petition filed by the petitioner in W.P.Nos.4852-4853/12 lacks bonafides, they are liable to be dismissed. However, he submitted that he has nothing to say against the petitioner in W.P.No.4962/12 in this regard.

25. Sri Nanjunda Reddy, learned Senior Counsel appearing for the third respondent in W.P.No.4852/12, in addition, submitted that though Section 3(2)(a) and 3(2)(b) are identically worded, it is well settled that the same word in a particular statute, in a particular provision, can have different meaning. Viewed from that angle, though the word ‘in consultation with’ is used in both these sub-clauses, it has a different meaning. In so far as Section 3(2)(a) is concerned, it deals with appointment of Lokayukta. The qualification prescribed is, the person to be appointed should be a Judge of Supreme Court or a former Chief Justice of a High Court. The person to be appointed as Lokayukta, in the course of discharge of his duty under the Act, has jurisdiction against the Chief Minister, Ministers, MLAs and other notified persons. Therefore, obviously the Chief Minister cannot have any supremacy in the matter of appointment of Lokayukta. Therefore in such a case, the person to be appointed and the name of such person has to emanate from the Chief Justice, as the Chief Minister and all other Constitutional functionaries fall within the jurisdiction of Lokayukta. The Legislature has advisedly in that provision used the word ‘consultation’ and it is to be understood as the Chief Justice should suggest the name which the other Constitutional functionaries cannot veto.

26. However, when it comes to the question of Upa-Lokayukta, he has no jurisdiction over the Chief Minister, Ministers, MLAs and other Constitutional functionaries. Therefore, in the matter of appointment of Upa-Lokayukta, there is no obligation cast under the Act on the Chief Justice to suggest the name. The name need not emanate from the Chief Justice. All the Constitutional functionaries are placed in the same footing and each one of them can suggest the name of their choice and no primacy need be given to the recommendation of the Chief Justice. The recommendation made by the Chief Justice is not binding on the Chief Minister. There is no personal element involved in the appointment of the Upa-Lokayukta, in so far as the Chief Minister is concerned. Having regard to the investigatory function to be discharged by the Upa-Lokayukta, the Chief Minister has supremacy and mere calling upon the Constitutional functionaries to suggest the name would constitute complying with the procedure prescribed for ‘consultation’.

27. Therefore, in the instant case, when the procedure is followed, it cannot be found fault with. Even otherwise, though consultation is mandatory, the process of consultation being directory, assuming that there is some irregularity, it would amount to an irregular appointment and not a void appointment. Therefore there is no scope for judicial interference, as no public interest is in any way affected and on the contrary, interference with such appointment would affect public interest. Therefore, he submitted that no case for interference with the said order is made out.

SCOPE OF SUBJECT MATTER

28. The Act expressly does not provide a particular procedure for appointment of Lokayukta as well as Upa-Lokayukta. The absence of specific guidelines in the Act, appears to be deliberate, since the power is vested in High Constitutional functionaries. The Government is under the impression that the procedure which they are following all these days is in accordance with law. They are making appointments on that basis in spite of the Chief Justice making available to the Government the judgment of the Apex Court on the subject. It is thereafter even though the previous Chief Minister profusely apologized to the Chief Justice, the present Chief Minister did not follow the law declared by the Apex Court in the matter of appointment of third respondent to the post of Upa-Lokayukta and followed the old procedure. Under these circumstances, we have heard the learned Counsel at length on all aspects. Therefore, though the question involved in this case is only regarding the validity of the appointment of the Upa-Lokayukta, as the language employed in both Section 3(2)(a) and 3(2)(b) are identical, the only difference being the qualification of the person to be appointed, depending upon the post whether it is Lokayukta or Upa-Lokayukta, we have proceeded to interpret that provision in the context of the appointment of both Lokayukta and Upa-Lokayukta.

POINTS FOR CONSIDERATION

29. It is in this background and in the light of the facts of this case and the rival contentions and the various judgments relied on by the parties, the points that arise for our consideration are as under:

(1) What is the procedure prescribed in provision of Section 3(2)(a) and (b) for appointment of Lokayukta and Upa-Lokayukta and in particular having regard to the meaning of the words ‘in consultation with’ used in the said provision?

(2) Whether the name of the person to be appointed as Lokayukta and Upa-Lokayukta has to emanate only from the Chief Justice or from all other Constitutional functionaries?

(3) Whether the name suggested by the Chief Justice would have any primacy?

30. The answer to the aforesaid question revolves round the interpretation to be placed by this Court on Section 3 of the Act.

Section 3 reads as under:

“3. Appointment of Lokayukta and Upa-Lokayukta.

(1) For the purpose of conducting investigations and enquires in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-Lokayukta or Upa-Lokayuktas.

(2)(a) A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislature Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly.

(b) A person to be appointed as an Upa-Lokayukta shall be a person who has held the office of a Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the opposition in the Karnataka Legislative Council and the Leader of the opposition in the Karnataka Legislative Assembly.

(3) A person appointed as the Lokayukta or an Upa-Lokayukta shall, before entering upon his office, make and subscribe before the Governor, or some person appointed in that behalf of him, an oath or affirmation in the form set out for the purpose in the First Schedule.”

31. When we look at Section 3, there is no ambiguity in respect of the following:

(i) The appointing authority, i.e., the Governor

(ii) The person to be appointed shall be a person who has held office as a Judge of the Supreme Court or the Chief Justice of the High Court in respect of Lokayukta and a Judge of the High Court in the case of Upa-Lokayukta.

(iii) The Governor appoints the Judge on the advise tendered by the Chief Minister.

(iv) There is no ambiguity in respect of persons who are to be consulted namely:

(a) Chief Justice of High Court of Karnataka

(b) The Chairman, Karnataka Legislative Council

(c) The Speaker, Karnataka Legislative Assembly

(d) The Leader of the Opposition in the Karnataka Legislative Council and

(e) The leader of the Opposition in the Karnataka Legislative Assembly.

(v) The person so appointed shall, before entering upon his office shall make and subscribe an oath or affirmation in the form set out for the purpose in the First Schedule.

32. However, there is ambiguity in so far as the consultation process is concerned. The way in which the Section is worded, before tendering the advise to the Governor, the Chief Minister has to consult the aforesaid Constitutional functionaries. In the entire Section, there is no indication as to who should propose first or can every one of them suggest the name of the person to be appointed; how the consultation process is to be conducted with reference to that person; what are the inputs each of the Constitutional functionaries should contribute in the said consultative process; in the course of such consultation, if there is no unanimity, how that difference is to be resolved, whether this consultation process is to be undertaken by all the Constitutional functionaries sitting at a place or by circulation, and how, ultimately a decision is to be taken regarding the person to be appointed. Though various rules are framed under the Act, the procedure to be followed for the appointment of Lokayukta/Upa-Lokayukta or how the consultation process is to be carried out is not set out in any of the rules framed. Therefore, the aforesaid questions and doubts remain unanswered. It is in these circumstances, when the Section does not expressly state the aforesaid requirement, as there is ambiguity, a case for interpretation of the said provision arises. Once a case for interpretation arises, to interpret the statute in a reasonable manner, the Court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to, which would require the construction of the Act in such a manner as to see that the object of the Act is fulfilled. First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably. In order to resolve the ambiguity we must resort to the state of law, the object with which the law was enacted and the mischief which is sought to be remedied.

33. Therefore, when the aforesaid sub-sections do not expressly state what is the consultative process which is to be effected before the Chief Minister advises the Governor to make appointment and in the absence of any guidelines in the rules framed, the Court has to interpret the said provision keeping in mind the object sought to be achieved by the legislature enacting the law.

34. The statement of objects and reasons reads as under:

The Administrative Reforms Commission had recommended the setting up of the institution of Lokayukta for the purpose of improving the standards of public administration, by looking into complaints against the administrative actions, including cases of corruption, favouritism and official indiscipline in administrative machinery.

One of the election promises in the election manifesto of the Janatha Party was the setting up of the Institution of the Lokayukta.

The Bill provides for the appointment of a Lokayukta and one or more Upa-Lokayuktas to investigate and report on allegations or grievances relating to the conduct of public servants.

The public servants who are covered by the Act include:-

(1) Chief Minister;

(2) all other Minister and Members of the State Legislature;

(3) all officers of the State Government;

(4) Chairmen, Vice Chairmen of Local Authorities, Statutory Bodies or Corporations established by or under any law of the State Legislature, including Co-operative Societies;

(5) Persons in the service of Local Authorities, Corporations owned or controlled by the State Government, a company in which not less than 51% of the shares are held by the State Government, Societies registered under the Societies Registration Act, Co-operative Societies and Universities established by or under any law of the Legislature.

Where, after investigation into a complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration that the post held by him, and the declaration is accepted by the Competent Authority, the public servant concerned, if he is a Chief Minister or any other Minister or Members of State Legislature shall resign his office and if he is any other non-official shall be deemed to have vacated his office, and, if an official, shall be deemed to have been kept under suspension, with effect from the date of the acceptance of the declaration.

If after investigation, the Lokayukta is satisfied that the public servant has committed any criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law for such prosecution shall be deemed to have been granted.

The Vigilance Commission is abolished. But all inquires and investigations and other disciplinary proceedings pending before the Vigilance Commission will be transferred to the Lokayukta.

35. By enacting the Act, Karnataka State Vigilance Commission Rules, 1980 was repealed. Section 2 of the Act is a definition Section which gives the meaning of various words used in the Act. Section 3 deals with appointment of Lokayukta and Upa-Lokayukta which is already extracted above. If Section 3 provides for the qualification of a person to be appointed as the Lokayukta or Upa-Lokayukta, Section 4 prescribes the disqualifications. It reads as under:-

“4. Lokayukta or Upa-Lokayukta not to hold any other office- The Lokayukta or Upa-Lokayukta shall not be a member of the Parliament or be a member of the Legislature of any State and shall not hold any office of trust or profit (other than his office of Lokayukta or Upa-Lokayukta) or be connected with any political party or carry on any business or practice any profession and accordingly, before he enters upon his office, a person appointed as the Lokayukta or an Upa-Lokayukta shall-

(a) if he a Member of the Parliament or of the Legislature of any State, resign such membership; or

(b) if he holds any office of trust or profit, resign from such office; or

(c) if he is connected with any political party, sever his connection with it; or

(d) if he is carrying on any business, server his connection (short of divesting himself of ownership) with the conduct and management of such business; or

(e) if he is practicing profession, suspend practice of such profession.”

36. Section 5 of the Act deals with term of office and other conditions of service of Lokayukta and Upa-Lokayukta. It reads as under:-

“5. Term of office and other conditions of service of Lokayukta and Upa-Lokayukta – (1) A person appointed as the Lokayukta or Upa-Lokayukta shall hold office for a term of five years from the date on which he enters upon his office;

Provided that.-

(a) the Lokayukta or an Upa-Lokayukta may, by writing under his hand addressed to the Governor, resign his office;

(b) the Lokayukta or an Upa-Lokayukta may be removed from office in the manner provided in Section 6.

(2) On ceasing to hold office, the Lokayukta or an Upa-Lokayukta shall be ineligible for further employment to any office of profit under the Government of Karnataka or in any authority, corporation, company, society or university referred to in item (g) of clause (12) of section 2.

(3) These shall be paid to the Lokayukta and the Upa-Lokayukta every month a salary equal to that of the Chief Justice of a High Court and that of a Judge of the High Court respectively;

(4) The allowances payable to and other conditions of service of the Lokayukta or an Upa-Lokayukta shall be such as may be prescribed;

Provided that.-

(a) in prescribing the allowances payable to and other conditions of service of the Lokayukta, regard shall be had to the allowances payable to and other conditions of service of the Chief Justice of India;

(b) prescribing the allowances payable to and other conditions of service of the Upa-Lokayukta, regard shall be had to the allowances payable to and other conditions of service of a Judge of the High Court;

(c) no Dearness Allowance shall be payable either to the Lokayukta or Upa-Lokayukta;

Provided further that the allowances payable to and other conditions of service of the Lokayukta or Upa-Lokayukta shall not be varied to his disadvantage of his appointment.

(5) The administrative expenses of the office of the Lokayukta and Upa-Lokayukta including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged on the Consolidated Fund of the State.”

37. Section 6 of the Act deals with removal of Lokayukta or Upa-Lokayukta. It reads as under:-

“6. Removal of Lokayukta or Upa-Lokayukta-

(1) Lokayukta or an Upa-Lokayukta shall not be removed from his office except by an order of the Governor passed after an address by each House of the State Legislature supported by a majority of the total membership of the House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the Governor in the same session for such removal on the ground of proved misbehaviour or incapacity.

(2) The procedure of the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of the Lokayukta or an Upa-Lokayukta under sub-section (1) shall be as provided in the Judges (Inquiry) Act, 1968 in relation to the removal of a Judge and accordingly the provisions of that Act shall, mutatis mutandis, apply in relation to the removal of the Lokayukta and Upa-Lokayukta as they apply in relation to the removal of a Judge.”

38. Then, Section 7 deals with matters which may be investigated by the Lokayukta and Upa-Lokayukta. It reads as under:-

“7. Matters which may be investigated by the Lokayukta and an Upa-Lokayukta.- (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or special approval of,-

(i) the Chief Minister;

(ii) a Minister

(iii) a Member of the State Legislature; or

(iv) the Chairman and the Vice-Chairman (by whatever name called) or a member of an authority, board or a committee, a statutory or non-statutory body or a corporation established by or under any law of the State Legislature including a society, co-operative society or a Government company within the meaning of section 617 of the Companies Act, 1956, nominated by the State Government in any case where a complaint involving a grievance or an allegation is made in respect of such action.

(b) any other public servant holding a post or office carrying either a fixed pay, salary or remuneration of more than rupees twenty thousand per month or a pay scale the minimum of which is more than rupees twenty thousand as may be revised, from time to time in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Lokayukta, recorded in writing, the subject of a grievance or an allegation.

(2) Subject to the provisions of the Act, an Upa-Lokayukta may investigate any action which is taken by or with the general or specific approval of, any public servant not being the Chief Minister, Minister, Member of the Legislature. Secretary or other public servant refereed to in sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect of such action or such action can be or could have been, in the opinion of the Upa-Lokayukta, recorded in writing, the subject of a grievance or an allegation.

(2A) Notwithstanding anything contained in sub-sections (1) and (2), the Lokayukta or an Upa-Lokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government.

(3) Where two or more Upa-Lokayuktas are appointed under this Act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act.

Provided that no investigation made by an Upa-Lokayukta under this Act, and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.

(4) Notwithstanding anything contained in sub-sections (1) to (3), when the office of an Upa-Lokayukta is vacant by reason of his death, resignation, retirement, removal or otherwise or when an Upa-Lokayukta is unable to discharge his functions owing to absence, illness or any other cause, his function may be discharged by the other Upa-Lokayukta, if any and if there is no other Upa-Lokayukta by the Lokayukta.”

39. Section 8 of the Act expressly states what are the matters not subject to investigation by the Lokayukta and Upa-Lokayukta. The rest of the provisions deals with procedure to be followed on receipt of complaint by Lokayukta or Upa-Lokayukta.

40. Therefore, from the aforesaid provisions and the object with which this enactment was passed, it is clear that the legislature has set up this office of Lokayukta and Upa-Lokayukta to fight corruption, favouritism and official in-discipline in the administrative machinery. The Act was enacted with the aim to set up a strong and independent institution of Lokayukta to create confidence in the people that investigation in respect of complaints and allegations against police servants would be enquired into. The Act is a strong tool to fight corruption. In an enquiry by a Lokayukta or Upa-Lokayukta a corrupt politician or bureaucrat may be exposed. Even the Chief Minister and Cabinet Ministers are brought within the net of the Lokayukta. It is imperative that the person to be appointed as Lokayukta or Upa-Lokayukta should be an independent person with impeccable stature and background so that he can do justice to his office. He must have probity. There can be no debate on the question that the Lokayukta/Upa-Lokayukta have to be men of personal impeccable integrity, character and credibility. Therefore, legislature advisedly thought it fit to appoint a Judge of the Supreme Court or Chief Justice of High Court and Judge of the High Court to hold the said post respectively.

41. A Judge of a High Court or a Supreme Court if he ceases to be a Judge, can become a member of a Parliament or the State Legislature or hold any office of trust or profit or be connected with any political party. He may also carry on business or be connected with management of business. If he is a Judge of a High Court on his demitting the office, he may practice the profession of advocacy in the Apex Court. Therefore, the mere qualification that he was a Judge either of the High Court or the Supreme Court by itself cannot be a criteria for his appointment as Lokayukta or Upa-Lokayukta. That is the basic qualification. He should not suffer from any disqualification as prescribed under Section 4. Therefore, before during his Judgeship is to be taken into consideration but also his conduct even after demitting the office till the date of his appointment, has to be taken note of by the Constitutional functionaries.

42. This provision namely Section 5 of the Act denotes the high office of Lokayukta and Upa-Lokayukta, in the eyes of the State. Firstly, a person who is validly appointed as Lokayukta and Upa-Lokayukta under the Act cannot be removed from the said office during his tenure, except in the same manner in which a sitting Judge of the High Court or Supreme Court has to be removed. That is the guarantee of tenure conferred on Lokayukta and Upa-Lokayukta. What the Constitution confers on the Judges of the superior Court, the statute confers that benefit on the Lokayukta and Upa-Lokayukta. Secondly, his pay is charged on the consolidated fund of the State as in the case of the Judges of the Superior Courts. More importantly, after he completes his term, he is disabled from holding any office of profit in the State of Karnataka. Therefore, these stringent conditions incorporated in Section 5 show the status of Lokayukta and Upa-Lokayukta and it cannot be characterized as a mere investigating agency and that the Lokayukta and Upa-Lokayukta are only investigators. Lokayukta and Upa-Lokayukta apart from performing the functions of the investigator also performs the quasi-judicial function of enquiring into various allegations and complaints.

43. A clear distinction has been made in so far as the jurisdiction of these two authorities are concerned. It is not overlapping. Therefore, the area of operation is clearly demarcated. Only in the event of the office of the Upa-Lokayukta becoming vacant, by reason of his death, resignation, retirement, removal or otherwise and when an Upa-Lokayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa-Lokayukta if any, and if there is no other Upa-Lokayukta, by the Lokayukta. Otherwise, their area of operation is clearly demarcated under the statute. The Lokayukta may investigate any action which is taken by or with the general or specific approval of the Chief Minister, a Minister, a Member of the State Legislature and persons who are mentioned in clause (iv). Excluding those persons who fall within the jurisdiction of Lokayukta, Upa-Lokayukta may do what Lokayukta does in respect of other public servant.

44. Except the fact that the post of Lokayukta and Upa-Lokayukta is not a constitutional post, as that of a Judge of High Court or Supreme Court, and is not appointed by the President of India, in all other respects it has the characteristics of a constitutional post. The fact that he is assured of a tenure; his pay is charged to consolidated Fund of India, he can be removed only in the manner Judges of the superior Courts be removed, after his tenure he cannot be appointed to any public office in the State and he performs quasi-judicial function, makes it clear, though the post of Lokayukta and Upa-Lokayukta, is a statutory post, it has all the trappings of a constitutional post. That is the reason why the Legislature in its wisdom has put restrictions on the Chief Minister in advising the Governor regarding the person to be appointed as a Lokayukta or Upa-Lokayukta. It is expressly stated that the person to be appointed shall be a Judge of the High Court or Supreme Court. The said appointment has to be made on the advice of the Chief Minister in consultation with the Chief Justice. Once the Chief Justice is involved in the consultation process, the intention of the legislature is manifest and the role of the Chief Justice cannot be compared or equated to that of the other Constitutional functionaries. It is not a political appointment. The Lokayukta and Upa-Lokayukta do not hold office at the pleasure of the Government, as in the case of political appointments. If that was so, there was no need to associate the Chief Justice of the State in the process of appointment. Excluding the Chief Justice, other constitutional functionaries could have made the appointment. The fact that the Chief Minister is not conferred the absolute power to appoint a person of his choice and the qualification of a Judge of High Court or Supreme Court is prescribed and only in consultation with the Chief Justice, he can tender advice to the Governor, makes the intention of the legislature clear. The said intention cannot be ignored. Therefore, “consultation” is ‘sine quo non’ before advice is tendered to the Governor.

CONSULTATION

45. It is in the background of this, we have to decide what is the meaning attributed to the words “in consultation with”. Therefore, we have to first find out the meaning of the word “consultation”. This word “consultation” has a dictionary meaning, a legal meaning and meaning as used in the Constitution apart from the meaning attributed to it under various statutes as interpreted by the Courts. Now, first let us the see the meaning attributed to it in the dictionary.

DICTIONARY MEANING

46. Shorter Oxford English Dictionary defines ‘consultation’ as under-

“Consultation: 1. The action of consulting or taking counsel together; deliberation, conference; 2. A conference in which the parties, e.g. lawyers or medical practitioners consult and deliberate, 3. The Action of consulting….”

47. In Webster’s Encyclopedic Unabridged Dictionary of the English Language, the meaning of consultation is given thus:

“Consultation: 1. The act of consulting; conference, 2. a meeting for deliberation, discussion, or decision…”

48. Word and Phrases – Permanent Edition gives the meaning of ‘consult’ thus:

“Consult means to seek opinion or advice of another, to take counsel; to deliberate together; to confer; to deliberate on; to discuss to take counsel to bring about; devise; contrive; to ask advice of; to seek the information of; to apply to for information or instruction; to refer to.

LEGAL MEANING

49. Now, let us see the legal meaning attributed to this word.

50. Black’s Law Dictionary defines the expression as under:

“Consultation: Act of consulting of conferring; e.g. patient with doctor; client with lawyer, Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it.

Stroud’s Law Lexicon gives the following definition:

“Consultation: ‘consultation with any local authorities ‘Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice”

In common parlance, whenever the expression ‘consultation’ is used in connection with lawyers, or with the physician of with the engineer etc. it would mean as seeking opinion or advice or aid or information or instruction.

51. In Corpus Jusris Secundum Vol. 16A at page 1243, the meaning of the word ‘consultation’ is given thus:

“Consultation: The word ‘consultation’ is defined general as meaning the act of consulting; deliberation with a view to decision; and judicially as meaning the deliberation of two or more persons on some matter; also council or conference to consider a special case. In particular connections, the word has been defined as meaning a conference between the counsel engaged in a case, to discuss its question or to arrange the method of conducting it, the accepting of the services of a physician, advising him of one’s symptoms, and receiving aid from him.”

52. In Law Lexicon by P. Ramanath Aiyar, it is stated as follows:

“Consultations always require two persons at least, deliberations may be carried on either with a man’s self or with numbers; an individual may consult with one or many; assemblies commonly deliberate; advice and information are given and received in consultation; doubts, difficulties, and objection are stated and removed in deliberations. Those who have to co-operate must frequently consult together; those who have serious measures to decide upon must cooly deliberate.

STATUTORY PROVISIONS

53. The word ‘consultation’ as interpreted by Courts in connection with statutory provisions.

The word ‘consult’ was subject matter of judicial scrutiny in FLETCHER V. MINISTER OF TOWN PLANNING (1947) 2 ALL E.R. 496 in which the learned Judge observed thus:

“The word ‘consultation’ is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one.”

54. In R. PUSHPAM AND ANR. v. STATE OF MADRAS AIR 1953 MADRAS 392, it is held as under:

“The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consultor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uniformed person and an expert or between two experts. A patient consults a doctor, a client consults his lawyer; two lawyers or two doctors may hold consultations between them-selves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.

CONSULTATION OF INDIA

55. Let us see the word ‘consultation’ as used in the Constitution and the interpretation placed by the Apex Court in explaining the meaning of the word ‘consultation’.

The Apex Court in the case of CHANDRA MOHAN v. STATE OF UTTAR PRADESH AND OTHERS reported in AIR 1966 SC 1987, held as under:-

7. The first question turns upon the provisions of Art.233 of the Constitution. Article 233(1) reads:

“Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.”

We are assuming for the purpose of these appeals that the “Governor under Art. 233 shall act on the advice of the Ministers. So, the expression “Governor” used in the judgment means Governor acting on the advice of the Ministers. The constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of district judges in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the “judicial service” or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so, for his mind may be influenced by other persons not entitled to advice him. That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. Wherever the Constitution intended to provide more than one consultant, it has said so; See Arts.124 (2) and 217(1). Wherever the Constitution provided for consultation of a single body or individual it said so: see Art 222. Art. 124 (2) goes further and makes a distinction between persons who shall be consulted and persons who may be consulted. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designed therein. To state it differently, if A is empowered to appoint B in consultation with C, he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D”.

56. A Constitution Bench of the Apex Court in the case of CHANDRAMOULESWAR PRASAD V. PATNA HIGH COURT AND ORS. (1970)2 SCR 666: (AIR 1970 SC 370), while interpreting the word ‘consultation’ as appearing in Article 233 of the Constitution has observed as follows at page 375:-

“Consultation with the High Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Government cannot discharge his function under Article 233 if he makes an appointment of a person without ascertaining the High Court’s views in regard thereto. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Article 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or other and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.

57. Again a Constitution Bench of 7 Judges of the Apex Court in the case of SHAMSHER SINGH AND ANR. v. STATE OF PUNJAB (AIR 1974 SC 2192) had an occasion to interpret the word “consultation”. Justice Krishna Iyer, J speaking for himself and on behalf of Bhagwati, J has articulated the evaluation of the opinion of the Chief Justice of India in the matter concerning judiciary and expressed his views thus at p. 2228

“In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice, the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view, it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”

58. Again the Apex Court in SANKAL CHAND (AIR 1977 SC 2328) speaking through Krishna Iyer, J for himself and Fazal Ali, J, in his concurring but separate judgment has ruled thus (at pp 2384-85):

“It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India. It seems to us that the word ‘consultation’ has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly.”

Further, they went on to hold as under:-

“We consult a physician or a lawyer, an engineer or an architect, and thereby we mean not casual but serious, deliberate seeking of informed advice, competent guidance and considered opinion. Necessarily, all the materials in the possession of one who consults must be unreservedly placed before the consultee. Further, a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him. The consultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous judgment can be calamitous. Therefore, it follows that the President must communicate to the Chief Justice all the materials he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possess and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system. However, consultation is different from consentaneity. They may discuss but may disagree, they may confer but may no concur. And in case, the consent of the Judge involved is not a factor specifically within the range of Article 222.”

59. Justice Chandrachud, in his separate judgment gave a homely analogy and stated that:-

“It may not be a happy analogy, but it is common sense that who wants to ‘consult’ a doctor cannot keep facts up his sleeve. He does so at his peril of he can receive no true advice unless he discloses facts necessary for diagnosis of his malady.” Thereafter, making reference to Pushpam’s case (supra), the learned Judge stated. “In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision.”

60. In SUBHASH SHARMA (1991 AIR SCW 128) RANGANATH MISHRA, CJ speaking for a Bench of three-judges explained the significance of the word ‘consultation with the Chief Justice of India’ as appearing in Article 124(2) and 217(1) as follows

“The word ‘consultation’ is used in the constitutional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitation, shorn of its constitutional background and purpose, is to borrow Justice Frankfurther’s phrase “to stick in the bark of words.. …………….. Consultation’ should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation.

61. The Apex Court in the case of INDIAN ADMINISTRATIVE SERVICE (SCS) ASSN., U.P. v. UNION OF INDIA reported in 1993 Supp(1) SCC 730 considered the phrase “after consultation with the Governments of States concerned” and discussed a number of decisions on the word “consultation” and held thus:

“26. The result of the above discussion leads to the following conclusions:

(1) Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory.

(2) When the offending action affects fundamental rights or to effectuate built-in insulation, as fair procedure, consultation is mandatory and non-consultation renders the action ultra vires or invalid or void.

(3) When the opinion or advice binds the proposer, consultation is mandatory and its infraction renders the action or order illegal.

(4) When the opinion or advice or view does not bind the person or authority, any action or decision taken contrary to the advice is not illegal, nor becomes void.

(5) When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted, the prior consultation is only directory. The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken be put to notice of the authority or the persons to be consulted; have the views or objections, take them into consideration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstances it amounts to an action ‘after consultation’.

(6) No hard-and-fast rule could be laid, no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place. It is for the court to determine in each case in the light of its facts and circumstances whether the action is ‘after consultation’; ‘was in fact consulted’ or was it a ‘sufficient consultation’”.

62. The Apex Court in the case of UNION OF INDIA AND OTHERS v. KALI DASS BATISH AND ANOTHER reported in (2006)1 SCC page 779, held as under:-

13. … the Parliament has taken great care to enact, vide Sections 6 and 7 of the Act, that no appointment of a person possessing the qualifications prescribed in the Act as a member shall be made, except after consultation with the Chief Justice of India. The consultation with the Chief Justice of India is neither a routine matter, nor an idle formality. It must be remembered that a member of an Administrative Tribunal like CAT exercises vast judicial powers, and such member must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate thereagainst………..

…………… It is for this precise reason that sub-section (7) to Section 6 of the Act requires that the appointment of a member of CAT cannot be made “except after consultation with the Chief Justice of India”. This consultation should of course, be an effective consultation after all necessary papers are laid before the Chief Justice of India, and is the virtual guarantee for appointment of absolutely suitable candidates to the post.

63. In the background of the scheme of the Act as well as the meaning of the word ‘Consultation’ as set out above in the context, the meaning of the word ‘Consultation’ cannot be confined to its ordinary lexical definition. Its meaning greatly varies according to the circumstances and the context in which the word is used in the Act though, the meaning attributed to the said word in the context of constitutional provisions cannot be directly imported to understand the meaning of the word ‘Consultation’ in a statute. As all the persons who have to be consulted are of constitutional authorities, the essence of consultative process has to be kept in mind while interpreting the word ‘Consultation’ in a statutory provision.

64. The word ‘consult’ implies a conference of two or more persons or impact of two or more minds in respect of a topic/subject. A person consults another to be elucidated on the subject matter of the consultation. Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or atleast satisfactory solutions. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. A consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the consultor, but he will not be generally ignoring the advice except for good reasons. The consultation is not complete or effective before the parties thereto making their respective points of view known to the other or others and discuss and examine the relative merits of their views. In order for two minds to be able to confer and produce a mutual impact, it is essential that each must have for its consideration fully and identical facts, which can at once constitute both the source and foundation of the final decision. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. If there are more than one person to be consulted, all the persons to be consulted should know the subject with reference to which they are consulted. Each one should know the views of the other on the subject. There should be meeting of minds between the parties involved in the process of consultation on the material facts and points involved. The consultor cannot keep one consultee in dark about the views of the other consultee. When consultation is prescribed with more than one person, there cannot be bilateral consultations or parallel consultations, behind the back of others, who are to be consulted in the process. Consultation is not complete or effective before the parties thereto make their respective points of view known to the other and discuss and examine the relative merit of their views. They may discuss, but may disagree. They may confer but may not concur. However, consultation is different from consentaneity.

PURPOSIVE CONSTRUCTION

65. It is in this background we have to interpret the word ‘Consultation’ in Section 3 of the Act. A case of this nature is before this Court for the first time. It concerns public interest. Public information about independence and impartially of the judiciary would be in question. The duty of the organs of the State is that public trust and confidence in the judiciary may not go in vain. Consideration of a statute would not necessarily depend upon application of any known formalism or rule or an interpreting tool, but it must be done having regard to the test and contest thereof. For the said purpose, it is necessary to take into consideration the statutory scheme and the purpose and object it seeks to achieve. The construction of a statute as is well known must sub serve the best of justice and reason. It is a well settled principle in law that the Court cannot read anything into a statutory provision or stipulated condition while it is plain and unambiguous. The statue is edict of the legislature. The language employed in a statute is determinative factor of legislative intent. It is equally a well settled principle of law that in a given case, with a view to give complete and effective meaning to a statutory provision, some words can be read into, some words can be substracted. Provision of the statute can be read down although sparingly and rarely. A balance must be struck between, on the one hand, an exclusive focus on the text of legislation and, on the other, reference to extrinsic information that assists to explain its purpose.

66. The Apex Court in the case of BHUDAN SINGH VS NABI BUX [(1969) 2 SCC 481 at page 485 at para 9 held as under:

“9. …The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions that the entire legislative process is influenced by considerations of justice and reason, Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instance, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the lawmakers. In the absence of some other indication that the harsh and ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.”

67. The Apex Court in the case of CAREW AND COMPANY LTD. –VS- UNION OF INDIA [(1975) 2 SCC 791] at para 21 has held as under:

“21. The law is not ‘a brooding omnipotence in the sky’ but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical wisdom when he observed: (US P.138)

‘There is no surer way to misread a document than to read it literally.’

68. Again the Apex Court in the case of K.P. VARGHESE –VS- INCOME TAX OFFICER (1981) 4 SCC 173 held that a strict literal reading of a statute is to be avoided as by reason thereof several vital considerations, which must always borne in mind, would be ignored. At page 180 at para 5 it is stated as under:

“5. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be ‘drafted with divine prescience and perfect clarity’.

The famous Judge of the American Court Learned Hand has to say the following words:

‘…. it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning”.

“…..the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create”.

69. In the case of RESERVE BANK OF INDIA V. PEERLESS GENERAL FINANCE AND INVESTMENT COMPANY LIMITED AND ORS. [AIR 1987 SC 1023], it has been held as under.--

“33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we known why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With those glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and, by reference to what preceded, the enactment and the reasons for it that the Court construed the expression ‘Prize Chit’ in Srinivasa and we find no reason to depart from the Court’s construction”.

70. Again the Apex Court in the case of ATMA RAM MITTAL V. ISHWAR SINGH PUNIA [(1988) 4 SCC 284] held; (SCC p 289 para 9) has held as under:

“9. Judicial time and energy is more often than not consumed in finding what is the intention of Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the contest, the subject-matter, the effects and consequence, or the spirit and reason of the law.”

71. The Apex Court in the case of UNION BANK OF INDIA –VS- ABHIJIT TEA CO. (P) Ltd. [(2000) 7 SCC 357] at page 366 at para 25 dealing with the purpose of interpretation has held as under:

’25. In regard to purposive interpretation, Justice Frankfurter observed as follows:

“Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose.”

72. The House of Lords in the case R. (QUINTAVALLE) V. SECY, OF STATE FOR HEALTH [(2003) 2 ACCUSED 687], at pages 697 and 702 in paras 8 and 21 has held as under:

“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possible arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the Court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The Court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

21. ….The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commrs. V. William Adamason, AC at p 763. In any event, nowadays the shift towards purposive interpretation is not in doubt.”

73. Therefore, the object of every legislation is to advance public welfare. The entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. The basic task of the court is to ascertain and give effect to the true meaning of what legislature has said in the enactment. However that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. The Court’s task, within the permissible bounds of interpretation, is to give effect to legislative purpose. So the controversial provisions should be read in the context of the statute as a whole. Judicial time and energy is more often than not, consumed in finding what is the intention of legislature or in other words, the will of the people. The task of interpretation of a statutory enactment is not a mechanical task. It is an attempt to discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought. Grammar is a good guide to meaning but a bad master to dictate. It is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing; be it a statute, a contract or anything else. It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

74. The derivative meaning of the word, consultation in the context depended not merely on its ordinary lexical definition but greatly upon its contents according to the circumstances and the time in which the word or expression is used. Therefore, in order to ascertain its colour and content one must examine the context in which that word is used. The meaning of the word ‘consultation’ must be given in the context of enactment. The word consultation may mean differently in different situations depending upon the nature and purport of the statute. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and, by reference to what preceded, the enactment and the reasons for it, that the Court has to construe the meaning of the word “in consultation with” in the said provision. The purposive interpretation of statute, is now well recognised in our country and in more than one case, the Supreme Court has adopted the said purposive interpretation in resolving the disputes which arise before it.

75. Therefore, the statute insists that a Judge of a High Court alone or Supreme Court is suitable to hold the posts under the Act. Though such a person is appointed on the advise of the Chief Minister by the Governor, the Chief Minister is not free to choose a person of his choice. In other words, he cannot send for a list of sitting and retired Judges, and choose one among them, as all of them possess the requisite qualification prescribed under the statute. No such power is conferred on him. Exercise of such power is curtailed by express words. The words “in consultation with” is a reservation or limitation on the power of the Chief Minister to appoint a Judge of his choice. Further, he should consult the Chief Justice of the State and other constitutional functionaries before he advises the Governor. Consultation is mandatory. The word used is “shall”. The intention of the legislature is clear and manifest. Each of the constitutional functionaries required to be consulted under the said provision must have full and identical facts bearing upon appointment or non-appointment of the person concerned and the opinion of each of them taken on identical material must be considered by the Chief Minister before he takes a decision whether or not to appoint the person concerned as a Lokayukta or Upa-Lokayukta. Both consultor and consultee must have before them full and identical facts. The source of foundation therefor must also be the same. All the constitutional functionaries involved in the process of consultation, should know the name of the person to be recommended by the Chief Minister to Governor before he is appointed. None should be kept in dark about the name. If any of them is kept in dark, there is no meeting of minds by all of them, and the consultation is not complete. All of them should be consulted, in respect of the person to be appointed, before the Chief Minister tenders his advice to the Governor for his appointment.

76. It is in this context, now we have to answer the questions which we have formulated for our consideration.

WHETHER THE NAME OF THE JUDGE HAS TO EMANATE FROM THE CHIEF JUSTICE ALONE?

77. Section 3 of the Karnataka Lokayukta Act, 1984 read as a whole, does not give any indication as to how the name of the person to be appointed as a Lokayukta or Upa-lokayukta should emanate. It is in this context, if not identical but in similar situation what the Apex Court has held in some of the cases would be relevant.

78. The three Judges Bench of the Apex Court in the case of ASHISH HANDA, ADVOCATE Vs. HON’BLE THE CHIEF JUSTICE OF HIGH COURT OF PUNJAB and HARYANA AND OTHERS reported in [(1996) 3 SCC 45] was considering the question as to whether the appointment of a former Judge of the Punjab and Haryana High Court was in accordance with Section 16 of the Consumer Protection Act, 1986. After referring to the service conditions of the President of the Consumer Forum, various provisions of the Act and the Scheme of the Act, it was held as under:

“The appointment to the office of the President of the State Commission is to be made ‘only after consultation with the Chief Justice of High Court’ and to the office of the President of the National Commission ‘after consultation with the Chief Justice of India’. Such a provision requiring prior consultation with the Chief Justice is obviously for the reason that he is the most suitable person to know about the suitability of the person to be appointed as the President of the Commission”. The provisions in Section 16(1) (a) for appointment of the President of the Commission and in Section 20(1)(a) for appointment of the President of the National Commission are in pari materia and have to be similarly construed. The construction of the proviso in Section 16(1)(a) and that in Section 20(1)(a) must be the same because of the identity of the language. The expression “after consultation with the Chief Justice of the High Court” and “after consultation with the Chief Justice of India” must be construed in the same manner as the expression “after consultation with the Chief Justice of India……..the Chief Justice of the High Court” in Article 217 of the Constitution of India made in Supreme Court Advocates-on Record Assn. v. Union of India [(1993) 4 SCC 441]. Accordingly, the opinion of the Chief Justice of the High Court and the requirement of the consultation with him according to the proviso in Section 16(1)(a) must have the same status as that of the Chief Justice of the High Court in the appointment of a High Court Judge under Article 217 of the Consultation of India; and the process of appointment to the office of the President of the State Commission must also be similar. It is unnecessary to restate the same which is summarised in the majority opinion in the Judges-II case. This is necessary to maintain independence of the judiciary and to avoid any possibility of a sitting or a retired Judge depending on the executive for such an appointment.”

79. The Apex Court in the case of SARWAN SINGH LAMBA –VS- UNION OF INDIA [(1995) 4 SCC 546] held as under:-

“…The requirement of consultation with the Chief Justice in the proviso to Section 16(1)(a) and Section 20(1)(a) of the Consumer Protection Act being similar to that in Article 217, the principles enunciated in the majority opinion in the Judges-II case must apply, as indicated earlier, even for initiating the proposal. The executive is expected to approach the Chief Justice when the appointment is to be made for taking the steps to initiate the proposal, and the procedure followed should be the same as for appointment of a High Court Judge. That would give greater credibility to the appointment made.”

80. Yet another Bench of the Apex Court consisting of 3 learned Judges while dealing with the question whether in consultation with the Chief Justice referred in Section 16 also includes the Acting Chief Justice wanted the subject matter to be placed before a Constitutional Bench. Accordingly the matter was placed before the Constitutional Bench. The Constitutional Bench in the case ASHOK TANWAR V. STATE OF HIMACHAL PRADESH AND OTHERS [AIR 2005 SC 104] took note of the judgment of the Apex Court in ASHISH HANDA’s referred to above and also various judgments of the Apex Court including the JUDGES case. They disagreed with the view expressed in the ASHISH HANDA’s case to the extent that for the purpose of Section 16 of the Act, a Chief Justice of a High Court need not consult his two senior most colleagues in the High Court for recommending a sitting Judge or the retired Judge of the High Court for appointing as president of a State Commission. In other words the consultation process prescribed under Article 217 of the Constitution of India need not be followed. However, after making the said position clear, they held as under:

“23. We must also keep in mind one more aspect. Under Article 217 of the Constitution for the purpose of appointment of a Judge to a High Court in view of decision in Supreme Court Advocates-on-Records Association and that too interpreting the constitutional provisions to maintain the independence of judiciary and to select the best of the persons as Judges such a procedure is adopted. A person to be appointed as President of the State Commission has to be necessarily a sitting or a retired Judge of a High Court and not that any person can be appointed as President of the State Commission. This being the position, it does not stand to the reason, as to why again in respect of a sitting or retired Judge of the High Court the whole process contemplated under Article 217 of the Constitution must be resorted to. To put in clear terms so as to remove any doubt, we state that in the matter of appointment of a sitting or retired Judge of a High Court as President of the State Commission, process must be initiated by the Chief Justice under Section 16 of the Act and ‘consultation’ contemplated in the said section is ‘consultation’ only with the Chief Justice of the High Court and not with the Collegium.”

(underlining by us)

81. Again the said question fell for consideration before the Apex Court in the case of N.KANNADASAN –vs- AJOY KHOSH AND OTHERS reported in 2009 (7) SCC 1 wherein at para 82 it has been held as under:

“82. Indisputably, in view of the decisions of this Court in Ashok Tanwar and Ashish Handa consultation with the Chief Justice would not mean the consultation with the collegiums of the High Court. Concededly again, proposal for such appointment must be initiated by the Chief Justice. The manner of initiation of proposal for consultation need not be as laid down in Ashish Handa but as laid down in Ashok Tanwar wherein it was clearly laid down that the manner of initiation of proposal must remain the same throughout as the law in this behalf is quite well settled and the Bench was felt bound by the same.”

Then at para 84 held as under:

“84. While approving Ashish Handa and Ashok Tanwar it was observed: (National Consumer Awareness Group case, SCC p. 292, para 14)

“14. A carefully reading of Ashok Tanwar shows that the Constitution Bench differed from Ashish Handa only on the issue whether consultation with the Chief Justice meant consultation with the collegium of the High Court. In other respects, Ashish Handa is approved.”

82. Therefore, in the light of the aforesaid pronouncement of the Constitutional Bench of the Apex Court, the proposal of the Judge to be appointed to the post of Lokayukta or Upa-lokayukta has to emanate from the Chief Justice. It is contended that the language used in the aforesaid Section is not in pari materia with the language used in the Act. Under the Consumer Act, the nature of the function to be performed is judicial in nature, whereas the nature of function to be performed under the Act is investigative in nature and therefore the said judgments has no application. As is clear from the statement of objections filed by the third respondent, this argument proceeds on the assumption that the Lokayukta or Upa-lokayukta’s function is only to conduct investigations and inquiries in accordance with the provisions of the Act. However, that argument overlooks the express words used in Section 3 of the Karnataka Lokayukta Act, 1984 as under:

“For the purpose of conducting investigations and enquiries”

and not ‘inquiries’ as misread.

83. The question whether the proceedings before the Lokayukta is quasi-judicial or not is no more res integra. This Court in the case of N. Gundappa v. State of Karnataka and Ors. 1989 (3) Kar.L.J.425: ILR 1990 Kar.228, dealing with the said question has held as under.--

“10. It is relevant to notice that on the basis of the investigation conducted by the Lokayukta or Upalokayukta as the case may be into a complaint made before him involving a ‘grievance’ or an ‘allegation’, he has to make a report under Section 12 of the Act to the Competent Authority. The Competent Authority, if satisfied, can also make a declaration in his report as per Sub-section (1) of Section 13 of the Act that the public servant concerned should not continue to hold the post held by him. The Competent Authority is required to take action within the period prescribed in Section 12 and intimate to the Lokayukta the action taken or proposed to be taken on the report. If that Lokayukta or the Upalokayukta, as the case may be, is not satisfied with the intimation regarding the action taken or proposed to be taken by the Competent Authority, it is open to him to make a special report upon the case to the Governor and also inform the Competent Authority concerned and the complainant under Sub-section (5) of Section 12 of the Act. Therefore, it is clear that investigation into a complaint and the report made by the Lokayukta or Upalokayukta to the Competent Authority will have a serious impact on the public officer concerned. It will affect his service very seriously as the Competent Authority has to examine the report forwarded to it and report the action taken thereon to the Lokayukta or Upalokayukta with in the period stipulated in Section 12 of the Act. If a declaration is made in the report in terms of Section 13(1) of the Act and on acceptance of the same by the Competent Authority, the public officer concerned will have to be placed under suspension. That being so, the Lokayukta or the Upalokayukta as the case may be is required to follow the procedure laid down in Sub-section (3) of Section 9 of the Act. It is not open to the Lokatyukta or the Upalokayukta, as the case may be, to disregard or overlook Clauses (a) and (b) of Sub-section (3) of Section 9. The procedure laid down in Clauses (a) and (b) for conducting investigation into a complaint is required to be followed scrupulously and it is essential to the validity of the report made by the Lokayukta or Upalokayukta as the case may be. “When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done are called directory” (see page 62 of Craies on Statute Law--1971 Edition).

In addition to this, it is also relevant to notice that the Lokayukta or the Upalokayukta as the case may be, while conducting investigation into a complaint and making a report on the basis of such investigation, exercises quasi-judicial power. It determines the complaint made against a public servant involving a ‘grievance’ or ‘allegation’ and the report becomes the basis for taking action against the public servant by the Competent Authority. It is an established principle of natural justice that while exercising quasi-judicial power or performing quasi-judicial function, the Authority has to act according to the Rules of Natural Justice in coming to a decision and give all parties an opportunity of being heard and of dealing with the evidence. He must not act on ex parte statement. Clauses (a) and (b) of Sub-section (3) of Section 9 of the Act incorporate the rules of natural justice. They provide that a copy of the complaint shall be forwarded to the public servant and the Competent Authority concerned and afford to the public servant an opportunity to offer his comments on such complaint. These things are required to be complied with failing which it will led to invalidity of the report made by the Lokayukta or the Upalokayukta inasmuch as one of the rules of natural justice is that no party shall be condemned unheard”.

84. The aforesaid judgment has been affirmed by a Division Bench of this Court in STATE OF KARNATAKA V. N. GUNDAPPA [ILR 1990 KAR 4188], wherein it has been held as under:-

“We have not the slightest hesitation in holding that the proceedings under Section 9 of the Karnataka Lokayukta Act, 1984 are quasi-judicial in nature. Our reasons are as under:

Firstly, there is compliant. Secondly, there is a preliminary enquiry to conduct investigation. Thirdly, a copy of the complaint is forwarded to the public servant and the Competent Authority concerned. Fourthly, the public servant is afforded an opportunity to offer his comments on such complaint. Thereafter should the Lokayukta submit a report as to what consequences follow are delineated under Section 13 of the Act. Having regard to the serious consequences contemplated thereunder, the conclusion is inescapable that it is quasi-judicial in nature. Not only that, Section 14 of the Act also contemplates initiation of prosecution”.

85. Following the aforesaid decision, this Court in the case of PROF.S.N. HEGDE and ANR Vs. THE LOKAYUKTA, BANGALORE and ORS reported in ILR 2004 KAR 3892, held as under:-

86. At this juncture it is relevant to notice one other aspect. The word used in Section 9 is ‘investigation’. What does it connote. The word ‘investigation’ is not defined under the Act. The word ‘investigation’ is defined under the provisions of the Code of Criminal Procedure where it has been defined as under,--

“2(h) “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

87. However, the said meaning attached to the word “investigation” has to be strictly construed and it is to be applied only in the context of proceedings under the Criminal Procedure Code, 1973 as the said enactment also defines what an “enquiry” means, what a “judicial proceedings” means. Therefore, a distinction is made between the collection of evidence conducted by a Police Officer and the same thing by a Magistrate or a Court. Therefore, the meaning attached to the word ‘investigation’ under the Code of Criminal Procedure cannot be applied to an investigation under Section 9 of the Act. Under Section 9 of the Act the person who conducts investigation is not a Police Officer but a high constitutional dignitary as that of a retired Supreme Court Judge or a Chief Justice of a High Court. Therefore, the Legislature has left it to the discretion of those high dignitaries to evolve a procedure in conducting the said investigation. In substance, though the word used is investigation, what the authorities are expected, is to enquire into the allegations or grievances made in the complaint. As the finding recorded by the authorities after such investigation would have serious consequences resulting in civil consequences, naturally the minimum that is expected in such an investigation or enquiry is that the person conducting the investigation should follow the principles of natural justice.

88. A reading of Section 12 of the Act makes it very clear that if the Lokayukta or Upalokayukta is satisfied that the action of the public servant has resulted in injustice or undue hardship to the complainant or to any other person, he shall by a report in writing recommend to the Competent Authority concerned calling upon them to redress or remedy the injustice or hardship done to the public servant as specified in the said report. Such a Competent Authority within a period of one month shall intimate the Lokayukta or the Upalokayukta regarding the action taken in the report. Sub-section (3) of Section 12 categorically states after investigation if the Lokayukta or Upalokayukta is satisfied that such allegation is substantiated either wholly or partly he shall by report in writing communicate his findings and recommendations along with relevant documents, materials and other evidence to the Competent Authority. The word used in the section is communicate his “findings”. A finding arrived at only after hearing both the parties and after giving them full opportunity to cross-examine witnesses, if any oral evidence is recorded during the course of investigation. The Competent Authority shall report within three months the action taken or proposed to be taken on the said report. There is also an indication in the Act itself regarding the nature of procedure to be followed in an investigation under the Act. Sub-section (2) of Section 11 confers on the Lokayukta or Upalokayukta the power of the Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matters mentioned therein, namely summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record, or copy thereof from any Court or office, issuing commissions for the examination of witnesses or documents and such other matters as may be prescribed. Further, Sub-section (3) of Section 11 makes it very clear that the proceedings before the Lokayukta or Upalokayukta shall be deemed to be a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. In the investigation Lokayukta or Upalokayukta have the power to examine on oath any person. If any person is examined on oath in support of the allegations in the complaint, naturally the public servant against whom that evidence is given would have a right to cross-examine the said person. If evidence is given by way of affidavit in the said investigation in support of the complaint, if the said affidavit is to be used against the public servant, the public servant should have an opportunity to cross-examine the said person who has given the affidavit. When commissions are issued for examination of witnesses naturally the public servant would have the right to cross-examine those witnesses. Therefore, the investigation to be conducted under Section 9 would be in the nature of a judicial proceeding and it would be in the nature of a suit and oral evidence is recorded on oath and documentary evidence is also entertained. Therefore, it is clear that the investigation under Section 9 of the Act would be in the nature of judicial proceedings or at any rate it is a quasi-judicial proceedings where the principles of natural justice had to be followed and if any evidence is recorded the public servant has the right to cross-examine those witnesses. Merely because, the procedure to be followed in an investigation under Section 9 is not expressly provided under the Act, it cannot be said that the Lokayukta and Upalokayukta are not under any obligation to follow the principles of natural justice in such proceedings. When Section 11 categorically deals with evidence, in the absence of cross-examination of a person examined on oath, in law it would not amount to evidence at all, on the basis of such deposition no finding could be recorded against the public servant. It is needless to point out that the law on the point is well-settled”.

86. Therefore, the functions to be performed by the Lokayukta and Upa-Lokayukta are in the nature of judicial, quasi judicial and also investigative. If it was purely investigative, the legislature would not have insisted on a Judge of High Court or Supreme Court, as the qualification for appointment and consultation with the Chief Justice as mandatory. Therefore, the judgment of the Constitution Bench of the Apex Court in Ashok Tanwar’s case squarely applies to the appointment under the Act. It is to be remembered that, we have to interpret these provisions in the context of the society in which we are living, the purpose for which this enactment was passed, how this enactment has been given effect to from the inception till today. Under the Act, in particular Section 7 which deals with the matters which may be investigated by the Lokayukta and Upa-Lokayukta, the Chief Minister, the Minister and the Member of the Legislatures of the State also fall within the jurisdiction of the Lokayukta as well as Upa-Lokayukta. If the name has to emanate from the Chief Minister or other Constitutional Authorities, the independence i.e., the hallmark which is maintained under the Act is impaired. Let us see in the recent past how the power has been exercised by the former Chief Minister and how the present Chief Minister has exercised the said power.

FORMER CHIEF MINISTER

87. The previous Lokayukta was called upon to investigate the irregularities in respect of mining operations in Karnataka by the Government of the day by issuing a notification. The Lokayukta conducted the investigation and submitted a report to the Government a day prior to his retirement. He has indicted the Chief Minister of the day in the said report. Unfortunately, a portion of the report was leaked even before it was submitted to the Government. He had to retire on 2.8.2011. As a portion of the report had been leaked much earlier indicting the Chief Minister, there was a demand for his resignation. The Lokayukta who submitted the report was retiring on 2.8.2011 and in the normal course, his successor should have taken action in giving effect to the report. A notification came to be issued on 26.11.2011 appointing Justice Shivaraj Patil as the next Lokayukta to take charge after incumbent Lokayukta demitted the office on 2.8.2011. After the issue of notification on 26.11.2011, the Chief Minister of the day resigned on 31.7.2011. Thereafter, on 3.8.2011, the new Lokayukta took charge. In the light of the aforesaid facts, the question that would arise is whether the proposal of the name of the person to be appointed should emerge from the Chief Minister or other Constitutional Authorities barring one, who all belong to the political parties, or from Chief Justice. It is also on record, a formal request was made to the Chief Justice for recommending the name. The name recommended by the Chief Justice was not accepted. The Chief Justice on coming to know that a person other than the person recommended by him has been appointed lodged his protest. In reply to the same, the Chief Minister of the day wrote a letter on 2.8.2011 which reads as under:

“Date. 2.08.2011

“Dear Shri Justice Khekar ji.

I am writing to you in connection with the consultation procedure followed for the appointment of Justice Shivaraj Patil as the Lokayukta of Karnataka.

Last night I have been informed by the Chief Secretary regarding the views of your kindself in this matter.

At the outset itself, I would like to express my profuse apologies for unintentionally hurting your feelings.

We had adopted the same procedure as was being followed over the last several years and we had absolutely no intention to cause any disrespect to any of the persons for whom I had sought the panel of names.

The Chief Secretary has assured me that he will ensure to put a revised system in place on the lines suggested by your kindself.

I would like to submit that I have always had the highest regard for your kindself as well as for the institution of the Chief Justice and I shall continue to do so even after demitting the office of the Chief Minister.

With warm regards,

Yours sincerely,

(B.S. Yediyurappa)

Shri Justice J.S. Khehar,

Hon’ble Chief Justice,

High Court of Karnataka,

BANGALORE.”

88. A Chief Minister who was on his way out of his office, because of allegations made in the report submitted by the Lokayukta, who had to face an inquiry after the same is being submitted to the Government, hurriedly issues a notification even before a vacancy arose on 26.11.2011, and recommends a person who is not recommended by the Chief Justice and steps out of office on 31.7.2011. The new incumbent took charge on 03.11.2011. This manner of appointment of Lokayukta under the Act would certainly bring a bad name to the institution, sending wrong signals to the society and the confidence of the people in the said institution gets diluted. Keeping in mind the object with which the law was enacted, the person who is accused of mal administration cannot decide who should be the Judge who will investigate and enquire the accusations against him.

89. When the Hon’ble Chief Justice brought to the notice of the Chief Minister of the day that, the procedure followed by them and in particular ignoring the recommendation of the Chief Justice and appointing another person who is not recommended by the Chief Justice but who is recommended by other Constitutional Authorities, is improper and illegal, the Chief Minister owned the responsibility and assured him that a proper procedure would be put in place in terms of the law declared by the Apex Court.

PRESENT CHIEF MINISTER

90. It was contended though in the instant case, the Chief Justice has not recommended the name of the third respondent to the post of Upa-Lokayukta, once the Chief Minister made a request to the Chief Justice and Chief Justice gave a name, the consultative process contemplated under the provision is completed and the Chief Minister is not bound to take note of the name suggested by the Chief Justice and there is no primacy and therefore, the Chief Minister was justified in acting on the name suggested by other constitutional authorities and appointing the third respondent as the Upa-Lokayukta. It is in this context it is useful to refer to the correspondence between the Chief Minister and the Chief Justice. On 18.10.2011 the Chief Minister addressed the letter to the Chief Justice as under:-

“Dear Shri. Justice Vikramajit Sen ji,

Consequent on the resignation of Justice Shri. R.Gururajan, the office of the Karnataka Upa Lokayukta has fallen vacant. As per Section 3(2) (b) of the Karnataka Lokayukta Act, 1984, a person to be appointed as the Upa Lokayukta shall be a person who has held the office of a Judge of the High Court and shall be appointed by H.E. the Governor of Karnataka on the advice tendered by the Chief Minister in consultation with you, among others.

Therefore, I request you to kindly suggest a panel of eligible persons for appointment as Karnataka Upa Lokayukta on or before 24th October 2011 so as to fill up the post of Upa Lokayukta.

With Warm regards,

Yours sincerely,

Sd/-

(D.V. Sadananda Gowda)

91. The correspondence which is placed on record shows, on the very same day the Chief Minister addressed a letter to the other four constitutional functionaries in Kannada requesting them to suggest a panel of eligible persons. The Chief Justice suggested the name of Justice H.Rangavittalachar for consideration to the post of Karnataka Upa-Lokayukta. The leader of the opposition in the Assembly suggested the name of Justice Mohammed Anwar and Justice K.Ramanna, the president of Karnataka State Consumer Forum. The Chairman of the legislative council suggested the name of the third respondent. The Speaker of the assembly suggested the name of the third respondent. The leader of the opposition in the council suggested the name of Justice Mohammed Anwar and Justice Ramanna. The Chief Minister recommended the name of the third respondent to the Governor who was appointed as Upa-Lokayukta on 21.1.2012. On coming to know of the appointment of the third respondent when a notification was issued and an invitation was given to the Chief Justice to attend the function, the Chief Justice wrote a letter to the Chief Minister which is dated 4.2.2012, which reads as under:-

“04th February, 2012

“Dear Chief Minister,

Sub: Your letter dated 18.10.2011 bearing No.PSCM/2583/2011 seeking panel of eligible persons for appointment as Karnataka Upa Lokayukta.

Ref: My Confidential letter dated 03rd November, 2011.

On the evening of 21.01.2012, I received an Invitation Card to attend the oath taking ceremony of Shri. Justice Chandrashekaraiah as Upa Lokayukta of the State of Karnataka on the following morning.

2. Section 3(2) (b) of the Karnataka Lokayukta Act, 1984 governs the procedure for appointment to the post of Upa Lokayukta, which reads as follows:

“A person to be appointed as an Upa Lokayukta shall be a person who has held the office of a Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly”. (emphasis supplied)

3. I was not consulted on the said name (Shri.Justice Chandrashekaraiah) for the position of Karnataka Upa Lokayukta.

4. Meaning of the phrase in consultation with the Chief Justice is no longer res integra. It has been the subject matter of interpretation in a number of cases and if press reports are any indication, the Government is fully aware of the same as could be seen from the extract of a letter said to have been sent by you to His Excellency the Governor of Karnataka. An extract of the same, which was published in the Hindu dated 26th January, 2012, Bangalore Edition, reads as follows:

‘……..In the matter of selection to a higher judicial post or analogous (similar) post, the opinion of the Chief Justice should have primacy”. In the same context, he also said:” ……the opinion of the Chief Justice who is expected to know more about the candidate should have primacy.”

5. By a letter bearing No.PSCM/2583/2011 dated 18.10.2011, you had requested me to suggest a panel of eligible persons for appointment as Karnataka Upa Lokayukta so as to fill up the post which had fallen vacant consequent on the resignation of Shri. Justice R.Gururajan. In my confidential letter dated 03rd November, 2011, I had not recommended the name of Shri.Justice Chandrashekaraiah for consideration for appointment as Karnataka Upa Lokayukta. Thereafter, I have not heard anything from you, I emphasise that the appointment of Shri.Justice Chandrashekaraiah has been made without consultation with the Chief Justice. Therefore, it is in violation of mandatory requirements of law.

6. It may not be out of context, nay, it is very relevant to mention that the same aberration was committed by the Government on the previous occasion and the matter was taken up by my Registrar General with the Chief Secretary Sri.S.V.Ranganth at the express instructions of my predecessor Hon’ble Shri. Justice J.S. Khehar, I understand that on that occasion, xerox copies of the relevant decisions of the Hon’ble Supreme Court bearing on the point were handed over to Sri. S.V.Ranganath, the Chief Secretary to the Government of Karnataka. Immediately following the same the then Chief Minister, your predecessor, had written a letter bearing No.PSCM/2080/2011 dated 02.08.2011 tendering his profuse apologies with regard to the breach in consultation procedure committed in the matter of appointment of Lokayukta of Karnataka. The letter further assured the High Court that a revised system would be put in place on the lines suggested by my predecessor. It is necessary to point out that what was insisted upon by the Chief Justice at that time was that the mandate of the law had perforce to be followed. In support of the same, key decisions of the Supreme Court bearing on the point had also been furnished. That the true meaning of in consultation with the Chief Justice as expounded by the Hon’ble Supreme Court has been understood by the Government is evident from the extracted portion of your letter to His Excellency the Governor of Karnataka as published in The Hindu News Paper dated 26th January, 2012.

7. To put the matter plainly, there is no gainsaying the fact that there never ever was any consultation on the name of Shri. Justice Chandrashekaraiah for appointment to the position of Upa Lokayukta between you and myself. Viewed in the background of your predecessor’s letter dated 02.08.2011 the failure to consult the Chief Justice leads to the conclusion that it was a resolute action.

8. In the perception of the public, the position of Lokayukta and Upa Lokayukta are of great importance for maintaining good governance in the State. The recent events in the State have only reinforced this position. Consultation is not an empty formality – calling for suggestions of a name from the Chief Justice and tendering advice to His Excellency the Governor to appoint somebody else, in utter disdain to the primacy attached to the opinion of the Chief Justice who is best positioned to assess suitability of a retired Judge of the High Court. The consultation should be full and effective. Therefore, it is imperative that the full and identical facts, which constitute the source and foundation of the final advice tendered to His Excellency the Governor should have been in the first place the subject matter of exchange of views between the Chief Minister and the Chief Justice in order to satisfy the legal requirements of consultation. I reiterate that in this particular case, not even the name was shared by you (the Chief Minister) with me (the Chief Justice), leave alone eliciting my views on the suitability of the person for holding the post of Upa Lokayukta. The conscious violation of the above high principles in the advice tendered by you to His Excellency the Governor has grievously affected the checks and balances ordained by the Constitution, I may also add that the consultation is sine qua non for tendering the advice, which, in turn, forms the basis and the foundation for the very appointment.

The appointment does not conform to the constitutional provisions and therefore has no legal efficacy. I had already conveyed to you at the meeting on 25th January, 2012, in which the Hon’ble Law Minister was also present that the candidature of Shri. Justice Chandrashekaraiah cannot be approved because of certain events that have occurred in the past. The appointment is to be recalled at the earliest. Remedial action, therefore, is called for at your end.

With regards,

Yours Sincerely,

Sd/-

(Vikramajit Sen)”

92. He called upon the Chief minister to recall the appointment at the earliest. It is submitted, till today the Chief minister has not sent any reply.

93. It was contended by the learned counsel appearing for the third respondent that, the aforesaid provision may hold good in the case of only Lokayukta but it would not hold good for Upa-Lokayukta though the language employed in Section 3(2)(a)(b) are identical. In support of his contention he relied on the judgment of the Apex Court in the case of SHAMRAO VISHNU PARULEKAR VS. THE DISTRICT MAGISTRATE, THANA, AIR 1957 SC 23 where it is held as under:-

“5. …………..Reliance was placed on the following passage in Maxwell’s Interpretation of Statutes, Edn. 10. p.522:

It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act”.

The rule of construction contended for by the petitioners is well-settled, but that is only one element in deciding what the true import of the enactment, is, to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. “The presumption”, says Craies, “that the same words are used in the same meaning is however very slight, and it is proper ‘if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act”’. (Statute Law, 5th Edition, page 159). And Maxwell, on whose statement of the law the petitioners rely, observes further on:

“But the presumption is not of much weight. The same word may be used in different senses in the same statute, and even in the same section”. (Interpretation of Statutes, page 322).

94. Relying on the passage it was contended that the Chief Minister or other constitutional functionaries cannot suggest a name of the Lokayukta as under Section 7 of the Act all of them fall under his jurisdiction. But, they do not fall under the jurisdiction of the Upa- Lokayukta. Therefore, there is no harm in those constitutional authorities proposing the name of the Upa-Lokayukta.

95. The Act is enacted for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in administration machinery. The complaint is against a public servant. Having regard to the number of public servants, the Legislature thought of classifying these public servants into two categories. The first category comprises of high dignitaries who head the administration in the State, namely the Chief Minister, Ministers, Secretaries, Member of the Legislature and any other public servant notified by the State Government. Having regard to the position they hold and the power they exercise, the Legislature in its wisdom, thought any investigation against them should be by a person who held highest judicial post in the High Court or Supreme Court. Therefore, the Lokayukta who is appointed under the Act who is empowered to investigate complaints against these persons should be a retired Chief Justice of High Court or Judge of the Supreme Court. Regarding the other categories of public servants who are in the lower rung of administration. Upalokayukta who is a retired High Court Judge was empowered to investigate. Therefore, the intention of the Legislature was to clearly create a dichotomy regarding the public servants and the jurisdiction to investigate the complaints against them. This is what is expressly provided in Section 7(1) and (2) of the Act. There is no ambiguity. An exception is carved out to this general rule in Sub-section (2A), regarding investigation of complaints by Lokayukta and Upalokayukta, which do not fall within their jurisdiction if the said complaint is referred to them by the State Government. It reads as under:-

(2-A) Notwithstanding anything contained in sub-sections (1) and (2), the Lokayukta or an Upa-Lokayukta may investigate any action taken by or with the general or special approval of a public servant, if it is referred to him by the State Government”.

96. Therefore, it cannot be said that Upa-Lokayukta under the Act has no jurisdiction to enquire into complaints against the Chief Minister and other elected representatives. He has jurisdiction if it is referred to him by the State Government. Further, for us to differ from the meaning of the words which are identical in the same provision, there should be sufficient reasons to construe a word in one clause in a different sense from the very same word used in another clause of the same section. We do not see any such reason more so because under both the clauses the person to be appointed is a Judge of a High Court or the Supreme Court. The nature of functions to be performed by them is identical.

97. It is in this background now we have to find out whether the recommendation has to emanate from the Chief Justice and if not, what are the consequences.

98. The person to be appointed u/s.3 of the Act shall be a person who has held the post of the Judge of the Supreme court or Chief Justice of the High court in the case of Lokayukta and Judge of the High Court in the case of Upa-Lokayukta in the context of the functions which are to be discharged by them. It is apparent that it is of utmost importance that unpolluted administration of the State is maintained and maladministration as defined in the Act is exposed, so that appropriate action against such maladministration is taken. The investigation which is required to carry out is that of quasi judicial nature which would envisage not only knowledge of law, but also of the nature and work which is required to be discharged by an administrator. In this context the word “consultation” used in Section 3 would require that the consultation should be with the Chief Justice of the High Court. The provision mandates that the Chief Minister shall in consultation with the Chief Justice advise the Governor and suggest the name. Chief Minister has no freedom to suggest the name of his choice. Consultation is sine quo non without which, the Chief Minister would not get the authority to recommend any name at all. It is not in dispute that Section 3 is mandatory. In the statement of objections, in unequivocal terms, the respondent has admitted that the word ‘in consultation with’, in Section 3, makes it mandatory for the Chief Minister to consult the Chief Justice. The word consultation is used in the provision in recognition of the status of the high constitutional dignitary who normally expresses his wish leading to the appointment of a Judge to the post of Lokayukta or Upa-Lokayukta as the case may be. The object of consultation is apparent. The Chief Justice is expected to know better than the Chief Minister or other constitutional authorities in regard to suitability or otherwise of a Judge being appointed as a Judge Lokayukta or Upa-Lokayukta. It is because a Chief Justice of a High Court normally would have vast experience, both in the legal profession and as a Judge, during which time he would have some insight into these intricate issues and thus would be in a higher pedestal in suggesting a suitable Judge for the said purpose. He would be the best person for proposing and suggesting a suitable person for being appointed to the said post. His opinion would be totally independent and he would be in a position to find out who is more or most suitable to the said post. Consultation with the Chief Justice is not a routine matter. It is not an empty formality. Requesting the Chief Justice to suggest a name and on receipt of the same, ignoring the said name and tendering advice to the Governor to appoint somebody else, would make the consultation a farce. Therefore, the legislature advisedly is insisting that the Chief Minister shall consult the Chief Justice before making any appointment of a Judge to a post. In this connection, it will be worthwhile to mention the observation of Sir Winston Churchill in the House of Commons that “Perhaps only those who have led the life of a Judge can know the lonely responsibility which rests upon him.” Vide Paliamentary Debates (Hansard) of Commons Debates dated 23.3.54 Vol.525, Col. 1061. The recipe regarding the professional qualifications could be evaluated only by the Chief Justice. Therefore, a duty is enjoined on the Chief Minister to tender advise to the Governor in consultation with a body which is an appropriate authority to give advise to him. This mandate cannot be destroyed or disobeyed by the Chief Minister by not consulting the Chief Justice at all. It infringes the mandate of law. The provision indicates that a duty to consult is interconnected with the exercise of power. That power can be exercised only in consultation with the person or persons designated therein. Prior consultation in that behalf is mandatory. That would give greater credibility to the appointment made. This is necessary to maintain independence of the office of Lokayukta and Upa-Lokayukta and to avoid any possibility of a sitting or a retired Judge depending on the executive for such an appointment. Therefore, it is in the fitness of things that the Chief Justice alone under the scheme of the Act is entitled to suggest the name of a Judge to be appointed to the post of Lokayukta and Upa-Lokayukta and the other constitutional authorities are only to be consulted in respect of the name suggested by the Chief Justice. Advice to be tendered by the Chief Minister to the Governor is to be done in consultation with the Chief Justice and other Constitutional functionaries. However, each constitutional functionary suggesting an independent name to the Chief Minister and each constitutional authority not knowing the name the other constitutional authority has suggested to the Chief Minister would not, in the context the word “consultation” used in the Act, amounts to a valid consultation. This is because there is no meeting of the mind of these constitutional authorities, which is also a sine quo non, before it could be said there was an effective consultation in respect of the name before the Chief Minister which is suggested for such appointment.

99. No one can deny that serious allegations are made in the present day context even against the Chief Minister and other Ministers both inside the Legislature and outside the Legislature. In fact, there is agitation going on in the Country for a powerful Lokpal Bill being passed and bringing the Prime Minister of the Country within its hold. In such circumstances, can the Chief Minister who comes under the authority of the Lokayukta be justified in enjoying the absolute authority in nominating and appointing the Lokayukta or Upa-Lokayukta. The answer would be in the negative. If such a process is allowed to continue, the independence of the office of the Lokayukta and Upa-Lokayukta in the long run will shrink without any trace. In that view of the matter, the name of the Lokayukta and Upa-Lokayukta to be appointed has to necessarily emanate from a person who is not within their jurisdiction. The only person who is outside the ambit of Lokayukta is the Chief Justice and all other Constitutional authorities mentioned in the provision come within his jurisdiction. They will not have the right to suggest the name. Only the Chief Justice would have the right to suggest the name which, of course the other Constitutional authorities can consider. Though all of them are constitutional authorities, all of them cannot be placed on the same pedestal. The Chief Justice is the head of the Judiciary in the State, and he cannot be compared with others. That is why the legislature has consciously enacted the provision in such a manner that the first person to be consulted is the Chief Justice. The intention of the legislature is clear. The name has to emanate from the Chief Justice alone. Therefore, the law laid down by the Constitution Bench of the Apex Court squarely applies to the appointment of Lokayukta and Upa-Lokayukta. Therefore, we have no hesitation in holding that under Section 3 of the Act, it is only the Chief Justice who shall suggest the name of the Judge for being appointed as Lokayukta or Upa-Lokayukta. Other constitutional functionaries have no such right to suggest the name. It is only “one” name and not panel of names as there is no indication to that effect in the provision.

100. The argument is, after such consultation, all other steps to be taken are directory in nature, as the recommendation made by the Chief Justice is not binding on the Chief minister. In the alternative, it was submitted the name of the third respondent was also suggested by the previous Chief Justice.

101. On an earlier occasion, i.e. on 8.7.2010, the then Chief Minister requested the Chief Justice of the High court to recommend the name of a retired Judge for being appointed as Upa-Lokayukta. The then Chief Justice by his letter dated 11.7.2010 recommended the name of Justice Shashidar Bheemanna Majage and Justice Chandrashekaraiah for consideration for appointment as Karnataka Upa-Lokayukta. On a similar request made by the then Chief Minister to the other constitutional functionaries, all of them recommended the name of the third respondent as well as Justice K.Ramanna and one of them even suggested the name of Justice Majage. The Chief Minister chose Justice Majage and advised the Governor to appoint him as the Upa-Lokayukta. Therefore, it was contended when the earlier Chief Justice has recommended the name of the third respondent, even in the present instance though there was no meeting of mind between the Chief Minister and the Chief Justice, as the previous Chief Justice had recommended the name of the third respondent, his appointment is valid and legal.

102. When once the recommendation is made, the Chief Minister accepted the recommendation made insofar Justice Majage is concerned and he did not accept the recommendation insofar as the third respondent is concerned, it is implied that he did not accept the recommendation in so far as the third respondent is concerned. For the purpose of arguments, if it is to be held that it was a panel of names and only one has to be selected, it does not mean that the other is rejected, then if the Chief Minister of the day wanted to appoint one more Upa-Lokayukta, he could have proceeded to appoint the third respondent whose name was already found in the panel. He did not adopt the said procedure. It is because once the recommendation of Justice Majage was accepted, it is automatic that the other name is rejected. Therefore, when they wanted to appoint one more Upa-Lokayukta, again the process of consultation was put into motion. Therefore, the Chief Minister wrote a letter to the Chief Justice as well as to other constitutional functionaries to suggest a name for appointment of Upa-Lokayukta. When such a request was made to the Chief Justice, the Chief Justice was conscious of the fact, that the earlier Chief Justice had recommended the name of the third respondent and it was not accepted by the Chief Minister. Once a recommendation made by the Chief Justice was not accepted by the Chief Minister, there is no provision in the Scheme of the Act for the Chief Justice to insist on his name being considered over again. Therefore, having regard to the high status they hold, the Chief Justice when he was called upon to recommend one more name again, rightly did not chose to recommend the name of the third respondent, which was not accepted by then Chief Minister and therefore, he recommended another name. That recommendation was accepted and on such recommendation, Justice R.Gururajan was appointed as Upa-Lokayukta. In fact, none of the constitutional functionaries who had recommended the name of the third respondent, earlier, recommended the name of the third respondent again, obviously because, their recommendation made earlier was not accepted. After Justice Gururajan resigned, a vacancy arose. Again, the Chief Minister wrote a letter to the Chief Justice and constitutional functionaries to recommend the name. Though the Chief Justice at this stage was a new incumbent, he went into the records, found that the name of the third respondent was not considered by the Chief Minister on an earlier occasion and the previous Chief Justice did not recommend this name taking note of what had transpired earlier and therefore, he rightly did not recommend his name. Unfortunately, the constitutional functionaries who had not recommended his name earlier, after the initial rejection, probably with the lapse of time, did not remember that their recommendation made earlier was not accepted, recommended his name over again. It happened because they were not aware of the recommendation of the Chief Justice. Therefore, when the recommendation made by the earlier Chief Justice was not accepted by the Chief Minister, the said recommendation is deemed to have been rejected or it has spent itself. It had no life on the day the third respondent was appointed. That is the reason why fresh process was initiated by the present Chief Minister. When the name of the third respondent was not recommended by the Chief Justice over again, which he could not have done, the Government cannot fall back upon the earlier recommendation to justify the appointment of the third respondent. Therefore, there is no substance in that contention.

WHY THE CHIEF JUSTICE SHOULD HAVE PRIMACY IN THE MATTER OF SUGGESTING THE NAME

103. This question arose for consideration before the Apex Court in some what similar situation, in the case of JUSTICE K.P. MOHAPATRA Vs. SRI RAM CHANDRA NAYAK and ORS (AIR 2002 SC 3578). In the aforesaid case, the Apex court was called upon to decide the question, as in this case, as to what is the requirement and what is the meaning that can be assigned to ‘Consultation’ as contemplated u/s.3(1) of Orissa Lokpal and Lokayukta Act, 1995, Proviso (a) would prescribe that the Govt. shall appoint Lokpal after consultation with the Chief Justice i.e. the High Court of Orissa and the leader of the opposition if there is any.

After referring to Sections 3 and 4 it held as under:-

“12. In context of the aforesaid functions of the Lokpal and the required qualification of a person who is to be appointed to hold such office, the word ‘consultation’ used in Section 3 is required to be interpreted. As provided under Section 3, a person is not qualified to be appointed as Lokpal unless he is or has been a Judge of the Supreme Court or of a High Court. In the context of the functions which are to be discharged by the Lokpal, it is apparent that they are of utmost importance in seeing that unpolluted administration of the State is maintained and mal-administration as defined under Section 2(h) is exposed so that appropriate action against such mal-administration and administrator could be taken. The investigation which Lokpal is required o carry out is that of quasi-judicial nature which would envisage not only knowledge of law, but also of the nature and work which is required to be discharged by an administrator. In this context, the word ‘consultation’ used in Section 3(1) Proviso (a) would require that consultation with the Chief Justice of the High Court of Orissa is a must or a sine qua non. For such appointment, the Chief Justice of the High Court would be the best person for proposing and suggesting such person for being appointed as Lokpal. His opinion would be totally independent and he would be in a position to find out who is most or more suitable for the said office. In this context, primacy is required to be given to the opinion of the Chief Justice of the High Court. It is true that proviso (a) provides that Leader of the Opposition, if there is any, is also required to be consulted. Therefore, if there is no Leader of Opposition, consultation is not required. This would indicate nature of such consultation and which is to apprise him of the proposed action but his opinion is not binding on the Government. At the same time, his views or objections are to be taken into consideration. If something is adverse against the person proposed by the Government, he would be entitled to express his views and point it out to the Government. This, however, would not mean that he could suggest some other name and the Government is required to consider it. It would, therefore, be open to the Government to override the opinion given by the Leader of the Opposition with regard to the appointment of a Lokpal who is statutorily required to be a sitting or retired Judge of the Supreme Court or of a High Court. Under Section 3(1) of the Act, there is no question of initiation of proposal by the leader of the Opposition.

Underlining by us

16. Applying the principle enunciated in the aforesaid judgment, Scheme of Section 3(1) of the Act read with the functions to be discharged by the Lokpal and the nature of his qualification, it is apparent that the consultation with the Chief Justice is mandatory and his opinion would have primacy. The nature of the consultation with the Leader of the Opposition is to apprise him about the proposal of selecting a person to the post and also to take his views on the said proposal. However, the opinion rendered by the Leader of the Opposition is not binding on the State Government and the Leader of the Opposition would have no power to recommend someone else for the said post”.

104. Applying the aforesaid principle, the Supreme Court held that the consultation with the Chief Justice is mandatory and his opinion would have primacy. There is no scope for other constitutional functionary like the leader of the opposition initiating the proposal by suggesting a name of his choice.

105. It was contended in the aforesaid judgment, the person to be consulted was only the Opposition Leader that too if there is one and therefore, in that context, the Supreme Court laid down the aforesaid law. In the instant case, the persons to be consulted is not only the leader of the Opposition, but there are other four constitutional functionaries and therefore, the said judgment is not applicable to the facts of this case. We do not see any merit in the said contention for the following reasons.

106. Among the four other constitutional authorities, basically all of them are legislators belonging to a particular political party. The leader of the Opposition is the Leader of the Opposition party in the Legislative Assembly and the Legislative Council who represent the views of the Opposition in the house. The Chief Minister is the leader of the Ruling Party. The Speaker and Chairman before they are elected to the said post normally would be members of the ruling party. After they cease to be Speaker or Chairman they again continue to be members of the party to which they belong. During their tenure as Speaker and Chairman, they are excepted to be neutral, but nonetheless they are politicians. All of them have deep roots in politics. As opposed to this, the Chief Justice of a High Court do not belong to any political party. He does not belong to the State. He is always an outsider. But he is the head of the judiciary in the State. He is the first person to be consulted. The person to be appointed is only a Judge of a High Court or Supreme Court or Chief Justice of a High Court, and all of them were members of the Judiciary. Compared to others he would have better and correct information about them.

107. In fact, dealing with the question why primacy should be given to the Chief Justice in the consultative process, the Apex Court in the case of SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHER VS. UNION OF INDIA, AIR 1994 SC 268, held as under:-

“104. There are innumerable impelling factors which motivate, mobilise and impart momentum to the concept that the opinion of the CJI given in the process of ‘consultation’ is entitled to have primacy, They are:

(1) The ‘Consultation’ with the CJI by the President is relatable to the judiciary and not to any other service.

(2) In the process of various Constitutional appointments, ‘consultation’ is required only to the judicial office in contrast to the other high ranking constitutional officers. The prior ‘consultation’ envisaged in the first proviso to Article 124(2) and Article 217(1) in respect of judicial offices is a reservation or limitation on the power of the President to appoint the Judges to the superior courts.

(3) The ‘consultation’ by the President is a sine-qua-non or a condition precedent to the exercise of the constitutional power by the President to appoint Judges and this power is inextricably mixed up in the entire process of appointment of Judges as an integrated process. The ‘consultation’ during the process in which an advice is sought by the President cannot be easily brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity.

(4) The context in which the expression “shall always be consulted” is used in the first proviso of Article 124(2) and the expression “shall be appointed…. after consultation” is deployed in Article 217 (1), denote the mandatory character of ‘consultation’, which has to be and is of a binding character.

(5) Article 124 and 217 do not speak in specific terms requiring the President to consult the executive as such, but the executive comes into play in the process of appointment of Judges to the higher echelons of judicial service by the operation of Articles 74 and 163 of the constitution. In other words, in the case of appointment of Judges, the President is not obliged to consult the executive as there is no specific provision for such consultation.

(6) The President is constitutionally obliged to consult the CJI alone in the case of appointment of a Judge to the Supreme Court as per the mandatory proviso to Article 124 (2) and in the case of appointment of a Judge to the High Court, the President is obliged to consult the CJI and the Governor of the State and in addition the Chief Justice of the High Court concerned, in case the appointment relates to a Judge other than the Chief Justice of the High Court. Therefore, to place the opinion of the CJI at par with the other constitutional functionaries is not in consonance with the spirit of the Constitution, but against the very nature of the subject matter concerning the judiciary and in opposition to the context in which ‘consultation’ is required. After having observed that the ‘consultation’ must be full and effective by Bhagwali, J in AIR 1982 SC 149, there is no conceivable reason to hold that such ‘consultation’ need not be given primacy consideration.

(7) The very emphasis of the word “always be consulted” signifies and indicates that the mandatory consultation should be unfailingly made without exception on every occasion and at every time by the President with the constitutional consultees.”

108. Though the aforesaid principles are laid down by the Apex Court in the context of consultation with the Chief Justice of India, who is the head of the judiciary in the country and the appointment was to the constitutional post, but still the underlying principle giving primacy to the Chief Justice of the State cannot be underestimated or overlooked.

109. The person to be appointed to the post of the Lokayukta or Upa-Lokayukta has three facets or phases which requires to be considered. The first phase is a phase when he was appointed as the Judge of the High Court. The second phase is from the date of appointment as a Judge, till his date of retirement. The third phase is after his retirement till his name is considered for appointment of Lokayukta or Upa-Lokayukta.

110. Insofar as the first phase is concerned, the requirement as contemplated under Article 217 of the Constitution of India is followed and therefore, the Constitution Bench in Ashok Tanwar’s case made it very clear that process need not be resorted to before the Chief Justice recommends the name to the Chief Minister. Insofar as the second phase is concerned i.e. from the date he was appointed as a Judge till the date of retirement is concerned, it is a matter of record in the High Court. Outsiders and the other constitutional functionaries would not have clear picture about his performance as a Judge, his conduct as a Judge and his ability, as at best they are looking at him from outside. Whereas, a Chief Justice, if he has worked with him, he would be the best person to speak about him. Even if he has not worked with him, the records available in the High Court and other information would give a clear picture to him in deciding whether the Judge is suitable for the said post. Insofar as the appointment of Lokayukta is concerned, if the persons recommended is a Judge of this Court, the records are readily available with the Chief Justice. He also can secure the records from other high courts where he has worked as Chief Justice and from the Supreme Court where he has worked as the Judge of the Supreme Court. This record is not that easily available to the other constitutional functionaries.

111. Once the Judge retires and goes out of the High Court, the retirement is not the end of life. Section 4 of the Act gives an indication of what are the fields a retired Judge could involve himself. It is not exhaustive. He would have various opportunities. After retirement he can usefully involve himself in any one of them. Though the Chief Justice may also have some knowledge of the activities in which a retired Judge has involved himself after retirement, probably the other constitutional functionaries would have a better knowledge, information about the activities in which the retired Judge is involved. That is the reason why, the section contemplates that the first person to be consulted by the Chief Minister is the Chief Justice. It is not without any significance. Thereafter, he has to consult the other constitutional functionaries. Therefore, once it is accepted that the name has to emanate from the Chief Justice and once the Chief Justice makes a recommendation, the presumption is that, the Judge whom he has recommended is suitable for the said post. The ‘consultation’ process in which an advice is sought by the Chief Minister cannot be easily brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity. Although the name suggested by the Chief Justice may not be binding on the Government, it is entitled to great weight and is normally to be accepted by the Chief Minister, because the Chief Minister cannot exercise his power of advice, whimsically or arbitrarily. Therefore, in case the appointment relates to a Judge, to place the opinion of the Chief Justice at par with the other constitutional functionaries is not in consonance with the spirit of the Act, but against the context in which ‘consultation’ is required. However, the presumption is a rebuttable one. If the other constitutional functionaries have any reason, which according to them, disentitle him to occupy the said post, it is open to them to bring it to the notice of the Chief Minister those facts. The Chief Minister is bound to take note of the said facts in the consultative process and can refuse to appoint the person recommended by the Chief Justice. Though none of the constitutional functionaries has the veto power, but still they have the right to object to the appointment for cogent and good reasons which the Chief Minister must take note of. If each constitutional functionary starts functioning in his own sphere, by suggesting names, without disclosing it to other constitutional functionaries and without knowing what the other constitutional functionaries have in mind, the very object of the legislature insisting on “in consultation with” all the constitutional functionaries is defeated and is rendered nugatory. Any other interpretation to this provision would result in an anomalous situation, as set out above and make the consultation process meaningless. Therefore, it is in this context, on proper interpretation of the aforesaid provision, in order to make it work, the recommendation made by the Chief Justice should be given primacy. It would be a right step in the right direction and that step alone will ensure optimum benefits to the society. The Chief Justice being the Highest Constitutional authority in the State, has a right of primacy if not supremacy, accorded to his opinion, whenever a Judge of the High Court is to be appointed to hold the post where legal knowledge is required apart from independence. Therefore, we hold that the recommendation of the Chief Justice is entitled to have primacy.

WHAT IS THE CONSULTATIVE PROCESS WHICH IS CONTEMPLATED UNDER THE AFORESAID PROVISION

112. From the aforesaid judgments set out above, what emanates is, there appears to be a consensus regarding how the consultative process is to be triggered. The Chief Minister when he has to appoint the Lokayukta or Upa-Lokayukta has to make a formal request to the Chief Justice. Thereafter, the Chief Justice has to choose one among the retired Judges of the High Court or a retired Chief Justice of another High Court or a retired Judge of a Supreme Court, who in his opinion having regard to the object with which the Act was enacted and the responsibilities and duties which he has to discharge and the public confidence in the said institution, to choose a Judge who is suitable for the said post. It is a great responsibility thrust on the Chief Justice.

113. As set out above, he need not undertake the exercise which is contemplated under Article 217 of the Constitution of India, but certainly he has to take into consideration the conduct of the Judge from the date he is appointed as a Judge till the date of his retirement carefully. He also should take note of his activities after his retirement till his name comes up for consideration. When he suggest the name of a person, the consultative process is set in motion. His recommendation has primacy when compared to other constitutional functionaries. Care should be taken by the Chief Justice before making such recommendation. Thereafter, he shall communicate the said name to the Chief Minister in writing. Once he puts his choice in writing and communicates the same to the Chief Minister, there is a meeting of the mind between the Chief Minister and the Chief Justice. The Chief Minister will know what is in the mind of the Chief Justice. Thereafter, that recommendation of the Chief Justice can be circulated to the other constitutional functionaries mentioned in the section for their consideration. When they look into the said recommendation, they also understand the mind of the Chief Justice. Therefore, there is a meeting of the mind between the Chief Justice and the other constitutional functionaries. In the process all the persons involved in this consultative process are aware of the name of the person who is suggested to be appointed to the said post. When other constitutional functionaries look into the recommendation, they have two options. They may agree with the recommendation of the Chief Justice and give their consent or if they do not agree with the recommendation, it is open to them to express their dissent in writing and their reasons for the same.

114. As the Chief Justice is a person outside the State and as all the other constitutional functionaries are within the State, it is possible that they may have some information which may not be in the knowledge of the Chief Justice, which would disentitle the recommendee to be appointed to the said post. The Chief Justice may not have complete information about the Judges after retirement. Therefore, if they feel having regard to the nature of functions to be performed by the Lokayukta or Upa-Lokayukta and in public interest, he should not be appointed, they may not agree for such appointment and they may set out in writing the reasons for such disagreement. After noting the dissent when they pass on the letter to the Chief Minister, he will come to know what is in the mind of other constitutional functionaries. Thus, there will be meeting of mind of all constitutional functionaries not only in respect of person to be appointed to the said post, but also in respect of the factors, which are against his appointment.

115. When other constitutional functionaries express their dissent, it has to be given due respect and weightage, but it does not amount to vetoing the recommendation of the Chief Justice. The Chief Minister after considering the expression as aforesaid of all the constitutional functionaries can do the following three things:-

1) Accept the recommendation of the Chief Justice after consultation and advise the Governor for appointment;

2) He can over-rule the objections of other constitutional functionaries, accept the recommendation of the Chief Justice and advise the Governor accordingly;

3) The Chief Minister either being convinced about the merit of dissent or if he has any information about the recommendee which makes him unsuitable for the said post, he need not advice the Governor about such person. He has the final word.

116. Thus, he has supremacy over the primacy of the recommendation of the Chief Justice. He may bring all these dissent, information and the materials supporting such dissent to the Chief Justice and request him to make a fresh recommendation. When this happens, probably the Chief Justice would become alert and more careful in selecting the suitable candidate and thereafter make another recommendation to the Chief Minister. Though primacy is given to the recommendation of the Chief Justice, the other constitutional authorities’ opinion is bound to be considered. It cannot be ignored. Their role and status is in no way undermined in the consultation process. Due importance is given to their views. Having regard to the status each of these constitutional functionaries enjoy under the Constitution, the object of the Act and the wisdom they possess, they understand their responsibilities and the institution to which appointment is made and, there would be no case for any complaint, except for good and valid reasons, as all of them at the end of the day, are accountable to the people of this State and all of them would keep interest of the public before they act.

117. This procedure would create a healthy atmosphere and a proper setting for the discharge of the duties and responsibilities assigned to the Lokayukta or Upa Lokayukta under the Act. Ultimately, it is in public interest everybody should act in unison keeping in mind the dignity and the status of the office to which appointment is made. This procedure would ensure transparency reposed in the administrative principle and collective expression of the will of the constitutional authorities even if not unanimously, but by majority which would, in turn, strengthen and enhance the reputation of the institution which has assumed great importance in the present day context.

PROCEDURAL IRREDULARITY – EFFECT

118. The Apex Court in the case of Centre for Public Interest Litigation and another vs. Union of India and another reported in AIR 2011 SC 1267 had occasion to consider the validity of recommendation for appointment to the post of Central Vigilance Commission. In that context, it held the Government is not accountable to the Courts in respect of policy decisions. However, they are accountable for the legality of such decisions. The Courts must keep in mind the difference between legality and merit as also between judicial review and merit review. If a duty is cast under the proviso to Section 4(1) of the 2003 Act on the High Powered Committee (HPC) to recommend to the President the name of the selected candidate, the integrity of that decision-making process is got to ensure that the powers are exercised for the purpose and in the manner envisaged by the said Act, otherwise, such recommendation will have no existence in the eye of law. Further, they also held vigilance is an integral part of all Government Institutions. Indeed, anti-corruption measures are the responsibility of the Government. Central Vigilance Commission is an integrity Institution which is set up by the Government of India to improve vigilance administration of the country. Judicial review seeks to ensure that the statutory duty of the HPC to recommend under Proviso to Section 4(1) is performed keeping in mind the policy and purpose of the 2003 Act. When an institutional integrity is in question, the touch stone should be public interest, which is got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof. The authorities have looked into the matter from the larger perspective of institutional integrity including the institutional competence and functioning of CVC. The Courts have to be concerned with the Institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner. Though the personal integrity is an important quality, it is the independence and impartiality of the Institution like CVC, which has to be maintained and preserved in larger interest of the rule of law. While making recommendation, the criteria of the candidate being a public servant or civil servant in the past is not a sole consideration. The HPC has to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner. Autonomy has been conferred so that the CVC could act without fear or favour. Institution is more important than an individual.

119. As already set out supra, the Act was enacted after repealing the Karnataka State Vigilance Commission Rules, 1980, under which State Vigilance Commission was investigating and holding enquires regarding complaints against the Government servants. The Vigilance Commission was abolished. Though the Chairman of the Central Vigilance Commission has to be a retired public servant, having regard to the nature of the function to be performed by the High dignitary who is to be appointed under the said Act, what has been said by the Apex Court in the aforesaid judgment applies with equal force under this Act also. Autonomy has been conferred on Lokayukta and Upa-Lokayukta. They could act without fear or favour. Institution is more important than individual. All inquiries and investigations pending before the Vigilance Commission was transferred to Lokayukta. The post of Lokayukta and Upa-Lokayukta is a statutory post. They perform statutory functions as enumerated in Sections 7 and 8 of the Act. The object and performance of the Act, is to have an integrity institution like Lokayukta and UPa-Lokayukta which is incharge of vigilance administration and which constitutes an Anti Corruption mechanism. If a duty is cast under Section 3(1) of the Act to advise the Governor the name of the candidate for being appointed to the post of Lokayukta and Upa-Lokayukta, the integrity of that decision making process is got to be ensured and that the powers are exercised for the purpose and in the manner envisaged by the said Act. Otherwise, such an advice will have no existence in the eye of law. Thus, while making the recommendations, the service conditions of the candidate being a Judge of the Supreme Court or High Court in the past is not the only sole criteria. The Constitutional authority must also take into consideration the question of Institutional competency into account. If the selection adversely effects Institutional competency and functioning, then it shall be the duty of the Chief Minister not to recommend such a candidate.

120. The Institutional integrity of the institution of Lokayukta and Upa-Lokayukta has got to be kept in mind while recommending the name of the candidate and whether the person so recommended would be able to function, whether the working of the Institution would not suffer. If so, it would be the duty of the Chief Minister not to recommend such person. These provisions indicate that the office of Lokayukta and Upa-Lokayukta is not only given independence and insulation from external things, it also indicates that such protections are given in order to enable the institution to work in a free and fair environment. The prescribed form of Oath requires Lokayukta and Upa-Lokayukta to uphold the sovereignty and integrity of the Country and to perform his duties without fear or favour. All these provisions indicate that the Lokayukta and Upa-Lokayukta is an integrity Institution. Therefore, the Chief Minister has to take into consideration the values, independence and impartiality of the Institution. The Constitutional Authority has to consider Institutional competency. It has to take an informed decision keeping in mind the above mentioned vital aspects indicated by the policy and purpose of the Act. The appointment to the post of Lokayukta and Upa-Lokayukta must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. The decision to recommend has got to be an informed decision keeping in mind the fact that it is an Institution which has to perform an important function of vigilance administration. They have to take into consideration what is good for the Institution and not what is good for the candidate. When institutional integrity is in question, the touchstone should be public interest which is got to be taken into consideration by the Constitutional authority and in such cases they may not insist upon proof.

121. The system of governance established by the constitution is based on distribution of powers and functions amongst the three organs of the State. One of them being the Executive, whose duty is to enforce the laws made by the Parliament and to administer the Country through various statutory bodies like Lokayukta, which is empowered to perform the function of vigilance administration. We are concerned with the institution and its integrity including the Institutional competency and function and not the desirability of the candidate alone who is going to be appointed as Lokayukta or Upa-Lokayukta. Though the personal integrity is an important quality, it is the independence or impartiality of the institution like Lokayukta and Upa-Lokayukta which has to be maintained and preserved in the larger interest of the rule of law. Thus, the institutional integrity is the primary consideration which the Chief Minister is required to consider while tendering advice under Section 3 of the Act for appointment of Lokayukta and Upa-Lokayukta.

122. It is in this background when we look at the facts, it is clear that the decision making process is not in conformity with the prescription of law. The Chief Justice has suggested the name of Justice Rangavittalachar, a retied Judge of the High Court to the Chief Minister for considering his name as being appointed as Upa-Lokayukta. On receipt of the said recommendation in writing, the Chief Minister did not circulate the said name to other constitutional functionaries. He even did not inform the Chief Justice that the said name is not accepted. On the contrary, in pursuance of his request, the other constitutional authorities have suggested the names of other Judges for being considered for appointment of Upa-Lokayukta. The Chief Minister has accepted the name of the third respondent which is recommended by two of the four other Constitutional authorities and advised the Governor accordingly. The Chief Minister did not bring to the notice of the Chief Justice the said name, which is advised, to the Governor. The Chief Justice was not aware of the name of the third respondent being recommended. The Chief Justice came to know about the name of the Upa-Lokayukta approved by the Chief Minister only when a notification was issued appointing the third respondent as Upa-Lokayukta. Therefore, it is clear that there was no meeting of mind, there was no deliberation and there was no consensus or disagreement or concurrence. No reasons are assigned for not accepting recommendation of the Chief Justice, as in the scheme of things, his recommendation has primacy. The Chief Justice was kept in complete darkness about the name of the third respondent. In respect of the name of third respondent, there is no consultation between the Chief Minister and Chief Justice. The Chief Minister did not advice the Governor to appoint the third respondent as Upa-Lokayukta, in consultation with the Chief Justice. Consultation being mandatory and sine quo non before advice is tendered, the said mandatory requirement was not complied with. It is in this context, the learned counsel for the petitioner brought to our notice the judgment of the Apex Court in the case of STATE OF GUJARAT .VS. SHANTILAL MANGALDAS AND OTHERS reported in AIR 1969 SC 634 wherein it has been held that it is the settled rule of interpretation of Statutes that when a power is given under the Statute to do a certain thing in a certain way, that power must be done in that way or not at all.

123. The Apex Court in the case of Deewan Singh and others vs. Rajendra Pd. Ardevi and others reported in AIR 2007 SC 767 relied on the principles as enunciated by Maxwell on interpretation of Statutes, 11th Edition at page 231 as under:

“Statues which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they “may” or “shall”, if they think fit”, or, “shall have power”, or that “it shall be lawful” for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have-to say the least- a compulsory force, and so could seen to be modified by judicial exposition.

A statutory authority, as is well-known, must act within the four corners of the statute. Any action by a statutory authority contrary to or inconsistent with the provisions of the statute, thus, would be void. In the matter of construction of a statute, therefore, the Court shall not take recourse to a principle which would render the acts of a statutory authority void in law.”

124. The Apex Court in the case of Hukam Chand Shyam Lal vs. Union of India reported in 1976 SC 789 held that it is well settled that where a power is required to be exercised by certain authority in certain way, it should be exercised in that matter or not at all and all other modes of performance are necessarily forbidden.

125. Therefore, in the light of the undisputed facts of this case and the express words used in the statute, the interpretation which we have placed on those words, it is clear, in the first place, there is no consultation by the Chief Minister with the Chief justice in regard to the name of the third respondent before advising the Governor for his appointment as Upa-Lokayukta. The name suggested by the Chief Justice has not been given primacy. No reasons are forthcoming for not accepting his recommendation. The name suggested by the Chief Justice was not brought to the notice of other constitutional functionaries. When no other constitutional functionaries had any objection for the said name suggested by the Chief Justice, the other constitutional authorities had no power to suggest a name for being appointed as Upa-Lokayukta. The name now advised by the Chief Minister to the Governor, though was recommended by the previous Chief Justice, the Chief Minister did not act on the said advice. Therefore, when the Chief Justice made a recommendation of a new name for Upa-Lokayukta, he did not again recommend the name of the third respondent. Not only the Chief Justice, none of the other constitutional authorities recommended the name of the third respondent to the Chief Minister. It is only after the office of the Upa-Lokayukta became vacant on resignation of the incumbent, a fresh process was commenced and the Chief Justice did not recommend the name of the third respondent as it was not acted upon on an earlier occasion and rightly suggested a new name. Though other constitutional authority had no power to recommend the name, they recommended the name of the third respondent. Though, on the earlier occasion, they did not choose to recommend the name of the third respondent, as earlier recommendation has not been accepted, however again they recommended the name of the third respondent. Under these circumstances, it is patently clear that the process adopted by the Chief Minister before advising the name of the third respondent to the Government is totally illegal, contrary to the statutory provisions and in the process he has not recognised the primacy of the recommendation of the Chief Justice. As set out above, the previous Chief Minister on being pointed out the very same errors committed by him in appointing the Lokayukta, profusely apologized to the Chief Justice and assured him that in the light of the judgment of the Supreme Court, which was brought to his notice, he will ensure that a revised system is put in place on the lines suggested by the Chief Justice. There is a breach of said promise by the successor in Office. Suffice it to say, the procedure followed by the Chief Minister in recommending the third respondent to the office of Upa-Lokayukta is not in accordance with law. It is contrary to law. It violates the statutory mandate. Consultation with the Chief Justice is a condition precedent. In other words, it is a sine qua non before the Chief Minister advised the Governor. As that mandatory requirement is not fulfilled, the recommendation made by the Chief Minister to the Governor is void ab-initio and consequently the order of appointment of the third respondent made by the Governor is also void from the inception and non est in the eye of law and accordingly, it is liable to be set aside.

PUBLIC INTEREST

126. The learned Senior Counsel appearing for the second respondent vehemently urged that the writ petition No.4852-53/2010 is filed by person who is acting as an agent of others who had a personal grievance against the third respondent which they are trying to settle score by way of a public interest litigation. They brought to our notice the judgment of the Supreme Court where it has been held that judicial process should not be allowed to be misused by such name lenders. However, he was fair enough to submit that the other connected writ petition in W.P.No.4962/2002 does not suffer from any such infirmity and the question involved in these proceeding could be conveniently gone into. As in this case we are interpreting the relevant provisions of the Act having regard to the controversy and that admittedly the other writ petition is filed in public interest with the sole object of enforcing law of the land preserving the purity of the Institution and to uphold the dignity of office of both Lokayukta and Upa-Lokayukta, we deem it not necessary to go into question of bonafides of the other writ petition as it would not serve any purpose, as anyhow we have interpreted the provision of the act and set aside the impugned order passed by the Government appointing third respondent as Upa-Lokayukta.

PROCEDURE TO BE FOLLOWED

127. As we have said in the beginning, since the various provisions of the Act had not fallen for consideration earlier, it gave rise to lot of confusion and conflicts. Now that we have interpreted those provisions in the light of the various judgments of the Apex Court and also keeping in mind settled legal principles dealing with interpretation of the statutes, in order to see that there is no further confusion in implementing this order, we deem it proper to set out clearly by way of directions till the State Legislature chooses to frame an appropriate Rules, the procedure to be followed in the matter of appointment of Lokayukta and Upa-Lokayukta under the Act, as under:-

(a) If there is a vacancy or anticipated vacancy in the office of Lokayukta and Upa-Lokayukta and the Chief Minister decides to fill up the said vacancy, he shall communicate to the Chief Justice and request him to suggest or recommend the name of a suitable Judge for the said post/vacancy. In the scheme of the things, there is no scope for panel of names.

(b) The Chief Justice in turn must collect necessary information from the records available in the High Court or in the Supreme Court or any other High Courts as the case may be and also collect such information as may be required through responsible channels or directly acquaint himself with the requisite data, deliberate on the information he receives and proceed in the administration of justice to give the Chief Minister the name of a Judge who is suitable to hold the said post. The name should be specific to the post, as the name suggested by the Chief Justice will have primacy.

(c) The Chief Minister on receipt of the name as recommended by the Chief Justice should share that information with other Constitutional functionaries with whom he has to consult under sub Section (2) of Section 3 of the Act in writing.

(d) The other constitutional functionaries on coming to know the mind of the Chief Justice have two options:

(1) If they agree with the recommendation, they may give their consent and inform the Chief Minister in writing accordingly.

(2) If they do not agree with the recommendation, they are at liberty to disagree. Then they have to justify their action by giving cogent reasons for the disagreement and inform the Chief Minister in writing, of the reasons for disagreement.

(e) Thereafter, the Chief Minister has before him the advice of all the Constitutional authorities and there is consultation. If there is unanimity among all the constitutional functionaries mentioned in the said provision about the name recommended by the Chief Justice, he may proceed to advise the Governor to appoint Lokayukta and Upa-Lokayukta.

(f) If there is no unanimity among the constitutional authorities, then he shall consider the reasons for disagreement given by them. On such consideration, if he is of the opinion that there is no substance in the reasons given by them, he may overrule the said objection and proceed to advise the Governor to appoint the person recommended by the Chief Justice.

(g) If the Chief Minister finds that the reasons for disagreement is justified, then he can bring it to the notice of the Chief Justice the said disagreement and request him to suggest another name.

(h) The Chief Justice thereafter shall make recommendation of another Judge by following the same procedure and thereafter, the said new name is also considered in the similar manner.

128. We do hope that having regard to the status which the constitutional functionaries enjoy under the Constitution and as all of them are interested in maintaining high dignity of the office of Lokayukta and Upa-Lokayukta and the public interest involved, they would make the provisions of the Act work without any hurdle. Even if there is any disagreement they would overcome the said hurdle in a meaningful manner so that the object of the act is achieved and public interest do not suffer to any extent, having regard to the fact that the Institution of Lokayukta and Upa-Lokayukta is an Institution of integrity as held by the Apex Court.

129. For the aforesaid reasons, these petitions should succeed. Accordingly, we pass the following order:-

(a) Both the writ petitions are allowed.

(b) The notification/order dated 21.1.2012 in No.DPAR 215 SLU 201 issued by order and in the name by His Excellency The Governor of Karnataka appointing the third respondent as Upa-Lokayukta is illegal, unconstitutional and non-est in the eye of law and consequently, the said notification as per Annexure-“A” is hereby quashed.

(c) The respondent Nos.1 and 2 are directed to initiate fresh proceedings for appointment of Upa-Lokayukta expeditiously, in terms of this judgment.

(d) Parties to bear their own costs.