And full text of Justice Soniaben Gokani’s judgement on Lokayukta that goes against Governor


Ahmedabad, 19 January 2012

SCA/12632/2011 231/231 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 12632 of 2011

With

CIVIL APPLICATION No. 9364 of 2011

With

CIVIL APPLICATION No. 9416 of 2011

With

CIVIL APPLICATION No. 9363 of 2011

With

SPECIAL CIVIL APPLICATION No. 13499 of 2011

For Approval and Signature:

HONOURABLE MR.JUSTICE AKIL KURESHI
HONOURABLE MS JUSTICE SONIA GOKANI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?
=========================================================

STATE OF GUJARAT THROUGH CHIEF SECRETARY IN HIS CAPACITY AS – Petitioner(s)

Versus

H.E . THE GOVERNOR OF GUJARAT THROUGH PRINCIPAL SECRETARY (SINCE DELETED) & ORS. – Respondent(s)

========================================================= Appearance :

SCA No.12632/11.
Mr K.B. Trivedi, Advocate General, with Mr.P.K.Jani, GP with Ms.Sangita Vishen, AGP for Petitioner(s)
DELETED for Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 2,
Mr Shalin Mehta for Respondent(s) : 3 – 4.

Civil Applications:

Mr.Girish Patel with Mr. A.J.Yagnik, Mr.Mukul Sinha and Mr.D.N.Kiratsata for the applicants.

SCA No.13499/11

Mr.Mihir Thakore, Sr. Adv. With Mr.Dhaval Vyas for the petitioners. Mr.K.B.Trivedi, AG, with Mr PK Jani, GP with Ms.Sangita Vishen AGP for respondent No.1.
=========================================================

CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI

Date : 10/10/2011

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. Every once in a rare while, field of law throws up an issue around which reams and reams worth pages of literature – judicial pronouncements as also commentary of learned authors – is available, but a decision that will fit your case perfectly eludes you. One such issue, which has generated considerable public interest has arisen in this litigation.

2. By this judgment, we propose to dispose of two writ petitions and connected Civil Applications. Special Civil Application No.12632 of 2011 has been filed by the State seeking a writ in the nature of quo warranto or any other appropriate writ or direction in the matter of appointment of respondent No.1 as Lokayukta pursuant to the impugned warrant dated 25.8.2011 issued by Her Excellency the Governor of Gujarat. Special Civil Application No.13499 of 2011 has been filed by one Shri V.K.Saxena, President of the National Council for Civil Liberties. This petition is styled in the nature of public interest litigation. The petitioner therein also prays for a writ of quo warranto or a writ in the nature of quo warranto or any other appropriate order or direction to quash and set aside the appointment of Shri R.A.Mehta, Retired Judge of the Gujarat High Court as Lokayukta.

2.1 Several Civil Applications have been filed seeking impleadment of parties in the petition of the State. At the outset, we have made it clear that we would not be granting such requests to be joined as additional respondents, but we assured the learned counsel for the applicants that they would be allowed to raise all contentions and such contentions will also be taken into account. They had accepted such a formula and accordingly, we have heard the counsel for such applicants also in addition to the Counsel for the State, Counsel for the private petitioner as well as the counsel for the Secretary to the Chief Justice. Respondent No.1 has, in tune with his dignity, not participated in these proceedings.

3. Facts in brief may be noted at the outset as stated in the writ petition filed by the State. As noted, what is under challenge is the appointment of Shri R.A.Mehta, Retired Judge of the Gujarat High Court as Lokayukta made by the Governor of Gujarat. We would be taking note of minute details of the relevant events as emerging from the documents supplied to us by the State, Secretary to the Hon’ble Chief Justice as well as presented before us on behalf of the Governor. At this stage, suffice it to notice that the State has four main objections to the manner in which Shri R.A.Mehta was appointed as Lokayukta by the Governor by issuing notification dated 25th August 2011. The said objections are :

That the consultation for selecting the name of a retired Judge of the High Court was still going on between the Hon’ble Chief Justice and the Hon’ble Chief Minister. When such consultation was yet not over, it was not open for the Governor to unilaterally make appointment of the Lokayukta;

That the State may even, in a given case, reject the recommendation made by the Chief Justice;

That the procedure adopted by the Governor for initiation of consultation and thereafter making appointment disregarding the rules of business was wholly irregular; and

That in any event, the Governor cannot act without the aid and advice of the Council of Ministers which was done in the present case;

4. To appreciate these objections, it would be necessary to look minutely at the events leading to the issuance of impugned notification dated 25th August 2011.

5. In the State of Gujarat, Legislature has enacted the Gujarat Lokayukta Act, 1986 (hereinafter to be referred to as ‘the Act’). Section 3 of the Act pertains to appointment of Lokayukta. Previously, a retired Judge of the Gujarat High Court Shri S.M.Soni was appointed as Lokayukta. He relinquished the office on 24th November 2003. Since then the post of Lokayukta is lying vacant. From the file supplied to us, we do not have any information as to what steps, if any, were taken to fill up the said post between 23rd November 2003 to August 2006 when the Chief Minister of the State wrote to the Chief Justice stating as under:

“Hon. Justice (Retired) Shri S.M.Soni relinquished the office of Hon.Lokayukta on 24th November 2003 after. The question of finding a successor of Shri Soni as Lokayukta, Gujarat State is engaging the attention of the Government.

xxxx

I propose to send the name of Hon. Justice (Retired) Shri Kshitij R.Vyas for consideration of His Excellence the Governor of Gujarat for appointment as Lokayukta, Gujarat State.

I shall be grateful, if you could kindly inform me whether you have any objection to the name of Hon.Justice (Retired) Shri Kshitij R.Vyas for appointment as Lokayukta, Gujarat State. Incidentally, I would like to draw your attention to the fact that as per the provisions of section 3 of the Act the consultation in this regard is with the Chief Justice of the High Court and not with the High Court of Gujarat.”

In response to the said communication, the then Acting Chief Justice Shri Y.R.Meena replied on 7th August 2006 stating as under:

“I have no objection in appointment of Hon’ble Justice Kshitij R. Vyas, Former Chief Justice, Bombay High Court as Lokayukta, Gujarat State.”

5.1 The then Governor of Gujarat, however, had certain reservations about appointment of Shri K.R.Vyas, Former Chief Justice of the Bombay High Court as Lokayukta in view of the fact that he was appointed as Chairman of Human Rights Commission of the State of Maharashtra. The Governor, therefore, on February 6, 2009 conveyed to the State as under:

“While expert legal opinion in this regard is awaited, it has come to my attention that Hon’ble Justice (Retired) Shri Kshitij R. Vyas has already been appointed as the Chairman of the Human Rights Commission of the Maharashtra State and he has taken over the charge of the post since long.

In view of this development, it appears that the present proposal for his appointment as Lokayukta, Gujarat can not now be processed further particularly in light of the provision made under Sub-section 3 of the section24 of the Protection of Human Rights Act, 1993 which reads as under:

Section 24 (3) On ceasing to hold office, a Chairperson or a

Member shall be ineligible for further employ-

ment under the Government of a State or

under the Government of India.

In view of the above provision of law, it appears to me that Hon’ble Justice (Retired) Shri Kshitij R. Vyas is no longer available for appointment as Lokayukta, Gujarat State since even after his ceasing to hold the office of the Chairman, Human Rights Commission of the Maharashtra State, he is not eligible for further employment.

It is therefore appropriate that the present proposal is treated as closed and the State Government is informed to make a fresh proposal in due compliance with the requirements laid down by law.”

5.2 Government of Gujarat was, however, of the opinion that the appointment of Shri K.R.Vyas as the Chairman, Human Rights Commission would not make him ineligible for appointment as Lokayukta. A request was therefore made to the Governor to reconsider the issue. On behalf of the Governor on 10th September 2009, in response to the State’s request for reconsideration of the previous decision, it was conveyed as under:

“I have considered the Government’s proposal for the appointment of Hon’ble Justice (Retd.) Shir Kshitij R. Vyas, former Chief Justice, Mumbai High Court as the Lokayukta, Gujarat State.

I have also gone through the provisions of the Gujarat Lokayukta Act, 1986 and the Protection of Human Rights Act, 1993. I have also got the matter examined through several legal experts in the field.

Based on the feed back that I have received, I am of the view that while it is true that Sub-section (ii) of Section 3 of the Gujarat Lokayukta Act, 1986 prescribes that “a person shall not be qualified for appointment as Lokayukta unless he is or has been a Judge of a High Court”, in view of sub-section (iii) of section 6 of the Protection of Human Rights Act, 1993 since Shri Kshitij R.Vyas, Hon’ble former Chief Justice of the Mumbai High Court has held office of the Chairman of the Human Rights Commission of the Maharashtra State constituted under the provisions of the Protection of Human Rights Act, 1993, the Government’s proposal for the appointment of Shri Vyas as the Lokayukta, Gujarat State cannot be agreed to.”

5.3 On September 10, 2009, on behalf of the Governor the Chief Minister was requested to send a fresh proposal for appointment of Lokayukta after consultation with the Chief Justice of the State and the Leader of Opposition. It was stated thus:

“I have come to know that the post of Lokayukta has been lying vacant in Gujarat since 25.11.2003. Government’s proposal for appointment of Shri Kshitij, R. Vys Hon’ble former Chief Justice of Mumbai High Court and at present Chairman of the Human Rights Commission of the Maharashtra State cannot be agreed to in view of the clear cut provisions of the Protection of Human Rights Act, 1993. In this context, I would like you to send a fresh proposal of the Government for appointment of the Lokayukta after due consultation with the Hon’ble Chief Justice of the Gujarat High Court and the Leader of Opposition in the State Legislative Assembly as per the provisions of Section 3(1) of the Gujarat Lokayukta At, 1986.

An early action in this regard would highly be appreciated as the post has been lying vacant since long.”

5.4 After the said communication, the Chief Minister, conveyed to the Chief Justice under his communication dated February 8, 2010 as under:

“The matter regarding appointment of Lokayukta was under consideration for quite some time. Government, after completing the process of consultation with the Leader of Opposition in the State Assembly and the Hon’ble Chief Justice of the Gujarat State, had recommended the name of Hon’ble Justice (Retired) Shri Kshitij R. Vyas for appointment as Lokayukta, Gujarat State. However, H.E. The Governor, who is the appointing authority in the case of Lokayukta, has finally disapproved the proposal for appointment of Shri Kshitij R. Vyas as Lokayukta, Gujarat State, in view of sub-section (iii) of section 6 of the Protection of Human Rights Act, 1993, since Shri Kshitij R. Vyas has held the office of the Chairman of the Human Rights Commission of Maharashtra.

The question of filling up the vacant office of the Lokayukta, Gujarat State is now required to be considered afresh as per section 3 of the Gujarat Lokayukta Act, 1986. I shall be grateful if you could kindly suggest a panel of three Judge (retired) of the High Court of Gujarat for consideration for appointment as Lokayukta, Gujarat State. On receipt of these names, the formal procedure for appointment of Lokayukta, Gujarat State as stipulated in section 3(1) of the Gujarat Lokayukta Act, 1986, will be undertaken afresh.”

5.5 On 24th February 2010, the Chief Justice of the State, recommended a panel of four names for appointment to the post of Lokayukta. He mentioned that such names are not shown on the basis of preference and any one of them may be appointed. He stated :

“May I draw your attention to the correspondence regarding appointment to the post of Lokayukta, which has been lying vacant since last few years. According to me, the following persons are fit to be appointed to the post of Lokayukta in the State of Gujarat:

Mr. Justice Pravinsingh Motisinh Chauhan

Mr. Justice Babulal Chandulal Patel

Mr. Justice Ramesh Prabhudas Dholakia

Mr. Justice Jayprakash Ramakant Vora.

I may mention that the aforesaid names are not shown on the basis of preference and any one of them can be appointed.”

5.6 On 2nd March 2010, the Chief Minister wrote to the Leader of Opposition to participate in the process of consultation for appointment of Lokayukta for which a meeting would be held on 4th March 2010. On 3rd March, the Leader of Opposition wrote back to the Chief Minister objecting to the Chief Minister initiating the process of consultation. He was of the opinion that such initiation was contrary to the express provisions of the Act. He, in short, declined to participate in any such consultative process.

5.7 The meeting for consultation of the Leader of Opposition was conducted in his absence. Minutes of the meeting held on 22nd March 2010 were drawn. It was recorded that the Chief Minister found the name of Hon’ble Mr. Justice (Retired) J.R.Vora as most suitable for appointment as Lokayukta in the State of Gujarat. It was also noted that :

“Hon. CM expressed the view that in the process of consultation, the views of Hon’ble Chief Justice of the Gujarat High Court must be given supremacy and with a solemn object to respect the names suggested by Hon’ble the Chief Justice, the Government should not restart the process of consultation and should confine the question of selection to the four names suggested by Hon’ble the Chief Justice of the Gujarat High Court.”

The Chief Minister directed that the name of Justice J.R.Vora be placed before the Council of Ministers to obtain approval. The Council of Ministers also approved the name, as is apparent in the note dated 1.4.2010.

5.8. On 3rd May 2010, the Governor wrote to the Chief Justice indicating that :

“According to the expert opinion, it has become clear that the Chief Justice is the most suitable person to know about the suitability of the person to be appointed as the Lokayukta. This is so in order to maintain the independence of the judiciary and to avoid any possibility of a sitting or retired Judge depending on the Executives for such an important appointment. Once the name is given by the Hon’ble Chief Justice, it is binding to the Government and the Council of Ministers has to forward the same to the Governor for appointment. It has also been held that sending a panel of four names by the Chief Justice in this case is not in accordance with the law declared by the Apex Court as laid down in the judgment in Kannadasan v. Ajoy Khose (2009) 7 SCC 1.”

The Governor consequently, requested the Chief Justice to recommend only one suitable name for appointment of the Lokayukta.

5.9 It appears that the Governor of Gujarat, however, had some reservation about the manner in which the name of Shri J.R.Vora was approved. She, therefore, sent a note dated 5.5.2010 to the Chief Minister indicating, inter alia, that as per the decision of the Apex Court in the case of N.Kannaasan v. Ajoy Khose (2009) 7 SCC 1, recommendation of panel of four persons by the Chief Justice would not be in accordance with law. She stated that she had taken the opinion of the learned Attorney General of India. She had accordingly referred the matter back to the Chief Justice to re-examine the matter and recommend only one name for appointment as Lokayukta. She further added that :

“In view of the above, I am returning the present file. It should be submitted to me formally for consideration once the State Government receives a formal proposal from the Hon’ble Chief Justice, Gujarat High Court.”

5.10 In response to the request of the Governor to recommend only one name instead of a panel of names, the Chief Justice conveyed to her on 31st December 2010 as under:

“It has already been noticed that the State Government have some reservation with regard to some of the names recommended by me earlier for appointment to the post of Lokayukta. Hon’ble Justice(Retd.) Shri J.R. Vora, whose name has been proposed for this post, has already been appointed by me as Director, Gujarat State Judicial Academy, in the interest of judiciary. Therefore, he need not be considered for appointment to the post of Lokayukta, for the present. I now recommend the name of Hon’ble Justice (Redt.) Shri Suhrud Deoprasad Dave, for the appointment to the post of Lokayukta. According to me, Hon’ble Justice(Retd.) Shri Suhrud Deoparasad Dave would be suitable for appointment to the post of Lokayukta, which carries more responsibilities.

I hope the matter will be sorted out shortly.”

The Governor, in turn, under her communication dated 6th January 2011 to the Chief Minster requested to process the matter expeditiously in connection with the recommendation of the Chief Justice recommending the name of Shir S.D.Dave. It was stated that the same may be done at the earliest since keeping such an important post vacant any longer would not be in the interest of good governance.

5.11 On 21.2.2011, the Chief Minister, addressed a letter to the Chief Justice, reiterating the State’s request for consulting Shri J.R.Vora on his willingness for being considered for appointment as Lokayukta. It was stated thus:

“In view of the above, I would earnestly request you to consult Hon’ble Mr. Justice (Retired) J.R. Vora on his willingness or otherwise for being considered for appointment as Lokayukta, Gujarat State. In the event of Mr. J.R. Vora being willing to assume the responsibility as Lokayukta, Gujarat State, you may kindly recommend his name once again so that the delay in filling up the vacancy of Lokayukta, Gujarat State could be avoided.”

He was of the opinion that since the entire procedure for appointment of Shri J.R.Vora had already been gone through, it will be in public interest that he joins the said post so that the entire process may not have to be gone through afresh.

5.12 Since Shri J.R.Vora was already appointed as Director of the Gujarat State Judicial Academy the Chief Justice on 22nd March 2011, wrote a letter to the Chief Minister stating that :

“Taking into consideration the fact that by that time Hon’ble Mr. Justice(Retd.) J.R. Vora has already been appointed as Director, Gujarat State Judicial Academy, in the interest of judiciary, by my letter dated 29th December, 2010, I requested Her Excellency not to consider the name of Hon’ble Mr. Justice(Retd.) J.R Vora for appointment to the post of Lokayukta and to consider the name of Hon’ble Mr. Justice(Retd.) S.D. Dave for appointment to the said post which carries more responsibility. Similar information was given to you by my letter dated 31st December 2010.

From the aforesaid letters it would be evident that name of Hon’ble Mr. Justice(Retd.) J.R. Vora was recalled by me for the reasons mentioned in my letters dated 29th December 2010 and 31st December, 2010. Thereafter no consultation has been made with regard to name of Hon’ble Mr. Justice(Retd.) S.D. Dave for appointment to the post of Lokayukta in light of Section 3(1) of the Gujarat Lokayukta Act, 1896. There is also nothing on record to suggest that the Leader of Opposition has also been consulted in the matter.

This apart, under the law the Chief Justice of a High Court may give his option about any Sitting and Retired Honourable Judge of the High Court for appointment to the post of Lokayukta, but it is not the duty of a Chief Justice of a State to call for any consent for any of the person, if selected for appointment, which may be obtained by the appropriate authority.

In view of the aforesaid developments, I again request you to consider the name of Hon’ble Mr. Justice(Retd.) S.D. Dave for appointment to the post of Lokayukta, Gujarat State and take up the matter with Her Excellency the Governor of Gujarat State and the Opposition leader.”

5.13 On 4th May 2011, the Chief Minister wrote to the Chief Justice indicating that though the name of Shri S.D.Dave was recommended by the Chief Justice, on being consulted, he informed that he has already sent a fax to the Governor requesting to recall his nomination due to personal circumstances. The Chief Minister, once again, repeated the request for recommending the name of Shri J.R.Vora stating that he had confirmed that Shri Vora would resign from the post of Director of State Judicial Academy.

5.14 On 7th June 2011, the Chief Justice wrote to the Chief Minister stating that he had already mentioned in his earlier correspondence that as Hon’ble Mr.Justice J.R.Vora has already been appointed as Director of State Judicial Academy, in the interest of judiciary, his name may not be considered for appointment to the post of Lokayukta. He further stated that in view of the development that Shri S.D.Dave would not like to be considered, he had considered Hon’ble Mr. Justice R.A.Mehta suitable for appointment to the post. In the said letter, the Chief Justice stated as under:

“By the said letter dated 4th May 2011, you have reiterated your earlier request to consider the name of Hon’ble Mr. justice (Retd.) J.R. Vora for this post. As regards nomination of Hon’ble Mr. Justice(Retd.) J.R. Vora is concerned, I have already mentioned in my earlier correspondence that as Hon’ble Mr. Justice Vora has already been appointed as the Director, Gujarat State Judicial Academy, in the interest of judiciary, his name may not be considered for appointment to the post of Lokayukta.

In view of the present development that Hon’ble Mr. Justice (Retd.) S.D. Dave would not like to be considered for appointment as Lokayukta, I now consider Hon’ble Mr. Justice (Retd.) Ramesh Amritlal Mehta suitable for appointment to this post. I accordingly, recommend the name of Hon’ble Mr. Justice (Retd.) Ramesh Amritlal Mehta, for appointment to the post of Lokayukta, Gujarat State, which carries more responsibilities.”

Simultaneously, on 7th June 2011, the Chief Justice also wrote to the Governor, stating that :

“In view of the present development that Hon’ble Mr.Justice (Retd.) S.D.Dave would not like to be considered for appointment as Lokayukta, I now consider Hon’ble Mr.Justice (Retd.) Ramesh Amritlal Mehta suitable for appointment to this post. I accordingly, recommend the name of Hon’ble Mr.Justice (Retd.) Ramesh Amritlal Mehta, for appointment to the post of Lokayukta, Gujarat State, which carries more responsibilities.”

5.15 On 7th June 2011, the Governor also wrote to the Chief Minister stating that she had received a proposal from the Chief Justice recommending the name of Shri R.A.Mehta for appointment to the post of Lokayukta. She, therefore, requested that :

“May I request you to kindly get the matter processed expeditiously at the Government level in accordance with the provisions of the Gujarat Lokayukta Act, 1986? The same may be submitted to me formally for consideration at the earliest possible.”

5.16 On 16th June 2011, the Chief Minister wrote to the Chief Justice and raised certain concerns about the recommendation of Shri R.A.Mehta. In this respect, he stated that :

“I have perused the bio-data of Hon’ble Justice (Retired) R.A. Mehta. He was born on 4th may, 1936 and retired from Judgeship of the Gujarat High Court on 4th May 1998. Thus, as on date he has crossed the age of 75 years. Looking to the arduous nature of duties and responsibilities attached with the post of Lokayukta, Gujarat State, he may perhaps not be a suitable candidate for this job at such an advanced age.

The other important aspect is that Hon’ble Mr. Justice (Retired) R.A. Mehta is associated with a few NGOs, Social Activist Groups and he has also given services as a panelist for them. It is obvious that because of his association with the NGOs, Social Activist Groups, etc. he may be in a fixed frame of mind on certain issues relating to the governance in the State. He has also shared platform with such people as are known for their antagonism for the State Government. I am enclosing copies of a few Newspaper clippings downloaded from the websites which clearly indicate that Hon’ble Mr. Justice(retired) R.A. Mehta, while being a panelist for such NGOs, Social Activist Groups, etc. has expressed views against the functioning of the present Government in the State. You will appreciate that if such a person having a specific biased perception for the Government in the State is appointed as Lokayukta, he would not be able to perform his duties with the amount of objectivity, judiciousness and impartiality expected of the Lokayukta. It may therefore by necessary to have a relook at the name proposed by you.”

He once again repeated the request for clearing the name of Shri J.R.Vora in whose case, the whole consultation, etc. as envisaged in the Gujarat Lokayukta Act, 1986 had been gone through. He, therefore, requested the Chief Justice to reconsider the matter and recommend the name of Shri J.R.Vora for appointment as Lokayukta.

5.17 On 2nd August 2011, the Chief Justice wrote to the Chief Minister and stated that :

“Kindly refer to your D.O. Letter No. LKY.2010-2239-G, dated 16th June 2011, whereby you have opined that Mr. Justice (Retd.) R.A. Mehta would not be in a position to perform his duties with the amount of objectivity, judiciousness and impartiality expected of the Lokayukta. You have also reiterated the name of Mr. Justice (Retd.) J.R. Vora for appointment to the post of Lokayukta.

During the last one and half months, I tried to gather the details about the activities of Mr. Justice (Retd.) R.A. Mehta and I find that there is no such activity, which makes him ineligible for appointment to the post of Lokayukta. According to me, he is a man of high repute and integrity and always maintained high reputation while he was in Judiciary and still he is maintaining high standards in the Society. Justice Mehta has never made any public statement, which is detrimental to the Society, nor has he shown any aspiration to any Government, whether State or Central. It cannot be said that he is associated with one or the other NGO as there is nothing to suggest that he is a member of an NGO or he is a social activist cannot be treated as a qualification for his appointment to the post of Lokayukta. On the contrary, it would show the ability of a person who knows the ground reality of the society even at the age of 75, which is prime requirement for the post.

I may refer to the decision of the Hon’ble Supreme Court in the case of Ashish Handa v. Chief Justice of High Court of P & H (1996) 3 SCC 145 wherein the Hon’ble Supreme Court held that the executive is expected to approach the Chief Justice for the purpose of appointment to be made to such post and the name suggested by the Chief Justice would have to be accepted. Hon’ble Supreme Court has also taken the similar view subsequently in the case of N.Kannadasan v. Ajoy Khose, (2009) 7 SCC 1. Thus, it is evident that once the name is suggested by the Chief Justice it is binding on the Government and the Council of Ministers is bound to forward such name to the Governor of the State for appointment.

I, therefore, request you to take up the matter with the Council of Minsters and to forward the name of Mr. Justice(Retd.) R.A. Mehta to Her Excellency the Governor of Gujarat for his appointment as Lokayukta of the State of Gujarat.

I am forwarding a copy of this communication to Her Excellency the Governor of Gujarat for kind information and perusal.”

5.18 On 16th August, 2011, the Governor wrote to the Chief Minister and requested the Chief Minister to send the formal proposal of Shri R.A.Mehta as Lokayukta. She stated as under :

“This is in continuation to my earlier D.O. letter dated 7th June, 2011 wherein I had mentioned that I was in receipt of a proposal from the Hon’ble Chief Justice of Gujarat High Court Justice Shri Mukhopadhya dated 7th June, 2011 recommending the name of Hon’ble Justice (Retd.) Shri R.A. Mehta for appointment to the post of Lokayukta. I had also requested you to kindly get the matter processed expeditiously at the Government level in accordance with the provisions of the Gujarat Lokayukta Act, 1986 and submit a formal proposal for my consideration at the earliest possible.

Even though a period of two months has passed I have not yet heard anything from the State Government. I am of the view that such an important post of Lokayukta cannot be kept vacant any longer in the interest of good governance.

Looking to the importance and urgency of the matter, I had expected prompt action on the part of the Government with reference to my earlier D.O. letter and the recommendation from the Hon’ble Chief Justice. Anyhow, there is no development on this front till date. I must be frank enough to bring it to your notice that this inordinate and uncalled for delay is a cause of grave concern to me as the Governor of the State.

I would again like to draw your kind attention to the provisions of Section 3 of the Gujarat Lokayukta Act, 1986 wherein it is laid down that “Governor shall by warrant and seal appoint the Lokayukta after consultation with the Chief Justice of the High Court and the Leader of the Opposition.” This provision casts a statutory obligation on the part of the State Government to appoint the Lokayukta. If the State Government, in spite of the recommendation from the Hon’ble Chief Justice of the High Court and endorsement from the Governor of the State could not appoint the Lokayukta, such a failure or negligence could not be viewed lightly under the Constitution.

In view of the above, I would again like to request the State Government to send a formal proposal in this regard for my consideration so that the appointment of the Lokayukta could be made forthwith.

Needless to point out to you at this juncture that Justice Shri Mukhopadhaya, Hon’ble Chief Justice of the Gujarat High Court had in clear, unambiguous terms clarified about the misgivings of the Government vide his D.O. Letter dated 2nd August, 2011 addressed to you, a copy of which was also marked to me.”

5.19 On 18th August 2011, once the Chief Minister addressed a letter to the Chief Justice raising several issues with respect to the recommendation of Shri R.A.Mehta for the post of Lokayukta. In the said letter, the Chief Minister had indicated the instances, which according to him would show certain pre-judged bias on the part of Shri R.A.Mehta against the present administration and in particular his views on the Surat Floods leading to large scale loss of property as also on the unfortunate riots which took place in the State of Gujarat post-Godhra train burning incident in the year 2002. The Chief Minister cited certain instances where Shri R.A.Mehta had participated in public hearing and in the conclusion portion of the letter it was stated that :

Although, I have no personal reservation against the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, but as the Head of the State Government, I am afraid, I may not be able to accept the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, who, in my view, cannot be considered the most suitable choice for the august post of Lokayukta, Gujarat State.

Simultaneously on 18th August 2011, the Chief Minister also wrote a letter to the Governor suggesting that the procedure laid down by the Apex Court in the case of Kannadasan (supra) would not apply in case of appointment of Lokayukta and that in other States also, such procedure is not being followed. In so far as the recommendation of Shri R.A.Mehta was concerned, he stated that :

“Insofar as the recent letter dated 2nd August, 2011 from the Hon. Chief Justice of the Gujarat High Court is concerned, I may inform you that the name recommended therein has not been accepted by the State Government for certain specific and valid reasons.

5.10 On 25th August 2011, the Governor issued the impugned notification which reads as under:

“By virtue of the power vested in me by sub-section (1) of section 3 of the Gujarat Lokayukta Act, 1986 (Guj. Act No.31 of 1986, I, Dr.Shrimati Kamla, Governor of Gujarat, do hereby appooint, Shri Justice (Retd.) Ramesh Amritlal Metha to be the Lokayukta with effect from the date he assumes charge of his office.

Given at Raj Bhavan, Gandhinagar this twenty fifth day of August in the year two thousand eleven (3rd Bhadrapad, 1933 Saka).”

6. At this stage, we may also note that the Gujarat Lokayukta (Amendment) Bill, 2011 (Gujarat Bill No.29 of 2011) was passed by the Legislative Assembly of the State of Gujarat on 30th March 2011 which primarily sought to widen the definition of “public functionary’ contained in section 2(7) of the Act by including various authorities, such as, the Mayor or the Deputy Mayor of a municipal corporation, the President or the Vice-President of a municipality, the Sarpanch or the Up-Sarpanch of a village panchayat, the President or the Vice-President of a taluka panchayat or a district panchayat, etc. Such bill when presented before the Governor for promulgation was returned with a recommendation to consider her objection. It was pointed out that there are large number of local bodies in Gujarat including 14000 Village Panchayats, 225 Taluka Panchayats, 26 District Panchayats, 159 Municipalities and 8 Municipal Corporations. She was, therefore, of the opinion that the Lokayukta howsoever competent and efficient would not be able to look into the complaints of irregularities against such large number of persons.

7. The State thereupon issued an ordinance, further amending the Gujarat Lokayukta Act, 1986. Such ordinance contained several changes in the Act, including section 3 thereof. Instead of the existing section 3, it, inter alia, provided for an institution of Lokayukta to consist of the Chairperson, who is or has been a Judge of the High Court and such number of members not exceeding two. It also provided that for the purpose of conducting investigation in accordance with the provisions of the Act, the Governor shall with the aid and advice of the Council of Ministers appoint a Lokayukta. Such appointment shall be made after obtaining recommendation of a committee consisting of the following:

the Chief Minister as Chairperson

the Speaker of the Gujarat Legislative Assembly

the Minister in-charge of the Legal Department

a sitting judge of the High Court, as may be nominated by the Chief Justice of the High Court of Gujarat.

the Leader of Opposition in the Legislative Assembly

It was, however, provided that no sitting Judge of the High court of Gujarat shall be appointed as Chairperson except after consultation with the Chief Justice.

8. The said ordinance was, however, returned by the Governor citing several reasons including that she could not see any urgency in bringing about such an ordinance all of a sudden. Besides, the Chief Justice has already forwarded a proposal for appointment of Lokayukta and the same was at the final stage of issuance of notification. She, therefore, stated that “in view of the above, I fail to appreciate the need of promulgating the proposed ordinance. As such, I am returning the Government file with the above observations”.

9. The Ordinance was once again forwarded to the Governor on or around 20th August 2011. This was done pursuant to the office note dated 18th August 2011 of the General Administration Department. The Governor, however, once again stuck to her views and returned the Ordinance saying “in view of the above, I do not see any justification in promulgating the proposed Ordinance at this juncture; and accordingly, I return herewith the Government file with the above observations.”

10. On the basis of the above factual sequence, several issues have arisen before us. The principal question is of the legality of the notification issued by the Governor on 25th August 2011 appointing Shri R.A.Mehta as Lokayukta of the State of Gujarat.

11. At the centre of the controversy are the nature of powers exercised by the Governor under section 3 of the Act which provides, inter alia, that for the purpose of conducting investigation in accordance with the provisions of the Act, the Governor shall by warrant under his hand and seal, appoint a person to be known as the Lokayukta. Such powers are required to be viewed in light of the powers of the Governor particularly under Article 163 of the Constitution, which reads as under:

“163. Council of Ministers to aid and advise Governor: – (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and avise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises, whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be required into in any Court.”

12. On behalf of the State, the learned Advocate General raised the following contentions:

He submitted that as per Article 163(1) of the Constitution, the Governor must act as per the aid and advice of the Council of Ministers. Under section 3 of the Act, therefore, the Governor could not have acted without or de hors the advice of the Council of Ministers. He referred to the literature on British Model of Governance and several decisions of the Indian Courts, to which reference will be made at a later stage, to contend that in a Parliamentary Democracy, the executive functions through the Council of Ministers and that the Governor is bound by the aid and advice of the Council Ministers unless when discretion is vested on him/her under the Constitution itself.

He submitted that in addition to the express provisions made in the Constitution requiring the Governor to act in his own discretion, there are areas recognized in various decisions of the Apex Court where in special situations such discretionary powers were necessary. He, of course, stated that in exercise of statutory functions, when the Governor is holding a position by virtue of a statute such as Chancellor of a University, such powers are to be exercised without the aid and advice of the Council of Ministers.

The learned Advocate General raised a strong objection to the nature of consultation. He submitted that process of consultation must be initiated by the Chief Minister. In absence of statutory rules, he relied on the past convention and submitted that the process must emanate from the office of the Chief Minister. Heavy reliance was placed on the Rules of Business and in particular entry 36A therein to contend that as per the Rules of Business also, the Governor was required to follow certain procedure which was not done in the present case.

The learned Advocate General submitted that the Chief Minister under the scheme of section 3 would be the consultant. The Chief Justice of the State and the Leader of Opposition would be the consultees. He contended that the nature of consultation envisaged under different judicial pronouncements for appointment of Constitutional Courts, that is, High Courts and the Supreme Court would not apply in the present case looking to the nature of powers, functions and duties exercised by the Lokayukta under the Act. He contended that even the procedure envisaged for appointment to different judicial or quasi judicial positions, such as, the President of Consumer Forum cannot be adopted since the post of Lokayukta was not a judicial post. In short, he submitted that the procedure envisaged by the Apex Court in the case of Justice K.P.Mohapatra v. Sri Ram Chandra Nayak, (2002) 8 SCC 1 and not the one envisaged in the decision in the case of Kannadasan (supra) should be followed.

He submitted that the entire procedure adopted by the Governor was wholly irregular. The Governor could not have sought the advise of the Attorney General. She could not have insisted on recommendation of one name against a panel of names as previously suggested by the Chief Justice. The Governor, in any case, could not have approached the Chief Justice directly.

Most assertively it was contended that consultative process was still going on and the Council of Ministers through the Chief Minister had raised certain objections to the appointment of Shri R.A.Mehta as Lokayukta. The first communication of the Chief Minister dated 16th June 2011 was replied to by the Chief Justice on 2nd August 2011. However, the later communication dated 18th August 2011 raised several issues about the recommendation of Shri R.A.Mehta which were still being examined by the Chief Justice. At that vital stage, the Governor could not have acted unilaterally and issued the notification.

The learned Advocate General further contended that there was no delay on the part of the Government in making the appointment. Government always acted promptly and in the best interest of the State.

Counsel contended that in such a case, even at the instance of the State quo warranto would lie. In any case, the State had also prayed for a declaration which can always be issued by this Court.

13. Learned Advocate General relied on the following decisions :

13.1 In the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 to contend that in a Parliamentary democracy, the Governor in exercise of powers under Article 163 (1) would always be in aid and advice of the Council of Ministers and only in exceptional and rare cases where the Constitution so specifically provides, the Governor would have discretionary powers.

13.2 In the case of Kehar Singh v. Union of India, (1989) 1 SCC 204, wherein the Apex Court even in the context of the President exercising powers under Article 72 to grant pardon observed as under :

“It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Art. 74(l) of the Constitution, must act in accordance with such advice. We may point out that the Constitution Bench of this Court held in Maru Ram v. Union of India, (1981) 1 SCR 1196 : (AIR 1980 SC 2141) that the power under Art. 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the Head of the State.”

13.3 In the case of Ram Nagina Singh v. S.V.Sohni, AIR 1976 Patna 36 wherein in the context of appointment of Lokayukta under the Bihar Lokayukta Act, the Division Bench of the High Court observed that ordinarily when power is vested even by the statute in the Government, he has to act on the aid and advice of the Council of the Minsters. It does not cease to be an executive power merely because it is conferred by the statute. It would be defeating the constitutional scheme if it was to be held that the mere use of the word ‘Governor’ in any statute would be imputing an intention to the legislature of conferring a power ‘eo nomine’ . Indeed the presumption should be otherwise.

13.4 In the case of Ajit Kumar v. State of Jharkhand & ors. In WP (PIL) No.2475 of 2001 reported in MANU/JH/0345/2002, a Division Bench of the Jharkhand High Court was also examining the provisions of appointment of Lokayukta in the State. Hon’ble Justice M.Y.Eqbal in his order stated as under :

“17. From the reading the aforesaid provisions of the Act, it is manifest that Lokayukta shall be appointed by the Governor, by issuance of warrant under his hand and seal. For the appointment of a Lokayukta the Governor has to make consultation with the Hon’ble Chief Justice of the High Court and the Leader of Opposition of the State Legislative Assembly. A question therefore falls for consideration is as to whether the Governor at his own discretion proposed the name of person for appoint of ‘Lokayukta’ and then make consultation with the aforementioned two functions or the Governor shall exercise power on the aid and advice of the Council of Ministers. At this stage it is very important to note that section 3 of the Act only speaks about the consultation with the Chief Justice and the Leader of Opposition and nowhere it is provided that Chief Minister is to be consulted.”

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26. Reading Article 163 and 166 of the Constitution and the Rules of Executive Business, it is therefore clear that any function vested in the Governor, whether Executive, Legislative or quasi judicial in nature and whether vested by the Constitution or by the State may be delegated by the Rules of Business unless contrary is clearly provided by such constitutional or statutory provisions. The phrase “Governor in his discretion” as referred under Article 163 of the Constitution, in my opinion, does not come with the purview of Section 3 of the Lokayukta Act, for the reason that the Governor has got his special power under a special statute, i.e. Lokayukta At. Power conferred upon the Governor under the said Act has to be exercised in accordance with the procedure provided under the Rules of Executive Business. In other words, Governor while exercising power under Section 3 of the Act has to act on the aid and advice of the Council of Ministers.”

Hon’ble Justice S.J.Mukhopadhaya, other member of the Bench who gave a concurring, but separate judgment observed as under:

“39. Initially, this Court was informed that the consultation process with the Chief Justice of the High Court and the Leader of Opposition of the State has been completed and final decision would be taken within few weeks. However, the matter is being lingered on the ground that, the Council of Ministers did not agree to the proposal of appointment of the person which was unanimously agreed by the Chief Justice of the High Court, Leader of Opposition and the Chief Minister. The Council of Ministers proposed to appoint a person who is a ‘domicile of State’, whereinafter the Chief Minister suggested another name.

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47. In the aforesaid background, while I agree with the findings given by brother Eqbal, J. am of the opinion that the matter of consultation should not be dealt in the like manner as dealt in the present case, as the consultation with the high dignitaries like Chief Justice of a High Court and Leader of Opposition of the State Assembly should not be negated on unreasonable ground giving a colour that the Council of Ministers who will fall within the domain of the Lokayukta do not like to have a Lokayukta or intend to have a Lokayukta of their choice, which is against the spirit of Lokayukta Act, 1973.

48. In such a situation, it is desirable to have names of certain persons that should be discussed initially by the Council of Ministers with the Chief Minister as its head and only thereafter to forward such names for consultation with the Chief Justice and Leader of Opposition.

49. Further, according to me, once a consultation made, the matter should not have been sent back to the Council of Ministers, but in accordance with the provisions of the Lokayukta Act, 1973, it should be referred to the Governor of the State. If initially, the aid and advice of the Council of Ministers taken the Governor is not required to take again the aid and advice of the Council of Ministers, but to act taking into consideration the consultation as made. On the other hand, where no initial aid or advise taken from the Council of Ministers, like the present one, the Governor before issuance of warrant of appointment, should take aid and advice of the Council of Ministers.”

13.5 In the case of Rama Chandra Nayak v. State of Orissa, AIR 2002 Orissa 25, wherein the Orissa High Court also in the context of the Orissa Lokpal and Lokayuktas Act held that the Governor while appointing a person as Lokpal is to act on the aid and advice of the Council of Ministers and there is no question of exercising power under his personal capacity or discretion.

13.6 Our attention was also drawn to the decision in the case of Justice K.P.Mohapatra v. Sri Ram Chandra Nayak, (2002) 8 SCC 1, wherein the aforesaid decision of the Orissa High Court (AIR 2002 Orissa 22) though was overruled but not on this issue. To this decision, detailed reference would be made later on.

13.7 It was pointed that the Supreme Court in the case of Bhuri Nath v State of Jammu & Kashmir , (1997) 2 SCC 745 had approved the view of the Patna High Court in the case of Ram Nagina Singh (supra).

13.8 Reference was made to the decision in the case of Central for PIL v. Union of India, (2011) 4 SCC 1 to highlight that even in appointment of Central Vigilance Commission, the Apex Court held that the President shall act on the aid and advice of the Council of Ministers.

13.9 Reference was also made to the decision of the Apex Court in the case S.C.Advocates-on-Record Ass. v. Union of India, (1993) 4 SCC 441 to contend that the procedure envisaged for appointment of Judges of High Court and Supreme Court cannot be adopted in the present case.

13.10 Reference was made to the decision in the case of Ashok Tanwar v. State of H.P., (2005) 2 SCC 104 wherein the Apex Court drew the distinction in the nature of consultation of the Chief Justice in case of appointment of Judge to a Constitutional Court which required consultation with the collegium of Judges vis-a-vis the appointment to other judicial or quasi judicial bodies where the consultation would be only with the Chief Justice.

13.11 Reference was made to the decision in the case of N.Kannadasan (supra) to submit that it was a case where the question of appointment of President of the Consumer Commission was involved. The Consumer Forum is exercising judicial powers, the ratio laid down by the Apex Court in such a case would not apply in the present case.

13.12 Reliance was placed on the decision of the Apex Court in the case of Baliram Waman Hiray v. Justice B. Lentin, (1988) 4 SCC 419 to point out that the Apex Court held that Commission under the Commission of Inquiry Act is not a court.

13.13 Reference was made to the decision in the case of Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496 wherein the Apex Court held that the Consumer Court had trappings of a court. It was, however, contended that nature of powers, duties and functions exercised by the Consumer Forum and that by Lokayukta being vastly different, the Lokayukta cannot be stated to be an institution having the trappings of a court.

13.14 Reference was made to the decision of the Apex Court in the case of State of Maharashtra v. Labour Law Practitioners Association, (1998) 2 SCC 688 to point out that looking to the nature of powers exercised by the Presiding Officer of the Labour Court, it was held to be part of judicial set up.

13.15 Reliance was also placed on the decision in the case of S.R.Venkataraman v. Union of India (1979) 2 SCC 491 to contend that the Governor acted with legal malice and the decision should therefore be quashed.

14. Learned Senior Counsel Shri Mihir Thakore appearing for the petitioner in the connected petition raised one central issue, viz. that in exercise of powers under section 3 of the Act, the Governor was bound by the aid and advice of the Council of Ministers. In absence of any recommendation from the Council of Ministers, advising the Governor to appoint Shri R.A.Mehta as Lokayukta, she could not have unilaterally issued the notification.

14.1 He placed before us the debates in the Constituent Assembly wherein the speakers stressed the need of, on the one hand vesting discretionary powers to the Governor and on the other, rejecting any misgiving that such power would vest the Governor to act in every case in his discretion.

15. He relied on the following decisions in support of his contentions :

15.1 In the case of Ram Jawaya v. State of Punjab, AIR 1955 SC 459 laying down the scope of executive powers under the Constitution.

15.2 He also relied on the decision of the Apex Court in the case of Shamsher Singh (supra) wherein it was held that the President as well as the Governor acts on the aid and advice of the Council of Ministers and is not required by the Constitution to act personally without the aid and advice and only when the Governor has any discretion, he acts on his own judgment, which must be exercised in harmony with the Council of Ministers.

15.3 Our attention was drawn to the decision in the case of Vice-Chancellor, University of Allahabad v. Dr.Anand Prakash Mishra, (1997) 10 SCC 264 wherein the Governor as Chancellor of the University had made certain appointments and the Governor as the head of the State also cancelled such appointments acting under the aid and advice of the Council of Ministers.

15.4 Our attention was drawn to the decision in the case of State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 wherein in the context of the allegations against the Chief Minister of the State, on a concession by the Counsel, it was held that the Governor could have acted in her discretion.

15.5 Decision in the case of M.P.Special Police Establishment v. State of M.P., (2004) 8 SCC 788 was also brought to our notice to contend that the facts in that case were peculiar. Against a Minister of the State, serious allegations were made. Council of Ministers refused to grant sanction for prosecution. The Governor, however, passed an order granting such sanction. It was in this background, the Apex Court opined that the Governor had rightly acted in her own discretion.

16. On behalf of respondent No.2, learned counsel Shri Shalin Mehta made detailed submissions. At our request, he also addressed us on general issues which were presented before us. He submitted that it is though ordinarily true that the Governor must act in the aid and advice of the Council of Ministers, such rule is subject to certain exceptions which from the decisions of the Apex Court can be culled out as under:

where the bias is inherent,

where the bias is apparent,

where the decision of Council of Ministers is wholly irrational;

where the Council of Ministers, due to the situation, is disabled or disentitled to give such advice,

in a matter of propriety,

where there is a possibility of complete break-down of democracy.

16.1 He submitted that looking to the various statutory provisions contained in the Act, the institution of Lokayukta has trappings of a court. In any case, he contended that in case of difference of opinion between the Chief Justice and the Chief Minister with respect to the finalization of the name for appointment of Lokayukta, it is the Chief Justice’s view which should prevail because :

(a) by virtue of the decision in the case of Justice K.P.Mohapatra (supra) view of the Chief Justice would have primacy;

(b) the Chief Justice of the State is the best person to judge the suitability of a sitting or a retired High Court Judge to act as Lokayukta.

(c) Consultation under section 3 of the Act with Chief Justice is mandatory. Opinion of the Chief Justice is, therefore, binding.

(d) object of the Act cannot be subserved, if the final decision is left to the executive.

16.2 Counsel submitted that there was a difference of opinion between the Chief Minister and the Chief Justice with respect to the name of Shir R.A.Mehta as Lokayukta. There was no further consultation pending with the Chief Justice after the State Government’s objections raised by communication dated 16th June 2011 were disposed of by the Chief Justice.

16.3 He submitted that as held by the Apex Court in the case of N.Kannadasan (supra), the process of consultation must start from the Chief Justice. He also referred to the decision of the Apex Court in the case of Justice K.P.Mohapatra (supra) to contend that the view of the Chief Justice should be given primacy.

16.4 Reliance was placed in the case of Rajendra Singh Verma v. Lt. Governor of NCT of Delhi, 2011 (1) SCALE 315, wherein, in the background of compulsory retirement of a judicial officer, the Apex Court held that the Governor cannot act on the aid and advice of the Council of Ministers but has to act only on the recommendation of the High Court.

17. Shri Girish Patel appearing for the applicants, opposed the petitions and submitted that though ordinarily, the Governor would be required to act under the aid and advice of the Council of Ministers, such rule is not inviolable. In exceptional situation, it would be open for the Governor to act in her discretion.

17.1 In this regard, he submitted that consultation between different agencies was going on since 2006. The post of Lokayukta is lying vacant since 2003 when Justice S.M.Soni relinquished the charge. For eight long years, there is no appointment to the post of Lokayukta. He pointed out that previously, a public interest litigation was filed seeking urgent appointment of Lokayukta in which on behalf of the State, on 16.6.2010 it was stated that the process is at the fag end. Despite one full year having passed since then, till date no appointment has been made.

17.2 He submitted that the petition of the State is not maintainable since it is filed against a private individual. The State has not joined any Department as the respondent. Obviously, the Governor cannot be a respondent and rightly not joined by the State. He submitted that a writ of quo warranto cannot be issued since Justice R.A.Mehta has not taken charge and till the person appointed assumes office, writ of quo warranto would not lie.

17.3 He submitted that in view of the provisions of Article 163 of the Constitution, Governor’s discretion is not open to judicial review.

17.3 He drew our attention to various provisions of the Act to contend that an exceptional situation has arisen in the present case because :

aid and advice of the Council of Ministers was not available ;

the Governor was, therefore, within her right to exercise independent powers;

the situation would give rise to the doctrine of necessity;

The Lokayukta Act permits investigation into the complaints relating to incidents not older than five years. Since there was no Lokayukta for the last eight years, large number of complaints would get eliminated from the purview of Lokayukta and any further delay cannot be brooked.

17.4 He further contended that to keep several issues out of the purview of the investigation by Lokayukta, the Chief Minister had appointed a Commission of Inquiry of a retired Judge of the Supreme Court so that the subjects which were placed before the Commission for his inquiry cannot be gone into by the Lokayukta.

17.5 He further submitted that the said Act was sought to be amended to eliminate or at least minimize the role of the Chief Justice in selection of person for appointment as Lokayukta.

17.6 Counsel relied on the following decisions in support of his contentions :

In the case of Pundlik Vishwanath v. Mahadeo Binraj, AIR 1959 Bombay 2, to contend a writ of quo warrant would not lie till the authority assumes charge of the post in question.

For the same purpose, reliance was placed in the case of University of Mysore v. Govinda Rao, AIR 1965 SC 491.

Decision in the case of S.R.Chaudhari v. State of Punjab, (2001) 7 SCC 126 was cited wherein the Apex Court discussed the aspects of Parliamentary Democracy and stated that sovereign powers lie with the people.

Reliance was also placed on the decision in the case of N. Kannadasan (supra) wherein the Apex Court was pleased to discuss various issues of independence of judiciary in context of appointment of the president of Consumer Forum.

Decision in the case of Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, was cited wherein the Apex Court was considering the validity of dissolution of Bihar Assembly on the recommendation of the Governor.

18. Dr.Mukul Sinha appearing for the other applicant also opposed the petition contending that the Governor was well within her power to act in the present case. In fact, he contended that any action of the Governor to the contrary would be unconstitutional. Counsel relied on the following decisions:

In the case of Union of India v. Madras Bar Assn. (2010) 11 SCC 1 wherein the Apex Court stressed the need of an independent judiciary.

In the case of S.D.Joshi & ors. v. High Court of Judicature at Bombay, (2011) 1 SCC 252 wherein the Apex Court held that presiding members of the Family Court of the Maharashtra though may be “Judges” in generic sense, they do not hold a “judicial Office”.

Our attention was also drawn to the decision in the case of K. Shamrao v. Assistant Charity Commissioner, (2003) 3 SCC 563 wherein the Apex Court held that the Charity Commissioner is a court for the purpose of Contempt of Court Act.

19. Having thus heard the learned counsel for the parties following issues arise for our consideration:

What is the nature of powers exercised by the Governor under section 3 of the Act ?

What is the nature of powers, duties and functions of a Lokayukta under the Act ? In other words, whether the institution of Lokayukta is a court or has trappings of a court and consequently, is Lokayukta holding a judicial post ?

What is the nature of consultation envisaged for appointment to the post of Lokayukta and more particularly in case of difference of opinion between the Chief Justice and the Chief Minister of the State, whose view would prevail ?

In the present case, as a matter of fact, was there a difference of opinion or a deadlock between the two dignitaries ?

Was the Governor authorized to act as she did in the present case ?

Is the State’s petition maintainable ?

Can a writ of quo warranto be issued without Shri R.A.Mehta having assumed the office ?

20. Last two issues which are preliminary in nature would be dealt with first.

Maintainability of the petition/s:

21. We are of the opinion that the State’s petition is maintainable. By virtue of Article 361 of the Constitution of India, Governor of the State is not answerable to any court for the exercise and performance of powers and duties of his office or any act done or purporting to be done by him in the exercise and performance of those powers and duties. However, as held by the Apex Court in the case of Rameshwar Prasad (supra) a writ would like against the decision of the Governor. In any case, such technical issue need not detain us as a public interest litigation filed by a private organization is very much before us. We did not issue notice in such petition only in order not to duplicate the efforts when we were hearing the grievance of the State in the State’s petition. However, such petition at any rate would be maintainable.

Can writ of quo warranto be issued ?

22. With respect to the question of issuance of writ of quo warranto also, we are of the opinion that such issue need not detain us for long. The parameters of a writ of quo warranto were discussed by the Apex Court in the case of University of Mysore v. Govinda Rao, AIR 1965 SC 491 as under:

“7. As Halsbury has observed :

“An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.” Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.”

As canvassed by learned counsel Shri Girish Patel, certain judicial pronouncements do suggest that the court would not issue a writ of quo warranto till the person concerned assumes the office. In case of Parmatma Ram v. Shri Chand, reported in AIR 1962 HP 19 also similar view was expressed.

On the other hand, the learned Advocate General has cited instances where such writ petitions have been entertained by the Courts, such as, in case of Shri Kumar Padma Prasad, (1992) 2 SCC 428 and Rajendrakumar Chandumal, AIR 1957 MP 60. However, we need not go into this question since as observed by the Apex Court in the case of Centre for PIL (supra), the Court in an appropriate case would also be competent to issue a writ of declaration. It was observed as under:

“51. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. Before a citizen can claim a writ of quo warranto he must satisfy the court inter alia that the office in question is a public office and it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. A writ of quo warranto is to prevent a continued exercise of unlawful authority.

52. One more aspect needs to be mentioned. In the present petition, as rightly pointed out by Shri Prashant Bhushan, learned counsel appearing on behalf of the petitioner, a declaratory relief is sought besides seeking a writ of quo warranto.

53. At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration. Further, as held hereinabove, recommendation of the HPC and, consequently, the appointment of Shri P.J.Thomas was in contravention of the provisions of the 2003 Act, hence, we find no merit in the submissions advanced on behalf of Respondent 2 on non-maintainability of the writ petition. If public duties are to be enforced and rights and interests are to be protected, then the court may, in furtherance of public interest, consider it necessary to inquire into the state of affairs of the subject-matter of litigation in the interest of justice (see Ashjok Lanka v. Rishit Dixit). “

22.1 In the case of N. Kannadasan (supra), the Apex Court observed as under:

“148. We have found hereinabove that the appellant was not eligible for appointment to a public office and in any event the processual machinery relating to consultation was not fully complied with.

149. In this case, moreover, a writ of declaration was sought for. This Court in Kumar Padma Prasad issued a writ of declaration although a writ of quo warranto was sought for. Declaring that the appellant therein was not qualified to be appointed as a Judge of the High Court, a consequential order directing him not to appoint was also issued.”

In the conclusion, we find that even if there is any inhibition in issuing a writ of quo warranto, a declaration can always be issued which would have the same effect.

Nature of powers of the Governor under section 3 of the Act:

23. That brings us to the question whether under section 3 of the Act, the Governor was required to act in aid and advice of the Council of Ministers or at her own discretion. Looking to the provisions of Article 163 of the Constitution and the provisions made in section 3 of the Act as also considering the nature of Parliamentary democracy adopted by our country under the Constitution, there is little doubt that the Governor under section 3 of the Act was required to act in aid and advise of the Council of Ministers. We are conscious that there is a marked distinction between the powers exercised by the President under Article 74 of the Constitution vis-a-vis that exercised by the Governor under Article 163. In the former case, the President virtually has no discretion but to act on the aid and advise of the Council of Ministers, under Article 163 there is a clear distinction where areas are earmarked for the exercise of power of the Governor which must be exercised by him or her in her/his discretion and not under the aid and advise of Council of Ministers. However, such areas must be traced under the Constitution. Exception, of course, being where the Governor is exercising powers by virtue of holding certain statutory post or position as in case of a Chancellor of a University. In such a case, the Governor would not be acting as the head of the State but as a statutory authority holding such a post ex-officio merely by virtue of being the Governor of the State. In such a case, the Governor would be acting as statutory authority and without the aid and advice of the Council of Ministers. However, wherever, the Governor acts as the Head of the State, except for areas which are ear-marked under the Constitution giving the discretion to the Governor, exercise of power must be on the aid and advice of the Council of Ministers. The Apex Court in the case of Samsher Singh (supra) summed the law in following manner:

“154. We declare the law of this branch of our Constitution’ to be that the President and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Minister save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must to compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith’s statement regarding royal assent holds good for the President and Governor in India:

“Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course – a highly improbable contingency -or possible if it notorious that a bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.”

23.1 In the case of PU Myllai Hlychho v. State of Mizoram, (2005) 2 SCC 92, the Apex Court observed:

“14. Our Constitution envisages the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

15. The executive power also partakes the legislative or certain judicial actions. Wherever the Constitution requires the satisfaction of the Governor for the exercise of any power or function, the satisfaction required by the Constitution is not personal satisfaction of the Governor but the satisfaction in the constitutional sense under the Cabinet system of Government. The Governor exercises functions conferred on him by or under the Constitution with the aid and advice of the Council of Ministers and he is competent to make rules for convenient transaction of the business of the Government of the State, by allocation of business among the Ministers, under Article 166(3) of the Constitution. It is a fundamental principle of English Constitutional Law that Ministers must accept responsibility for every executive act. It may also be noticed that in regard to the executive action taken in the name of the Governor, he cannot be sued for any executive action of the State and Article 300 specifically states that Government of a State may sue or be sued in the name of the State subject to the restriction placed therein. This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system. We followed this principle in Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549), A. Sanjeevi Naidu v. State of Madras (1970) 3 SCR 505, 511 and U.N.R. Rao v. Indira Gandhi (1971) 2 SCC 63.”

23.2 In the case of Kehar Singh (supra), the Apex Court, as already noted, held that the President while deciding to grant or not to grant pardon also must act under the aid and advice of the Council of Ministers.

23.3 Reference may also be made in this regard to the decisions of the Apex Court in the case of Bhuri Nath v State of Jammu & Kashmir (supra) and in the case of Vice-Chancellor, University of Allahabad (supra) . In Bhuri Nath the Apex Court was considering the nature of powers exercised by the Governor in administration of Vaishno Devi Shrine. It was observed that under the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, the Governor exercises his statutory powers as ex officio Chairman of the Board and not as executive head of the State with the aid and advice of the Council of Ministers. The decision in case of Vice Chancellor, University of Allahabad (supra) concerned the question of validity of appointment made by the Vice Chancellor of the University. It was observed that the Governor acts as Chancellor discharging statutory duty in his ex-officio capacity while under section 6 of the Act he exercises his constitutional functions under Article 163 with the aid and advice of the Council of Ministers. These decisions represent areas where the Governor exercises statutory duties in his ex-officio capacity and not as the head of a State.

23.4 In the 8th Edition of Commentary on the Constitution of India by Durga Das Basu, law on the subject has been discussed as under:

“There are certain powers and functions of the Governor which speak of “special responsibilities”. These Articles are Arts. 371 A(1)(b), 371A(1)(d), 371A(2)(b), 371A(2)(f) and the provisions contained in the sixth schedule, and the expression “in his discretion” occurring in clause(2) refers to special responsibilities.

1. Subject to the foregoing discretionary functions or powers of the Governor, the Constitution envisages a Parliamentary system of government both at the Union and State levels, which means that neither the President nor the Governor is to exercise any function personally. He is a constitutional head of the Executive and his powers are to be exercised on the advise of the Council of Ministers and through Ministers or other officers to whom functions may be allocated according to Rules of Business made under Art.166(3).

Under this Article, the Governor cannot act on his own, but only with the aid and advice of the Council of Ministers. In substance and reality, the decision is taken by the Council of Ministers headed by the Chief Minister or by the Minister or the Secretary as per business rules. But the decisions are expressed to be taken in the name of Governor. The Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power which is co-extensive with the legislative power, is with the aid and advice of the Council of Ministers, headed by the Chief Minister. The expression, “required” found in Art. 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is compelling necessity to do so. The necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and order made “under” the Constitution. Barring few exceptions, wherever the Constitution requires the satisfaction of the President or the Governor, it is not their personal satisfaction, but the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor has to exercise their powers and functions. Neither of them can exercise any function individually or personally. “

It thus clearly emerges that the Governor under section 3 of the Act acts under the aid and advise of the Council of Ministers.

Lokayukta whether is a court:

24. The next question is whether the institution of Lokayukta is a court or has trappings of a court. Detailed reference to different provisions under the Act will be made at a later stage in a slightly different context. At this stage, suffice it to note that admittedly and concededly, there is no power under the Act by virtue of which the Lokayukta can render a binding judgment. The culmination of the investigation that the Lokayukta may undertake either on a complaint or suo motu would be to render a report. Such a report is not binding either on the Council of Ministers or any other authority. It does not decide the rights or lis between the parties. It does not give a final verdict which can be enforced against one or the other party.

24.1 In the case of Dr.Baliram Waman Hiray (supra), the Apex Court has observed as under:

34. About a decade later in Jagannath Prasad v. State of Uttar Pradesh, (AIR 1963 SC 416) (supra), case, this Court following its earlier decision in Smt. Ujjam Bai v. State of U.P., (1961) 1 SCR 778: (AIR 1962 SC 1621) held that no doubt a Sales Tax Officer appointed under the U. P. Sales Tax Act, 1948 is an instrumentality of the State employed for the purposes of assessment and collection of taxes and merely because he has, in the discharge of his duties, to perform certain quasi-judicial functions i.e. has certain powers which are similar to the powers exercised by Courts, still is not a Court as understood in S. 195, of the Code. The Court relied upon the decision of the House of Lords in Shell Co. of Australia for the view that a Sales Tax Officer was not a Court in the strict sense of that term.

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There had been prior to the enactment of sub-s. (3) of S. 195 of the present Code, a sharp conflict of opinion between the High Courts as to what are the Courts and what are not for the purposes of S. 195(1)(b) of the old Code. The question whether a Commission of Inquiry constituted under the Commissions of Inquiry Act was a Court within the meaning of the Contempt of Courts Act, 1952 and whether the proceedings before the Commission of Inquiry were judicial proceedings directly arose before a Division Bench of the Nagpur High Court in M. V. Rajwade v. Dr. S. M. Hassan, (AIR 1954 Nag 7 1) (supra), Bhutt, J. speaking for himself and S. P. Sinha, C. J. held that a Commission of Inquiry constituted under the Commissions of Inquiry Act 1952 was not a Court within the meaning of the Contempt of Courts Act. The learned Judge rightly observed that the legal fiction created by the first part of sub-s. (4) is for the limited purpose specified in the second and that the purpose for which the fiction is created is therefore to be gathered from what follows after the words which create the fiction. “

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36. We are satisfied that the decision of the Nagpur High Court in M. V. Rajwade’s case (AIR 1954 Nag 71) and that of the Madhya Pradesh High Court in Puhupram lay down the correct law. The least that is required of a Court is the capacity to deliver a ‘definitive judgment’, and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a Court. That being so, it must be held that a Commission of Inquiry appointed by the appropriate Government under S. 3(1) of the Commissions of Inquiry Act is not a Court for the purposes of S. 195 of the Code.”

24.2 In the case of Kranti Associates Private Limited (supra), the Apex Court was examining the requirement for the National Consumer Disputes Redressel Commission to give reasons in its orders. In this context noticing the provisions of the Consumer Protection Act, 1986 it was observed :

“11. The above provisions make it clear that the said Commission has the trappings of a civil court and is a high-powered quasi-judicial forum for deciding lis between the parties.”

24.3 In the case of State of Maharashtra v. Labour Law Practitioners Assn. (supra), the Apex Court observed in para 16 and 18 as under :

“16. We need not refer at length to various other judgments which have dealt with the question whether a Tribunal set up under different Acts which were before the Court in each case was a judicial body or a Court, and whether it was a Court subordinate to the High Court. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669 the Central Government exercising appellate powers under Section 111 of the Companies Act was held to be acting as a judicial body and not as an administrative body. In the case of Shripatrao Dajisaheb Ghatge v. The State of Maharashtra, AIR 1977 Bombay 384 (FB), the term “Courts” was held to cover all tribunals which were basically Courts performing judicial functions giving judgments which were binding and exercising sovereign judicial power transferred to them by the State. It was held that High Court could exercise its jurisdiction under Article 227 over such tribunals. A Full Bench of the Gujarat High Court in the case of Shaikh Mohammedbhikhan Hussainbhai v. The Manager, Chandrabhanu Cinema, 1986 Lab IC 1749 : (AIR 1986 Gujarat 209) held that Labour Courts and Industrial Courts were Courts for the purposes of Contempt of Courts Act and were also Courts subordinate to the High Court.

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18. In the case of Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 : (1992 AIR SCW 1993), this Court had to consider qualifications for the purpose of appointment as a Judge of the High Court under Article 217 of the Constitution. While interpreting the expression “judicial office” under Article 217(2)(a), this Court held that the expression “judicial office” must be interpreted in consonance with the scheme of Chapters V and VI of Part VI of the Constitution. So construed it means a judicial office which belongs to the judicial service as defined under Article 236(b). Therefore, in order to qualify for appointment as a Judge of a High Court, a person must hold a judicial office which must be a part of the judicial service of the State. After referring to the cases of Chandra Mohan (AIR 1966 SC 1987) (supra) and Statesman (Private) Ltd. (AIR 1968 SC 1495) (supra), this Court said that the term “judicial office” in its generic sense may include a wide variety of offices which are connected with the administration of justice in one way or the other. Officers holding various posts under the executive are often vested with magisterial power to meet a particular situation. The Court said,

“Did the framers of the Constitution have this type of offices in mind when they provided a source of appointment to the high office of a judge of the High Court from amongst the holders of a “judicial office”? The answer has to be in the negative. We are of the view that holder of judicial office under Article 217(2)(a) means the person who exercise only judicial functions, determines causes inter parties and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of the judiciary.”

Going by these tests laid down as to what constitutes judicial service under Article 236 of the Constitution, the Labour Court judges and the Judges of the Industrial Court can be held to belong to judicial service. The hierarchy contemplated in the case of Labour Court judges is the hierarchy of Labour Court judges and Industrial Court Judges with the Industrial Court Judges holding the superior position of District Judges. The Labour Courts have also been held as subject to the High Court’s power of superintendence under Article 227.”

25. From the above judicial pronouncements and bearing in mind the provisions of the Act, we are of the opinion that the institution of Lokayukta cannot be considered as a court or having the trappings of a court. Lokayukta does not decide lis between parties. He does not have powers to give binding judgments. Culmination of his investigation may result into a report which report is not binding on any authority. He has powers of a civil court for certain limited purposes and institution of Lokayukta is deemed to be a civil court for certain limited purposes; but is not a court.

Nature of Consultation :

26. This brings us to the next issue, regarding the nature of consultation required for appointment as a Lokayukta. Having held that the Lokayukta does not hold a judicial post, however, in so far as the nature of consultation is concerned, to our mind is not very significant. The contention that the nature of consultation envisaged for appointment to a judicial post, such as consumer forum cannot be adopted in the present case also would be of no consequence. In the case of Justice K.P.Mohapatra (supra), looking to the duties performed by the Lokayukta, the Apex Court was clearly of the opinion that it would be the opinion of the Chief Justice which would have primacy [(2002) 8 SCC 1 ] .

26.1 It was a case wherein the appointment of Lokayukta of Orissa State was under challenge before the High Court in a public interest petition. The High Court set aside the appointment. The matter was carried before the Apex Court. The Apex Court, noticed that section 3(1) of the Act provided that for the purpose of conducting the investigation in accordance with the provisions of the Act, the Governor shall appoint a person to be known as Lokpal and one or more persons to be known as as the Lokayukta or Lakayuktas. It is further provided that “the Lokpal shall be appointed after consultation with the Chief Justice of the High Court of Orissa and the Leader of the Opposition, if any”. In this background, reversing the decision of the High Court, the Supreme Court held and observed 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 S. 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 S. 2(h) is exposed so that appropriate action against such mal-administration and administrator could be taken. The investigation which Lokpal 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(1) Proviso (a) would require that consultation with the Chief Justice of the High Court of Orissa is must or sine qua non. For such appointment, 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 to 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.

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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.”

26.2 As noticed previously, a Division Bench of the Jharkhand High Court in the case of Ajit Kumar (supra) was also examining the nature of consultation between the Chief Justice and the Chief Minister in selecting a name of for appointment of Lokayukta. Justice S.J.Mukhopadhaya delivering a concurring, but separate judgment stressed the need for proper consultation. It was observed that the matter of consultation should not be dealt in the like manner as dealt in that case. He observed that consultation with the high dignitaries like the Chief Justice and Leader of Opposition of the State Assembly should not be negated on unreasonable ground giving a colour that the Council of Ministers who will fall within the domain of the Lokayukta do not like to have a Lokayukta or intend to have Lokayukta of their choice, which is against the spirit of Lokayukta Act. It was further observed that once the consultation is made, the matter should not have been sent back to the Council of Ministers, but in accordance with the provisions of the Act, it should be referred to the Governor of the State. If initially the aid and advice of the Council of Ministers is taken, the Governor is not required to take again the aid and advice of the Council of Ministers, but to act taking into consideration the consultation as made.

27. From the above decisions and particularly of the Apex Court in case of Justice K.P.Mohapatra (supra) it clearly emerges that consultation with the Chief Justice is mandatory and his view would hold primacy. Even independently, we are of the view that in identifying the name for appointment of Lokayukta, it is the Chief Justice’s view, in case of difference between the two dignitaries to the consultation, which must prevail. We say so, because, the very nature of functions and duties the Lokayukta is likely to perform under the Act would require appointment of an independent person who in the view of the Chief Justice is best suited for such a position. The actions of the the Council of Ministers, so also the Leader of Opposition, by the very nature of position held by them, be subjected to investigation that the Lokayukta may have to undertake. It is only the Chief Justice, the third dignitary to the consultation process, who has no personal stake in the matter. Being the Chief Justice of the State, he would be the best suited to recommend the name of a person, who, in his opinion, would be able to perform such duties independently. We further notice that the Act envisages appointment of even a sitting Judge of the High Court. It will be inconceivable that against the will and wish of the Chief Justice, the Council of Ministers and even with the concurrence of the Leader of Opposition can decide to appoint a sitting Judge of the High Court as Lokayukta. It is one more indication for us to hold that in case of break down of consultation between the Chief Minister and the Chief Justice, on the question of selection of name, it would be the Chief Justice’s view which must prevail. Various provisions of the Act convince us that the Act envisages a strong institution of Lokayukta to investigate allegations of irregularities and corruption against public functionaries. It starts with appointment of an independent Lokayukta who is or has been a Judge of a High Court and who is recommended by the Chief Justice of the State. We fail to see how such a purpose would be subserved if finality of the choice is vested in the executive whose actions directly or indirectly may come within the scanner of the Lokayukta. In case of Center for PIL and another (supra) [(2011) 4 SCC 1] the Apex Court discussed the concept of “institutional integrity”. We do not see how “Institutional integrity” of Lokayukta can be preserved by giving primacy to the opinion of the Council of Ministers over that of the Chief Justice. As envisaged in the Interim Report of the Commission, the Lokayukta was to have status of the highest Judiciary. We may not equate the institution of Lokayukta with a court and may not import all concepts which go with the requirement of independence of judiciary; nevertheless, leaving the finality of choice of appointment to the Council of Ministers would be akin to allowing a person whose conduct is likely to be under investigation to choose his own judge.

Whether there was a dead lock

28. This brings us to the next question, namely, whether or not there was any dead lock between the Chief Minister and the Chief Justice or between the Council of Ministers headed by the Chief Minister and the Chief Justice of the State.

29. Much has been stated before us by the learned Advocate General in this regard. Taking us painstakingly through various file notings, it was contended that the Chief Minister, through correspondence had placed the concerns of the Council of Ministers before the Chief Justice. Though the first letter dated 16th June 2011 was replied to by the Chief Justice, the Chief Minister wrote another letter dated 18th August 2011 and elaborated the objections to the name recommended by the Chief Justice. It was submitted that such communication was yet to be taken into account and replied to. The Chief Justice had not turned down the request of the State for reconsideration of the name. At such a moment, it cannot be concluded that the consultation process between the Chief Minister and the Chief Justice had been terminated resulting into a dead-lock.

30. From the record, we, however, find the facts somewhat different. Firstly, after recommending the name of Shri R.A.Mehta, as Lokayukta by the Chief Justice, the Chief Minister raised certain concerns over the selection of the name vide communication dated 16th June 2011. The Chief Justice by his letter dated 2nd August 2011 went on record to state that he tried to gather all the details about the activities of Shri R.A.Mehta. He found that there is no such activity which makes him ineligible for appointment to the post of Lokayukta. According to the Chief Justice, he is a man of high repute and integrity and always maintained high reputation while he was in Judiciary and still he is maintaining high standards in the Society. With these remarks, the Chief Justice concluded that the matter be taken up with the Council of Ministers for forwarding the name of Shri R.A.Mehta to the Governor for appointment as Lokayukta.

31. It is, of course, true that that on 18th August 2011, the Chief Minister wrote a letter to the Chief Justice. In fact, the Chief Minister wrote two letters, one letter was addressed to the Chief Justice giving details of the concerns of the Council of Ministers appointing Shri R.A.Mehta as Lokayukta. The Chief Minister significantly concluded the issue by stating as under :

“Although, I have no personal reservation against the name of Hon’ble Mr.Justice (Retired) R.A.Mehta, but as the Head of the State Government, I am afraid, I may not be able to accept the name of Hon’ble Mr Justice (Retired) R.A.Mehta, who, in my view, cannot be considered the most suitable choice for the august post of Lokayukta, Gujarat State.”

Similar letter was also addressed by the Chief Minister to the Governor, on 18th August 2011 in which, it was once again stated that :

“In so far as the recent letter dated 2nd August 2011 from the Hon. Chief Justice of the Gujarat High Court is concerned, I may inform you that the name recommended therein has not been accepted by the State Government for certain specific and valid reasons.”

Insofar as the Council of Ministers is concerned, therefore, question of appointing Shri R.A.Mehta as Lokayukta was closed. In view of what was conveyed by the Chief Minister to the Chief Justice and the Governor, the State had finally and conclusively and in no uncertain terms conveyed the stand that in so far as Shri R.A. Mehta is concerned, his name was not acceptable. When one talks of consultation, it cannot be a one way consultation. We fail to see what further consultation was left to be made between the Chief Justice and the Chief Minister if the view of the Council of Ministers was that name of Shri R.A.Mehta is simply not acceptable.

31.1 In addition to the above stand emerging from the record, we also find that at the very moment when such correspondence was going on between two dignitaries, the Council of Ministers had recommended issuance of an Ordinance which would change the entire set up of Lokayukta as also the manner of selection of Lokayukta. As already noted, the Governor was requested to issue an Ordinance on 17th August 2011. This Ordinance, if promulgated, would have changed the manner of appointment of Lokayukta. It would in fact, change the very constitution of Lokayukta. Instead of the previous provisions which envisaged one man Lokayukta, the new provisions envisaged Lokayukta as Chairperson and upto maximum of two members who could form the institution of Lokayukta. Appointment to such post would be made by a Committee consisting of the Chief Minister, Speaker of the Legislative Assembly, the Minister In-charge of the Legal Department, a sitting Judge of the High Court, as may be nominated by the Chief Justice and the Leader of Opposition in the Legislative Assembly. Even the role of the Chief Justice in recommending a person to be appointed as Chairperson was to undergo a significant change. Proviso to sub-section (3) to the amended section 3 would provide that no sitting Judge of the High Court shall be appointed as a Chairperson except after consultation with the Chief Justice of the High Court. In other words, consultation with the Chief Justice, previously required for appointment of a sitting Judge or a Retired Judge of the High Court was minimized to consulting the Chief Justice only when a sitting Judge of the High Court was sought to be appointed as Chairperson.

31.2 When such Ordinance was returned by the Governor for reconsideration, once again a fresh Ordinance was sent on or around 20th August 2011.

32. We are not looking at the propriety of issuance of such ordinance or legality of the provisions contained therein. This issue is not at large before us. We are not even accepting the contention of the counsel Shri Girish Patel that such ordinance was issued wholly malafide.

33. One inescapable conclusion, however, one reaches is that in so far as the Council of Ministers is concerned, there was nothing left in the consultation with respect to the name of Shri R.A.Mehta. On one hand, on 18th August 2011, the Chief Minister wrote to the Chief Justice as well as to the Governor of the State that name of Shri R.A Mehta is not acceptable and on the other a day before i.e. on 17.8.2011, Council of Ministers requested the Governor to promulgate an ordinance which would change not only the manner of selection of Lokayukta, but the very constitution of the Lokayukta itself. It may be well within the State’s legislative powers powers to do so. In the present case, all that we conclude is that in so far as the name of Shri R.A. Mehta is concerned, there was nothing left to be consulted between the Chief Minister and the Chief Justice and there was a dead lock.

Was the Governor authorized to act in the manner she did ?

34. This brings us to the last and most crucial aspect of the matter, namely, was the Governor authorized to act in the manner which she did ? To be able to discuss this issue, we would like to delve at some length on the background leading to the enactment of the Gujarat Lokayukta Act as well as various provisions made under the said Act.

34.1 Statement of objects and reasons for enacting the Act records that in the Interim Report on Problems of redress of citizens’ Grievances submitted in 1966, the Administrative Reforms Committee recommended inter alia setting up a institution of Lokayukta to inquire into the complaint of corruption in administration. To give effect to this recommendation of the Administrative Reforms Committee, the State Government had published the Gujarat Lokpal and Lakayukta Bill 1975. The bill was referred to the Government of India for administrative approval. The Government of India had made certain suggestions in respect of the bill. The bill, however, lapsed on account of dissolution of the State Assembly. The present bill was introduced on the same line as the earlier one, after incorporating some of the suggestions made by the Government of India. The main object of the bill was to provide for appointment of Lokayukta to inquire into the complaints in respect of the actions taken by the public functionaries.

35. We have perused the interim report of the Administrative Reforms Commission (‘Commission’ for short). The Commission consisted of Shri Morarji Desai as Chairman, and included Shri Harish Chandra Mathur, Shri H.V.Kamath and Shri V.Shankar as other members. The Commission was appointed by the President of India with terms of reference, which included, to give consideration to the need for ensuring the highest standard of efficiency and integrity in public services and for making public administration a fit instrument for carrying out the social and economic policies of the Government and achieving social and economic goals of development, as also one which is responsive to the people. The Commission was required to deal with problems of redressal of citizens’ grievances, namely, the adequacy of the existing arrangements for the redress of grievances, and the need for introduction of any new machinery for special institution for redress of grievances. The Committee, in its interim report, observed as under:

“While our other terms of reference, by and large, cover problems of established administration, this item breaks comparatively new ground; yet it is basic to the functioning of a democratic Government. It touches both the administration and the citizen at the most sensitive point of their relationship and raises the very crucial issue of the contentment, or otherwise of the common citizen with the manner in which the administration implements the policies of Government. The problem was thrown up in bold relief and in its full impact on the citizen in the very first round of our discussions with the Ministers of the Central Government and the Congress President; its importance, urgency and dimensions have been increasingly impressed upon us by the large volume of both official and non official opinion which we have had the opportunity of consulting so far. The commission was so impressed by both the unanimity and the strength of the popular demand on this subject that it decided to devote itself to this problem rather than from a separate group for the specific purpose of devising a scheme to enable the citizen to seek redress for an administrative injustice. The more the commission considered this issue, the more was it convinced that the problem brooked no delay. We have no doubt that an urgent solution of this problem will strengthen the hands of Government in administering the laws of the land, its policies “without fear or favour, affection or ill-will” and enable it to gain public faith and confidence without which social and economic progress would be impossible. In coming to this conclusion, the Commission has taken note of the oft-expressed public outcry against the prevalence of corruption, the existence of widespread inefficiency and the unresponsiveness of administration to popular needs. The Commission feels that the answer to this outcry lies not in expressions or reiteration of Government’s general satisfaction with the administration’s achievements or its attempts generally to justify itself but in the provision of a machinery which will examine such complaints and sift the genuine from the false or the untenable so that administration’s failures and achievements can be publicly viewed in their correct perspective. Even from the point of view of protection to the services, such an institution is necessary for projecting their image on the public in its true character and for ensuring that the average citizen is not fed on prejudices, assumptions and false notions of their quality and standards. From all these points of view, the Commission has considered itself obliged to make an interim report on this term of reference.”

35.1 The Commission in the report, thereafter, examined the existing safeguards for the citizens and the deficiency in the existing safeguards, particularly with respect to the facilities available for ventilation of citizens’ grievances. The Commission noted the growing encroachment of the State on citizens’ rights after the World Wars and more so since independence. The Commission noted the vast area of administrative discretion in which facilities for citizens grievance is not available. The Commission, therefore, noted that in essence, the main issue before it was how to provide the citizen with an institution to which he can have easy access for the redress of his grievances and which he is unable to seek elsewhere. The Commission noted that the basic problem has been attracting considerable notice and the need for an authority to deal with cases of corruption in the ranks of Government and the same has also engaged the attention of popular representatives of India for several years. The Commission further noted that several strong legislations have been recommended, such as Prevention of Corruption bill, Criminal Law Amendment Bill, 1952, Commission of Inquiry Bill, 1952, etc. the Commission also, took note of the debates for the need for setting up an institution of Ombudsman-type in India which need was strongly stressed and supported by late Shri Pt. Jawaharlal Nehru.

35.2 The Commission noted the pattern of Ombudsman established in various countries, such as, in Scandinavian countries, New Zealand and United Kingdom and noted that common pattern of such institution is that position of Ombudsman is analogous to that of the highest or high judicial functionaries in the country. He is left comparatively free to choose his own methods and agencies of investigation. The Commission felt that in our country also, such pattern can be suitably adapted to our needs. Such institutions are generally a supplement to the Parliamentary control, independent of any political affiliations, outside the normal administrative hierarchy and free from formalism, publicity and delay associated with Governmental machinery. They work unobtrusively to remove the sense of injustice from the mind of the adversely affected citizen and yet uphold in a very large measure the prestige and authority of the administration, instilling public confidence in its efficiency and faith in its working and introducing a proper perspective of it in the mind of the public. The Commission, then went on to notice some of the difficulties in setting up a replica of Ombudsman kind of an institution, but also discussed and concluded that all difficulties pointed out are not insurmountable. The Commission, after careful consideration, was of the opinion that the ministerial decisions should also be brought within the scope of the functions of the Lokayukta. The Commission was of the opinion that even after considering the political aspect of such decision, in fact the same would strengthen the hands of the Prime Minister rather than be weakened by the institution. The Commission, thereupon, recommended an institution for redress of citizens’ grievances comprising one authority dealing with complaint against the administrative acts of the Ministers or Secretaries to the Government at the Center and in the States. The Commission, envisaged another authority in each State and at the centre for dealing with the complaint against the administrative acts of other officials. The Commission observed that public opinion has been agitated for a long time over the prevalence of corruption in the administration and it is likely that cases coming up before the independent authorities might involve allegations or actual evidence of corrupt motive and favouritism. The Commission opined that the institution should deal with such cases as well, except in cases where they might involve criminal charge or misconduct cognizable by a court, the case should be brought to the notice of the Prime Minister or the Chief Minister, as the case may be. The Commission envisaged following main features of the institutions of Lokpal and Lokayukta.:

“25. The following would be the main features of the institutions of Lokpal and Lokayukta-

(a) They should be demonstrably independent and impartial.

(b) Their investigations and proceedings should be conducted in private and should be conducted in private and should be informal in character.

(c) Their appointment should, as far as possible, be non-political.

(d) Their status should compare with the highest judicial functionaries in the country.

(e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.

(f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties.

(g) They should not look forward to any benefit or pecuniary advantage from the executive Government.

Bearing in mind these essential features of the institution, we recommend that the Lokpal be appointed and invested with functions in the manner described in the succeeding paragraphs.”

36. It was on the basis of this interim report that the Lokayukta Act, 1986 was enacted. The draft bill suggested by the Commission, of course, differs in some significant areas from the Act promulgated by the State. Nevertheless, the background leading to the Act is of considerable importance and interest for our purpose. With this background, the Act was enacted “to make provision for appointment of Lokayukta for the investigation of allegations against public functionaries in the State of Gujarat and also for safeguarding the dignity and prestige of public functionaries against false and frivolous allegations and for matters connected therewith”.

36.1 Section 2(1) of the Act, defines ‘action’ which means any action taken whether before or after the commencement of the Act, by way of decision, recommendation or finding or in any other manner includes failure to act. Section 2(2) defines the term ‘allegation’. Section 2(4) defines the term ‘Lokayukta’ to mean a person appointed as a Lokayukta under section 3 of the Act. Section 2(7) defines the term ‘public functionary’ as under:

“(7) public functionary” means a person who holds or has held an office of-

(a) a Minister:

(b) the Chairman or the Vice-Chairman of a Government Company within the meaning of section 617 of the Companies Act, 1956 in which not less than fifty one per cent of its paid up share capital is held by the State Government and the Chairman or the Vice-chairman of a Company which is subsidiary of a company in which not less than fifty one percent, of its paid up share capital is held by the State Government:

(c) the Chairman or the Vice-Chairman of a Corporation established by or under Bombay Act or Gujarat Act and owned or controlled by the State Government:

(d) the Vice-Chancellor of a University established by law in the State of Gujarat;”

Section 3 of the Act pertains to appointment of Lokayukta and reads as under:

“3. (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal appoint a person to be known as the Lokayukta:

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

(2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of a High Court.

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

Section 4 of the Act pertains to disabilities in the case of Lokayukta and provides as under:

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

(a) if he is a member of 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, sever his connection (short of divesting himself of ownership) with the conduct and management of such business: or

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

(2) A person shall be disqualified for appointment as a Lokayukta or for continuing to hold any such post if any member of his family has entered into any commercial contract with the State Government and the contract is subsisting or has any other dealing with the State Government relating to any business of a commercial nature.

Explanation.-For the purpose of sub-section (2), the expression “family” means wife, husband, son, unmarried daughter, and son’s wife. “

Section 5 of the Act pertains to the term of office and other conditions of service of Lokayukta and reads as under:

“5. (1) Every person appointed as the 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 may, by writing under his hand addressed to the Governor, assign his office: (b) the Lokayukta may be removed from office in the manner specified in Section 6.

(2) On ceasing to hold office, the Lokayukta shall be ineligible for further employment (whether as the Lokayukta or in any other capacity) under the Government of Gujarat or for any employment under, or office in any such Government company. Corporation, or University as is referred to in sub-clauses (b), (c) and (d) of clause (7) of Section 2 .

(3) There shall be paid to the Lokayukta such salary as is specified in the Second Schedule.

(4) The allowances and pension payable to, and other conditions of service of the Lokayukta shall be such as may be prescribed:

(5) The salaries, allowances and pension payable to, or in respect of Lokayukta shall be expenditure charged on the Consolidated Fund of the State.

Provided that in prescribing the allowances and pension payable to and other conditions of service of the Lokayukta regard shall be had to the allowances and pension payable to and other conditions of service of the Chief Justice of the High Court:

Provided further that, the allowances and pension payable to and other conditions of service of the Lokayukta shall not be varied to his disadvantage after his appointment.”

Section 6 of the Act pertains to removal of Lokayukta, and reads as under :

“6. The Lokayukta shall not be removed from his office except by an order made by the Governor on the ground of proved misbehavior or incapacity after an inquiry made by the Chief Justice of the High Court or, as the case may be, by such other Judge of the High Court as the Chief Justice may nominate in this behalf, in which the Lokayukta had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.”

Section 7 pertains to matters which may be investigated by Lokayukta, and reads as under:

“7. (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of a public functionary in any case where a complaint involving an allegation is made in respect of such action or such action can be or could have been in the opinion of the Lokayukta the subject of an allegation.

(2) No matter in respect of which a complaint is made under this Act shall be referred to a Commission for inquiry under the Commissions of Inquiry Act, 1952 except on the recommendation or with the concurrence of the Lokayukta:

Provided that nothing in this sub-section shall prevent the State Government from referring the matter to such commission for inquiry if in its opinion the matter is exceptionally a matter of definite public importance.

(3) Notwithstanding anything contained in sub-section (1) the Lokayukta shall, before proceeding to investigate any action, make such preliminary inquiry as he deems fit for ascertaining whether there exist reasonable ground for conducting the investigation and if he finds that there exist no such grounds, he shall record a finding to that effect and thereupon the matter shall be closed and the complainant shall be informed accordingly.

(4) An investigation under this section of an action taken by or with the general or specific approval of a public functionary shall not be affected merely on the ground that subsequent to such action such public functionary ceased to hold the capacity in which the action was taken by him or with his approval or ceased to be such public functionary.”

Section 8 of the Act pertains to matters which shall not be investigated by the Lokayukta and includes those which are referred to a Commission of inquiry appointed under the Commission of Inquiry Act. In particular sub-section (4) of section 8 provides that the Lokayukta shall not inquire into any complaint if the complaint is made after the expiry of five years from the date on which the action mentioned in such complaint is alleged to have been taken.

Section 10 of the Act provides for procedure in respect of the investigation to be made by Lokayukta. Sub-section (1) in particular provides that the Lokayukta shall afford to the public functionary concerned an opportunity to offer his comments on such complaint or statement made against him. Sub-section (2) of section 10 requires the Lokayukta to carry out every such investigation in private and not to disclose the identify of the complainant and the public functionary affected by the investigation. Sub-section (3) of section 10 leaves the procedure for conducting any investigation to the discretion of the Lokayukta. Sub-section (4) of section 10, authorizes the Lokayukta in his discretion to refuse to investigate or cease to investigate any complaint if in his opinion such complaint is frivolous or vexatious or is not made in good faith or there are no sufficient grounds for investigating, or as the case may be, continuing the investigation or other remedies are available to the complainant or in the circumstances of the case, it would be more proper for the complainant to avail of such remedies. However, as per sub-section (5) of section 10, in case where the Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he is required to record reasons and communicate the same to the complainant and the public functionary concerned. Sub-section (7) of section 10 makes the act of disclosing to the public or to the press any information in contravention of the provisions of section 10, an offence which may be punished with imprisonment for a term which may extend to two years and shall also be liable to fine.

Section 11 of the Act pertains to evidence that the Lokayukta may record. Relevant portion of section 11 reads as under:

“11. (1) Subject to the provisions of this section, for the purpose of investigation (including the preliminary inquiry, before such investigation) under this Act, the Lokayukta may require any public servant or any other person who in his opinion is able to furnish information or produce documents relevant to the investigation, to furnish any such information or produce any such document.

(2) For the purpose of any such investigation (including the preliminary inquiry), the Lokayukta shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure 1908 (5 of 1908) in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath:

(b) requiring the discovery and production of any document:

(c) receiving evidence on affidavits:

(d) requisitioning any public record or copy thereof from any court or office:

(e) issuing commissions for the examination of witnesses or documents:

(f) such other matters as may be prescribed.

(3) The Lokayukta shall have power to require any person subject to the provisions of sub-section (8) to furnish information on such points or matters as in the opinion of the Lokayukta may be useful for or relevant to, tile subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code.

(4) The Lokayukta or any Gazetted officer specially authorised in this behalf by the Lokayukta may enter any building or place where he has reason to believe that any books of account or other documents relating to the subject matter of the inquiry may be found, and may seize any such books of account or documents or take extracts or copies therefrom, subject to the provisions of section 100 of the Code of Criminal Procedure 1973 (2 of 1974) in so far as they may be applicable.

(5) The Lokayukta shall be deemed to be a Civil Court and when any offence as is described in section 175, section 178, section 179 or section 180 of the Indian Penal Code is committed in the view or presence of the Lokayukta, the Lokayukta may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974) forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 346 of the Code of the Criminal Procedure 1973.

(6) Any proceeding before the Lokayukta shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code.”

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Section 12 of the Act pertains to report of the Lokayukta in case of Chief Minister and reads as under:

“12 (1) If after investigation of any action in respect of which a complaint involving an allegation has been made against the Chief Minister or against the Chief Minister in conjunction with any other public functionary, the Lokayukta is satisfied that such allegation can be substantiated either wholly or partly against the Chief Minister, he shall, by a report in writing, communicate his findings, alongwith the relevant documents, materials and other evidence, to the Chief Minister.

(2) On receipt of the report under sub-section (1). the Chief Minister shall cause the same to be placed, without delay, before the Council of Ministers. “

Section 13 pertains to findings and recommendations in case where section 12 does not apply. Section 13 reads as under:

“13. (1) If in any case to which section 12 does not apply, the Lokayukta after investigation of any action in respect of which a complaint involving an allegation has been or can be or could have been made, is satisfied that such allegation can be substantiated, either wholly or partly, he shall by a report in writing, communicate his finding alongwith the relevant documents, materials and other evidence, to the competent authority.

(2) The competent authority shall examine the report forwarded to it under sub-section (1) and intimate, within three months of the date of receipt of the report, the Lokayukta the action taken or proposed to be taken on the basis of the report. “

Section 15 of the Act pertains to power of the Lokayukta to appoint or authorize any officer to appoint other employees to assist the Lokayukta in discharge of his functions under the Act. Section 15 reads as under:

“15. (1) The Lokayukta may appoint or authorise any officer subordinate to him to appoint, officers, and other employees to assist the Lokayukta in the discharge of his functions under this Act.

(2) The categories of officers and employees who may be appointed under sub-section (1), their salaries, allowances and other conditions of service and the administrative powers of the Lokayukta shall be such as may be prescribed after consultation with the Lokayukta.

(3) Without prejudice to the provisions of sub-section (1). the Lokayukta may, for the purpose of conducting investigations under this Act, utilise the services of –

any officer or investigation agency of the State Government:

any officer or investigation agency of the Central Government; with the consent of that Government obtained in accordance with article 258-A of the Constitution: or

any other person or agency.

(4) For the purpose of investigating into any matter, any officer. agency or person whose services are utilised under sub- section (3) may. subject to the direction of the Lokayukta,- (a) summon and enforce the attendance of any person and examine him: (b) require the discovery and production of any document; and (c) requisition any public record or copy thereof from any office.

(5) The provisions of sections 11 and 16 shall apply in relation to any information furnished to any officer, agency or person whose services are utilised under sub-section (3) as they apply in relation to the information furnished to the Lokayukta during the course of the investigation of any action by him.”

Section 17 of the Act makes penal provisions for certain intentional acts of insult or interruption of the investigation under the Act or to bring the Lokayukta into disrepute. Section 18 of the Act grants immunity to the Lokayukta against any suit or prosecution or other legal proceedings in respect of anything which is in good faith done or intended to be done by him under the Act.

Section 23 of the Act provides for framing of rules for the purpose of carrying into effect the provisions of the Act.

Second Schedule to the Act provides that the Lokayukta shall be paid salary at the rate equal to that payable to the Chief Justice of the High Court.

36.2 The State has promulgated Rules called Gujarat Lokayukta Rules, 1989.

37. From the various provisions noticed by us, including the background leading to the enactment of the said Act, what emerges is as follows:

The Act has been enacted to investigate allegations against public functionaries as also for safeguarding the dignity and prestige against false and frivolous allegations. To achieve this purpose, several provisions have been made under the Act to ensure appointment of Lokayukta who is independent and who can function independently.

The Act envisages only a retired or a sitting Judge of a High Court to be appointed as Lokayukta. Such appointment has to be made only upon recommendation of the Chief Justice of the State. Section 4 of the Act ensures that such person does not have any allegiance to any political outfit. If he is a member of Parliament or the State Legislature, he must resign. If he holds any office of trust or profit, he must resign from such office. If he is connected with any political party, he must sever his connection. If he is carrying on any business, sever his connection with the conduct and management of such business. If he is practicing any profession, he must suspend such practice. In case of a person whose family member has entered into any commercial contract with the State Government and the contract is subsisting or has any dealing with the State Government relating to any business of commercial nature, such person is disqualified for appointment of Lokayukta or for continuing to hold any such post. The term family includes, wife, husband, son, unmarried daughter and son’s wife also.

Lokayukta once appointed holds the office for a fixed term of five years. Significantly, he does not hold the office at the pleasure of the Governor. He can be removed only as specified in section 6, that is, only by an order made by the Governor on the ground of proved misbehaviour or incapacity, after an inquiry made by the Chief Justice of the High Court or such other Judge as the Chief Justice may nominate in this behalf and in which the Lokayukta had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Lokayukta can investigate into any action which is taken by or with the general or specific approval of a public functionary in any case where a complaint involving an allegations is made or even suo motu if, in his opinion, investigation in such a subject is necessary.

The procedure to be followed during investigation process is left largely to the discretion of the Lokayukta. Lokayukta has been given wide powers to collect evidence. While collection, the Lokayukta has all the powers of a civil court while trying a suit under the Civil Procedure Code, with respect to 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, etc. The Lokayukta may even authorize any Gazetted Officer to enter any building or place where he has reason to believe that books of account or other documents relating to the subject matter of the inquiry may be found and seize any such books of account or documents. Lokayukta is deemed to be a civil court for the purpose of offence punishable under section 175, 179 and 180 of the Indian Penal Code. For the purpose of section 193 and 228 of the Indian Penal Code, the proceedings before the Lokayukta are deemed to be judicial proceedings.

Under section 15 of the Act, the Lokayukta is empowered to engage officers or employees to assist him in discharge of his functions under the Act and also decide the category of officers, employees and the salaries, allowances and other conditions of service which may be prescribed in consultation with the Lokayukta. Under sub-section (3) of section 15, he is also empowered to utilize for the purpose of conducting investigation, service of any of the officers or investigating agency of the State or the investigating agency of the Central Government. Such officer or investigating agency whose services are summoned under sub-section (3) of section 15 in turn have the powers to summon and enforce the attendance of any person and examining him and require the discovery and production of documents, etc,. Section 18 of the Act gives complete immunity to the Lokayukta against any suit or prosecution with respect to any action taken under the Act.

As per sub-section (2) of section 5 on ceasing to hold office, the Lokayukta would be ineligible for further employment as a Lokayukta or in any other capacity under the Government of Gujarat or for any employment or office under any Government Company, Corporation or University.

Reading sub-section (3), (4) and (5) of section 5, the provision thereto and second schedule to the Act together would make it clear that in terms of salary and other emoluments, the position of the Lokayukta is equated with that of the Chief Justice of the State. Further proviso to section 5 ensures that allowances, pension and other conditions of service of Lokayukta cannot be varied to his disadvantage after his appointment.

37.1 It can thus be seen that the Act envisages three pronged approach to ensure that the person to be appointed as Lokayukta is independent and is allowed to and continues to function independently throughout his term. Firstly, he must be or must have been a Judge of a High Court. His appointment must be in consultation with the Chief Justice of the State. He cannot have any political affiliations. He cannot hold membership of the Union or State Legislatures. He cannot hold any office of profit or business connection with the Government. This would ensure appointment of an independent person. Secondly, his tenure is guaranteed. His service conditions cannot be varied to his disadvantage. He is immune from legal action for any act done in discharge of his duties. He is given wide powers to collect evidence and engage his own staff. All these will ensure independence of the institution of Lokayukta. Thirdly, after ceasing to hold the office, he is disqualified from holding any office or employment under the State Government, Government Company or University to ensure total impartiality.

38. It can thus be seen that the Act envisages set up of a strong institution of Lokayukta, only upon which the holder of the office can effectively discharge the functions and duties envisaged under the Act. As already noted, the Act empowers him to investigate into either a complaint received from citizen or suo motu allegations against public functionaries and make a report. If an institution like this is not empowered to effectively carry out such investigation, the entire authority of the institution would completely erode. It is precisely for this reason, under the Act, the Lokayukta has been entrusted with wide powers in discharge of his functions particularly for carrying out the investigation into the complaint made against the public functionaries.

38.1 Simultaneously, to protect and safeguard the public functionaries against any frivolous and false allegations several provisions have been made under the Act. For example, under sub-section (4) of section 10, the Lokayukta may refuse to investigate or discontinue any investigation which may have been initiated if, in his opinion, the complaint is frivolous or vexatious or is not made in good faith or there are no sufficient grounds for investigating or continuing such investigation. Sub-section (5) of section 9 provides that any person who willfully or maliciously makes any false allegations in a complaint under the Act shall on conviction be punished with imprisonment for a term which may extend to two years and shall also be liable to file.

38.2 The Act has therefore a dual purpose. On the one hand, it aims to provide for an effective machinery for a citizen to ventilate his grievance against any irregular act by the public functionary and to investigate in such complaint or to initiate investigation suo motu. As already noted, number of statutory provisions have been made to ensure installation of an independent Lokayukta and further to ensure that such Lokayukta during his term in office can discharge his function independently and effectively, without fear or favour. Simultaneously, while doing so, the Act also aims at protecting the public functionaries against frivolous and vexatious allegations by authorizing the Lokayukta to refuse to investigate any such complaint as also by providing punishment for willful malicious and false allegations.

39. The provisions made under the Act must be viewed in the present context and the situation of socio-economic conditions and aspirations of the people. The law of the country must fulfill the aspirations of the people. Constitution of our country is always viewed as living organism; an organic body which evolves and emerges with passage of time.

40. In the case of Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, Justice S.B.Sinha in a minority view observed as under:

“55. Our Constitution is an ongoing document and, thus, should be interpreted liberally. Interpretation of Article 12, having regard to the exclusive control and management of the sport of cricket by the Board and enormous power exercised by it calls for a new approach. The Constitution, it is trite, should be interpreted in the light of our whole experience and not merely in that of what was the state of law at the commencement of the Constitution.”

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93. Constitutions have to evolve the mode for welfare of their citizens. Flexibility is the hallmark of our Constitution. For growth of the Constitution shall be organic, rate of change glacial.”

Though the judgment of Justice Sinha represents the minority view, on the above noted aspects, there was no divergence of opinion, as can be seen from para 35 of the judgment rendered by Hon’ble Mr Justice Santosh Hegde expressing majority view, in which it was observed as under:

“35. In conclusion, it should be noted that there can be no two views about the fact that the Constitution of this country is living organism and it is the duty of courts to interpret the same to fulfill the needs and aspirations of the people depending on the needs of the time. “

40.1 In the case of Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, Justice Ramaswamy, though was expressing minority view, the observations in the present context would be relevant:

“37. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46, and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the preamble of the economic empowerment and social justice to women for stability of political democracy. In other words, they frown upon gender discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilisation and culture advances. The customs and mores undergo change with march of time. Justice to the individual is one of the highest interest of the democratic State. Judiciary cannot protect the interests of the common man unless it would redefine the protections of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable.”

40.2 In the case of Video Electronics Pvt. Ltd . State of Punjab, (1990) 3 SCC 87, the Apex Court observed that the Constitution is a living organism and the latent meaning of the expressions used can be given effect to only if a particular situation arises. It was observed as under:

“36. It has to be reiterated that sales tax laws in all the States provide for exemption. It is well-settled that the different entries in lists I, II and III of the 7th Schedule deal with the fields of legislation, and these should be construed widely, liberally and harmoniously. And these entries have been construed to include ancillary or incidental power. Power to grant exemption is inherent in all taxing legislations. Economic unity is a desired goal, economic equilibrium and prosperity is also the goal. Development on parity is one of the commitments of the Constitution. Directive principles enshrined in Arts. 38 and 39 must be harmonised with economic unity as well as economic development of developed and under-developed areas. In that light on Art. 14 of the Constitution, it is necessary that the prohibitions in Art. 301 and the scope of Art. 304(a) and (b) should be understood and construed. Constitution is a living organism and the latent meaning of the expressions used can be given effect to only if a particular situation arises. It is not that with changing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used. The connotation of the expressions used takes its shape and colour in evolving dynamic situations. A backward State or a disturbed State cannot with parity engage in competition with advanced or developed States. Even within a State, there are often backward areas which can be developed only if some special incentives are granted. If the incentives in the form of subsidies or grant are given to any part of units of a State so that it may come out of its limping or infancy to compete as equals with others, that, in our opinion, does not and cannot contravene the spirit and the letter of Part XIII of the Constitution. However, this is permissible only if there is a valid reason, that is to say, if there are justifiable and rational reasons for differentiation. If there is none, it will amount to hostile discrimination. Judged in this light, despite the submissions of Mr. Sanjay Parikh and Mr. Vaidyanathan, we are unable to accept the contentions that the petitioners sought to urge in this application.”

In the case Chief Justice of A.P. v. L.V.Dixitulu, (1979) 2 SCC 34, the Apex Court observed has observed as under:

“67. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt all over its body, even in the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us (Chandrachud J. as he then was) put it in Kesavananda Bharati’s case (AIR 1973 SC 1461) “while interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in ‘a single complex instrument in which one part may throw light on the others’ so that the construction must hold a balance between all its parts”.

40.3 In the present context, we may also take note of a recent decision of the Supreme Court in the case of Ram Jethmalani v. Union of India, (2011) 8 SCC 1, getting alarmed at the menace and scale of black money and unaccounted monies. The observations of the Apex Court which are relevant in this regard are as follows:

“6. The worries of this Court also relate to the manner, and the extent to which such cycles are damaging to both national and international attempts to combat the extent, nature and intensity of cross-border criminal activity. Finally, the worries of this Court are also with respect to th extent of incapacities, system-wide, in terms of institutional resources, skills and knowledge, as well as about incapacities of ethical nature, in keeping an account of the monies generated by various facets of social action in the country, and thereby developing effective mechanisms of control. These incapacities go to the very heart of constitutional imperatives of governance. Whether such incapacities are on account of not having devoted enough resources towards building such capacities, or on account of a broader culture of venality in the wider spheres of social and political action, they run afoul of constitutional impertinents.

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15. …………… From mining mafias to political operators who, all too willingly, bend policies of the Sate to suit particular individuals or groups in the social and economic sphere, the reason d’etre for weakening the capacities and intent to enforce the laws is the lure of the lucre. Even as the State provides violent support to those who benefit from such predatory capitalism, often violating the human rights of its citizens, particularly its poor, the market begins to function like a bureaucratic machine dominated by big business; and the State begins to function like the market, where everything is available for sale at a price.”

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18. In addition, it would also appear that in this miasmic cultural environment in which greed is extolled, conspicuous consumption viewed as both necessary and socially valuable, and the wealthy viewed as demigods, the agents of the State may have also succumbed to the notions of the neoliberal paradigm that the role of the State ought to only be an enabling one, and not exercise significant control. This attitude would have a significant impact on exercise of discretion, especially in the context of regulating economic activities, including keeping an account of the monies generated in various activities, both legal and illegal, Carried away by the ideology of neoliberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrong doing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large scale illegal mining have become all too familiar, and may be readily cited. That such activities are allowed to continue to occur, with weak, or non-existent, responses from the State may, at best, be charitably ascribed to this broader culture of permissibility of all manner of private activities in search of ever more lucre. …..”

We are conscious that there is an application made by the Union of India seeking review of the above decision. We are also conscious that between two learned Members of the Bench, which heard the review petition, there has been a difference of opinion with respect to the maintainability of such review application. However, the observations made in the said judgment are being referred to only for a limited purpose of noticing the growing concern of the society about the large scale allegations of corruption against various members in public life, who under the Act have been defined as ‘public functionaries’.

41. In a democratic set up, ultimate power lies with the people. In the Constitution, we have accepted the executive and legislative acts are subject to people’s ultimate indirect approval. Except areas which are recognized as basic structure or basic features of the Constitution, which are beyond the power of the Parliament to amend, all other actions and policies of the Government of the day are laid before the people periodically when all elected members seek their re-election by the people. Even the members of Upper House of the Parliament are indirectly elected by the people. Free, fair and frequent (periodical) elections are, therefore, considered essential for any democracy.

41.1 In the case of B.R.Kapur v. State of T.N. (2001) 7 SCC 231, the Apex Court culled out the basic structure, or the basic feature theory emerging from the decision of the Apex Court in the case of Kesavananda Bharati [(1973) 4 SCC 225] in the following manner:

“The majority judgment in Kesavananda Bharti conceded to Parliament the right to make alterations in the Constitution so long as they were within the basic framework. The Preamble assured the people of India of policy whose basic structure was described therein as a Sovereign Democratic Republic; Parliament could make any amendments to the Constitution as it deemed expedient so long as they did not damage or destroy India’s sovereignty and its democratic, republican character. Democracy was a meaningful concept whose essential attributes were recited in the Preamble itself : Justice, social, economic and political : Liberty of thought, expression, belief, faith and worship; and Equality of status and opportunity. Its aim, again as set out in the Preamble, was to promote among the people an abiding sense of ‘Fraternity assuring the dignity of the individual and the unity of the Nation’. The newly introduced clause (5) demolished the very pillars on which the Preamble rested by empowering Parliament to exercise its constituent power without any “limitation whatever”. No constituent power could conceivably go higher than the power conferred by clause (5) for it empowered Parliament even to “repeal the provisions of this Constitution”, that is to say, to abrogate democracy and substitute for it a totally antithetical form of government. That could most effectively be achieved, without calling democracy by any other name, by denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy was not a power to amendment. Since the Constitution had conferred a limited amending power on Parliament, Parliament could not under the exercise of that limited power enlarge that very power into an absolute power. A limited amending power was one of the basic features of the Constitution and, therefore, the limitations on that power could not be destroyed. In other words, Parliament could not, under Art. 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power could not by the exercise of that power confer the limited power into an unlimited one.”

41.2 In the case of of S.R.Chaudhari v. State of Punjab, (2001) 7 SCC 126, the Apex Court stressed the importance of the representation of the people in parliamentary democracy and observed as under :

“21. Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible Government and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the Executive. The character and content of Parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the Legislature as representative of the people. It is said that “elections are the barometer of democracy and the contestants the lifeline of the Parliamentary system and its set up.

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33. Constitutional provisions are required to be understood and interpreted with an object oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicates that non-member’s inclusion in the cabinet was considered to be a ‘privilege’ that extends only for six months,’ during which period the member must get elected otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the Court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the ‘privilege’ to extend “only” for six months.

34. The very concept of responsible Government and representative democracy signifies Government by the people. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The Members of the Legislature, thus, must owe their power directly or indirectly to the people. The Members of the State Assemblies like Lok Sabha trace their power directly as elected by the people while the Members of the Council of State like Rajya Sabha owe it to the people indirectly since they are chosen by the representative of the people. The Council of Minister of which a Chief Minister is head in the State and on whose aid and advice the Governor has to act, must, therefore owe their power to the people directly or indirectly.

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39. India is a Democratic Republic. Its chosen system of political organisation is reflected in The Preamble to the Constitution, which indicates the source from which the Constitution comes, viz., “WE THE PEOPLE OF INDIA”. By permitting a non-legislator Minister to be reappointed,without getting elected with the period prescribed by Article 164(4), would amount to ignoring the electorate in having its say as to who should represent it – a position which is wholly unacceptable. The seductive temptations to cling to office regardless of constitutional restraint must be totally eschewed. Will of the people cannot be permitted to be subordinated to political expediency of the Prime Minster or the Chief Minister as the case may be, to have in his cabinet a non-legislator as a Minister for an indefinite period by repeated reappointments without the individual seeking popular mandate of the electorate.

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42. We are, therefore, of the considered opinion that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of “six consecutive months”, without him getting himself elected in the meanwhile. The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid. Article 164(4) is at best only in the nature of an exception to the normal rule of only members of the Legislature being Ministers, restricted to a short period of six consecutive months. This exception is essentially required to be used to meet very extraordinary situation and must be strictly construed and sparingly used. The clear mandate of Article 164(4) that if an individual concerned is not able to get elected to the legislature within the grace period of six consecutive months, he shall cease to be a Minister, cannot be allowed to be frustrated by giving a gap of few days and reappointing the individual as a Minister, without his securing confidence of the electorate in the meanwhile. Democratic process which lies at the core of our Constitutional schemes cannot be permitted to be flouted in this manner.”

In the above case, the Apex Court considering a situation where a person who was not a member of the Legislative Assembly was appointed as Minister and within six months as envisaged under the Constitution, he did not get himself elected and sought re-nomination as a Minister. It was contended that there is no embargo on reappointment as a Minister even though the period of six months envisaged under the Constitution for getting himself elected was over. It was in such a context, the above observations were made by the Apex Court.

42. We may notice that under the Act even while making the position of Lokayukta immune from any outside pressures, his ultimate decision is left either for the political system or people to judge. The recommendation that the Lokayukta may make is neither binding nor compulsory to be acted upon. If the recommendation is against the Chief Minister of the State, it would be sufficient if the same is placed before the Council of Ministers. There is no further obligation to act upon the same. If it is against any other person, the same shall be referred to the competent authority. The competent authority will examine the report and intimate the Lokayukta the action taken or proposed on the basis of the report. In a given case he may take no action. The Act does not expect any further steps than this. However, the Act leaves aftermath or fall-out of any adverse indictment to the maturity of the political system or ultimately for the people to judge, the action to be taken in such a case.

42.1 In an electoral system, people are required to make their choice with respect to the policies and principles of different political outfits with different political idealogies. Such choice must be an informed choice to be made on the basis of accurate information. It is in this respect that the Act, to our mind, has a significant role to play. The existing conventional systems of redressel of grievances are time consuming. It can be easily seen that it would be a while before the people would get the correct information about the allegations made against the public functionaries. Filing of FIR itself is not sufficient since anyone can approach the Investigating Agency with a complaint and if there is prima facie disclosure of commission of cognizable offence, the Investigating Agency is bound to register a FIR. Completion of investigation and filing of chargesheet also may not be a sufficient proof of involvement of any person, since it is only an Investigating Agency’s opinion that there is sufficient material to proceed against the accused. Often times, the Investigating Agency, it is alleged, is controlled by the people in power. Framing of charge by the competent criminal court also would only indicate that the Court is of the opinion that there is sufficient material on record to proceed against the accused and nothing more. Achieving conviction or for that matter acquittal, often consumes considerable time. Application for discharge, appeals and revisions are inbuilt in our judicial system. An acquittal recorded by the competent court also may not always clear the cloud for the person facing serious allegations of corruption, since often times, acquittal is a result of either faulty or insufficient investigation or benefit of doubt following the witnesses turning hostile or a technical flaw such as non-obtaining of sanction for prosecution though required under the law.

43. For the people to make an informed choice at the electoral proceedings, an investigation report of Lokayukta, to our mind would and is envisaged to play an extremely important role. As already noted, Lokayukta is a person who is of unimpeachable character who is or has been Judge of a High Court, whose recommendation is made by none other than the Chief Justice, who once appointed cannot be disturbed for period of 5 years, who is allowed to choose his own procedures, to choose his own staff and officers and is clothed with powers of a civil court in collecting evidence. Till the final report is made, the identity of the complainant or the person complained against is not to be disclosed. This would also ensure that a person’s image is not tarnished by mere making of allegations. The Act thus achieves dual purpose. On one hand report made by the Lokayukta after full investigation if makes indictment of any public functionary, it would have its own effect and political fall out. At any rate it would provide vital information to the people who will decide the political future of the person in the next election. On the other hand a clean chit given by the Lokayukta would also clear the person of false and baseless allegation. In a electoral system, often times, it is not important whether the persons is or is not guilty. It is important what people perceive whether he is or he is not guilty. By merely making allegations sometimes therefore, it is possible to damage a person irreparably. The Act thus can be a powerful tool to expose as also to clear those public functionaries against whom false allegations may have been made.

43.1 Democracy is recognized as a basic future of our Constitution. Clean governance is the essence of democracy. It is also the crying need of the day. The regularity with which allegations of corruption are made against various public functionaries makes it essential to create and nurture a strong and independent institution of Lokayukta who can separate the chaff from the grain and present before the people true facts. The scales of alleged corruption are benumbing. Institution of Lokayukta therefore, assumes greater significance than ever before. Its importance cannot be overstated. Its existence cannot be left to the discretion of the executive. This is the only way to interpret the provisions of the Act so as to fulfill the aspirations of the people.

44. We have already noted certain decisions where the Apex Court has held that the Governor can in exceptional circumstances act in his/her discretion. Such areas are recognized by various decisions of the Apex Court.

44.1 In the case of State of Maharashtra v. Ramdas Shrinivas Nayak (surpa), a complaint against the Chief Minister of the State was being examined. It was on this background on a concession of the counsel for the Chief Minister, it was held that the Governor would be well within his power to act on his discretion.

44.2 In decision of Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 SCC 104, was a case of Election Commissioner, where out of necessity the Apex Court held that the Governor had to act on his discretion not on the aid and advise of the Council of Ministers.

44.3 The case of M.P. Special Police Establishment (supra) is yet another example of discretionary powers of the Governor where question of granting sanction for prosecution against the Minister of the State came up for consideration. The Council of Ministers was of the opinion that no such sanction should be granted. Acting on the report of the Lokayukta, however, the Governor proceeded to grant sanction. It was in this background, the Apex Court held and observed as under:

“19. Article 163 has been extracted above. Undoubtedly, in a matter of grant of sanction to prosecute the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disable itself or disentitles itself.

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31. We have, on the premises aforementioned, no hesitation to hold that the decision of the Council of Ministers was ex facie irrational whereas the decision of the Governor was not. In a situation of this nature, the writ Court while exercising its jurisdiction under Article 226 of the Constitution of India as also this Court under Articles 136 and 142 of the Constitution of India can pass an appropriate order which would do complete justice to the parties. The High Court unfortunately failed to consider this aspect of the matter.

32. If, on these facts and circumstances, the Governor cannot act in his own discretion there would be a complete breakdown of the rule of law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. If, in cases where prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.”

44.4 In the case of Rajendra Singh Verma (supra), a judicial officer subordinate to the High Court was compulsorily retired on the recommendation of the High Court. The Governor passed the order without the aid and advice of the Council of Ministers. The Apex Court turning down the challenge on the ground that the Governor could not have acted without the aid and advise of the Council of Ministers, observed that the High Court alone is the sole authority competent to initiate disciplinary proceedings against the subordinate judicial officers or to impose various punishments including passing of order of compulsory retirement. The State is least competent to aid and advise the Governor on such subjects. While the High Court retains the power of disciplinary control over the subordinate judiciary including power to initiate disciplinary proceedings, suspend them during enquiries and impose punishment on them, but when it comes to the question of dismissal, removal or reduction in rank or termination of services of judicial officers on any count, whatsoever, the High Court becomes the recommending authority and cannot itself pass the orders. The formal order to give effect to such a decision has to be passed by the State Governor on the recommendations of the High Court. The Apex Court, proceeded to observed as under :

“81. Thus, it is fairly well settled by catena of decisions of this Court that in the matter of compulsory retirement of a Judicial Officer the Governor cannot act on the aid and the advice of Council of Ministers but has to act only on the recommendation of the High Court. Though the Lt. Governor is a party to these appeals, he has not raised any plea that the recommendation made by the Delhi High Court was not binding on him and he could have acted in the matter only on the aid and advice of his Council of Ministers. Thus the order of the Ld. Governor compulsorily retiring the appellants without seeking aid and advice of his Council of Ministers is neither ultra vires nor illegal and is rightly sustained by the High Court. The Governor could not have passed any order on the aid and advice of Council of Ministers in this case. The advice should be of no other authority except that of the High Court in the matter of judicial offices. This is the plain implication of Article 235. Reliance on Article 239AA(4) is entirely out of place so far as the High Court is concerned, dealing with the judicial offices. To give any other interpretation to Article 239AA(4) will be to defeat the supreme object underlying Article 235 of the Constitution, specially intended for protection of the judicial offices and necessarily independence of the subordinate judiciary. It is absolutely clear that the Governor cannot take the aid and advice of his Council of Ministers in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court. Therefore, this Court does not find any substance in this contention also and the same is rejected.”

45. In the present case, we need not go to the extend of recognizing the power of the Governor to act against the aid and advice of the Council of Ministers. The situation was somewhat peculiar. The post of Lokayukta was lying vacant for more than eight years since last held by Justice S.M.Soni. For some reason or the other, no appointment was forthcoming. The consultation process, as we have already concluded, between the Chief Minister and the Chief Justice had finally resulted into a dead-lock when the Chief Justice recommending the name of Justice R.A.Mehta and the Chief Minister acting on behalf of the Council of Ministers finally rejecting such a choice. To our mind, therefore, there was no further consultation possible between two dignitaries. The recommendation of the Chief Justice, as we have already held, would have primacy and would be binding on the Chief Minister. It is in this context, we are of the opinion that the Governor of the State was not acting against the aid and advice of the Council of Ministers. No such contrary advise was rendered. Any contrary advise would itself be unconstitutional, because the plain meaning of our conclusion that the view of the Chief Justice would have primacy, would necessarily mean that when finally, the consultative process reaches in an unresolved situation, it would be the recommendation of the Chief Justice which shall prevail over other views. This is not to suggest that there should not be any meaningful, purposeful and effective consultation. This is only to suggest that once such process is over and if it is not possible to achieve any unanimity, the law would not envisage a vacuum, or a permanent impasse or no appointment.

46. We may trace some of the aspects emerging from the record. As already noted, we are of the view that Lokayukta Act and the institution of Lokayukta has an important role to play in the present socio-economic situation in the country, where large number of allegations are made against the public functionaries, often times without due seriousness. People of the country have a right to be informed about the truth or otherwise of such allegations. Institution of Lokayukta can play a vital role in this respect. The post of Lokayukta in the State of Gujarat was lying vacant since nearly 8 years. Prior to 2006, when the initiative was taken by the Chief Minister to consult other dignitaries, we do not know what were the reasons for non-appointment for nearly three years. In any case, since 2006, when initial steps were taken, five more more have passed. The Act, as already noted, provides that allegations beyond five years cannot be investigated into. The Council of Ministers, which claims the sole authority to initiate the consultation process, also claims the exclusive right to aid and advice the Governor in making the appointment and also asserts that even when there is disagreement with the recommendation of the Chief Justice, it would be the Council of Ministers’ view which would prevail, must at least make some introspection to reflect why for eight long years no appointment of Lokayukta was made. We are not here to conclude this issue of delay in appointment for want of sufficient materials or even arguments. Suffice it to say, in peculiar facts of the case, once the consultation with the Chief Justice was over, there was no further need to wait for recommending the name of the person so selected for appointment. In the meantime, the Act itself was sought to be amended which would require starting the entire process all over again leading to unforeseeable further consumption of time. In fact before that first step required would be to constitute the Committee for selection for the post of Lokayukta. It was in this background, the Governor acted on the recommendation of the Chief Justice. In our opinion, the same does not mean that the Governor acted in her absolute discretion or against the aid and advice of the Council of Ministers. Discretion if at all exercised by her was to act on the recommendation of the Chief Justice which in any case was binding on the Council of Ministers. She called for formal recommendation from the Council of Ministers, which when was not forthcoming, she issued appointment in tune with the recommendation of the Chief Justice. We may notice that section 3 of the Gujarat Lokayukta Act has a significant feature which is not found in Acts of other States pertaining to Lokayukta which were brought to our notice. Proviso to sub-section (1) of section 3 of the Gujarat Act envisages appointment of Lokayukta after consultation with the Chief Justice and except where such appointment is to be made at a time when legislative assembly has been dissolved or a proclamation under Article 356 of the Constitution is in operation, after consultation with the Leader of Opposition. This requirement of consulting leader of opposition only if the Assembly is not dissolved or suspended is different from Bihar, Jharkhand and Orissa State Acts of Lokayukta. Significance of this provision is that the Governor may appoint a Lokayukta even where the State Legislative Assembly is dissolved or is suspended. In either case, there will neither be the leader of opposition to be consulted nor the Council of Ministers to aid and advice the Governor. This means Governor can appoint a Lokayukta even when there is no Council of Ministers. This is one more indication to believe that the post of Lokayukta cannot be left vacant for indefinite period of time.

47. Before closing, we would like to dispose of a few peripheral issues. The learned Advocate General had contended that the process adopted by the Governor was wholly irregular. We may record that once the Governor sought the opinion of the Attorney General and requested the Chief Justice to recommend only one name instead of a panel of names, except showing initial disagreement, nothing further was done on behalf of the Council of Ministers. We are not suggesting that the State was expected to challenge such decision. We do not expect and even desire the State should be a litigant in such issues with regular frequency. Nevertheless, we may only record that it had virtually acquiesced into such procedure. Consultation with the Chief Justice was under taken. The contention that the decision of the Governor breached the rules of business also need not detain us for long. Rules of business are essentially seen as directory in nature and not mandatory. In this regard, we may refer to a decision of the Apex Court in the case of Chitralekha v. State of Mysore, reported in AIR 1964 SC 1823 wherein it was observed as under:

“4. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Art. 166 of the Constitution. As the argument turns upon the form of the said Annexure it will be convenient to read the material part thereof.

“Sir,

Sub. Award of marks for the “interview” of the candidates seeking admission to Engineering Colleges and Technical Institution.

With reference to your letter No. AAS. 4. ADW/63/2491, dated the 25th June 1963, on the subject mentioned above, I am directed to state that Government have decided that 25% of the maximum marks……….

Yours faithfully.

Sd/- S. Narasappa,

Under Secretary to Government,

Education Department.”

Ex facie this letter shows that it was a communication of the order issued by the Government under the signature of the Under Secretary to the Government, Education Department. Under Art. 166 of the Constitution all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, and that orders made in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order which is so authenticated shall not be called in question on the ground that it is not an order made by the Governor.

If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground that it is not an order made by the Governor. It is contended that as the order in question was not issued in the name of the Governor the order was void and no interviews could be held pursuant to that order. The law on the subject is well settled. In Dattatraya Moreshwar Pangurkar v. State of Bombay, 1952 SCR 612 at p. 625 (AIR 1952 SC 181 at pp. 185-186). Das, J., as he then was, observed:

“Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself…… …… …… …… ….

Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under section 11(1).”

The same view was reiterated by this Court is State of Bombay v. Purushottam Jog Naik, 1952 SCR 674: (AIR 1952 SC 317) where it was pointed out that though the order in question there was defective in form it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions: see Ghaio Mall and Sons v. State of Delhi, 1959 SCR 1424: (AIR 1959 SC 65) and it is, therefore, settled law that provisions of Art. 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. The judgment of this Court in Bachhittar Singh v. State of Punjab, (1962) Supp 3 SCR 713: (AIR 1963 SC 395) does not help the appellants, for in that case the order signed by the Revenue Minister was not communicated to the party and, therefore, it was held that there was no effective order.”

This view was reiterated by the Apex Court in the case of State of U.P. vs. O.P.Gupta, AIR 1970 SC 679 wherein it was observed as under :

“17. This Court has repeatedly held that the provisions of Article 166 (1) (2) (similar to sub-sections (1) and (2) of Section 59 of the Government of India Act, 1935), are directory and substantial compliance with those provisions is sufficient – See P. Joseph John v. State of Travancore Cochin, 1955 SCR 1011 = (AIR 1955 SC 160)and Chitralekha v. State of Mysore, 1964-6 368 = (AIR 1964 SC 1623). In this case the impugned order was made in the name of the State Government. It was signed by the Chief Secretary. Therefore prima facie it is a valid order. We need go further into that question in view of our conclusion that the respondent has failed to prove that he was appointed by an authority higher in rank than the Chief Secretary of the State.”

This view was also followed by the Bombay High Court in the case of Chandrakant v. State, AIR 1977 Bom. 193. We are, however, not oblivion to the decisions in the case of Fonseca (P) Ld. v. L.C.Gupta, AIR 1973 SC 563 and in the case of M/s.Rajurshewar Associates v. State of Maharashtra, AIR 2004 SC 3770. In the case of Fonseca (P) Ltd. (1973 SC 563) , as per the rules of business, a particular authority had no power to pass order. It was on this background that the decision was held void. In the case of M/s.Rajurshewar Associates (supra), we notice that the matter was required to be placed before the Council of Ministers which was never done. In this background, the court struck down the decision as not fulfilling the requirements. In any case, we do not find that any insistence on adherence of rules of business would render the decision of the Governor bad if it is otherwise found in accordance with the Constitutional provisions, scheme of the Act and the requirements of the day.

48. We are, however, unable to concur with the stand of the Governor that the Governor alone has the power to appoint the Lokayukta under section 3 of the Act. Section 3 of the Act envisages appointment of Lokayukta by the Governor. Such appointment is to be made on aid and advice of the Council of Ministers. Any other view would create a very anomalous situation. As already noted, the appointment is to be made after consultation with the Chief Justice as well as the Leader of Opposition. If the above view is accepted, it would lead to a situation where the Council of Ministers or the Chief Minister would have no voice whatsoever in appointment of Lokayukta. The Legislature cannot be seen to have and in fact has not provided for such a situation.

49. In the result, we do not find any reason to strike down the impugned notification. Both the petitions are, therefore, dismissed.

50. In view of the above order, no further orders are necessary in the connected Civil Applications. They also stand disposed of.

(Akil Kureshi J.)

(Ms.Sonia Gokani, J.)

(vjn)

Dissent :

Per : Honourable Ms. Justice Sonia Gokani

1. I had the privilege of listening to the delivery of judgment by brother-Akil Kureshi, J. Although I am in agreement with the conclusions drawn on some of the issues during the course of this delivery, I am respectfully in disagreement with the final conclusion arrived at by him.

2. Having regard to the vital issues proposed for consideration in these petitions, on all the aspects, I have chosen to adjudicate upon and give my own findings for those conclusions as well, where there is agreement.

3. Challenge in the present petition, being Special Civil Application No.12632 of 2011, is to the order of the appointment of Lokayukta for the State of Gujarat by H.E the Governor of the State under Section 3 of the Gujarat Lokayukta Act, 1986 allegedly having been made illegally and unconstitutionally, without the aid and advice of the Council of Ministers, with the prayer to issue writ in the nature of quo-warranto against the respondent No.1(Designate Lokayukta) as also for issuance of such other writs as may be deemed appropriate in the circumstances for setting aside the order impugned.

Factual Background:-

4. In order to appreciate the controversy and the rival contentions raised by both the sides, some of the factual details giving rise to the present petition shall be necessary to be capsulized at the outset.

5. The appointment and the functions of Lokayukta for the State of Gujarat are governed by the Gujarat Lokayukta Act, which came into existence in the year 1986 ( to be referred to hereinafter as ” the Act”)

6. So far, for the State of Gujarat three times, the appointment of Lokayukta has been made and lastly, the said post was held by Mr. Justice S.M. Soni. The post fell vacant in the year 2003.

7. It emerges from the record made available to this Court that the proposal for the said post emanated from the office of the Chief Minister in the month of August, 2006 .

7.1 Correspondence dated 7.8.2006 indicates that as Justice Soni relinquished the office of Lokayukta on 24.11.2003, the question of finding his successor engaged the attention of the Government. In this background, proposal was sent to the then Chief Justice by sending the name of Mr. Justice K.R. Vyas (retired) by the Chief Minister on this issue for consideration at his end for the appointment of Lokayukta for Gujarat State. This letter also further mentions that the consultation under Section 3 of the Act is to be done with the Chief Justice of the High Court and not with the High Court of Gujarat. Thus, a request was made to consider, as required for the purpose of consultation if there was any objection to the name proposed.

7.2 Correspondence from the Chief Justice dated August 7, 2006 is indicative that he had no objection to the appointment of Mr. Justice K.R. Vyas, former Chief Justice Bombay High Court as Lokayukta, Gujarat State.

7.3 It further emerges from the record that on 10.8.2006, after the receipt of consent from the Chief Justice, the file was sent to H.E. the Governor, for appointment of Mr.Justice K.R.Vyas.

7.4 The query was raised on 25.8.2006 from H.E. the Governor as to whether the leader of opposition had been consulted in this regard or not and request was also made to the office of Chief Minister for sending the minutes for perusal.

7.5 Communication dated 29.8.2006 is suggestive that there is no tradition of drawing the minutes, instead, the entire file was sent which contained all necessary details.

7.6 On 13.9.2006 a letter was sent to the office of the Chief Minister by H.E. the Governor posing many queries, one of which was to apprise the Governor of the process of consultation followed by other States. These informations were collected and submitted to the Governor on 27.2.2007.

7.7 The materials suggests that, thereafter, the first time on February 6, 2009 a noting was made on the file by H.E. the Governor of the appointment of Mr.Justice K.R. Vyas as the Chairman of Maharashtra State Human Rights Commission and on reference to the provision of Protection of Human Rights Act, 1993, it was conveyed that Mr. Justice K.R. Vyas would be no longer available for appointment as Lokayukta, Gujarat State in as much as he would not be eligible for further employment as provided under Section 24(3) of the Human Rights Act.

It was conveyed by the General Administration Department (GAD) that Section 24(3) would not come in the way of such appointment and insistence was made for his appointment to the post of Lokayukta.

7.8 Further noting dated 10.9.2009 by H.E. the Governor on this issue, reads that sub-Section (3) of Section 6 of the Protection of Human Rights Act, would not allow the person, who had held the office of the Chairman to be eligible for the post of Lokayukta.

8. In this backdrop on 10.9.2009, the then Governor addressed a letter to the Chief Minister requesting him to send a fresh proposal of the Government for appointment of Lokayukta, after consultation with the Hon’ble Chief Justice of the Gujarat High Court and the Leader of Opposition in the State Legislative Assembly.

9. On 29.12.2009, a letter was sent by the Private Secretary of H.E. the Governor to the Registrar General of the High Court, which reads thus:-

“The post of the Lokayukta has been lying vacant for the last some years. It is necessary that the post is filled up at the earliest.

As per the provisions of Section 3(1) of the Gujarat Lokayukta Act,1986, the Lokayukta shall be appointed by the Governor after consultation with the Hon’ble Chief Justice of the Gujarat High Court and after consultation also with the Leader of the Opposition in the Legislative Assembly.

In this context, I am directed by Her Excellency to request you to place the above for kind perusal of the Hon’ble Chief Justice for sending a panel for consideration and thereafter a consultation will be held with him by Her Excellency the Governor.”

9.1 This was replied to by the then Registrar General on 2/1/2010 ensuring to place the said communication before the Hon’ble Chief Justice after Winter Vacation.

10. On 8.2.2010, a letter was addressed by the Chief Minister to the Chief Justice of the State mentioning that the consultation process with regard to the appointment of Mr. Justice K.R. Vyas though was over, by virtue of sub-Section (3) of Section 6 of the Protection of Human Rights Act, his appointment was not feasible, names of the retired judges of High Court of Gujarat were requested for, for consideration and appointment to the post of Lokayukta.

10.1 In response to the said letter of 24.2.2010, the Chief Justice sent a penal of four names mentioning therein that all these persons are fit to be appointed to the post of Lokayukta and chronology of names in the letter neither depicted nor was suggestive of any preference of his and any one of these judges could be appointed to the said post. Letter reads thus:

“May I draw your attention to the correspondence regarding appointment to the post of Lokayukta, which has been lying vacant since last few years. According to me, the following persons are fit to be appointed to the post of Lokayukta in the State of Gujarat:

Mr. Justice Pravinsingh Motisinh Chauhan

Mr. Justice Babulal Chandulal Patel

Mr. Justice Ramesh Prabhudas Dholakia

Mr. Justice Jayprakash Ramakant Vora

I may mention that the aforesaid names are not shown on the basis of preference and any of them can be appointed.”

On the very same day, the Chief Justice also wrote to H.E. the Governor sending these four names of retired judges to her.

10.2 On 2.3.2010, a request was made to the Leader of Opposition of the State Assembly by the Chief Minister to attend the meeting as a part of the process of consultation for appointment of Lokayukta.

This move was objected to on 3.3.2010 by the Leader of Opposition by a detailed letter essentially objecting to the initiation made by the Chief Minister of the State. It would be apt to reproduce the relevant contents as under:-

” Having regard to the said provisions of the Act, the principal object of the Act which has been enacted being to inquire into allegations against public functionaries, including the Chief Minister, the State Legislature in its legislative wisdom has expressly conferred power of appointment of a Lokayukta only upon the Governor. The only statutory requirement envisaged in making of appointment of a Lokayukta by the Governor is consultation with the Chief Justice of the High Court and leader of opposition in the Legislative Assembly. Thus, under the provisions of the said Act, there is no scope for consultation with the Chief Minister of the State either by the Governor or by the leader of opposition. In fact and in law, the Chief Minister of the State of Gujarat has neither the authority nor the jurisdiction to embark upon any consultation with the undersigned- leader of opposition in the appointment of a Lokayukta. The object of the Act being to inquire into the allegations even against the Chief Minister by the Lokayukta it stands to reason and logic that there is neither any requirement of any consultation in the matter of appointment of a Lokayukta with the Chief Minister of the State of Gujarat nor is the power of appointment of a Lokyukta conferred upon the Government. If the Act envisaged the appointment of a Lokayukta by the Government, it would have expressly stated so.”

10.3 On that very day i.e. on 3.3.2010, H.E. the Governor also wrote to the Chief Minister stating that she had initiated the process of consultation and pursuant thereto, consultation with the Leader of Opposition is already held and she expressed that “ due to absence of legality”, proposed meeting at his end be cancelled forthwith and necessary action of consultation was to be initiated by her only as per the Lokayukta Act.

On 3.3.2010 itself, once again, a request was made to the Leader of Opposition by the Chief Minister inviting him to the meeting on 4.3.2010 for the very purpose.

10.4 On the ground that the Governor had already initiated the process of consultation and also on the ground that the Council of Ministers had no say in the appointment of Lokayukta, the request was made by the Leader of Opposition to terminate the process of consultation forthwith in the communication dated 4.3.2010 addressed to the Chief Minister, “In keeping with fitness of things”

10.5 On 4.3.2010, once again, the request for participation was reiterated by the Chief Minister to the Leader of Opposition and on that very day, by a separate letter addressed to H.E. the Governor, the Chief Minister sought appointment on the ground that there were legal and constitutional issues which had been raised in the letter she had lastly addressed which necessitated meeting with her.

The meeting otherwise scheduled on 4.3.2010, as a part of consultation process was held in absence of Leader of Opposition as could be noted, which concluded with a noting that since there was absence of Leader of Opposition, the meeting needed to be convened on 5.3.2010 once again.

10.6 In the meantime, the Private Secretary to the Governor conveyed to the office of Chief Minister the timings of meeting on 8.3.2010.

And on 5.3.2010 itself, the Leader of Opposition conveyed it to the Chief Minister that as already communicated by him, the consultation with H.E.the Governor in this regard was over.

10.7 It further emerges that on 8.3.2010, the meeting of the Governor with the Chief Minister and the Law Minister in connection with this very issue, was held.

After this meeting also, a letter was addressed by the Chief Minister to the Leader of Opposition for the purpose of consultation. This letter dealt with various provisions of law as also the judgments of various Courts to support the main contention proposing the meeting on 22.3.2010.

10.8 On 22.3.2010, the Leader of Opposition reiterated his stand stating that the Council of Ministers has no role to play in appointment of Lokayukta. There again, various authorities of the Apex Court were cited to substantiate the version given in the letter.

10.9 The meeting scheduled on 22.3.2010, took place in absence of the Leader of Opposition. On 31.3.2010 in the meeting of Council of Ministers all the four names suggested by the Hon’ble the Chief Justice were discussed and out of the four names, name of Mr. Justice J.R. Vora was found most suitable for the appointment as Lokayukta for Gujarat State.

10.10 On 1.4.2010, this file was sent to H.E. the Governor of the State recommending the appointment of Mr. Justice J.R. Vora as the Lokayukta of Gujarat State.

11. After the proposal was sent to the Governor recommending the name of Mr. Justice J.R. Vora, on 23.4.2010, she wrote to the Chief Justice soliciting his expert opinion with regard to two names (out of four) sent by him on 24.2.2010.

11.1 The reply sent by the Chief Justice was indicative as to which was the better choice out of the two names mentioned in the letter of the Governor.
12 On 3.5.2010, the Governor wrote to the Chief Justice pursuant to reference she had made to the Attorney General of India seeking his expert legal opinion, urging the Chief Justice to recommend only one suitable name in the wake of the decision of Apex Court in the case of N. Kannadasan vs. Ajoy Khose and others reported in (2009) 7 SCC 1 for this post.

12.1 After this communication of 3.5.2010, on 5.5.2010 the file was sent back to the Council of Ministers by the Governor, by making a note that on a reference made to the Attorney General of India seeking his expert legal opinion, it had become clear that the Chief Justice of the High Court is the most suitable person to know the suitability of the person to be appointed as Lokayukta and the matter was referred to the Hon’ble the Chief Justice for re-examining the matter, with further direction to the Government that the file be returned once the formal proposal was received from the Chief Justice.

12.2 After this letter of the Governor, reply was sent by the Chief Justice vide his letter dated 29.12.2010, noting the fact that question was raised with regard to the name recommended earlier for appointment to the post of Lokyukta with further mentioning that Mr. Jutice J.R. Vora, whose name had been proposed and chosen for the said post, had been appointed as Director of Gujarat State Judicial Academy, in the interregnum, and therefore, his name need not be considered for appointment to the post of Lokayukta. In this background, recommendation of the name of Mr. Justice S.D.Dave was made for appointment to the said post by stating that he would be suitable for appointment to the post of Lokayukta, which carries more responsibilities.

12.3 The Chief Justice sent a copy of this letter to the Chief Minister containing the same contents, on dated 31.12.2010, recommending the name of Mr. Justice S.D. Dave for the appointment.

12.4. On 6.1.2011, the Governor wrote to the Chief Minister that as the recommendation was made for the name of Mr. Justice S.D. Dave, process is required to be expedited considering the fact that the important post was vacant for a long time.

13. On 21.2.2011, a letter was addressed by the Chief Minister to the Hon’ble Chief Justice urging that the entire process of consultation, as envisaged under Section 3 of the Gujarat Lokayukta Act, had been completed and that was done concerning one of the names (that of Mr. Justice J.R. Vora) recommended by the Chief Justice vide his letter dated 24.2.2010. As the entire process for his appointment had been gone through, in the public interest, request was made to consult Mr. Justice J.R. Vora on his willingness to assume the responsibility and to recommend his name, once again, so that the delay in filling up the vacancy of Lokayukta could be addressed to.

14. On 15.3.2011, the letter was addressed by H.E. the Governor to the Chief Minister to consider the name of Mr. Justice S.D. Dave as was recommended by the Chief Justice as expeditiously as possible, a copy of which was sent to the Chief Justice.

15. Vide letter dated 22.3.2011, Chief Justice requested the Chief Minister to consider the name recommended on 31.12.2010 with further mentioning that the name of Mr. Justice J. R. Vora was recalled. Again, it was mentioned that it was not the duty of the Chief Justice to consult Mr. Justice J.R. Vora and since he was already appointed as Director of Gujarat State Judicial Academy, in the interest of judiciary, for the post of Lokayukta, he requested to consider the name of Mr. Justice S. D. Dave.

16. On 1.5.2011 by a fax message to the Governor Mr. Justice S.D.Dave requested Her Excellency to recall his nomination on the ground of his personal difficulties. The letter dated 1.5.2011 reads thus:-

“As I understand, my name has been recommended by Your Excellency in consultation with the Hon’ble the Chief Justice of the High Court of Gujarat and the Leader of Opposition for the Office of the Lokayukta, Gujarat.

My circumstances oblige me to request Your Excellency to recall my Nomination. I am thankful to Your Excellency and the Members of the Collegium for the trust reposed in me.”

17. With this development, on 4.5.2011 the Chief Minister once again, made a request for recommending the name of Mr. Justice J.R. Vora, by writing to the Chief Justice, making it explicit that Mr. Justice J.R. Vora when consulted, he had expressed his willingness to be considered for the said post and as consultation process concerning his name had already been gone through, it would help expedite the process of appointment.

18. On 7.6.2011 the Chief Justice recommended the name of Mr. Justice R.A. Mehta for appointment on the said post in this manner:-

” By the said letter dated 4th May 2011, you have reiterated your earlier request to consider the name of Hon’ble Mr. Justice (Retd.) J.R. Vora for this post. As regards nomination of Hon’ble Mr. Justice (Retd.) J.R. Vora is concerned, I have already mentioned in my earlier correspondence that as Hon’ble Mr. Justice Vora has already been appointed as the Director, Gujarat State Judicial Academy, in the interest of judiciary, his name may not be considered for appointment to the post of Lokayukta.

In view of the present development that Hon’ble Mr. Justice (Retd.) S.D.Dave would not like to be considered for appointment as Lokayukta, I now consider Hon’ble Mr. Justice (Retd.) Ramesh Amritlal Mehta suitable for appointment to this post. I accordingly, recommend the name of Hon’ble Mr. Justice(Retd.) Ramesh Amritlal Mehta, for appointment to the post of Lokayukta, Gujarat State, which carried more responsibilities.”

18.1 On 16.6.2011, the Chief Minister wrote to the Chief Justice giving reasons as to why there were reservations against the name of Mr. Justice R.A. Mehta. His advanced age was one of the grounds and other grounds narrated for such reservations are as follows:-

“The other important aspect is that Hon’ble Mr. Justice (Retired) R.A. Mehta is associated with a few NGOs, Social Activist Groups and he has also given services as a panelist for them. It is obvious that because of his association with the NGOs, Social Activist Groups, etc. he may be in a fixed frame of mind on certain issues relating to the governance in the State. He has also shared platform with such people as are known for their antagonism for the State Government.

xxx xxx xxx

You will appreciate that if such a person having a specific biased perception for the Government in the State is appointed as Lokayukta, he would not be able to perform his duties with the amount of objectivity, judiciousness and impartiality expected of the Lokayukta. It may therefore be necessary to have a relook at the name proposed by you.”

Once again, in his communication itself, reiteration was made of recommending the name of Mr. Justice J.R. Vora in this letter as well.

18.2 On that very day i.e. on 16.6.2011, H.E. the Governor wrote to the Chief Minister and the Leader of Opposition also wrote to the Chief Minister conveying the agreement to the appointment of Mr. Justice R.A.Mehta as also requesting him to expedite the process of his appointment.

18.3 On 2.8.2011, the Chief Justice wrote to the Chief Minister mentioning therein that he gathered details of the activities of Mr. Justice R.A. Mehta and found nothing objectionable. There was nothing which would make him ineligible for the post of Lokayukta and he being a member of an NGO and a social activist, on the contrary, would show his ability to work for the society even at the age of 75 years. In this background, a request was made by the Chief Justice vide this letter to take up the matter with the Council of Ministers and to forward the name of Mr. Justice R.A. Mehta to Her Excellency the Governor for his appointment as Lokayukta of the State of Gujarat.

18.4 On 18.8.2011, the Chief Minister wrote to the Chief Justice and gave details as to why there were reservations against Mr. Justice R.A. Mehta further substantiating those reservations with documents, and making further request to recommend the name of a Judge recently retired from service in the place of Mr. Justice R.A. Mehta. Here again, advanced age was also mentioned as one of the grounds for reservation. Request made was reflected in this fashion:-

” It can be seen from the above that the question is not of Shri R.A. Mehta maintaining high standards in the society, or of not having made any public statement which is detrimental to the society, but the question is of his preconceived opinion and strong prejudiced mindset against the present political dispensation in the State. While he may be technically eligible for being considered for appointment as Lokayukta, the moot question is whether such a person having a strong biased perspective for the Government in the State if appointed as Lokayukta, will be able to perform his duty with the high level of objectivity, judiciousness and impartiality expected of the Lokayukta. In all fairness, the answer to this question will be in the negative. Although, I have no personal reservation against the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, but as the Head of the State Government, I am afraid, I may not be able to accept the name of Hon’ble Mr. Justice (Retired) R.A. Mehta, who, in my view, cannot be considered the most suitable choice for the august post of Lokayukta, Gujarat State.

The other important aspect of the age is also not in his favour. We need to have a relatively younger person for the office of Lokayukta, Gujarat State, as the term for the Lokayukta is of fiver years. Hence, it would be in the fitness of things, if you could recommend the name of a Judge who has recently retired from the service.

I am sure, you will take the contents of this letter in proper perspective and in right spirit, and recommend another name for the vacant post of Lokayukta, Gujarat State.”

18.5 On 18.8.2010, responding to the last communication of H.E. the Governor, Chief Minister refuted allegation of delay on the part of the State in appointment and further wrote thus:-

“4. In so far as the recent letter dated 2nd August, 2011 from the Hon. Chief Justice of the Gujarat High Court is concerned, I may inform you that the name recommended therein has not been accepted by the State Government for certain specific and valid reasons. A copy of my d.o. letter of even No. dated 18.8.2011 addressed to the Hon. Chief Justice of the Gujarat High Court is enclosed for your perusal. I will be able to take further course of action in the matter only after receiving the response to my said d.o. letter addressed to the Hon. Chief Justice of the Gujarat High Court.”

19. There appears to be no further correspondence amongst any of the dignitaries and on 25.8.2011, the impugned warrant came to be issued by H.E. the Governor in her office itself and on that very day communication in that regard had been sent to Additional Registrar-cum-PPS to the Chief Justice by the Private Secretary to the Governor intimating the appointment of Mr. Justice R.A. Mehta as the Lokayukta for the State of Gujarat.

20. On 26.8.2011, a letter was sent to the office of the Chief Minister by the Private Secretary to the Governor revealing this appointment under the hand and seal of the Governor.

21. It would be also relevant, at this stage, to make a mention of some other developments which took place during this time. The Gujarat Bill No.29 of 2011 was passed by the Legislative Assembly on 30.3.2011 making an amendment in Section 2 in sub-Clause (7) after sub-Clause (d) of Lokayukta Act by adding a list of various ‘public functionaries’. This was done in the wake of the recommendation of the 13th Finance Commission.

21.2 This Bill dated 30.3.2011, when sent for the assent of the Governor, at her end, it was suggested 27th May 2011 that the proposed Bill passed on recommendation of the 13th Finance Commission since brings elected representatives of the Local Boards within its purview and the post of Lokayukta is vacant since 2003. Besides, there were large number of local Boards in Gujarat, one Lokayukta, however, competent and efficient may not be in a position to look into the complaints of irregularities and, therefore, it was suggested that since the Bill under reference does not specify more number of Lokayuktas, the same should be considered and that being the limitation of the proposed Bill, for reconsideration of Assembly, the Bill was sent back.

21.3 After this, taking note of notings of H.E. the Governor, an ordinance was prepared by GAD on 16.8.2011. This ordinance was sent for the promulgation to the Governor. A detailed note was made by her particularly objecting to the changes and modifications proposed in Sections 2,3,4,7,14,15 and 20 of the existing Gujarat Lokyukta Act, 1986 and on the ground that there was no urgency to bring such an ordinance, the same was returned to the Government.

21.4 It emerges from the record that once again, ordinance which was sent to her on 20.8.2011 was returned by her to the Council of Ministers with a further detailed note made on 26.8.2011 after issuance of warrant on 25.8.2011. At an appropriate place, further discussion and deliberations of these developments shall be made.

Prayers/Reliefs:-

22. On the basis of the aforementioned factual matrix, the warrant issued on 25.8.2011 by H.E. the Governor is sought to be quashed challenging the act of the appointment of Lokayukta with the following prayer:-

“8(A) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction quashing and setting aside the decision and the consequent impugned warrant dated 25.8.2011(Annexure-A);

(Amended as per Hon’ble Court’s order dated 5.9.2011)

(AA) YOUR LORDSHIPS may be pleased to issue a writ in the nature of quo warranto or any other appropriate writ, order or direction in the matter of appointment of respondent as Lokayukta pursuant to the impugned warrant dated 25.8.2011 (Annexure-A);

(B) Pending hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned warrant dated 25.8.2011(Annexure-A);

(C) An ex-part ad interim relief in terms of para 8 (B) above may kindly be granted;”

23. It would be necessary to make a mention here that initially H.E. the Governor was impleaded as the party respondent. Considering the immunity awarded to the Governor under Article 361 of the Constitution of India, the amendment was directed vide order of this Court dated 5.9.2011. Respondents No.2 and 3 were impleaded subsequently.

24. The Registrar General, High Court of Gujarat (Respondent No.2) in his affidavit-in-reply dated 20.9.2011, pleaded that he was not conversant with the facts of the case and the entire issue was dealt with by the Secretariat of the Chief Justice of High Court and thus, he had nothing to offer to the averments made in the petition.

25. Mr. K.S. Prasad, Additional Registrar-cum-Principal Private Secretary to the office of the Hon’ble the Chief Justice (Respondent No.3) filed the affidavit-in-reply detailing the chronology of events as also submitting the confidential photocopies of exchanges amongst various dignitaries. Although details of these correspondences are mentioned while mentioning facts, at appropriate junctures, their contents shall find place in this judgment.

Brief details of other petitions:-

26.1 It would be relevant to make a mention here that Special Civil Application No.13499 of 2011 preferred by NCLL also sought relief of issuance of quo warranto and other similar nature of writ. This petition is supporting the cause of the State Government espoused in Special Civil Application No.12632 of 2011.

2 There is yet another matter being WP(PIL) No.104 of 2011, which opposes the act of issuance of warrant by H.E. the Governor.

26.3 It is also necessary to refer to a PIL being W.P.(PIL) No.97 of 2011, which has been preferred seeking appointment of Lokayukta for the State of Gujarat where notice was issued to the State on 18.8.2011.

There is yet another writ petition being WP(PIL) No. 102 of 2011 supporting the act of appointment . No notices were issued in other petitions preferred to support and oppose the act of issuance of warrants, however, all the learned advocates and Senior Counsel appearing in those matters have been heard as interveners since those parties moved Miscellaneous Application being Civil Application No. 9364 of 2011 with Civil Application No. 9416 of 2011 with Civil Application No. 9363 of 2011 for being impleaded as parties in main petition being Special Civil Application No.12632 of 2010 so as to grasp all the issues in its entirety.

Submissions of parties and interveners:-

27. Learned Advocate General of the State of Gujarat was heard extensively whose various contentions supporting the petition and the points in issue raised are required to be summarized hereunder:-

(i) The aid and advice of Council of Ministers headed by the Chief Minister is a pre-requisite for making appointment of respondent No.1and no appointment without that is made permissible by the Constitution.

(ii) The Governor being the ornamental head, barring 6 areas as specified under the Constitution, she enjoys no power to act independently.

(iii) Council of Ministers headed by the Chief Minister are responsible in Parliamentary form of governance for all the decisions taken and Governor would have no right to deny execution except as otherwise specified.

(iv) All requirements contemplated under Section 3 of the Lokayukta Act for appointment when was completed and the rest was a mere routine or a formality, at that stage, H.E the Governor on her own could not have written to the Chief Justice requesting to send the name once again on 5.5.2010 on the advice of the Attorney General of India and the same has not been done in the right earnest of independently seeking opinion of the Attorney General in the first place.

(v) Request to the Hon’ble Chief Justice when was once again made by the Chief Minister to reconsider the name of Mr. Justice R.A. Mehta and when the same was under consideration and when that was within her knowledge, this uncanny haste in appointment has no legal backing.

(vi) Even if there was an impass or stalemate on the recommended name and the consultative process did not lead anywhere, then also, it was not within the right of H.E. the Governor to act on her own in the manner that is done in this case. She, in fact, acted contrary to the advice of the Council of Ministers and, therefore, the act is not sustainable. The manner of issuance of warrant without notification and without the same going to the Government press is also not befitting the scheme of the Act. In the event of stalement and otherwise, such action of Government would be subjected to judicial mandate but under no circumstances, the Governor would have any authority to issue warrant of appointment.

(vii) The ratio of the Apex Court laid down in the case of N. Kannadasan vs. Ajoy Khose and others (supra) does not apply to the facts of the instant case as this appointment is made neither under Constitution nor for the Presiding Officer of the Court.

(viii) Allowing and endorsing this act and order of appointment would tantamount to throwing all core constituents of Parliamentary democracy to the wind.

28. The prepositions of law contended by the learned Advocate General are as follows:-

(1) Every decision of the Governor should be on the aid and advice of the Council of Ministers in Cabinet form of Government barring 6 areas expressly set out under the Constitution and those areas evolved by virtue of the judgment of the Apex Court.

Corollary to this main proposition, following propositions are raised as well:-

(2) Role of Governor in the appointment of Lokayukta under Section 3 of the Act to be viewed keeping in view Article 163 and Article 166 of the Constitution.

(3) Mode and method of conducting the process of consultation as contemplated under Section 3 of the Act.

(4) Whether this excludes views of the Council of Ministers headed by the Chief Minister?

(5) Whether this process should not be effective and informative one?

(6) How and wherefrom the process should be originated in absence of any Rules and should convention be not governing the proposal?

29. The authorities sought to be relied upon by the learned Advocate General can be broadly divided under three different heads as follows:-

Ist Head:- Role and function of Governor under the Constitution and powers of appointment of Lokayukta:-

I). Samsher Singh vs. State of Punjab and another reported in (1974) 2 SCC 831, where the Court has highlighted the role of the Governor as well as that of the President as envisaged under the constitutional framework.

II). Kehar Singh and another vs. Union of India and another reported in (1989)1 SCC 204, wherein it is held that the power under Article 72 has to be exercised by the President under the aid and advice of the Central Government.

III. Similar was the issue where Court followed Patna High Court in the unreported decision of Jharkhand High Court in the case of Ajit Kumar etc. vs. State of Jharkhand and Ors. etc. in WP(PIL)No.2475 of 2001 with CWJC No.1894 of 2001 decided on 10.5.2002.

IV. In the case of Ram Nagina Singh and others vs. S.V.Sohni and others reported in AIR 1976 Patna 36 challenge was to the role of the Governor in making an appointment without the aid and advice of the Council of Ministers and the Court held that Governor enjoys no such power of ‘eo nomine’

V. In the case of Ram Chandra Nayak vs. State of Orissa and others reported in AIR 2002 Orissa 25, where again the Court held that under the Orissa Lokpal and Lokayuktas Acts, for appointment of Lokpal or Lokayukta, the Governor has to act under the aid and advice of Council of Ministers with the Chief Minister as Head.

VI. In the case of Bhuri Nath and others vs. State of J & K and others reported in (1997) 2 SCC 745, a distinction was drawn between the executive power of the State and exercise of power by the Governor and the President in official capacity, holding that unless the Governor is required by the Constitution to exercise individual discretion, exercise of executive powers which is coextensive with the legislative power is only with the aid and advice of the Council of Ministers headed by the Chief Minister.

VII. Reliance also was placed on the judgment of Centre for PIL and another vs. Union of India and another reported in (2011) 4 SCC 1 where the appointment of Central Vigilance Commissioner was under challenge. It has been held that once recommendation has been made by the High-Powered committee under Section 4(1) of the 2003 Act, the same may not be binding on the President proprio vigore. However, if such recommendation is accepted by the Prime Minister, who is the authority concerned under Article 77(3) and if the recommendation is then forwarded to the President under Article 74 the President, the President is bound to act in accordance with the advice tendered.

IInd Head: Consultation process with the Chief Justice and its meaning

I. In the case of Ashok Tanwar and another vs. State of H.P. and others reported in (2005) 2 SCC 104 where with regard to the question of appointment of President of State Commission, it was held that consultation with the Chief Justice of the High Court is not as contemplated under Article 217 of the Constitution for the appointment of High Court Judge. It was further held that this consultation is only with the Chief Justice of the State and not with the collegium.

II. The judgment given in the case of Justice K.P.Mohapatra vs. Sri Ram Chandra Nayak and others reported in (2002) 8 SCC 1 is with regard to the appointment of Lokpal, wherein it is ruled by the Division Bench of the Apex Court held that primacy in the appointment is required to be given to the opinion of the Chief Justice of the High Court as consultation with the Chief Justice is mandatory, whereas views and the objections of the Leader of the Opposition are to be taken into consideration, but, the Leader of the Opposition is not entitled to suggest name of another candidate nor to insist on Government considering such name. The process of consultation also has been discussed at length in the said judgment.

IIIrd Head:- When can the authority/institution/office be called Court/ trappings of Court

Decision relied upon in the case of State of Maharashtra vs. Labour Law Practitioners’ Association and others reported in (1998) 2 SCC 688, holds that the Labour Court performs the judicial functions and is a Court. This decision provides the test as to whether the functions discharged by any institution or body is that of the Court and whether the Tribunal had a trapping of the Court considering the nature of its work, that has been held in affirmation.

Other decisions sought to be depended on are :

K.Shamrao & others Vs. Assistant Charity Commissioner (1998) 2 SCC 688

Union of India Vs. Madras Bar Association (2010) 11 SCC P.1

S.D.Joshi Vs. High Court of Bombay (2011) 1 SCC P.252

30. Learned Senior Counsel Mr. Mihir Thakor in support of the petition of NCLL (being Special Civil Application No.13499 of 2011) fervently submitted that the constitutional scheme as envisaged and adopted by the nation is democratic Parliamentary System and it can sustain only on scrupulous adherence to the principles embodied in the Constitution where both the President and the Governor are to act in aid and advice of the Council of Ministers.

31. It is further urged that debates made in the Constituent Assembly are eloquently clear that the Governor and the President have no role to act independently except in the areas specified under the Constitution.

32. It was extensively and strenuously urged that when it is said that ‘King can do no wrong’, it essentially speaks of liability of elected representatives whose acts are made liable under the Constitution and this adoption of core principles of Parliamentary democracy cannot be allowed to be disregarded by any authority.

33. It is the submission of the learned counsel that in the instant case, Governor could not have directly appointed the Lokayukta without the advice of the Council of Ministers headed by the Chief Minister. He further extended it by saying that the appointment of the Lokayukta under Section 3 is contemplated even when the Legislative Assembly is dissolved and in such a situation also, the Governor needs to depend on the advice of the Council of Ministers headed by the Prime Minister, but, has no power to act independently. According to the learned counsel, the decision of the Apex Court in the case of M.P. Special Police Establishment vs. State of M.P. and others reported in (2004) 8 SCC 788 contemplated independent functioning of Governor in a situation where democracy is at peril and that judgment has no application whatsoever in the present case.

34. He further urged this Court that if the act of issuance of warrant by the Governor is not interfered with, it would not only amount to permitting creation of two power centers, but, that would also tantamount to disregarding Constitutional mandate which has carved out the specific role of Governor in the Parliamentary democracy.

It was further contended that the conventions have very potent role to play. However, he depended largely on the submission of the learned Advocate General in this regard.

35. Heavy reliance was placed on the judgment of Samsher Singh vs. State of Punjab and another (supra) to define the role of Governor under the Constitution. Particularly, emphasizing this role as executive authority on aid and advice of Council of Ministers.

Reliance on the case of Rai Sahib Ram Jawaya Kapur and others vs The State of Punjab reported in AIR 1955 SC 549 is also to indicate the role of the Governor, under the Constitution, wherein the Apex Court has held as under:-

“14. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under Article 75 there is to be a council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.

The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, a the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.”

The Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions and as the Ministers constituting the Cabinet on presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”

36. The debate of Constituent Assembly sought to be relied upon shall be reflected at an appropriate stage. Suffice to specify at this juncture that these debates cumulatively indicate the role of Governor in carrying out all the functions and exercise powers unless otherwise indicated, on advice of Council of Ministers.

37. Learned advocate Mr. Shalin Mehta appearing for presenting the factual details from the Hon’ble the Chief Justice has elaborately dealt with all the points in issues proposed with a specific note in the beginning that though he has a very limited role to play, while presenting the factual details from the Chief Justice, in his endeavour to assist the Court on all respects, particularly, on all the queries raised by the Court his submissions were made. The thrust of the arguments were as follows:-

(i) Concept of appointment of Lokayukta has arisen from the concept of Ombudsmen in England and it has very vital role to play.

(ii) Office of Lokayukta has trappings of Court.

(iii) In the instant case, the consultation with the Chief Justice had ended and, therefore, it was necessary for translating the views of the Chief Justice into action by the State.

(iv) The Chief Justice made it abundantly clear in his last communication dated 2.8.2011 that the integrity of Mr. Justice R.A. Mehta was above the Board and this reply was given after due scrutiny and therefore, there was no further question of any dialogue.

Reliance was placed upon the judgment of Justice K.P.Mohapatra vs. Sri Ram Chandra Nayak and others (supra), which according to him makes it very clear that the appointment suffers no illegality.

(v) He agreed that it is an acceptable general rule that the Governor needs to act on aid and advice of the Council of Ministers. However, there are exceptions carved out and the present case falls under one of such exceptions. It was reiteratively urged to this Court that nobody can be a judge in his own case and there would be naturally inherent bias of Council of Ministers when there arises a question of appointment of Lokayukta.

Heavy reliance was placed on N. Kannadasan vs. Ajoy Khose and others (supra), to insist that process of recommendation was as required under the law.

(vi) Learned Advocate Mr. Shalin Mehta since had equated the post of Lokayukta with that of the Ombudsman, he relied upon the text and the material of Administrative law to highlight importance of Ombudsman and his vital role as a watchdog in Parliamentary democracy, which is as follows:-

“The Ombudsman follows an administrative, inquisitorial and private process of investigation, with full access to departmental files, full power to question civil servants and the right to except the cooperation of the department being investigated. The adversary procedure of the courts, conducted at arm’s length between the parties through legal intermediaries, could not be more different. I am in no doubt that the Ombudsman’s methods enable him to get closer to reconstructing the administrative history of a citizen’s case than does High Court procedure ..”

“As we saw in ch 19, the popularity of tribunal’s has also grown a pace in the 40 or so years since the establishment of the Parliamentary Ombudsman. However, here, too, the need for Ombudsmen to fulfil a distinctive role remains. Indeed, as we explain below at 20.3.2, the Parliamentary Commissioner Act 1967 countenances recourses to the Ombudsman only where there is no possibility of appeal to a tribunal or where it would not be reasonable to expect the individual to exercise a right of appeal. The Ombudsman is therefore intended to complement or inapt. Moreover, tribunals and the Ombudsman are complementary in that the matters over which they have jurisdiction are to some extent distinct, the former being empowered to examine the merits of decisions, the latter focusing on the quality of the administrative process – although it must be acknowledged (see further below at 20.3.1) that this distinction does not, indeed cannot, exist as a bright line.”

“Is the Ombudsman to be at the apex of the system, a safety valve and last resort for cases which have not been dealt with satisfactorily by the [internal] adjudicators ?” If so, should there be a requirement for this procedure to be exhausted before a referral to the ombudsman ? [However], there are problems with using the ombudsman system as a kind of vestigal appeal body. In such a role, the office may not receive sufficiently large numbers of cases to enable there to be an assessment of whether public services are performing effectively. This would reduce the ombudsman’s ability to comment on and suggest improvements in administrative practice.”

It is required to be noted that though as a counsel representing Secretariat of Chief Justice, limited role was to be played by learned advocate Mr. Mehta, he contributed on each of the aspects concluding that the warrant dated 25.8.2011 was legally executed.

38. Learned Senior Counsel Mr. Girish Patel challenged the very maintainability of this petition and questioned as to against whom the writ of quo warranto could be issued as Mr. Justice R.A. Mehta has not taken charge of the office of Lokayukta.

It was emphasized by learned Senior Counsel that since last 8 years no appointment has been made in the State. Consultation with authorities was going on from the year 2006. This is an exceptional situation in as much as the entire process of appointment has been subverted by introducing the Bill and attempting the promulgation of ordinance which would have changed the very nature and power of all the dignitaries. It is further urged that in the earlier PIL filed being SCA 5667 of 2010, learned Additional Advocate General had ensured that the appointment of Lokyukta was almost at the fag end, but, for nearly one year, it has not seen the light of the day. He also emphasized appropriate invocation of the “doctrine of necessity” keeping in view the developments of last one week prior to the issuance of the warrant on 25.8.2011.

He also emphasized that the appointment of a Judge of the Supreme Court under the Commissions of Inquiry Act, 1952 was sought to be made when the process was almost at the penultimate stage and that in his opinion was to take out from the purview many serious issues which otherwise were to fall under the jurisdiction of Lokayukta.

38.1 On the basis of these submissions, it has been fervently urged by the learned Senior Counsel to dismiss the petition and he substantiated his version by following authorities:-

(1) Samsher Singh vs. State of Punjab and another reported in AIR 1974 SC 2192.

(2) Ram Nagina Singh and others vs. S.V. Sohni and others reported in AIR 1976 Patna 36.

(3) State of Maharashtra vs. Ramdas Shrinivas Nayak and another reported in (1982) 2 SCC 463.

(4) M/s. Doypack Systems Pvt. Ltd. vs. Union of India and others reported in AIR 1988 SC 782.

(5) Ashish Handa, Advocate vs. Hon’ble the Chief Justice of High Court of Punjab & Haryana and others reported in (1996) 3 SCC 145.

(6) J. Jayalalitha vs. Her Excellency The Governor decided by Madras High Court on 1.10.1997.

(7) S.R. Chaudhuri vs. State of Punjab and others reported in (2001) 7 SCC 126.

(8) Ajit Kumar vs. State of Jharkhand and ors. decided by Jharkhand High Court on 10.5.2002.

(9) M.P. Special Police Establishment vs. State of M.P. and others reported in (2004) 8 SCC 788.

(10) Rameshwar Prasad (IV) and others vs. Union of India and another reported in (2005) 7 SCC 157.

(11) Justice K.P. Mohapatra vs. Sri Ram Chandra Nayak and others reported in (2002) 8 SCC 1.

(12) Rameshwar Prasad and Ors. vs. Union of India and Anr. reported in AIR 2006 SC 980.

(13) N. Kannadasan vs. Ajoy Khose and others reported in (2009) 7 SCC 1.

38.2 As some of the authorities sought to be relied upon by both the sides are common, they have been discussed briefly earlier and shall be discussed at an appropriate place. Some of the authorities submitted are new and require a brief mentioning.

(i) In the case of State of Maharashtra vs. Ramdas Shrinivas Nayak and another (supra), question was of permission of prosecution against the Chief Minister of State of Maharashtra, where the Court has held that the Governor need not act on the basis of the aid and advice of the Council of Ministers. The doctrine of necessity has been invoked here in the following manner:-

“They are : “If in the existing case, the entire Council of Ministers becomes interested in the use of the statutory .power one way or the other, the doctrine of necessity will fill up the gap by enabling the Governor by dispensing with the advice of his Council of Ministers and take a decision of his own on the merits of the case. Such a discretion of the Governor must be implied as inherent in his constitutional powers ……… The doctrine of necessity will supply the necessary power to the Governor to act without the advice of the Council of Ministers in such a case where the entire Council of Ministers is biased. In fact, it will be contrary to the Constitution and the principles of democratic Government which it enshrines if the Governor was obliged not to act and to decline to perform his statutory duties because his Ministers had become involved personally. For the interest of democratic Government and its functioning, the Governor must act in such a case on his own. Otherwise, he will become an instrument for serving the personal and selfish interest of his Ministers.” We wish to say no more. As we said, we cannot and we will not embark upon an enquiry. We will go by the Judges’ record.”

(ii) In the case of M/s. Doypack Systems Pvt. Ltd. vs. Union of India and others (supra), it was held that firstly the object and reasons of the Act should be taken into consideration in interpreting the provisions of the statute in case of doubt. Secondly, documents which were sought to be produced in Court, were part of the preparation of documents, leading to formation of the advice tendered to the President of India and as such were privileged under Article 74(2) of the Constitution. The question was whether the advice tendered by the Ministers to the President can be inquired independently.

(iii) In the case of J. Jayalalitha vs. Her Excellency The Governor reliance was on the decision of State of Maharashtra vs. Ramdas Shrinivas Nayak and another (supra), it was held that the question of sanction against the Minister deserved to be decided by the Governor in his individual discretion and also further observed that the decision of the Governor to act as per his own discretion was final.

(iv) In the case of S.R. Chaudhuri vs. State of Punjab and others (supra), it was a question where there were repeated appointments of a non-legislator as Minister, each time for a period of six consecutive months, which was held to be subversion of Parliamentary democracy.

“39. India is a Democratic Republic. Its chosen system of political organisation is reflected in The Preamble to the Constitution, which indicates the source from which the Constitution comes, viz., “WE THE PEOPLE OF INDIA”. By permitting a non-legislator Minister to be reappointed,without getting elected with the period prescribed by Article 164(4), would amount to ignoring the electorate in having its say as to who should represent it – a position which is wholly unacceptable. The seductive temptations to cling to office regardless of constitutional restraint must be totally eschewd. Will of the people cannot be permitted to be subordinated to political expediency of the Prime Minster or the Chief Minister as the case may be, to have in his cabinet a non-legislator as a Minister for an indefinite period by repeated reappointments without the individual seeking popular mandate of the electorate.

40. Chief Ministers or the Governors, as the case may be, must for ever remain conscious of their constitutional obligations and not sacrifice either political responsibility or parliamentary conventions at the altar of political expediency”. Prof. B. O. Nwabueze in his book Constitutionalism in the Emergent States” (1973 Edition – page 139), almost thirty years ago warned :

“Experience has amply demonstrated that the greatest danger to constitutional Government in emergent States arises from the human factor in politics, from the capacity of politicians to destort and vitiate whatever Governmental forms may be devised. Institutional forms are of course important, since they can guide or better or for worse the behaviour of the individuals who operate them. Yet, however carefully the institutional forms may have been constructed, in the final analysis, much more will turn upon the actual behaviour of these individuals – upon their willingness to observe the rules, upon statesman like acceptance that the integrity of the whole Government framework and the regularity of its procedures should transcend any personal aggrandizement. The successful working of any constitution depends upon what has aptly been called the ‘democratic spirit’, that is, a spirit of fair play, of self-restraint and of mutual accommodation of differing interests and opinions. There can be no constitutional Government unless the wielders of power are prepared to observe the limits upon Government powers.”

(Emphasis ours)

(v) In the case of Rameshwar Prasad and Ors. vs. Union of India and Anr. (supra), reliance is sought to be placed on following relevant paragraphs:-

“55. The other related issue of debate was regarding the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various articles of the Draft Constitution relating to the exercise of specified functions by the Governor ‘in his discretion’ were deleted. (Chapter IV “Role of the Governor”, Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.2.07). Article 163 of the Constitution (then Draft Article 143) generated considerable discussion, and Dr. Ambedkar is stated to have “maintained that vesting the Governor with certain discretionary powers was not contrary to responsible Government.” (Constituent Assembly Debates (Volume VIII, Revised Edition) at pp.00-502).

56. The expression “required” found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been reasoned that the expression “by or under the Constitution” means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made “under” the Constitution.

57. xxx xxx xxx

58. Finding that the position of the Governor is indispensable for the successful working of the Constitutional scheme of governance, the Sarkaria Commission has noted that “most of the safeguards will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper pers-pective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties.” (Chapter IV “Role of the Governor”, Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.5.07). It was further added that “the fact that it will be impossible to lay down a concrete set of standards and norms for the functioning of a Governor will make it difficult for a Parliamentary Committee or the Supreme Court to inquire into a specific charge against a Governor.”

(vi). While emphasizing that office of Lokayukta is the Court, quoting, the case of N. Kannadasan vs. Ajoy Khose and others (supra) reliance is also sought to be placed on following relevant paragraphs to drive point home as to how the interpretation of statute is required to be done:-

“42. There cannot be any doubt whatsoever that ordinarily a literal meaning should be given to the provisions of the Constitution as also a statute. However, while applying the golden rules of literal interpretation one must be clear in his mind that same should not defeat the object and purpose for which the Act was enacted. We could advert to this question a little later.

46. In Supreme Court Advocates-on-Record Assn. this Court laid down the qualities of a Judge:(SCC pp.601-02, para 273)

“273. … Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the law, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill will or affection. Justice without fear or favour, ill will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country. There can be no two opinions at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society.”

47. xxx xxx xxx

48. xxx xxx xxx

49. xxx xxx xxx

50. xxx xxx xxx

51. xxx xxx xxx

52. xxx xxx xxx

53. xxx xxx xxx

54. A case of this nature is a matter of moment. It concerns public interest. Public information about independence and impartiality of the judiciary would be in question. The duty of all organs of the State is that the public trust and confidence in the judiciary may not go in vain. Construction of a statute would not necessarily depend upon application of any known formalism. It must be done having regard to the text and context thereof. For the aforementioned purpose, it is necessary to take into consideration the statutory scheme and the purpose and object it seeks to achieve.

55. xxx xxx xxx

56. xxx xxx xxx

57. Yet again, in K.P. Varghese v. ITO the strict literal reading of a statute was avoided as by reason thereof several vital considerations, which must always be borne in mind, would be ignored, stating (SCC p.180, para 5)

“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 iscover the intent of the legislature from the language used by it and it must always be rememberd 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’. We can do no better than repeat the famous words of Judge Learned Hand when he said:

‘…. 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.'”

39. Learned Senior Counsel also sought to rely upon two more authorities in the case of Pundlik Vishwanath vs. Mahadeo Binjraj and others reported in AIR 1959 Bombay 2 and in the case of The University of Mysore vs. Govinda Rao and another reported in AIR 1965 SC 491. These cases are in relation to the use of writ of quo warranto when the person has not taken charge in the office.

40. Learned Senior advocate Mr. Mukul Sinha as an intervener made his categorical and forceful submission emphasizing that the post of Lokayukta is higher than that of the High Court Judge in as much as this person is going to man the people’s court and the Lokayukta hears common man’s grievances against corruption and very nature of this office is indicative that is is not simply having the trapping of Court but it is the Court. It was further urged that the power of the Governor exercised under Article 163 (3) are not justiciable and she had all the authority to act independently as she has done in the instant case.

He sought to rely upon the following decisions (i) Union of India vs. R. Gandhi, President, Madras Bar Association reported in (2010) 11 SCC 1; (ii) S.D. Joshi and others vs. High Court of Judicature at Bombay and others reported in (2011) 1 SCC 252 (iii) K. Shamrao and others vs. Assistant Charity Commissioner reported in 2003(3) SCC 563.

41. A note is made of the fact that respondent No.1has chosen to gracefully not participate in the proceedings.

Points for Determination:-

42. Having considered the submissions made by both the sides and having regard to the rival contentions raised extensively by learned counsels in the instant case, following points in issue are required to be deduced for adjudication.

(1) Whether the Governor can act without the aid and advice of the Council of Ministers for appointment of Lokayukta under Section 3 of the Act read with Articles 163 and 166 of the Constitution?

(2) Whether the office of Lokayukta is a Court or has trappings of the Court?

(3) Whether there is a role of convention in absence of any specific rules in existence?

(4) Whether the consultation process in the instant case was over and whether there was a stalemate?

(5) Whether there existed reasons authorizing the Governor to act in a manner done by her and whether such an act is valid?

1st issue: Role of Governor in appointment of Lokayukta:-

43. On the first point before adverting to the facts, it would be relevant to construe relevant provisions of the Constitution for aptly addressing the issue on the basis of submissions proposed by both the sides.

44. Article 154 of the Constitution under Chapter -II speaks of the executive powers of the State. Article 154 is reproduced hereunder for better understanding of issue:-

” Art.154(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(2) Nothing in this article shall-

(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or

(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.”

45. The executive powers of the State are to be exercised by the Governor directly or through the subordinate as held in the case of Rai Sahib Ram Jawaya Kapur and others vs The State of Punjab (supra). This expression is very vide. It connotes the residue of governmental functions that remain after the legislative and judicial functions are taken away.

In the case of S.R. Chaudhuri vs. State of Punjab and others (supra), while dealing with British conventions the Apex Court held as under:-

46. Thus, all other functions, other than legislative and judicial powers are vested by Article 154(1) in Governor. This vesting, of course, does not operate to transfer to the Governor powers conferred on any other authority by existing law and it also cannot prevent the Parliament or the legislature of the State from conferring any such powers to other authorities which is subordinate to the Governor.

47. With this, vital shall be the examination of scheme of Articles 163 of the Constitution.

Article 163 of the Constitution runs as under:-

“Article 163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final , and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into any court.”

48. In the case of Rai Sahib Ram Jawaya Kapur and others vs The State of Punjab (supra), the Apex Court says that Article 163 makes it clear that “the Governor occupies the positions of the head of the executive in the state but it is virtually the Council of Ministers in each state that curves on the executive Government.” It also says that except in those cases specified under the Constitution, the Governor is to act on the aid and advice of the Ministers.

49. The Constitution envisages the Parliamentary System of the government both at the Union and at the State level where “neither the President nor the Governor is to exercise function personally” unless otherwise specified in the Constitution. The Governor is a Constitutional head of the executive and can only exercise the powers on the advice of the Council of Ministers through the Ministers or the other officers as may be allocated under Article 166(3).

50. In the case of Samsher Singh (supra) the Apex Court has further held in connection with this issue:-

“27. Our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under this system the President is the Constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. Article 103 is an exception to the aid and advice of the Council of Ministers because it specifically provides that the President acts only according to the opinion of the Election Commission. This is when any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102.”

28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

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32. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. In England the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution. Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the constitutional head are not different.

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57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally.”

Respective roles and powers of both the President and the Governor in west-ministerial democracy are summarized in this decision of Samsher Singh’s case (supra) with very powerful words thus:-

“151. The omnipotence of the President and the Governor at State level is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the Articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture-lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the Head of State. A parliamentary style Republic like ours could not have conceptualised its self-liquidation by the process. On the contrary, democratic capital formation to strengthen the people’s rights can be achieved only through invigoration of the mechanism of Cabinet-House-Elections.”

51. It would be relevant to reproduce some of the findings of the Apex Court arrived at in the case of Bhuri Nath and others vs. State of J & K and others (supra):-

“19. By operation of Article 154, the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. By operation of Article 162, subject to the provisions of the Constitution, the executive power of the State shall extend to all matters with respect to which the Legislature of the State has power to make law. Thus, except his discretionary powers like that of appointing Chief Minister, the Governor does not exercise any power in his individual discretion. The Governor is aided and advised by the Council of Ministers appointed by him under Article 163. The executive power of the State is co-extensive with that of the legislative power of the State and the Governor in the constitutional sense discharges the functions under the Constitution with the aid and advice of the Council of Ministers except in so far as he is by or under the Constitution required to exercise his functions in his discretion. This is subject to Article 370 and the Constitution (Application to Jammu and Kashmir) Order, 1950 repealed and revised by the Constitution (Application to Jammu and Kashmir) Order, 1954 and the Constitution of Jammu and Kashmir, 1957 (Part V). All the executive actions of the State Government shall be expressed to be taken in the name of the Governor as per the business rules of the Government made in accordance with Article 166 of the Constitution and the business rules made by the Governor under Clause (3) thereof (Section 45 of the Constitution of Jammu and Kashmir). In Samsher Singh’s case (AIR 1974 SC 2192), a Bench of seven Judges of this Court had held that under the Cabinet system of Government, as embodied in our Constitution, the Governor is the formal head of the State. He exercises all his powers and functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the constitution to exercise his functions in his discretion. The satisfaction of the Governor for the exercise of any other powers or functions required by the Constitution is not the personal satisfaction of the Governor but is the satisfaction in the constitutional sense under the Cabinet system of Government. The executive is to act subject to the control of the legislature. The executive power of the State is vested in the Governor as head of the executive. The real executive power is vested in the Council of Ministers of the Cabinet. There is a Council of Ministers with the Chief Minister as its head to aid and advise the Governor in the exercise of his executive functions. In R. K. Jain v. Union of India, (1993) 4 SCC 120 : (1993 AIR SCW 1899), it was held that the Cabinet system is constitutional mechanism to ensure that before important decisions are taken, many sides of the question are weighed and considered. The Cabinet takes political decisions of importance and the permanent bureaucracy works out the details and implements the policy. The Cabinet headed by the Prime Minister bears collective responsibility for the governance of the country. The Cabinet as a whole is responsible for the advice and conduct of business by each of the members of Cabinet of his Department and requires to maintain secrecy in the performance of the decision making process individually or collectively. They are also equally responsible individually and collectively for their acts and policies. The Cabinet, as a whole, is collectively responsible for the advice to the President and to the Parliament and the people. In S. R. Bommai v. Union of India, (1994) 3 SCC 1: (1994 AIR SCW 2946 at P. 3157, Paras 246 and 247) at page 238 in paragraphs 313 and 314, this Court had held that the executive power of the Union shall be vested in the President and shall be exercised by him whether directly or through officers subordinate to him in accordance with the Constitution. All the executive actions of the Government shall be expressed to be taken in the name of the President under Article 77 (1). Therefore, he acts with the aid and advice of the Council of Ministers under Article 18 of the Constitution headed by the Prime Minister as elaborated under paragraphs 313 to 321(of SCC) : (Paras 246 to 254).”

52. In the case of Kehar Singh and another vs. Union of India and another (Supra), the Apex Court held as under:-

“7. The Constitution of India, in keeping with modern constitutional practice, is a constitutive document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working but, maintaining and operating a constitutional order. The Preambular statement of the Constitution begins with the significant recital :

“We, the people of India, having solemnly resolved to constitute India into a sovereign Socialist Secular Democratic Republic ….. do hereby adopt, enact and give to ourselves this Constitution.”

To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Art. 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously, and recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its crudities and clarity, Mr. Justice Holmes, speaking for the Court in W. I. Biddle v. Vuco Perovich, (1926) 71 Law ed 1161 enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Art. 74(l) of the Constitution, must act in accordance with such advice. We may point out that the Constitution Bench of this Court held in Maru Ram v. Union of India, (1981) 1 SCR 1196 : (AIR 1980 SC 2141) that the power under Art. 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the Head of the State.”(emphasis supplied)

53. As an aid to interpret the constitutional provisions the Court needs to find out the intention of the framers of the Constitution and debates in the Constituent Assembly is one of the vital and recognized aids and the same can be relied upon as held by the Apex Court in the case of S.R. Chaudhuri vs. State of Punjab and others (supra). This judgment further says that:-

Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true contacts in which the same are used and the purpose which they seek to achieve. Debates in the constituent assembly refer to an earlier part of this judgment clearly indicates that a none-members inclusion in the cabinet was considered to be a “previledge” that extents only for six months, during which period the members must get elected, otherwise he would ceased to be a Minister. It is a settled position that debates in the constituent assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the Court to find out the intension of the framers of the constitution. We must remember that a constitution is not just a document in solemn form, but a living frame work for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit . The debates clearly indicate the “privileged” to extent “only” for six months .”

54. The role of the Governor envisaged at the time of debates in the of Constituent Assembly would be relevant which can throw better light on the issue at this stage:-

Debates on Article 143 to 163

“Shri H.V. Kamath:(C.P. & Berar:General): Mr. President, Sir, I move:

“That in clause (1) of article 143, the words ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion be deleted”.

If this amendment were accepted by the House, this clause of article 143 would read thus:-

“There shall be Council of Ministers with the Chief Minister as the head to to aid and advice the Governor in the exercise of his functions.”

Sir, it appears from a reading of this clause, that the Government of India Act, of 1935 has been copied more or less blindly without mature consideration. There is no strong or valid reason for giving the Governor more authority either in his discretion or otherwise vis-a-vis his ministers, than has been given to the President in relation to his ministers. If we turn to article 61(1), we find it reads as follows:-

When you, Sir, raised a very important issue, the other day, Dr. Ambedkar clarified this clause by saying that the President is bound to accept the advice of his ministers in the exercise of all of his functions. But here article 143 vests certain discretionary powers in the Governor, and to me it seems that even as it was it was bad enough, but now after having amended article 131 regarding election of the Governor and accepted nominated Governors, it would be wrong in principle and contrary to the tenets and principles of constitutional Government, which you are going to build up in this country. It would be wrong I say, to invest a Governor with these additional powers, namely, discretionary powers. I feel that no departure from the principles of constitutional Government should be favoured except for reasons of emergency and these discretionary powers must be done away with. I hope this amendment of mine will commend itself to the House. I move, Sir.

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Shri Alladi Krishnaswami Ayyar”(Madras:General):

Sir, there is really no difference between those who oppose and those who approve the amendment. In the first place, the general principle is laid down in article 143 namely, the principle of ministerial responsibility, that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the article goes on to provide “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.” So long as there are articles in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet or to refer to the President, this article as it is framed is perfectly in order. If later on the House comes to the conclusion that those article which enable the Governor to act in his discretion is specific cases should be deleted, it will be open to revise this article. But so long as there are later artilces which permit the Governor to act in his discretion and not on ministerial responsibility, the article as drafted is perfectly in order.

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” The only other question is whether first to make a provision in article 143 that the Governor shall act on ministerial responsibility and then to go on providing ” Notwithstanding anything contained in article 143…. he can do this ” or “Notwithstanding anything contained in article 143 he can act in his discretion.” I should think it is a much better method of drafting to provide in article 143 itself that the Governor shall always act on ministerial responsibility excepting in particular or specific cases where he is empowered to act in his discretion. If of course the House comes to the conclusion that in no case shall the Governor act in his discretion, that he shall in every case act only on ministerial responsibility, then there will be a consequential change in this article. That is, after those articles are considered and passed it will be quite open to the House to delete the latter part of article 143 as being consequential on the decision come to by the House on the later articles. But, as it is, this is perfectly in order and I do not think any change is warranted in the language of article 143. It will cumbrous to say at the opening of each article “Notwithstanding anything contained in article 143 the Governor can act on his own responsibility”.

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“The Governor’s ministers shall be appointed by him and shall hold office during his pleasure.”

Debates on Articles 147 to 167

“Shri H.V. Kamath: Mr. President, I fail to see any valid reason for the retention of this article. It may be argued that it is on the same lines as an article which we have already adopted with reference to the President. But, now that we have accepted nominated Governors in the States, this articles, to my mind, requires to be recast, if not entirely deleted.

There are certain aspects in this article which are wholly incongruous with, at least not in conformity with, the principle of nominated Governors for the States. If the House will carefully consider clause(c) of this article, to take only one instance, the House will see that the nominated Governor has been given power to interfere in what may be called the day-to-day business of the Council of Ministers. I wonder why the Governor should call upon the Chief Minister to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council. I submit that this is entirely a matter for the Council to decide among themselves and to arrive at any particular procedure they like. If a matter has been considered by one of the Ministers, but has not been considered by the whole Council, the Governor cannot step in and tell the Chief Minister, ‘you must put it before the Council of Ministers’. The Chief Minister and his colleagues are competent enough to decide which matter should go before the Council and which it is not necessary to be put before the Council. This to my mind is in tune with the tenets of constitutional democracy that we propose to set up in the States.

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Dr.P.S. Deshmukh(C.P. & Berar:General): Mr. President, Sir, I am afraid I am not able to agree with my honourable Friend Mr. Kamath in his suggestion that the article should be omitted. If he were to pay a little more attention to the provisions made by article 146, which we have just passed he will, I think, admit the wisdom of incorporating this artilce in the Constitution. Now under article 146 every order which is issued by the Ministry or the Cabinet or even individual Ministers will be an order which will be published and proclaimed in the name of the Governor. If article 147 is not there, there is nothing which will empower the Governor to know the various actions taken from day to day, and the orders pased and issued in his name. My Friend has said that this would refer even to routine matters. I can tell him, Sir, that ordinary matters which are unimportant and which are of a routine nature. I am sure, no Governor in his wisdom would like to question, or request the Chief Minister that they should go to the Cabinet for reconsideration

Shri H.V. Kamnath:What is the guarantee?

Dr.P.S. Deshmukh: The guarantee is the Governor’s wisdom, and the wisdom of the authority that will point such a …..

Shri H.V. Kamath: What is the guarantee I asked?

Dr. P.S. Deshmukh : The guarantee I said is the Governor’s wisdom and the wisdom of the authority that will appoint the Governor.

Sir, this article can never refer to unimportant, routine matters, but it can refer only to orders which the Governor thinks are likely to have larger repercussions, and are of such importance that it will be wise if all the Ministers in the Cabinet were to consider it. And apart from this direction that the question may be considered by the Cabinet, there is nothing. The Governor is not given the authority to over-rule the decision of the Cabinet. The article merely empowers the Governor whenever he considers that an individual Minister’s decision should rather be given some more attention, that he would refer it for the consideration of the whole Cabinet.

Shri K.M. Munshi: (Bombay:General): Mr. President, Sir, I cannot understand the objection that is raised to the powers of the Governor under article 147. The House has accepted, and very rightly accepted, that there should be a Governor in the provinces. That Governor is not necessarily to be a cipher as some Members said, nor need he be only a super-host giving lunches and dinners to persons in society. He has a political function to perform and that political function is to be the Constitutional Head.

Some honourable Members who spoke are under the impression that a Constitutional Head has no functions at all and that he has to do nothing else than to endorse what the Premier or the Ministers do, without even giving them the benefit of his advice or giving them the impressions of a detached spectator on governmental actions. This I subit is entirely wrong. The Governmental set-up which we have envisaged is on the model of the British Constitution. Article 147 is repetition of article 65 which we have already accepted with regard to the President in the Centre. The responsibility of the Government, if at all, is much more comprehensive and stronger in the Centre under this Constitution than in the Provinces. In view of this, I cannot understand why these objections are taken again in respect of the same powers.

My Friend, Mr. Gupte, referred to sub-clause(c) and asked the question, where is the Governor to get the information from? If you read sub-clause (b), it says;-

“It shall be the duty of the Chief Minister of each State to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for’”

Under this clause it will be open for the Governor to ask the Chief Minister for information with regard to important questions and if he feels that certain decisions have been taken not by the Cabinet as a whole but by an individual Minister which requires reconsdieration at the hands of the Cabinet as a whole, clause © will given him the power to get that done. What is wrong about it? When a Minister acts behind the back of his colleagues, behind the back of the Chief Minister who is responsible for all the actions of the Ministers, why cannot the Governor say,”Here is a particular order. I feel that it is a matter of great importance. I want that by virtue of collective responsibility all the Ministers must meet together and consider it”? If they accept it, he is bound to accept their advice. He has no right to over-rule them. It is merely a matter of caution that a decision, which in the opinion of the Constitutional head, is such as requires the imprimatur of the whole Cabinet and not of a single Minister, should so receive it. Therefore it is a safeguard which preserves the collective responsibility and the powers of the Prime Minister, and not a power which interferes with the Government. Therefore the fear that it would so interfere is entirely unfounded.

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Shri K.M.Munshi: I want to make it clear that the position of the Governor must be considered from the point of view of the constitutional head as in England. A constitutional head is not a cipher. I will read for the benefit of the House the position of the King in England as enunciated by the late Mr.Asquith who could not be considered a weak Prime Minister at any time of his life. This is his definition of the position of the constitutional head in England:-

Therefore it is not as though he cannot get any information apart from what he gets from his Ministers.

“ to point out objections which seem to him valid against the course which they advice; to suggest, if he thinks fit, an alternative policy. Such instructions are always received by Ministers with the utlost respect and considered with more respect and deference than if they proceeded from any other quarter. But, in the end, the Soverign always acts upon the advice which Ministers after ( if need be) reconsideration, feel it their duty to offer. They given that advice well knowing that they can, and probably will, be called upon toe account for it by Parliament.”

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The Honourable Dr.B.R.Ambedkar:-As the debate has taken place and as several Members of the House seem to think that there is something behind this article 147 which would put the position of the Ministers and of the Cabinet in the provinces in jeopardy, I propose to offer some explanation.

The first thin I would like the House to bear in mind in this. The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and I think the House will do well to bear in mind this distinction. This article certainly, it should be borne in mind, does not confer upon the Governor the power to overrule the Ministry on any particular matter. Even under this article, the Governor is bound to accept the advice of the Ministry. That I think, ought not to be forgotten. This article, nowhere, either in clause (a) or clause (b) or clause(c), says that the Governor in any particular circumstances may overrule the Ministry. Therefore, the criticism that has been made that this article somehow enables the Governor to interfere or has upset the decision of the Cabinet is entirely beside the point, and completely mistaken.

55. It will be apt to make a note of some of the commentaries given by Ivor Jennings under the title of Cabinet Government for better understanding of the subject:-

“The existence or absence of a monarch does not in itself make a fundamental distinction in a Constitution. In a Cabinet system the Cabinet governs. The functions of the head of the State, be the King or President, are ancillary. it would be wrong, however, to underestimate the influence of the monarch in British politics. The documents now available show that the Whig view of monarchy which prevailed in the middle of last century and which was expounded by Bagehot was not wholly in accordance with the facts. The Sovereign must, in the last resort, accept the decisions of the Government, but he may have considerable influence on those decisions.

Queen Victoria Offended against these principles. She tried to thwart the policy which the Liberal party had put before the electors in 1880 and which had secured for that party a large majority. She used her power to try to prevent the formation of a Liberal Government when the same party secured a majority in 1886. She intrigued with the leaders of the Opposition in an attempt to secure the defeat of the Government later in the same year. She acted as broker in the alliance between conservatives and Liberal Unionists.

The subsequent monarchs appear to have taken a constitutional view of their functions. A phrase from a letter from the private secretary to the Prime Minister, referring to the Army reforms of 1905, is worth quoting. ‘The king cannot withhold his consent from the proposals which he is advised by the Cabinet to approve, but he cannot conceal his strong misgiving…. Though George V insisted on seeing the leaders of the Opposition in 1910, when George V tried to persuade the Prime Minister’s consent, and he sought information, not assistance in defeating the Government. In 1918 when George V tried to persuade the Prime Minister to retain Sir William Roberton as Chief of the Imperial General Staff, Mr Lloyd George threatened resignation if the King insisted. Lotd Stamfordham replied that the King had no idea of insisting. In 1929, apparently, George V raised objections to receiving an amabassador from the Soviet Union. The Foreign Secretary had put it to his Sovereign that here was a Cabinet decision. Politely but firmly, he did so put it and the King received the ambassador.

Mr Asquith in 1913 wrote a long memorandum on the rights and obligations of the Crown.

We have now a well-established tradition of two hundred years that, in the last resort, the occupant of the Throne accepts and acts on the advice of his ministers.. He is entitled and abound to give his minsters. He is entitled and bound to give his ministers all relevant information which comes to him, to point out objections which seem to him valid against the course which they advise, to suggest (if he thinks fit) in alternative policy. Such intimations are always received by ministers with the utmost respect and considered with more respect and deference than if they proceeded from any other quarter. But, in the end, the Sovereign always acts upon the advice which ministers, after (if need be) reconsideration, feel it their duty to offer. They give that advice well knowing that they can, and probably will, be called upon to account for it by Parliament.

The dispute over Home Rule, which produced this memorandum, also produced one from Lord Esher, who was advising George V:

Every constitutional monarch possesses a dual personality. He may hold and express opinions upon the conduct of his ministers and their measures. He mad endeavour to influence their actions. He may delay decisions in order to give more time for reflection. He may refuse assent to their advice up to the point where he is obliged to choose between accepting it and loosing their services.

If the sovereign believes advice to him to be wrong, he may refuse t take it, and if his ministers yields the Sovereign is justified. If the minister persists, feeling that he has behind him a majority of the people’s representatives, a constitutional Sovereign must give way.

It is precisely at this point that the dual personality of the Monarch becomes clear. Hitherto he has exercised free volition, he has used his prerogative of criticism and delay, of personal influence and remonstrance. At a given moment, however, when he is forced to choose between acquiescence and the loss of his minister, the Sovereign automatically, under the Constitution which by the constitution Oath he has sworn to maintain, ceases to have any opinion.

The King can do no wrong. This cannot be said of anyone who is a free agent. Within certain limits, and under certain circumstances, the King ceases, constitutionally, to be a free agent. Hence, the meaning of the pregnant phrase, the King can do no wrong. With due regard to the security of the Throne, the Sovereign cannot retain the final right of private judgment.

Has the King then no prerogatives?

Yes, he has many, but when translated into action they must be exercised on the advice of a minister responsible to Parliament. In no case can the Sovereign take political action unless he is screened by a minister responsible to Parliament.

This proposition is fundamental, and differentiates a constitutional monarchy bassed upon the principles of 1688 from all other forms of government. No one acquainted with the inner working of the Constitution can doubt the enormous powers retained and exercised by the Sovereign. In the domain of patronage and appointment, naval, military, ecclesiastical and civil, he wields great influence and power. Over foreign policy his personality exercises a sway commensurate with his intimate knowledge of foreign courts, and his sustained relations with foreign potentates. In the distribution of honours and rewards, the impartiality of the Sovereign renders his decision final.

Even within the doubtful land of legislation the King’s influence and power of suggesting compromise, and sometimes effecting it, are invaluable assets in the difficult business of government.

It is irrational to contend that because under our constitutional rules and practice the Sovereign has now and then to act automatically, he is therefore an automation without influence or power….

What then is the King to do, if he is asked by his minister to violate the Constitution ?

The answer is that the Sovereign cannot act unconstitutionally so long as he acts on the advice of a minister supported by a majority in the House of Commons. Ministerial responsibility is the safeguard of the monarchy. Without it the throne could not stand for long, amid the gusts of politcal conflict and the storm of political passion.

What, however, is the King to do if he is asked to support his ministers in putting a strain upon the constitution ,which in his view is improper and dangerous to the welfare of the state ?

In the last resort the King has no option. If the constitutional doctrines of ministerial responsibility mean anything at all, the King would have to sign his own death-warrant, if it was presented to him for signature by a minister commanding a majority in Parliament. If there is any tampering wit this fundamental principle, the end of the monarchy is in sight….

Even if it is true that the King has no power to act upon his private judgment and to overide the will of the ministers , he has , however, the unquestioned right of remonstrance. This right should be used for the double purpose of safeguarding the King’s conscience and of placing beyond all risk of misconception the whole responsibility for the advice they tender upon the shoulders of Ministry.

This statement must be read with some qualification. The legal rule that the King can do no wrong has no application to the matter. Since an act of the King could not give a private citizen a legal remedy at common law it was no doubt desirable that executive acts should be done by ministers and other servants of the Crown, but this has no relevance to the duty or otherwise of the King to act on the advice of his ministers. Nor is much help obtained by an appeal to the principles of 1688. For a century after 1688 the King was by no means bound to accept the advice of ministers. The change came about not because Whig principles were accepted but because after 1832 Government rested not on the favour of the Crown but on the vote of the people. Unless the King could appeal to the people against his Government he had to accept its advice, and if he appealed to the people against the Government he must expect the Government to appeal to the people against the King. In other words , he had inevitabley in such a case to enter into a party conflict which he stood every chance of losing, if not immediately, atleast in the future. Lord Esher rightly based his memorandum on the principle that if the King exercised his own judgment the throne could not stand for long”

56. Thus, on the basis of the discussion held here, it can be said that except those functions/areas which have been specifically carved out under the Constitution, the Governor has to act with the aid and advice of the Council of Ministers.

It would be important to make a mention that though the advice tendered to the Council of Ministers cannot be questioned or inquired into by the Court, but when the decision is taken by the Governor without the aid and advice of the Court, the Court can look into the same and this is well laid down preposition of law. Reference needs to be made in the case of L.G. Chaudhari vs. The Secretary, L.S.G. Dept., Govt. of Bihar and others reported in AIR 1980 SC 383 and also in the case of State of M.P. vs. Nandlal Jaiswal reported in AIR 1987 SC 251.

57. In the case of Rameshwar Prasad (IV) and others vs. Union of India and another, the Apex Court has held as under:-

“The Constitution grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any Court for the exercise and performance of the powers and duties of his office as far any act done or purporting to be done by him in exercise and performance of those powers and duties.”

It is also further held in this judgment that “ The immunity granted under Article 361 does not mean that in the absence of Governor, the ground of mala fides on proclamation being ultra vires would not be examined by the Court.

58. Necessary at this stage is to construe the provision of Article 166 :-

“Article 166 of the Constitution runs as under:-

“Article 166.Conduct of business of the Government of the State-(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.”

For the conduct of the Government’s business Article 166(1), provides that all executive actions of the Governor shall be expressly taken in the name of the Governor. Article 166(3) envisages making of the Rules by the Governor to allocate all his functions to the Ministers under the Rule of business except those where discretion, under the Constitution, has been vested in the Governor and the same is to be exercised by him or her individually.

59. In Samsher Singh’s case (AIR 1974 SC 2192 at P. 2198), this Court had held thus:

“Under the Cabinet system of Government as embodied in our Constitution, the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123, viz., ordinance making power and all powers and functions of the Governor except his legislative power as for example in Article 213 in the President under Article 53 (1) in one case and are executive powers of the State vested in the Governor under Article 154(1) in the other case. Clause (2) or Clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under Clause (1) of Article 77. Similarly, Clause (2) or Clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under Clause (1) of Article 166. The expression “Business of the Government of India” in Clause (3) of Article 77, and the expression “Business of the Government of the State” in Clause (3) of Article 166 includes all executive business.”

20. The constitutional mechanism, i.e., Cabinet system of Government is devised for convenient transaction of business of the executive power of the State. Though constitutionally the executive power of the State vests in the Governor, he does not, unless Constitution expressly conferred on him, personally take the decision. The decisions are taken according to business rules at different levels and ultimately the decision rests with the authority specified in the business rules and is expressed to be taken in the name of the Governor. In substance and the reality, decisions are taken by the Council of Ministers headed by the Chief Minister or the Minister or Secretary as per business rules. But they are all expressed to be taken by the Council of Ministers in the name of the Governor and authenticated by an authorised officer. The Governor being the constitutional head of’ the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is coextensive with the legislative power, is with the aid and the advice of the Council of Ministers headed by the Chief Minister.

21. As posed earlier, the question is; when the Governor discharges the functions under the Act, is it with the aid and advice of the Council of Ministers or in his official capacity as the Governor ? The legislative is aware of the above constitutional mechanism of governance.”

60. Thus, when the responsibility for the decision taken as held in Samsher Singh’s case (supra) rests with the Council of Ministers headed by the Chief Minister, unless required by the Constitution, transaction of business of executive powers of the State shall need to be as contemplated under the Rules of business and no individual discretion is required to be exercised by the Governor in those cases.

61. A reference shall be made at this stage to the following two authorities, namely that of A.Sanjeevi Naidu etc. vs. State of Madras reported in AIR 1970 SC 1102 paragraphs 11 and 12 are reproduced as under:-

“11. We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorised the Governor under sub-article (3) of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.

12. The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working Minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the ‘Rules’ or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates.”

In the case of State of M.P. vs. Dr.Yashwant Trimbak reported in 1996 (2) SCC 305 paragraphs 17 and 18 of the second authority.”

“17. The order of sanction for prosecution of a retired Government servant is undoubtedly an executive action of the Government. A Governor in exercise of his power under Article 166(3)of the Constitution may allocate all his functions to different Ministers by framing rules of business except those which the Governor is required by the Constitution to exercise his own discretion. The expression “business of the Government of the State” in Article 166(3) of the constitution, comprises of functions which the Governor is though exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the state Government. The Court has held in Shamrao v. State of Maharashtra,(1964) 6 SCR 446 : (AIR 1964 SC 1128) that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rule of Business framed under Article 166(3) of the Constitution. In State of Bihar v. Rani Sonabati Kumari, (1961)1 SCR 788 : (AIR 1961 SC 221) where power of issuing notification under Section 3 (1) of the Bihar Land Reforms Act, 1950 has been conferred on the Governor of Bihar, this Court held : (Para 40 of AIR) “Section 3 (1)of the Act confers the power of issuing notifications under it not on any officer but on the State Government as such though the exercise of that power would be governed by the rule of business framed by the Governor under Art. 166 (3)of the constitution”.

18. Therefore excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to Minister.”

62. In the light of the discussion made hereinabove, Section 3 of the Gujarat Lokayukta Act,1986, if is examined, at this stage, it reads as follows:-

” 3. Appointment of Lokayukta.-(l) For the purpose of conducting investigations in accordance with the provisions of this Act,the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta:

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

(2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of a High Court.

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

63. There does not appear to be any indication in the statute, much less a strong and clear indication, which will suggest departure from the tenets of Parliamentary democracy for this Court to hold that the appointment under Section 3 of the Gujarat Lokayukta Act,1986 was not to be done under the aid and advice of the Council of Ministers. On the contrary, all indications are that this appointment is essentially required to be done by the Governor only on aid and advice and there is no discretion permitted by this statue that could be exercised considering the scheme of the Constitution and more particularly, Articles 163 and 166 of the Constitution.

It is also required to be noted here that under the Rules of Business of government of Gujarat subject of appointment of Lokayukta is chronologically numbered as 36(A) titled as the Gujarat Government Rules of Business, 1990. Under Part-II of these Rules, subject is allocated to the General Administration Department (GAD) and thus, there is a specific allotment of the business by the Governor.

Even considering the submission of other side that Article 166 is to be construed directory and not mandatory, then also, it is indicative of the fact that this is an area where discretion under the Constitution was not to be exercised by the Governor.

In case of M/s Rajureshwar Associates V/s. State of Maharashtra and others reported in AIR 2004 Supreme Court 3770, the Chief Minister informally directed not to place before the Cabinet matter even where there was non concurrence of Finance Department despite Business Rule 11(2) of the Government of Maharastra required placing of such matter before the cabinet in such eventuality. Apex Court disapproved such a bypassing of business rules thus :

“46 Reliance on the case of Nanded Mill for coming to the conclusion that the matter need not be placed before the Cabinet is totally misplaced. It was not the decision of the Cabinet that such matters should not be placed before it. Even assuming that the Chief Minister had informally directed as is stated in the noting of the Principal Secretary, the requirement under the Rules of Business could not be bye passed by any individual functionary ”

64. Similar such issue had arisen before the Patna High Court where the question was whether the Governor had power to appoint a Lokayukta under the Bihar Lokayukta Act. In the case of Ram Nagina Singh and others vs. S. V. Sohni and others (supra), it has been held in clear terms by Patna High Court that the appointment of Lokayukta can be made by the Governor only on the aid and advice of the Council of Ministers and not independently, which reads as under:-

“20. Without deciding the extreme contention that has been put forth by the learned Solicitor General, it appears to me that ordinarily when a power is vested, even by a Statute, in the Governor, he is to act on the aid and advice of the Council of Ministers. It does not cease to be an executive power merely because it is conferred by a Statute. It would be defeating the constitutional scheme if it was to be held that the mere use of the word “Governor” in any Statute would be imputing an intention to the legislature of conferring a power ‘eo nomine’. Indeed the presumption should be otherwise. When the Governor is under the constitutional scheme to act on the aid and advice of the Council of Ministers, the use of expression Governor in any Statute would, in any event, and unless a strong contrary intention can be inferred, mean Governor acting on the aid and advice of the Council of Ministers. Any other interpretation would upset the constitutional scheme. Even if it be possible for the legislature to invest the Governor with powers eo nomine, in so far as the present Statute is concerned, this, in my view, has not been done. In order to come to a conclusion that the Governor has been invested with powers by the legislature eo nomine very strong indications will have to be there in the relevant Statute; since, as already explained, in one sense it goes against the concept of Parliamentary form of Government, which is one of the basic postulates of the Constitution. In the present Statute I find no such indication. On the other hand, indications are to the contrary. Section 3 of the Ordinance states that the Governor shall by a warrant under his hand and seal appoint the Lokayukta in consultation with the Chief Justice of the High Court and the leader of Opposition. If Governor is to act eo nomine it would mean that although leader of Opposition will have an effective role to play, the State Government would have no hand in the appointment. This appears to be inconceivable, unless there was something in the Statute which could irresistibly lead to the conclusion that the legislature had not contemplated aid and advice of Council of Ministers in the making of the appointment. I am further of the opinion that the use of the word Governor in Section 3 of the Ordinance was appropriate for the reason that the section contemplates the issue of warrant under the hand and seal of the Governor. Taking all these into consideration, I am of the view that the appointment of Lokayukta, as envisaged in Section 3, has to be made by the Governor with the aid and advice of the Council of Ministers.”

xxx xxx xxx

26. The other objections raised on behalf of the petitioners is that the expression inquiry in Article 163 (3) of the Constitution does not apply to cases where either facts are admitted or where all the relevant and material facts are placed before the Court and they lead to only one conclusion. Where a decision has to be arrived at by looking into materials on the record, it is plain that it is only after an inquiry that any conclusion can be arrived at. The Court does in such a situation, inquire into a matter. Further, in my view, where the foundation of a decision is existence or non-existence of a fact, it cannot be said that the Court does not inquire into it even though it is on the basis of such existence or non-existence that a conclusion is arrived at. It is, therefore, clear that even where facts are admitted, no conclusion is possible without inquiring into a matter or issue which is pre-requisite to the exercise of the jurisdiction or power of the Court in the matter of giving relief to a party in a judicial proceeding. It would thus be not correct to say that if a fact in issue is admitted the court has not to inquire into it. The bar here is on inquiry and not what a party chooses to call as evidence to prove and disprove the facts. The issue is inherent in the controversy itself.

27. Learned counsel for the petitioners further contended that Article 163 (3) creates a privilege in favour of the State and it is capable of being waived. In this case, it is said, it has actually been waived. But as I read the Article, I do not think that any question of privilege is involved. The Article is a bar to the jurisdiction of the Court to inquire into specified matters. There is a clear difference between a privilege and a bar to the jurisdiction of the Court. The Article does not create any privilege but contemplates that certain matters shall not be inquired into by Courts.55 In this view of the matter the last contention in relation to Article 163 (3) of the Constitution also cannot be accepted.”

65. In the case of Ajit Kumar etc. vs. State of Jharkhand and Ors. etc.(supra) one of the Judges(J. Iqbal) dealt with the powers of Governor in the appointment of Lokayukta as under:-

“23. The aforesaid ratio of Samsher Singh’s case was again followed by the Apex Court in the case of State of M.P. And Ors. v. Dr.Yashwant Trimbak, (1996) 2 SCC 305, and held that under Article 163(1) of the Constitution excepting functions required by the Constitution to be exercised by the Governor in his discretion, the Governor acts on the aid and advice of the Council of Ministers. Any function vested in the Governor, whether executive, legislative or quasi-judicial in nature and whether vested by the Constitution or by a statute be delegated by Rules of Business unless the contrary is clearly provided for by such constitutional or statutory provision.

24. As noticed, Article 166(3) of the Constitution confer power on the Governor to make rules for more convenient transaction of business of the Government of the State. In exercise of all power Governor of Bihar has framed rules called the Rules of executive business which has been made applicable in the State of Jharkhand. The business of the State is complicated one and necessarily to be conducted through the agency of a large number of officials and authorities. It is true that the Governor of State shall exercise his power with the aid and advice of Council of Ministes but the Council of Ministers are no more than an advisor. It is for the Governor of the State to acept or not to accept the advice of the Council of Minister specially while deciding the power vested in him under the special statute. The Supreme Court in the case of Bachhittar Singh vs State of Punjab and Anr. AIR 1963 SC 395, while considering the question as to when the aid and advice of the Council of Ministers will become the action of the State observed:-

“The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provided,that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or hereby the Rajpramukh. We may further observe that, constitutionally speaking the Minister is no more than an advisor and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion, which of them can be regarded as the ‘order of the State government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned.

xxx xxx xxx

In a concurring judgment, Member Judge of this Division Bench (S.J. Mukhopadhyay, J.) also held in terms that unless the Constitution specifies by making exception, the Governor requires to act on aid and advice of the Council of Ministers headed by the Chief Minister under Article 163. Findings on this issue are as under:-

43. However, I may add that the manner in which the appointment of Lokayukta was dealt is peculiar, not only against the provisions of law, but also against, the spirit.

The power of appointment of Lokayukta is vested with the Governor of the State. It is to be made as per Section 3 of the Lokayukta Act,1973 by the Governor by issuance of warrant under his hand and seal after necessary consultation with the Chief Justice of the High Court and Leader of Opposition . Nowhere, under the Act any stipulation has been made to have any consultation with the Chief Minister of the State.

Though such consultation is made with the Chief Justice and Leader of Opposition, cannot be stated, that the creature of the law intended to exclude the Chief Minister from the purview of consultation? Obviously, the answer will be in ‘negative’, for the reasons as discussed hereunder:-

The Chief Minister is the head of the Council of Ministers. As per Article 163 of the Constitution of India, the Council of Ministers with the Chief Minister at the head is to aid and advice the Governor in the exercise of all his functions. The exceptions so far as the Governor is by or under the Constitution requires to exercise functions or any of them in his discretion.

The power of Governor to appoint Lokayukta under the Lokayukta Act, 1973 is not an exceptional Act to be exercised by the Governor under the Constitution. Therefore, the Chief Minister as a Head of Council of Ministers will automatically figure in the matter of appointment of Lokayukta, which is to be made by the Governor in the aid and advice of the Council of Ministers being not an exceptional power delegated under the Constitution.”

Section 3 of Gujarat Lokayukta Act provides for appointment even when legislative assembly is dissolved, but that also is no indication of independent powers of the Governor and in such circumstances, Governor is required to act on aid and advice of Council of Ministers headed by the Prime Minister. Governor therefore, also cannot draw its powers from these wordings and insist on independent exercise of powers. The Act suggests no departure from the constitutional requirements certainly.

Before concluding this issue, exceptions spelt out by the Constitution for the Governor to act independently are to be reproduced from Samsher Singh’s case(supra):-

“9. First, there are several constitutional functions, powers and duties of the Governor. These are conferred on him eo nomine the Governor. The Governor, is, by and under the Constitution, required to act in his discretion in several matters. These constitutional functions and powers of the Governor eo nomine as well as these in the discretion of the Governor are not executive powers of the State within the meaning of Article 154 read with Article 162.

10. Second, the Governor under Article 163 of the Constitution can take aid and advice of his Council of Ministers when he is exercising executive power of the State. The Governor can exercise powers and functions without the aid and advice of his Council of Ministers when he is required by or under the Constitution to act in his discretion, where he is required to exercise his constitutional functions conferred on him eo nominee as the Governor.

20. Articles where the expression “acts in his discretion” is used in relation to the powers and functions of the Governor are those which speak of special responsibilities of the Governor. These articles are 371A(1)(b), 371A(l)(d), 371A(2)(b) and 371(A)(2)(f). There are two paragraphs in the Sixth Schedule, namely 9(2) and 18(3) where the words “in his discretion” are used in relation to determination of amount of royalties payable by licensees or lessees prospecting for, or extracting minerals, to the District Council. Paragraph 18(3) has been omitted with effect from January 21, 1972.

21. The provisions contained in Article 371A(1)(b) speak of the special responsibility of the Governor of Nagaland with respect to law and order in the State of Nagaland and exercise of his individual judgment as to the action to be taken. The proviso states that the decision of the Governor in his discretion shall be final and it shall not be called in question.

22, Article 371A (1)(d) states that the Governor shall in his discretion make rules providing for the composition of the Regional Council for the Tuensang District.

23. Article 371A (2)(b) states that for periods mentioned there the Governor shall in his discretion arrange for an equitable allocation of certain funds, between the Tuensang District and the rest of the State.

24. Article 371A(2)(f) states that the final decision on all matters relating to the Tuensang District shall be made by the Governor in his discretion.”

66. It can thus be concluded from the discussion held herein above that in Parliamentary form of democracy, Governor though exercises executive powers, these powers are necessarily to be exercised with the aid and advice of the Council of Ministers headed by the Chief Minister unless the constitutional provisions carve out areas permitting individual discretion of the Governor.

Moreover, for all the executive functions to be carried out in the name of Governor who is constitutional head, these executive functions are to be carried out as per business rules and allocation of subjects in the rules determines the authority and decision of such a subject rests with such authority specified in the business rules. And yet, in substance, it is the Council of Ministers headed by the Chief Minister which owes collective responsibility for every decision taken expressly in the name of the Governor under the business rules.

Appointment of Lokayukta for the State of Gujarat since falls under the Business Rules ( Item No.36A First Schedule of the Gujarat Government Rules of Business, 1990), with no indication much less strong indication in the statute of Governor having been invested with the power to exercise personal discretion, appointment of Lokayukta though expressly done in the name of Governor, Lokayukta has to be appointed only on aid and advice of Council of Ministers headed by the Chief Minister.

67. In such premise, whether the appointment made of the Lokayukta in the instant case, is justifiable and whether there existed compelling reasons which could have permitted the Governor to exercise such powers independently arising from any express provisions of the Constitution or otherwise shall be dealt with later on in this judgment.

Office of Lokayukta- Whether Court or has trappings of Court:-

68. As provided under Section 3 of the Lokayukta Act, appointment is expressly to be done by the Governor on aid and advice of Council of Ministers headed by the Chief Minister who are required to so do it after consultation with the Chief Justice and the Leader of the Opposition party. And, that brings to the fore second vital question as to whether the office of the Lokayukta is Court or has trappings of the Court or not.

This question assumes importance as that would determine the extent of power of each dignitary in making such appointment and that also would have vital bearing on applying the law laid down by the Apex Court in appointment of judges and Presiding Officers for the Courts and such institutions/offices which can be termed Courts or having trappings of Courts.

69. It would be relevant to consider the scheme of the present Act of the Lokayukta before examining this question. Relevant provisions for the purpose of this question would be in Sections 3,4,5,7,8,9,10,11 and 12:-

” 3. Appointment of Lokayukta.-(l) For the purpose of conducting
investigations in accordance with the provisions of this Act, the Gover-
nor shall, by warrant under his hand and seal, appoint a person to be
known as the Lokayukta:

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

(2) A person shall not be qualified for appointment as a Lokayukta unless he is or has been a Judge of a High Court.

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

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

(a) if he is a member of 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, sever his connection (short, of divesting himself of ownership) with the conduct and management of such business: or

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

(2) A person shall be disqualified for appointment as a Lokayukta or for continuing to hold any such post if any member of his family has entered into any commercial contract with the State Government and, the contract is subsisting or has any other dealing with the State! Government relating to any business of a commercial nature.

Explanation.-For the purpose of sub-section (2), the expression “family” means wife, husband, son, unmarried daughter, and son’s wife.

5. Term of office and other conditions of service of Lokayukta –

(1) Every person appointed as the 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 may, by writing under his hand addressed to tile Governor, assign his office:

(b) the Lokayukta may be removed from office in the manner specified in section 6.

(2) On ceasing to hold office, the Lokayukta shall be ineligible for further employment (whether as the Lokayukta or in any other capacity) under the Government of Gujarat or for any employment under, or office in, any such Government company. Corporation, or University as is referred to in sub-clauses (b). (c) and (d) of clause (7) of section 2.

(3) There shall be paid to the Lokayukta such salary as is specified in the Second Schedule.

(4) The allowances and pension payable to. and other conditions of service of, the Lokayukta shall be such as may be prescribed:

[(5) The salaries, allowance and pension payable to, or in respect, Lokayukta shall be expenditure charge on the Consolidated Rund of the State]

Provided that in prescribing the allowances and pension payable to. and other conditions of service of, the Lokayukta regard shall be had to the allowances and pension payable to. and other conditions of service of [the Chief Justice of the High Court]:

Provided further that, the allowances and pension payable to, and other conditions of service of, the Lokayukta shall not be varied to his disadvantage after his appointment.

6. Removal of Lokayukta.-The Lokayukta shall not. be removed from his office except by an order made by the Governor on the ground of proved misbehaviour or incapacity after an inquiry made by the Chief Justice of the High Court or, as the case may be, by such other judge of the High Court, as the Chief Justice may nominate in this behalf, in which the Lokayukta had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

7. Matters which maybe investigated by Lokayukta. (1) Subject to the provisions of this Act, the Lokayukta may investigate any action which is taken by, or with the general or specific approval of a public functionary in any case where a complaint involving an allegation is made in respect of such action or such action can be or could have been in the opinion of the Lokayukta the subject of an allegation.

(2) No matter in respect of which a complaint is made under this
Act shall be referred to a Commission for inquiry under the Commis-
sions of Inquiry Act, 1952 except on the recommendation or with the concurrence of the Lokayukta:

Provided that nothing in this sub-section’ shall prevent the State Government from referring the matter to such commission for inquiry if in its opinion the matter is exceptionally a matter of definite public importance.

(3) Notwithstanding anything contained in sub-section (1) the
Lokayukta shall, before proceeding to investigate any action, make
such preliminary inquiry as he deems fit for ascertaining whether
there exist reasonable ground for conducting the investigation and if
he finds that there exist no such grounds, he shall record a finding to
that effect and thereupon the matter shall be closed and the com-
plainant shall be informed accordingly.

(4) An investigation under this section of an action taken by or with
the general or specific approval of a public functionary shall not be
affected merely on the ground that subsequent to such action such
public functionary ceased to hold the capacity in which the action was
taken by him or with his approval or ceased to be such public
functionary.’

8. Matters not subject to Investigation.-(1) The Lokayukta shall’
not investigate any action,—

(a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850 (37 of 1850) with his prior concurrence, or

(b) in respect of a matter which has been referred for inquiry under the Commissions of Inquiry Act, 1952 on his recom­mendation or, with his prior concurrence or by the State Government under the proviso to sub-section (2) of section 7. or

(c) in respect of a matter which has been inquired into under the enactments referred to in clauses (a) arid (b) or has been finally decided by a competent court.

(2). The Lokayukta shall not investigate any complaint which is excluded from his jurisdiction by virtue of a notification issued under section 20.

(3) The Lokayukta shall not inquire into any matter concerning any person if he has any bias in respect of such matter or person and if any dispute arises in this behalf, the Governor shall, On an application made by the party aggrieved, obtain in such manner as may be prescribed, the opinion of the Chief Justice of the High Court arid decide the dispute in conformity with such opinion.

(4) The Lokayukta shall not inquire into any complaint if the complaint is made after the expiry of five years from the date on which the action mentioned in such complaint is alleged to have been taken.

9. Provisions relating to complaints.-(1) Subject to the provisions of this Act, a complaint stating the allegations may be made under this Act to the Lokayukta by any person other than a public, servant in his capacity as such:

Provided that, where the person aggrieved is dead or is for any reason unable to act for himself, the complaint, may be,, made by any person who in law represents his estate or, as the case may be, by any person who is authorised by him in this behalf.

(2) Every complaint shall be made in such form and shall be accompanied by such affidavits as may be prescribed.

(3) Notwitlistanding anything contained in any other enactment, any letter written to the Lokayukta by a person in police custody, or in a jail or in .any asylum or other place for insane persons, shall be forwarded to the addressee unopened and without delay by the police officer or other person in charge of such jail, asylum or other place and the Lokayukta may. if satisfied that it is necessary so to do, treat such tetter as a complaint made in accordance with the provisions of sub-section (2).

(4) The complainant shall deposit in such manner and with such authority or agency as may be prescribed a sum of one thousand rupees to be available for disposal under section 21:

Provided that the Lokayukta-may for sufficient cause to be recorded in writing exempt a complainant from the requirement, of depositing the sum under this section.

(5) Notwithstanding anything contained in section 10 or any other provision of this Act, every person who wilfully or maliciously makes arty false allegations in a complaint under this Act, shall, on conviction be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine.

(6) The offence punishable under sub-section (5) shall be cognizable,

10. Procedure in respect of investigations. (1) Where the Lokayukta decides-to conduct any investigation under this Act, he,-

(a) shall forward a copy of the complaint or, in the case of any investigation which he proposes to conduct on his own motion, a statement setting out the grounds therefor to the public functionary concerned and the competent authority concerned:

(b) shall afford to the public functionary concerned an oppor-
tunity to offer his comments on such complaint or state-
ment; and .

(c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit.

(2) Every such investigation shall be conducted in private and, in
particular the identity of the complainant and of the public functionary
affected by the investigation shall not be disclosed to the public or the
press or published in any manner whether before, during or after the
investigation:

Provided that, the Lokayukta may conduct any investigation relat­ing to a matter of definite public importance in public, if he, for reasons to be recorded in writing, thinks fit to do so.

(3) Save as aforesaid, the procedure for conducting any such investigation shall be such as the Lokayukta considers appropriate in tlie circumstances of the case.

(4) The Lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint, if in his opinion—

(a) the complaint is frivolous or vexations, or is not made in good faith; or

(b) there are no sufficient grounds for investigating or. as the case may be, for continuing the investigation: or

(c) other remedies are. available to the complainant and in the circumstances of tlie case it would be more proper for the complainant to avail of such remedies.

(5) In any case where the Lokayukta decides not to entertain a
complaint or to discontinue any investigation in respect of a complaint,
he shall record his reasons therefor and communicate the same to the
complainant and the public functionary concerned.

(6) The conduct of an investigation under this Act in respect of any section shall not affect such action, or any power or duty of any public functionary to take further action with respect to any matter subject to the investigation.

(7) Whoever discloses to the public orto the press any information or publishes such information in contravention of the provisions, of this section shall, on conviction, be punished with imprisonment, for a term which may extend to two years and shall also be.liable to fine.

11. Evidence.-(1) Subject to the provisions of this section, for the purpose of investigation (including the preliminary inquiry, before such investigation) under .this Act, the Lokayukta may require any public servant or any other person who in his opinion is able to furnish information or produce documents relevant to the investigation, to furnish any such information or produce any such document.

(2) For the purpose of any such investigation (including the preliminary inquiry), the Lokayukta shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits:

(d) requisitioning any public record or copy thereof from any court or office:

(e) issuing commissions for the examination of witnesses or documents;

(f) such other matters as may be prescribed.

(3). The Lokayukta shall have power to require any person subject, to the- provisions of sub-section (8) to furnish information .on such points or matters as, in the opinion of the Lokayukta may be useful lor. or relevant to, the subject matter of the inquiry and any person so required shall be-deemed to be legally bound to furnish such informa­tion within the meaning of section 176 and section 177 of the Indian. Penal Code.

(4) The Lokayukta or any Gazetted officer specially authorised in this behalf by the Lokayukta may enter any-building or place where he has reason to believe that any books of account or other documents relating to the subject matter of the inquiry may be found, and may seize any. such books of account or documents or take extracts or copies therefrom, subject to the provisions of section 100 of the Code of Criminal Procedure. 1973 (2 of 1974) in so far as they may be applicable.

(5) The Lokayukta shall be deemed to be a Civil Court and when an}’ offence as is described in section 175, section 178, section 179 or section 180 of tlie Indian Penal Code is committed in the view or presence of the Loka\aikta. the Lokayukta may, after recording the facts constituting tlie offence and tlie statement of tlie accused as provided for in tlie Code of Criminal Procedure, 1973 (2 of 1974), forward tlie case to a Magistrate having jurisdiction to try tlie same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against tlie accused as if the case had been” forwarded to him under section 346 of the Code of the Criminal Procedure. 1973 (2 of 1974).

(6) Any proceeding before the Lokayukta shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860).

(7) Subject to the provisions of sub-section (8), no obligation to maintain secrecy or other restriction upon the disclosure of informa­tion obtained by or furnished to the State Government or any public servant, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purpose of any investiga­tion under this Act and the State Government or any public servant shall not be entitled in relation to any such investigation’to any such privilege in respect of the production of documents or the giving of evidence as is allowedby any enactment or by any rule of law in legal proceedings.

(8) No person shall be required or authorised by virtue of this Act. to furnish any such information or answer any such question or produce so much of an document.—

(a) ..as might prejudice the security or defence or international

relations of India (including India’s relations with the Government of any other country or with any international organisation), or the investigation or detection of crime; or

(b) as might involve tlie disclosure of proceedings, other than
the decision, of the Cabinet or Council of Ministers of the
State Government or any committee thereof, if any:

and for the purpose of this sub-section a certificate issued by the Chief Secretary certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive.

12. Report of Lokayukta in case of the Chief Minister.-! 1) If after
investigation of any action in respect of which a complaint involving
an allegation has been made against the Chief Minister or against the
Chief Minister in conjunction with any other public functionary, the
Lokayukta is satisfied that such allegation can be substantiated,
either wholly or partly against the Chief Minister, he shall, by a report
in writing, communicate his findings, alongwith the relevant docu-
ments, materials and other evidence, to the Chief Minister.

(2) On receipt of the report under sub-section (1), the Chief Mini­ster shall cause the same to be placed, without delay, before the Council of Ministers.”

70. It can be seen from these provisions that for being appointed as Lokayukta, a person has to be minimum a sitting or a retired judge of the High Court. He is authorized to investigate any complaint received or forwarded to him and such a complaint is either investigated or he can at his discretion refuse to investigate the complaint on account of the same being frivolous or vexatious in nature. And if complaint is investigated, he is required to present the report.

For the purpose of conducting such an investigation, it has all the powers of a Civil Court. By virtue of provision of Section 11(5) of the Lokayukta Act also, it is deemed to be a Civil Court. The proceedings before the Lokayukta are deemed to be judicial proceedings with the meaning of Section 193C and 220 of the Indian Penal Code.

The reports of Lokayukta have no binding effect, nor do they result into either conviction or achieving any finality in terms of adjudication. These reports can, of course, be made basis to initiate prosecution against public functionaries concerned.

Considering this scheme of the Act the tests which have been set out in various judgments are to be examined before it can be concluded whether the function of Lokayukta is that of the Court or not. It is required to be emphasized at this juncture that the report of Lokayukta does not culminate into punishing any erring person per se, but it creates strong opinion of people in judging the elected representative and the public functionaries. Importance of such reports would be dealt with separately hereinafter, but, for the purpose of deciding whether the office can be said to be the Court or whether the same has trappings of the Court, the answer shall have to be also found from binding judgments.

71. During the course of hearing submission was made to equate office of the Lokayukta with the High Court and also to place the same on higher level than that of the High Court considering people’s aspiration, however, such a submission cannot be accepted to hold this office as Court at present. There is a wide gap between ‘what should be’ and ‘ought to be’ and ‘what is’. The point in issue on hand shall need to be determined on the basis of the provisions which are at present existing. Courts are expected to be alive to the changing social needs, for present it has to act on the tangible material available and the statute as that stood on 25.8.2011.

72. There are very well laid down tests and criteria for determining whether any authority/institution/office is a Court or whether it has trappings of Court.

The Supreme Court in different cases carved out following litmus tests as guide on this question. It is pertinent to reproduce relevant portions of those judgments at this stage.

In the case of Dr. Baliram Waman Hiray vs. Justice Lentin and others reported in (1988)4 SCC 419, Courts and quasi-judicial bodies having trappings of Court are expressly discussed thus:-

“33. In Virindar Kumar Satyawadi v. State of Punjab, (AIR 1956 SC 153) (supra), a three-Judges Bench speaking through Venkatarama Ayyar, J. relying upon the celebrated decision of the House of Lords in Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 AC 275 explained the legal connotation of the term ‘Court’ in these words (at p. 157 of AIR):

“What distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.”

It is a familiar feature of modern legislation to set up bodies and tribunals, and entrust them with work of a judicial, quasi-judicial or administrative character, but they are not Courts in the accepted sense of that term, though they may possess, as observed by’ Lord Sankey, L.C. in Shell Co. of Australia’s case, some of the trappings of a Court. Venkatarama Ayyar, J. in Virindar Kumar Satyawadi has referred to several decisions of the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from tribunals exercising quasi-judicial functions.”

In the case of State of Maharashtra vs. Labour Law Practitioners’ Association and others reported in (1998) 2 SCC 688 ‘Courts’ and ‘judicial service’ are discussed elaborately:-

“16. We need not refer at length to various other judgments which have dealt with the question whether a Tribunal set up under different Acts which were before the Court in each case was a judicial body or a Court, and whether it was a Court subordinate to the High Court. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669 the Central Government exercising appellate powers under Section 111 of the Companies Act was held to be acting as a judicial body and not as an administrative body. In the case of Shripatrao Dajisaheb Ghatge v. The State of Maharashtra, AIR 1977 Bombay 384 (FB), the term “Courts” was held to cover all tribunals which were basically Courts performing judicial functions giving judgments which were binding and exercising sovereign judicial power transferred to them by the State. It was held that High Court could exercise its jurisdiction under Article 227 over such tribunals. A Full Bench of the Gujarat High Court in the case of Shaikh Mohammedbhikhan Hussainbhai v. The Manager, Chandrabhanu Cinema, 1986 Lab IC 1749 : (AIR 1986 Gujarat 209) held that Labour Courts and Industrial Courts were Courts for the purposes of Contempt of Courts Act and were also Courts subordinate to the High Court.

17. The Allahabad High Court in the case of M/s. Poysha Industrial Company Ltd., Ghaziabad v. State of Uttar Pradesh, 1985 Lab IC 1683 has, however, held that the presiding officer of a Labour Court does not belong to the judicial service of the State as defined in Article 236. The Allahabad High Court’s judgment has relied upon the decision of this Court in Chandra Mohan’s case (AIR 1966 SC 1987) (supra) for the purpose of holding that it is only the hierarchy of ordinary civil Courts in the narrow sense headed by a District Judge which comes under the term “judicial service” under Article 236. The view taken by the Allahabad High Court appears to be too narrow a view of the term “judicial service”. In Chandra Mohan’s case (supra), this Court was primarily concerned with excluding from judicial service persons who held posts in services which were not exclusively judicial. When the service is exclusively judicial, there is no reason to exclude such judicial service from that term under Article 236. The High Court in the present case is justified in rejecting the narrow view taken in that judgment.

18. In the case of Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 : (1992 AIR SCW 1993), this Court had to consider qualifications for the purpose of appointment as a Judge of the High Court under Article 217 of the Constitution. While interpreting the expression “judicial office” under Article 217(2)(a), this Court held that the expression “judicial office” must be interpreted in consonance with the scheme of Chapters V and VI of Part VI of the Constitution. So construed it means a judicial office which belongs to the judicial service as defined under Article 236(b). Therefore, in order to qualify for appointment as a Judge of a High Court, a person must hold a judicial office which must be a part of the judicial service of the State. After referring to the cases of Chandra Mohan (AIR 1966 SC 1987) (supra) and Statesman (Private) Ltd. (AIR 1968 SC 1495) (supra), this Court said that the term “judicial office” in its generic sense may include a wide variety of offices which are connected with the administration of justice in one way or the other. Officers holding various posts under the executive are often vested with magisterial power to meet a particular situation. The Court said, “Did the framers of the Constitution have this type of offices in mind when they provided a source of appointment to the high office of a judge of the High Court from amongst the holders of a “judicial office”? The answer has to be in the negative. We are of the view that holder of judicial office under Article 217(2)(a) means the person who exercise only judicial functions, determines causes inter parties and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of the judiciary.” Going by these tests laid down as to what constitutes judicial service under Article 236 of the Constitution, the Labour Court judges and the Judges of the Industrial Court can be held to belong to judicial service. The hierarchy contemplated in the case of Labour Court judges is the hierarchy of Labour Court judges and Industrial Court Judges with the Industrial Court Judges holding the superior position of District Judges. The Labour Courts have also been held as subject to the High Court’s power of superintendence under Article 227.”

In the case of K. Shamrao and others vs. Assistant Charity Commissioner reported in (1998) 2 SCC 688 in the following paragraphs test of the Court is reiterated:-

“7.In Brajnandan Sinha v. Jyoti Narain ((1955) 2 SCR 955) considering the question whether a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a Court within the meaning of Contempt of Courts Act 1952, reference was made to the decision in Bharat Bank’s case (supra) and various other decisions and it was held by this Court that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

xxx xxx xxx

17. The aforesaid provisions make it clear that the Assistant Charity Commissioner has not only the trapping of a judicial tribunal but also has power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary Civil Court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted.”

Apex Court in the case of Union of India Vs. Madras Bar Association reported in (2010 ) 11 SCC 1, also dealt with this issue:-

38. The term “courts” refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the State for administration of justice that is for exercise of the judicial power of the State to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes. Tribunals on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law. Courts refer to civil courts, criminal courts and the High Courts.

In the case of S.D. Joshi vs. High Court of Bombay reported in (2011) 1 SCC 252 discretion of Court and that of the Tribunal is reiterated extensively:-

29. This question need not detain us any further, as the law in this regard is no more res integra and stands finally stated by a Constitution Bench of this Court in Harinagar Sugar Mills Ltd. Hidayatullah, J. as His Lordship then was, while giving his own reasons concurred with other Judges in allowing the appeal setting aside the order of the Central Government. While commenting upon the maintainability of the appeals, he drew a distinction between a “court” and a “tribunal” and dealt with the question as to whether the Central Government, while hearing this appeal, was a tribunal and held as under : (AIR pp. 1680-81, paras 32-33 & 36).

“32 With the growth of civilization and the problems of modern life, a large number of Administrative Tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary courts of civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of ‘courts’ in Article 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227.

By ‘courts’ is meant courts of civil judicature and by ‘tribunals’, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that courts have ‘an air of detachment’. But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient. Lord Sankey, L.C in Shell Co. of Australia Vs. Federal Commr. Of Taxation observed : (AC pp. 296-97)

‘The authorities are clear to show that there are tribunals with many of the trappings of a court, which, nevertheless, are not courts in the strict sence of exercising judicial power….

In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a court in this strict sence because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects 5. Nor because there is an appeal to a Court 6.Nor because it is a body to which a matter is referred by another body. See R. v. Electricity Commissioners.

33. In my opinion, a court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its Constitution to exercise the judicial power of the State. These courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word ‘judicial’, be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. In Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson in these words:(QB p.452)

”The word “judicial” has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judical mind- that is, a mind to determine what is fair and just in respect of the matters under consideration.’

That an officer is required to decide matters before him ‘judicially’ in the second sense does not make him a court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.

* * *

36. Now, in its functions the Government often reaches decisions, but all decisions of the Government cannot be regarded as those of a tribunal. Resolutions of the Government may affect rights of parties and yet, they may not be in the exercise of judicial power. Resolutions of the Government may be amenable to writs under Articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under Article 136 as the decisions of a tribunal. The position however changes when Government embarks upon curial functions and proceeds to exercise judicial power and decide disputes. In those circumstances, it is legitimate to regard the office who deals with the matter and even the Government itself as a tribunal. The officer who decides, may even be anonymous; but the decision is one of a tribunal, whether expressed in his name or in the name of the Central Government. The word ‘tribunal’ is a word of wide import, and the words ‘court’ and ‘tribunal’ embrace within them the exercise of judicial power in all its forms. The decision of the Government thus falls within the powers of this Court under Article 136.”

73. In light of the examination of provisions of the Lokayukta Act as also the materials on record and the principles established by the Apex Court, time and again,it would not be possible to state and hold that the office of the Lokayukta is either a Court or has trappings of Court. It has no power to give a definitive judgment attaching finality and authoritativeness nor does it possess trappings of Court conferring any power to perform judicial functions. The office of Lokayukta is an august office envisaging strong and independent person who acts ‘judicially’ , having powers of deemed civil courts for certain provisions of the Indian Penal code as envisaged under Section 11 of the Lokayukta Act and yet, considering the discussion above, it can neither be given the status of Court, let alone of the highest Court nor can the concept of trappings of Court be imparted for evaluating its functions.

3rd Issue: Convention

74. On having held that this office of Lokayukta is neither Court nor having trappings of Court, question that arises is as to how the consultation process will have to begin and from where the proposal for appointment needs to be emanated from.

The third point in issue therefore is as to whether there is any role of conventions in absence of rules or clear guidelines to regulate exercise of discretion and to solve the problem of filling the gap.

75. It was argued by the learned Advocate General that so far in the appointment of the Lokayukta, from the time the statute has come into being in the year 1986 conventionally the proposal, on all occasions, had emanated from the office of the Chief Minister, where either the recommendation was made with a request to opine on the name of the recommandee or the names were called for from the Chief Justice of the State. But at no point of time, it was the office of the Governor which had called for any name for such an appointment.

It was also pointed out that in this case also, in the year 2005, when the name of Mr. Justice K.R.Vyas was considered, it had emanated from the office of the Chief Minster and the proposal was sent to the Chief Justice who had opined in favour of his appointment. What had been followed on earlier three occasions, also had continued in case of Mr. Justice K.R. Vyas and this convention is also followed, according to him, in other states where such appointments are being made for the post of Lokayukta. This request was also found in a letter dated 10.9.2009 addressed to the Government by the Governor for sending a fresh proposal, he further argued.

It was fervently urged that a complete departure was made by the Governor by calling for the names twice directly from the Hon’ble the Chief Justice. Not only this was done giving a go by to the earlier conventions, but, the same was not an authorized action as urged by the Advocate General. It is further urged that this was not an appointment of a Presiding Officer of the Court nor of a Judicial Office,therefore, application of ratio laid down in case of Ashish Handa, Advocate vs. High Court of Punjab & Haryana and others (supra) and that of N. Kannadasan vs. Ajoy Khose and others (supra) cannot be made applicable in the instant case. While harping on convention reliance is placed on the following judgments mentioned hereinunder:-

1) In the case of Supreme Court Advocates-on-Record Association and others vs. Union of India reported in (1993) 4 SCC 441, following paragraphs are reproduced:-

“352. The Constitution of India is an elaborate document consisting of 395 Articles and ten Schedules. Despite that there are Constitutional provisions – operative in various fields – which are nowhere to be found in the written text of the Constitution. For instance it is a fundamental requirement of the Constitution that if the opposition obtains the majority at the Polls, the Government must tender its resignation forthwith. Fundamental as it is, this does not form part of the written law of the Constitution. It is also a constitutional requirement that the person who is appointed Prime Minister by the President and who is the effective Head of the Government should have the support of the House of People. The other Ministers who are appointed by the President on the advice of the Prime Minister, must continuously have the confidence of the House of People, individually and collectively. The powers of the President are exercised by him on the advice of the Prime Minister and the Council of Ministers which may at the said powers are effectively exercised by the Council of Ministers headed the Prime Minister. None of these and many other essential rules of the Constitution are found in the Constitution of India as framed by the Constituent Assembly. It was A.V. Dicey who for the first time, in the year 1885, identified these unwritten rules and called them “The Conventions of the Constitution”. What Dicey described under these terms are the rules of responsible Government which regulate relations between the Crown, the Prime Minister, the Cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of precedents during 19th Century and were inherited by the British colonies as were granted self-government and independence. This phenomenon is not limited to Britain and is true of constitutions in general. Conventions are found in all established constitutions and soon developed even in the newest.

353. Two sets of principles, thus, make up the rules of constitutional law. One, set of rules is contained in the written constitution of a country and the other set is referred to as the “conventions of the constitution”. Conventions are a means of bringing about constitutional development without formal changes in the law. K.C. Wheare in his book “The Statute of Westminster and Dominion Status” (Fourth Edition) defines the conventions as under:

“The definition of conventions may thus be amplified by saying that their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied.”

354. The conventions grow up, around and upon principles of the written constitutions. Necessary conventional rules spring up to regulate the working of the various parts of the Constitution, their relation to one an other and to the subject. Sir W. Ivor Jennings. in his book Law and the Constitution” (Fifth edition) refers to the constitutional conventions in the following words:-

“Thus within the framework of the law there is room for the development of rules of practice, rules which may be followed as consistently as the rules of law, and which determine the procedure which the men concerned with government must follow.”

These rules Mill referred to as “the unwritten maxims of the constitution”. Twenty years later Dicey called them “the conventions of the constitution”, while Anson referred to them as “the custom of the constitution”. The short explanation of the constitutional conventions is that they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national co-operation, and the spirit of co-operation is as necessary as the instrument. The constitutional conventions are the rules elaborated for effecting that co-operation. Also, the effects of a constitution must change with the changing circumstances of national life. New needs demand a new emphasis and a new orientation even when the law remains fixed. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they elaborate.”

355. The conventions enable a rigid legal framework – laws tend to be rigid-to be kept up with changing social needs and changing political ideas. The conventions enable the men, who govern, to work the machines. Dicey in his book “Introduction to the Study of the Law of the Constitution” refers to the conventions in the following words:

“They are multifarious, differing, as it might at first sight appear, from each other not only in importance but in general character and scope. They will be found however, on careful examination, to possess one common quality or property; they are all, or at any rate most of them, rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants of the Crown) ought to be exercised; and this characteristic will be found on examination to be the trait common not only to all the rules already enumerated, but to by far the greater part (though not quite to the whole) of the conventions of the Constitution”.

The written constitutions cannot provide for every eventuality. Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conventions which grow by the passage of time. Conventions are vital in so far as they fill-up the gaps in the Constitution itself, help solve problems of interpretation, and allow for the future development of the constitutional frame work. Whatever the nature of the Constitution, a great deal may be left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion. A power which, juridically, is conferred upon a person or body of persons may be transferred, guided, or canalised by the operation of the conventional rule. K.C. Wheare in his book ‘Modern Constitution’ (1967 edition) elaborates such a rule as under:

“What often happens is that powers granted in a Constitution are indeed exercised but that, while they are in law exercised by those to whom they are granted, they are in practice exercised by some other person or body of persons. Convention, in short, transfers powers granted in a Constitution from one person to another.”

356. The primary role of conventions is to regulate the exercise of discretion – presumably to guard against the irresponsible abuse of powers. Colin R. Munro in his book “Studies in Constitutional Law” (1987 edition) has summed up the field of operation of the conventions in the following words:

“Some of the most important conventions, therefore, are, as Dicey said, concerned with ‘the discretionary powers of the Crown’ and how they should be exercised. But it is not only in connection with executive government and legislature-executive relations that we find such rules and practices in operation. They may be found in other spheres of constitutional activity too; for example, in relations between the Houses of Parliament and in the workings of each House, in the legislative process, in judicial administration and judicial behaviour, in the Civil Service, in local government, and in the relations with other members of the Commonwealth.”

Further relevance is also emphasized in paragraphs 411 and 478 of this judgment, however,so as not to additionally burden this text, only reference is given.

76. Per contra, it has been argued by other side that whatever may be the past practices or convention, in the wake of the judgments of the Apex Court given case of N. Kannadasan vs. Ajoy Khose and others (supra) and in the case of Ashish Handa, Advocate vs. High Court of Punjab & Haryana and others (supra) that would have no significane. Moreover, as held in case of Justice K.P.Mohapatra vs. Sri Ram Chandra Nayak and others (supra), the law of the land would prevail and the convention would have no relevance as there are explicit guidelines available from the Courts. It was further contended that considering the importance of the post and the nature of the functions to be exercised by the Lokayukta, it is essential for the Chief Justice to recommend a name for such a post.

77. Before delving further into the subject, it is required to be specified, at this stage, that in both the case laws of Ashish Handa (supra) and that of N. Kannadasan vs. Ajoy Khose (supra), the Apex Court was considering the appointment of judicial officer, whereas this Court is confronted with the question of appointment of Lokayukta. As has been held hereinabove that the office of Lokayukta is neither Court nor has the trappings of the Court and, therefore, it could be said that ratio of both these judgments, would not be made applicable for such an appointment mutatis mutandis.

Reference is also needed incidentally at this stage to the case of Ajit Kumar etc. vs. State of Jharkhand and Ors. etc.(supra) where ratio laid down in case of Ashish Handa(supra) was pressed into service. High Court of Jharkhand dealt with the same thus:-

“29. In the case of Ashish Handa vs. Chief Justice, Punjab and Haryana High Court(supra), the appointment of the President of the Haryana State Consumer Disputes Redressal Commission was challenged on the ground that it was not in accordance with Section 16 of the Consumer Protection Act,1986. Section 16 of the Act provides that a sitting or retired Judge shall be appointed by the State Government as President. The proviso to the said section says that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court. The ratio decided by the Supreme Court in this case, in my view does not apply in the facts of the present case.”

However, one shall have to essentially keep in mind the pronouncement of the Apex Court in the case of Justice K.P.Mohapatra vs. Sri Ram Chandra Nayak and others (supra), where the question of appointment of Lokayukta was at large before the Apex Court.

This decision clarifies and emphasizes the role of the Chief Justice in making an appointment of the Lokayukta. For the appointment of Lokayukta under the Orissa Lokpal and Lokayukta Act, 1995, the Chief Minister of Orissa sent three names to the Chief Justice of Orissa High Court and the Leader of Opposition and requested them to convey their considered view on the subject. The Chief Justice had recommended, for the appointment name of Justice Mohapatra whereas the Leader of Opposition wished that the person to be appointed should be a judicial personality with high integrity and professional maturity and, therefore, another name was suggested by him. When the notification had been issued appointing Justice Mohapatra as Lokpal, this was challenged by way of public interest litigation. The Court noted the fact that the Leader of Opposition had not stated anything against the Lokpal designate and the Chief Justice had during the consultation, named this person as the person for being appointed as Lokpal. In this background, the findings of the Apex Court would be relevant., which state thus:

“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 S. 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 S. 2(h) is exposed so that appropriate action against such mal-administration and administrator could be taken. The investigation which Lokpal 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(1) Proviso (a) would require that consultation with the Chief Justice of the High Court of Orissa is must or sine qua non. For such appointment, 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.(emphasis supplied). 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 to 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.”

78. It thus clearly states that 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. It also further states that opinion of the Chief Justice since would be totally independent and he would be in a position to find out who is the most suitable for such post and considering not only the importance but the nature of duties of Lokpal, the primacy requires to be given to the opinion of the Chief Justice of the High Court, in this context.

79. This detail was necessitated on account of two aspects, firstly the proposal in the case of Justice Mohapatra had emanated from the office of the Chief Minister and the names of three judges were sent for consideration to both the Chief Justice and the Leader of Opposition. While holding that the Chief Justice is the best person whose views need to be given primacy in the appointment of the Lokayukta, the proposal in that case which had emanated from the office of the Chief Minister was sustained. Secondly, the Court also needs to record the fact that in this judgment the Court had in terms said that the Chief Justice would be the best person for proposing and suggesting such person for being appointed as Lokpal and, therefore, it has explicitly though not eliminated the possibility of proposal emanating from the office of the Chief Minister, the indications are loud and clear as could be appreciated while considering the role of the Lokayukta under the Gujarat Lokayukta Act.

80. In light of the discussion held hereinabove, it can be said that though there have been conventions in the past, and as also discussed by the Apex Court conventions have importance to regulate the discretionary power and to fill in the gaps where powers are not specifically worded. In this case conventionally, the proposals with the names of the retired persons emanated from the office of the Chief Minister and these proposals were considered and were acted upon for, appointment to this post of Lokayukta, the recommendation and proposal by the Chief Justice for this post would be necessary in wake of decision of the Supreme Court in Justice Mahapatra’s case (supra) as also the some being need of an hour considering the scheme of the Act, importance of this post and its growing requirement in the country.

It is necessary to make a mention here that twice the process was initiated from the office of the Governor calling for one name instead of the panel, while insisting to excise her personal discretion in this appointment. Surprisingly, there was no objection raised on either of the times. That issue at present, is not to be gone into in light of anwer given to the 1st issue in this judgment, but that shall be touched only while deciding whether H.E. the Governor was empowered to issue the warrant on the basis of expediency.

4th Issue : Consultation in appointment of Lokayukta

81. This brings to the next vital question as to what is consultation, nature of consultation and its extent desirable in such appointment and whether, in the instant case, consultation was in fact held and whether the same had been over or not when the act of issuance of the warrant was made on 25.8.2011.

82. At this stage, firstly, it is essential to quote from the judgment of Justice K.P.Mohapatra vs. Sri Ram Chandra Nayak and others (surpa), where the Apex Court relying upon the judgment of The Indian Administrative Service vs. Union of India reported in 1993 Sup(1) SCC 730 discussed the issue of consultation in the appointment of Lokayukta in Indian Administrative Service case (supra), the Court was considering the phrase “after consultation with the Governments of States concerned” and on this issue discussed a number of decisions on the word “consultation”. The conclusion that had been arrived at in that judgment has been reproduced, which reads as under:-

“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’.”

83. The Apex Court in the case of Supreme Court Advocates-on-Record vs. Union of India reported in AIR 1994 SC 268, of course was considering the consultation for the appointment of judge in the High Court where the meaning and manner of consultation, nature of consultation etc. have been deeply gone into by Hon’ble Mr. Justice Ratnavel Pandian while giving concurrent view with the majority. Relevant paragraphs of the judgment are as under:-

“114. It is worthwhile to recall the speech of Elimira in 1907 as a prelude for the discussion to be made in the ensuing part of this judgment. He stated, “We are under the Constitution, but the Constitution is what the Judges say it is, and the judiciary is the safe- of our liberty and of our property under the Constitution.”

115. Marshal, CJ with reference to judicial activism in interpreting has observed thus:

“We must never forget that it is a constitution which we are expounding, a constitution intended to endure for ages, and consequently to be adapted to the various crises of human affairs. Nor did they image that it was to be so strictly interpreted that amendments and radical revisions would be constantly required to keep Government functioning smoothly.”

116. Keeping the above view, let us examine the relevant constitutional provisions in their true spirit and without stretching them too far.

117. Clauses (1) and (2) with its first proviso of Article 124 reads thus:

“124. Establishment and constitution of Supreme Court- (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven* other Judges.

* Now “twenty-five” vide Act 22 of 1966.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the State as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years :

Provided that in the case of appointment of’ A Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

118. Article 217(l) ‘With regard to the appointment of Judges to the High Courts reads thus:

“Appointment and conditions of the office of a Judge of a High Court-(I) Every Judge of a High Court shall be appointed by the President by warrant under his hand and sea] after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and Judge other than the Chief Justice, the Chief Justice of the High Court, and ………..”

119. Under the above provisions, it is the President who is vested with the authority of appointment by warrant and under his hand and seal “after consultation” with specified constitutional functionaries. The consultees whom the President may in his discretion consult in case of appointment of a Judge of the Supreme Court are.,

(1) Such of the Judges of the Supreme Court and

(2) Such of the Judges of the High Courts in the States

as the President may deem necessary for this purpose. But the proviso to clause (2) of Article 124 makes it obligatory on the part of the President to consult the Chief Justice of India in case of an appointment of a Judge other than the Chief Justice. Thus, Article 124(2) envisages two kinds of consultation, one being discretionary on the part of the President and the other being mandatory, In case of appointment of a Judge of the High court other than the Chief Justice of the constitutional functionaries are,

(1) Chief Justice of India

(2) The Governor of the State

(3) Chief Justice of the High Court concerned.

120. It is clear that under Article 217(l), the process of ‘consultation’ by the President is mandatory and this clause does not speak of any discretionary ‘consultation’ with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in clause (2) of Article 124. The word ,consultation’ is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the CJI. This test poses many, tough questions, one of them being, what is the meaning of the expression consultation’ in the context in which it is used under the Constitution. As in the case of appointment of a Judge of the Supreme Court and the High Court, there are some more constitutional provisions in which the expression ‘consultation’ is used. Those provisions are:

121. Clause (5) of Article 148 states that subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.

122. In clause (1) of Article 222, it is stated that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

123. Clause (3) of Article 320 states that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on matters enumerated under sub-clauses (a) to (e) of that clause.

124. Clause (9) of Article 338 reads, “The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes and Scheduled Tribes”.

125. The consultation in all the above Articles is mandatory in character. Vide Manbodhan Lal Srivastava v. State of U. P.. 1958 SCR 533 -. (AIR 1957 SC 912).

126. However, the question of consultation by the President as in the case of appointment of a Judge is not constitutionally warranted in respect of the appointments of some other constitutional appointees by the President, namely, (1) the Chairman and Members of Finance Commission under Art. 280(l); (2) the Chairman and Members of Public Service Commission in the case of Union Commission or a Joint Commission under Article 316(l); (3) the Chief Election Commissioner and other Election Commissioners under Article 324(2); and (4) the Chairman and other members of the Commission representing the different languages specified in the Eighth Schedule under Article 344(l); (5) the Special Officer for linguistic minorities under Article 350-B.

127. The word ‘consultation’ is a noun whilst the word ‘consult’ is a verb and ‘consultative’ is ‘an adjective. The meaning of the expression ‘consultation’ is given in Shorter Oxford English Dictionary as:

“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 ……..

128. In Webster’s Encyclopaedic 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 ……”

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

“Consultation: Act of consulting or 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 conduct in it.”

84. The entire discussion, of course, was in the light of the requirement of consultation envisaged under the Constitution while appointing the Judge of the High Court. What culls out from the definitions taken from various dictionaries and the authorities laid down time and again by the Apex Court on the subject is that the object of consultation is to render it meaningful for the purpose of serving intended object when the opinion finds the proposer it is mandatory to consult. In substance it is the process to arrive at satisfactory solution. There must be full and effective consultation and the same has to be purposeful and meaningful.

85. Undoubtedly, here is not the question of consultation under the Constitutional requirements nor is the consultation for the purpose of appointing Judges or Presiding Officers for the institute which is either Court or trappings of the Court. However, as the person to be appointed on this post requires to possess qualities like integrity and credentials of impeccable nature and utmost commitment and sincerity towards the cause, consultation process as contemplated under the statute is with the Chief Justice of the State and Leader of Opposition. Considering the very nature of appointment and importance attached to this post, consultation cannot be merely directory in nature obviously nor can it be a mere ordeal. It would entail proposal, placing of fullest possible details, deliberations, discussions, consideration and decision as a culmination.

86. In light of the discussion above, endeavour hereinafter would be as to whether the ‘consultation’ in the instant case was full and effective and whether it was meaningful as otherwise envisaged in the case laws.

It was contended by learned Advocate General that the ‘consultation’ process was not yet over. It is not the process of thrusting any person without meaningful deliberation and he also had elaborated the factual details to support his contention for which reliance is also placed on the exchange of communication to substantiate this point. He also forcefully urged that the process cannot be snapped unilaterally when the Government is in fact contemplated as a proposer under the statute.

87. On the other side, learned advocate Mr. Mehta and learned advocate Mr. Patel urged that appointment was after the ‘consultation’ and the same was meaningful as was otherwise required before being concluded.

88. As noted, the consultation has a potency of active consideration culminating into a fruitful result. If there is a consultation over more than one names, there would arise a necessity to compare and choose on evaluation the most suitable person for the purpose of appointment. In case of one name, effective and purposeful consultation though may not always result into concurrence, but, the same to be effective, amongst all the three dignitaries who are part of this process of consultation, before appointment to the post of Lokayukta is must.

Regard should be to the fact that recommendation in question here had been made by the Chief Justice and this was in wake of unwillingness expressed by Mr. Justice S.D. Dave due to his personal reasons.

In the aforementioned premise, when the name of Mr. Justice R.A. Mehta was proposed on 7.6.2011 by the Chief Justice, as rightly pointed by the learned Advocate General, that process of consultation cannot be said to have dated back to the year 2006 as this recommendation had been made only in the month of June, 2011 and every time, a new name is recommended, the process of consultation necessarily shall have to begin afresh. This is also not to indicate that the length of consultation would always have bearing while deciding this issue, nevertheless as discussed earlier, the regard shall have to be of purposeful consultation.

89. Thus, when the name of Mr. Justice R.A. Mehta was recommended by the Hon’ble the Chief Justice, pursuant to this recommendation dated 7.6.2011, reservation against the name was placed by the Chief Minister vide his communication dated 16.6.2011 addressed to the Chief Justice. There were mainly two reservations. Firstly, his advanced age of 75 years, on comparing the nature of duties and responsibilities attached to the post of Lokayukta and secondly, his association with some NGOs and social activist groups and due to this association, the service rendered by him as a panelist for them. The request vide this communication dated 16.6.2011 is to have a relook at the name proposed vide letter dated 7.6.2011. Reiteration again, of course, is to the name of Mr. Justice J.R. Vora in this communication as well.
After about 6 weeks on 2.8.2011, the reply of the Hon’ble the Chief Justice is to this communication of 16.6.2011, where the opinion with regard to Mr. Justice R.A.Mehta had been given in unequivocal terms, wherein it was mentioned that there was no such activity which would make him ineligible for the appointment to the post of Lokayukta and he is a man of high repute and integrity, which he maintained while in service and, thereafter also. In a concluding paragraph, it was urged to the Chief Minister in this communication to take up the matter with the Council of Ministers and then, to forward the name of Mr. Justice R.A. Mehta to Her Excellency for his appointment as Lokayukta of the State of Gujarat.

Communication of the Chief Minister thereafter on 18.8.2011, again raised concerns and reservations against this name elaborately, placing the details in the communication as well as substantiating the said details with various documents on the basis of which it was urged that though there are no personal reservations of the writer (of the Chief Minister) against the name but considering pre-conceived opinion of Mr. Justice R.A. Mehta, he would not be the most suitable choice and therefore, on that count as well as again referring to his advanced age it was urged to recommend the name of the Judge who may have presently retired from the service. A letter addressed to the Governor by the chief Minister on 18th August, 2011 itself also states that due to certain reasons, name lastly recommended was not acceptable to the State Government.

What emerges thus is that the recommendation made for the said post by the Chief Justice on 7.6.2011 was not found acceptable by the State Government. Therefore, the letter dated 16th June, 2011 addressed to the Chief Justice placing therein reservations against the name. Reply was given to this by the Chief Justice on 2.8.2011 clarifying the facts concerning reservations. It can be gathered from record further that reservations ventilated in the earlier communication dated 16.6.2011, were again reiterated, with further materials attempting to substantiate them. Considering the nature of consultation, even if reservation had no valid basis, except reflection of different perception, it would not be possible to conclude that in the reply of 2.8.2011 final words were spoken. Second communication from the Government was a clear indication that the reservations against the name was intense and,this was a request to review the decision placing additional available materials before the Chief Justice for his consideration. It would not be feasible to say that there was no further scope left for any response to the said urge, more particularly, when this was made to the Chief Justice of the High Court who had proposed the name. Again, if an urge was made to suggest an alternative, the same cannot be regarded as an end of process on the name recommended by Chief Justice. It was clear to one and all concerned importance of view of the Chief Justice is in this process, however, for meaningful deliberation, there may not be preclusion to request such a review, nor would this non acceptance of the State in the letter conclude statement in the process when otherwise request to review was not yet attended to finally.

One also needs to keep in mind that on earlier occasion on 24.2.2010, when the recommendation was made of four names by the Chief Justice at the behest of Government, one of the names recommended was of Mr. Justice J.R. Vora, which was finalized by the Council of Ministers on completion of consultation process and pursuant to that, his name had been proposed to the Governor for appointment. In this background, when twice thereafter, there was recommendation of the names at the instance of H.E. the Governor, who assumed the role of an independent appointing authority and name of Mr. Justice J.R. Vora was recalled . On his being appointed at the Gujarat State Judicial Academy and therefore, if the request gets reiterated in this background with documents and without any further reply from the Chief Justice. Conclusion of process could not be presumed.

There is no express suggestion nor any indication of the closure of the consultation on record, in the pleadings or otherwise in communication and, therefore, in the light of the discussion made, on the details which cull out from these communications, and having regard to the requirement of consultation as elaborated hereinbefore, I conclude that the consultation was not yet over and, therefore, the question corollary to the earlier point as to whether there was a stalemate in the process of consultation shall have to be answered in negation.

At the cost of reiteration, it needs to be mentioned that in such a selection, the primacy is to the opinion of the Chief Justice of the State but, that would not take away the statutory requirement of the consultation as understood and laid down by the Apex Court. And, even in the appointment of Judges where the final say is of the judiciary process, does not rule out the requirement of purposeful and full consultation, but in fact, insists on such meaningful process.

5th Point in issue: Expediency in selection – ‘Doctrine of Necessity’

90. The last and vital question that necessitates redressal is whether the Doctrine of Necessity was to be invoked for the appointment of Lokayukta and whether there existed such weighty reasons which would allow and permit discretion of the Governor in issuing the impugned warrant.

One is conscious of the fact that the State does not have Lokayukta from the year 2003. The object and reasons for enacting the statute are also eloquent and illuminating. From time immemorial corruption in a public life has perturbed the society and is a matter of grave concern for all concerned. The people of this nation have given to themselves the Constitution with democratic and republican characters so that they can grow holistically live with dignity and attain social, economic and political justice. It is a reality that the common man suffers inexplicably, he endures patiently and is aggrieved boundlessly by many inactions and malaises. In a democratic set-up people’s concerns and problems against elected representative and administration required redressal.

91. Relevant at this stage is to be alive to the fact that the Administrative Reforms Commission was constituted in the year 1966 to redress this perpetual grievance of citizens where issue of corruption in public life due to crisis of integrity engaged intense attention. As a panacea to this concern, the statute ( The Gujarat Lokayukta Act) has seen the light of the day.

91.1 The terms of reference in the notification dated 5.1.1966 issued by the President of India states that “the Commission will give consideration to the need for ensuring highest standard of efficiency and integrity in the public services and for making public administration a fit instrument for carrying out the social and economic policies of the Government and achieving social and economic goals of development as also one which is responsive to the people” with a specific emphasis on the Problems of Redressal of the Citizens Grievances.

91.2 Interim report of this Commission recommended setting up of institution of Lokayukta and Lokpal. This report was made by late Shri Morarjibhai Desai and other five committee members, namely, Shri K. Hanumanthaiya, M.P and Shri Debabrata Mookerjee, Shri Harish Chandra Mathur, Shri H.V. Kamath and Shri V. Shankar. It says “ If in the prosperity of the people, lies the strength of the Government, it is in their contentment that lie the security and stability of the democracy.”

91.3 The Commission took note of “ the oft-expressed public outcry against the prevalence of corruption, the existence of wide-spread inefficiency the unresponsiveness of administration to popular needs” and therefore was of the opinion that an institution for redressal of grievance must be provided within the democratic system of Government. “It has to be an institution in which the average citizen will have faith and confidence and through which, he will be able to secure quick and inexpensive justice.”

91.4 It also had drawn its conviction from the fact that the then Chief Justice of India, Shri P.B.Gajendragadkar in his address to the Indian Institute of Public Administration supported the establishment of an institution of this type “on the ground that the confidence of the public is the main asset to a public administration and that the establishment of such an institution would create a sense of confidence in the people that their grievances would be looked into.”

91.5 Reference is made of the Late Prime Minister, Shri Jawaharlal Nehru who while speaking to the All India Congress Committee said that the system of Ombudsman fascinated him, “for the Ombudsman had overall authority to deal with charges even against the Prime Minister and commanded respect and confidence of all. He felt, however, that in a big country like India, the introduction of such a system was beset with difficulties.”

91.6 Reference is also made of say of Shri M.C. Setalvad, India’s first Attorney-General who referred to the “need for the expeditious redress of grievances of the people and for rooting out corruption, if democracy were to survive in India and in this connection mentioned the institution of the Ombudsman as the one which would go a long way in providing quick justice. However, he referred to the need for care in the selection of the person occupying the position of Ombudsman so that he should be outside Government’s influence and should also command the respect of the general public” (emphasis is mine)

91.7 This report reflects the history of the oldest institution of Ombudsman that the Chancellor of Justice was established in 1713 in Sweden for ensuring efficient administration. This report, highlights importance of this institution to state that the “Ombudsman is virtually a Parliamentary institution, though he is not and cannot be a member of Parliament. He is independent of the judiciary, the executive and the Legislature. His position is analogous to that of the highest or high judicial functionaries in the country. He is left comparatively free to choose his own methods and agencies of investigation.”

91.8 The Committee was convinced of need of such an institution for the country “ to supplement to the Parliamentary control, independent of any political application, outside the normal administrative hierarchy, and free from formalism, publicity and delays associated with the government machinery”.

91.9 Vastness of the country and its population also need not deter the Commission to recommend such an institution. It therefore observed that “ Our administrative system already provides for the functioning of the judiciary and administrative tribunals and for a hierarchy of appeals against the orders of subordinate authorities to superior authorities. We do not intend the system we envisage should clash with these institutions and wish, therefore, to provide for the functioning of that institution only in respect of matters for which such remedies are not available or where, in some cases, it might not be reasonable to expect a citizen to take recourse to legal proceedings. This would substantially reduce the number of complaints eligible for investigation and thus enable the institution to devote its attention and energies only to those cases in which prima facie the need for redressing an act of injustice or mal-administration exits.”

91.10 On the basis of the study of the institution of Ombudsman and its relevance in this country, the Committee reported thus:-

“We strongly feel that this malaise in administration mainly arises more from a sense of frustration or lack of appreciation of good work done and from an exaggerated image of corruption, inefficiency and lack of integrity current in the public mind than from actual investigation into complaints submitted by citizens. We have every reason to believe that the working of such an institution will in the long run rectify and thus restore the correct image of the administration, create public confidence in its integrity, and there promote, rather than impede, the progress of our developmental activities. Apart from this, the informal character of inquiries will save the public servant from exposure to public gaze during the course of an enquiry, which often has the effect of condemning him in the public eye before he is ultimately found guilty or innocent, as the case may be. The institution will thus be a protection for, and a source of strength rather than a discouragement to, an honest official, whose susceptibilities alone are germane in this context.”

91.11 Report of this committee, culminated in recommending two special institutions for the redressal of the citizens’ grievances. In words of this Committee “There should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States. There should be another authority in each State and at the Centre for dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States. There should be another authority in each State and at the Centre for dealing with complaints against the administrative acts of other officials. All these authorities should be independent of the executive as well as the Legislature and the judiciary.”

91.12 They are designated authority dealing with the complaints against the Ministers and Secretaries to the Government as “Lokpal” and the authorities at the Centre and the State empowered to deal with complaints against other officials may be designated as “Lokayukta”.

91.13 The main features of Lokpal and Lokayukta were specified in the report as under:-

“25. The following would be the main features of the institutions of Lokpal and Lokayukta :-

(a) They should be demonstrably independent and impartial.

(b) Their investigations and proceedings should be conducted in private and should be informal in character.

(c) Their appointment should, as far as possible, be non-political.

(d) Their status should compare with the highest judicial functionaries in the country.

(e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.

(f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties.

(g) They should not look forward to any benefit or pecuniary advantage from the executive Government”

91.14 For the appointment of Lokpal suggestion is made that the Lokpal should be appointed by President on the advice of the Prime Minister, which would be tendered by him after consultation with the Chief Justice of India and the Leader of Opposition. His tenure, jurisdiction and procedure for dealing with the complaints, powers for carrying out functions, all had been detailed in the said report. In concluded with the following note:-

“38. We should like to emphasise the fact that we attach the highest importance to the implementation, at an early date, of the recommendations contained in this our Interim Report. That we are not alone in recognizing the urgency of such a measure is clear from the British example we have quoted above. We have no doubt that the working of the institution of Lokpal and Lokayukta that we have suggested for India will be watched with keen expectation and interest by other countries. We hope that this aspect would also be fully borne in mind by Government in considering the urgency and importance of our recommendation. Though its timing is very close to the next Election, we need hardly assure the Government that this has had nothing to do with the necessity of making this interim report. We have felt the need of such recommendation on merits alone and are convinced that we are making it not a day too soon.”

The Gujarat Lokayukta Act

92. It is pertinent that the recommendations made in the interim report of Administrative Reform Commission have been made the basis for establishing this institution in various parts of the Nation. Gujarat Lokapal and Lokayukta Bill, 1975, in its Statement of objects and reasons makes this report its base:-

” In its interim report on “The Problems and Redress of Citizens’ Grievances ” submitted in 1966, the Administrative Reforms Commission recommended, interalia the setting up of an institution of Lokpal to inquire into the complaints of corruption in administration. To give effect to this recommendation of the Administrative Reforms Commission, the State Government had published the Gujarat Lokpal Bill, 1975 (Guj.Bill 7 of 1975). That Bill was referred to the Government of India for administrative approval. The Government of India had made certain suggestions in respect of that Bill. The said Bill, however, lapsed on account of the dissolution of the Gujarat Legislative Assembly. The present Bill is on the same lines as the earlier one and some of the suggestions made by the Government of India have been incorporated therein. The main object of this Bill is to provide for appointment of Lokayukta to inquire into the complaints in respect of actions taken by all public functionaries viz.”

93. People of this country have given to themselves the Constitution and all the institutions established under the Constitution or by virtue of the statutes flowing from this fountainhead, are meant to subserve their needs and aspirations. Essential attributes of our Democracy are embodied in the preamble aiming at liberty, equality, justice, dignity, fraternity and unity . Transparency and efficiency of administration and responsiveness of elected representative members are some of those fundamental urges interwoven with concept of justice which get echoed in the provision of this statute.

94. In this background, the Gujarat Lokayukta Act, 1986 and particularly some of the provisions of the Act already referred to earlier in this decision when closely examined, they unfailingly reveal that the Act is a vital enactment for creating confidence of people by redressing their cause to be undertaken by the Lokayukta on investigating allegations against public functionaries as also for safeguarding the dignity and prestige of public functionaries against false and frivolous allegations.

94.1 As the person to be appointed on the said post has to be a sitting Judge of the High Court or a retired Judge of the High Court having no affiliation with any political parties nor having any interest anywhere, a report prepared by him wold have a vital bearing. He has tenure of five years unless removed on inquiry by the Chief Justice. Again, this report is required to be placed before the Council of Ministers. For the purpose of investigation, he has wide powers and for not entertaining frivolous complaints, the powers are also given to punish such persons also. He also enjoys immunity from removal as indicated and his salary is that of the Chief Justice of the State. All these aspects would assume relevance, particularly while considering filling of vacancy in time and filling the same in consonance with the object of the Act.

95. No Court can endorse to the non-appointment or delayed appointment of Lokayukta in the State which is otherwise booming with economic growth. It is peoples’ Court. It is a hope of the common man, who could ventilate his grievances against the corruption of public functionaries. It would avail him an opportunity to be part of the cleansing spree in the public domain without being bogged down by the alien language, inconvenient procedurality and unaffordable cost in such an endeavour. The fact is also recognized while dealing with delay that with the lapse of time, memory of people may fade and issues which are otherwise very crucial for people may take a back seat and fervor over vital issues may die down, thereby, tilting the balance in favour of those erring whose conduct and actions are to be investigated by the Lokayukta, particularly considering Section 8(4) of the said Act, which excludes investigation of complaints made after the expiry of 5 years from the date of occurrence.

96. Considering thus, the nature of the post as also keeping in mind avowed objects of the Act and also aspirations of the people, plea of doctrine of necessity shall have to be examined and while so doing, it is required to be addressed in light of the first point in issue which is answered in affirmation and where it is held in terms that the Governor does not have power to act independently in appointing the Lokayukta under Section 3 of the Gujarat Lokayukta Act when read with Articles 163 and 166 of the Constitution of India unless the areas carved out by the Constitution or by the judgments of the Apex Court so permit her and unless the grounds put-forth fall under any of these exceptions, the issuance of warrant cannot be sustained.

97. Undisputedly, the post remained continuously vacant for the period of 8 years as could also be made out from the materials placed before this Court. From the year 2003 to 2006, there does not appear to be any move from the Government for the appointment of Lokayukta. As also indicated by my brother Judge, for this non-action for all the three years, there is no material made available to the Court. This none action is of course not conforming to the object of the Act.

98. The chronological events which have been mentioned at the outset, are indicative that for the period between 7.8.2006 to 10.9.2009, no appointment was made though the name of Mr.Justice K.R.Vyas was considered, consulted and consensus was reached on that name. It needs to be regarded here that the proposal had emanated from the office of the Chief Minister in August, 2006 and the same was cleared at the end of the Chief Justice on 7.8.2006. Thereafter, the request of appointment by Government continued to lie in the office of the Governor. On 29.12.2009 a letter was addressed to the Registrar General by the Principal Secretary to the Governor making a request for sending a panel for consideration as the name of Mr.Justice K.R. Vyas was dropped on account of his appointment as the Chairman of the State Human Rights Commissions of Maharashtra.

99. In the second period between 8.2.2010 to 5.5.2010, the proposal was sent of four names on 24.2.2010 and out of these four names of retired Judges of the High Court, Mr. Justice B.C. Patel was already with the National Human Rights Commission and Mr. Justice R.P.Dholakia was already working as President, Gujarat State Consumer Disputes Redressal Commission and on account of the advanced age of Mr. Justice P.M. Chauhan ( 82 years) his name was not considered for the post. Thus, ouf of four names proposed by the Chief Justice , for all practical purpose only one name had remained for consideration and as mentioned earlier in the letter chronology was not indicative of any preference of the Chief Justice. Although the request was made after the consultation was over for appointing Mr. Justice J.R. Vora, the Governor instead chose to call for the opinion of the Attorney General and also requested for the comparative opinion of the Chief Justice and on getting the same requested directly to the Hon’ble the Chief Justice to send one name instead of panel.

100. Such proposal was received on 31.12.2010 when name of Mr. Justice S.D. Dave was recommended. After his withdrawal from the said consideration on 1.5.2011, fresh name was once again recommended on 7.6.2011. This dissection is not for any other purpose but to scrutinize and consider whether the period of delay could be made a ground for circumventing the well laid down procedure and the mandate of the Constitution.

101. It needs to be noted and reiterated that though twice after 2006, the process had been completed, no appointment was made on one or the other grounds and instead twice Governor initiated independently steps for appointment and none of them had either constitutional backing or any statutory force and therefore, the authority which otherwise preferred to choose its own pace in appointing the Lokayukta seems to use that very aspect of delay while changing the mode to fast track. This selective expediency is required to be spelt out, particularly, when the same has been linked with the doctrine of necessity.

102. Again, if the authority was with the the Governor to appoint independently and also have consultation with the Chief Justice and the Leader of Opposition, as has been indicated in the letter dated 3.5.2010, no delay in that case could be attributed to the Council of Ministers for non-appointment nor could it be said that the Council of Ministers could not be Judges in their own cause nor was there any need for any communication with the Government in this connection.

However, as discussed hereinbefore, that is not the interpretation permissible. Council of Ministers does have a role in such an appointment and that is the reason why while mentioning the period between 2003 to 2005, specific mention is made that there was absolutely no move nor any action emerging for the appointment on such a vital post. Again, as indicated in the judgment of the Apex Court, if Council of Ministers had no role to play, that parameter would equally apply to the Leader of Opposition, who is also a public functionary. Either going by convention or the long drawn consultative process in the post, it nowhere is indicative of any doubt in the minds of any of dignitaries that this appointment required consultation with the Council of Ministers and in the penultimate stage, Governor was to issue warrant as per advise and an aid of Council of Ministers and legislature also has contemplated that.

103. This issue of delayed appointment also requires to take into account other two grounds, emphasized for issuance of warrant without the advice of Council of Ministers, namely, promulgation of ordinance and appointment made under the Commissions of Inquiry Act.

Recommendation of Promulgation of Ordinance :

104. Emphasis during submissions was that attempt was made by the Government in the preceding week of issuance of warrant to change the very nature of the Act as also adding the number of persons in the team of Lokayukta and also changing the constitutional committee for appointing Lokayukta, particularly, when the process of consultation was at a very active stage which necessitated this appointment. Mention is needed here that the addition to the list of the public functionaries in Section 2 (7) after sub-clause(d) had been made on 30.3.2011 and this was done in wake of requirement of 13th Finance Commission.

The note from H.E. the Governor dated 27.5.2011 is indicative that more number of Lokayuktas were required to be appointed considering the total number of village panchayats, Taluka Panchayats, District Panchayats, Municipalities and Municipal Corporations in the State as also in the wake of addition to the list of elected representatives of the Local Bodies under the said Act. Therefore, in the ordinance sent for the promulgation on 16.8.2011, addition was proposed where the Lokayukta is made Chairperson with other members to be appointed under Section 3 of the Act. This was added pursuant to the note of the Governor that one Lokayukta may not cope up with the complaints with the addition of more public functionaries and, therefore, this cannot be surely indicative of any curtailment of the power of one person, who was to be appointed as Lokayukta. However, the real objection is against the amendment proposed in Section 3 of Lokayukta Act where appointment was required to be made after obtaining the recommendation of a Committee.

As contended by the learned Advocate General this amendment was on the lines of Lokpal Bill, which was to be placed before the Parliament where also similar such changes in the formation of committee have been contemplated. A note of objection of the Governor is indicative that the Lokpal Bill introduced in the Parliament is at a discussion stage, the format of Selection Committee is likely to undergo the change and, therefore, the changes proposed in Lok Pal bill at the Center should not weigh with the State Government and it should wait till the proposed Bill is passed and endorsed by the President of India. Of course, in the newly suggested Committee, as per the amendment of Section 3, there is no role given to the Chief Justice directly in the appointment, but there is an addition of one Judge of the High Court whose name the Chief Justice would suggest since the Recommendatory Committee is made of 5 members. This change was contemplated when there was already an active consideration of the name of Mr. Justice R.A. Mehta and after the request was made to the Chief Justice by the Chief Minister as head of the Council of the Ministers to review his decision on 18.8.2011.

Thus, the amendment suggested were more or less on the pattern of the Lokpal Bill at the center which raised grave concern for the Governor. In my opinion, none of the changes proposed in the Act would attract Doctrine of Necessity as addition of member was in compliance with the note of the Governor and formation of Committee was on the pattern of Lokpal Bill proposed at the center. If further delay in appointment of Lokayukta was the concern, there is no time limit which would bind the Governor for promulgating the ordinance. Although sending of ordinance back within two days to the Governor is highlighted, keeping in view the fact that there is no constitutional mandate requiring the Governor to promulgate such an ordinance within any time frame and being aware of that it was also sent back to the Government giving reason of no urgency, the ground made out for issuance of the warrant on account of such a move cannot fall under any of the exceptions, much less the exception contended of either the doctrine of necessity or the peril to the democratic set-up.

Appointment under the Commissions of Inquiry Act:-

105. Another ground urged for invoking this doctrine is the appointment of former Judge of Supreme Court under the Commissions of Inquiry Act in the preceding week, to examine and to inquire into some of the issues, which otherwise could have been investigated by the Lokayukta.

The primary object of the appointing a Commission as spelt out by the Supreme Court in the case of State of J & K vs. Bakshi Gulam Mohammad reported in 1967 AIR 122, is as under:-

“It is of public importance that public men failing in their duty should be called upon to face the consequences. It is certainly a matter of importance to the public that lapses on the part of the Ministers should be exposed. the cleanliness of public life in which the public should be vitally interested, must be a matter of public importance. The people are entitled to know whether they have entrusted their affairs to an unworthy man”.

The nature and scope of inquiry contemplated under the Commissions of Inquiry Act, is to investigate the facts , record the findings and submit the report to the Government.

The Commission has no power of adjudication. The report of the Commission is purely recommendatory and cannot be enforced proprio vigore. Though they are not binding in nature, if any such matter is before a judicial side, the Court needs to arrive at its own conclusions after assessment of evidence.

As per the scheme of Lokayukta Act, those matters which are referred for inquiry under the Commissions of Inquiry Act cannot be investigated by the Lokayukta but,nothing can prevent the State Government under Section 7(2) of the Lokayukta Act from referring the matter to such commission if the matter is of definite public importance ,even when Lokayukta is functioning and even when no recommendation or concurrance is given by him for such reference.The fact also needs to be regarded that the appointment under the Commissions of Inquiry Act is of a former Judge of the Supreme Court and the very office is indicative of having utmost integrity and high reputation and, therefore, that ground is simply not available to circumvent constitutional mandate by invoking doctrine of necessity.

It would be necessary to state here that though case of M.P. State Special Police Case (Supra) is much harped upon, facts in that case are completely different and can have no application in the present case by any stretch. In that case, after the report of Lokayukta indicting Ministers, when question came up for the sanction to prosecute such Ministers, Council of Ministers denied despite overwhelming evidence and Governor assented the same. Apex Court in this background approved the action of Governor. It raised caution and clarified that the Governor would not assume appellate powers over the decision of the Council of Ministers ordinarily and carved out the following areas of exceptions for the Governor to act on its own discretion without aid and advice of the Council of Ministers :

1. Inherent or Manifest bias in advice given to the Governor

2. apparent Bias revealing from facts

3. Council of Ministers acting on the basis of Irrelevant and extraneous consideration.

4. Council of Ministers disables itself or disentitles itself

5. Propriety demands independent action of the Governor

6. Democracy at peril-complete breakdown of the rule of law

Other authorities pressed into service by the learned counsel Mr. Patel, discussed earlier, largely speak of those areas where permission for prosecution was not granted by the Council of Ministers either to prosecute the Chief Minister or any other Minister and, thus, such obvious acts of not sustaining the very faith of the Constitution, by shielding serious acts of corruption, were construed as perilous to the democracy. None of these authorities can have any applicability in the present set of facts.

Ratio of the Apex Court in case of Rajendra Singh Verma (Dead) through LRS V/s. I.T.Governor of N.C.T of Delhi and others reported in 2011 (10) SCALE P.315 & Election Commissions of India and another V/s. Dr.Subramanian Swamy and another reported in 1996 (4) SCC 104 will not come to the rescue for invoking Doctrine of Necessity or otherwise for substantiating this act of appointment.

In case of Rejendra Sing Verma (Supra) it is held that ordinarily Governor is to act on aid and advice of the Government, but, when High Court recommended compulsory retirement of Judicial Officer, Governor has to act on such an advice of the High Court as Constitutionally, High Court is authorized to supervise District Judiciary and initiate disciplinary actions. As those powers of disciplinary control are clearly spelt out under the Constitution, in such circumstances, Governor’s action acting without the aid of Council of Ministers was sustained, specifying objective of Article 235 of the Constitution.

In the instant case the Constitutional mandate is otherwise. Rules of business do not authorize Governor to so act . And, even when primacy is to the opinion of the Chief Justice as held earlier, neither the consultation process was over nor were there any specific directions for taking such a step and statute also does not indicate any departure. This authority cannot help the cause of issuance of warrant .

In case of Election Commissions of India and another V/s. Dr.Subramaniam Swamy (Supra). The Apex Court clearly indicated as to when Doctrine of Necessity can be invoked.

“16. We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play . If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision – making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.”

In this case, Article 324 of the Constitution necessitated participation of the Chief Election Commissioner and yet Court opined that if there was unanimity of other two Election Commissioner in a meeting , Chief Election Commissioner should recuse himself from participation, whose biased attitude was evident on record. In the case on hand, there were many avenues open which were not resorted to by the Governor. Nor was this an unavoidable situation warranting invocation of this doctrine of necessity .

106. Even when it is said that under the provisions of Lokayukta Act- like Sections 4 and 6, there are attributes for complete independence as also for protecting independence, even when this office is regarded as larger part of justice dispensation system, it cannot be said that the very nature of post indicated inherent bias or apparent bias and Governor only could act nor would it be feasible to import and apply any of the above exceptions, constitutionally carved out and as developed by the decisions of the Apex Court to the facts of the present case.

107. In the result, on this point it can be held thus :-

107.1 Twice the process of consultation for appointing Lokayukta was over and both the times names were either recommended or approved by the Chief Justice. Absence of any objection against any of the names from any of the consultees is further indicative of consensus on such names. Therefore, it cannot be said that Council of Ministers would disentitle itself in having any say or it would become the case of inherent bias.

Government could have insisted for appointment both the times which is not done except for reiteration in the communication. This may not find favour with the Court and yet, on the question of permissibility of exercise of powers under the constitution or otherwise , this non action cannot allow the powers to be shifted when there existed none. This also cannot bring the case under any of the exceptions carved out by the case laws .

107.2 As discussed earlier, with consultation process not being over in case of appointment of respondent No.1 and with no communication or indication to the Governor from the Chief Justice or the Council of Ministers for issuance of warrant, and contrarily , indication in the letter of18th August, 2011 is of awaiting the reply to the concern raised in the last communication addressed to the Chief Justice, act of issuance of warrant shall have to be held as without the authority under the law.

107.3 As indicated there is no time limit to issue ordinance and as has been done by the Governor, the same could not have been insisted upon . Under the Commissions of Inquiry Act, appointment of former Judge of the Supreme Court of India and referring to the commission some of the matters of public importance could surely not provide the ground to act independently invoking exceptional clause.

Thus, this is neither case of inherent or apparent bias nor of peril to the democratic set-up nor covered under any other emergent situation to fall under any other exceptions.

108. One must be anxious to ensure that non-appointment on such a vital post is not allowed on one or the other grounds as expiry of the period of 5 years would take away from the purview of the Lokayukta those subjects of investigation and, therefore, this is a vital consideration to be kept in mind while judging the actions of all functionaries. But, in that endeavour, the Court cannot permit the disturbance of vital equilibrium of democratic set up envisaged by the Constitutional framers and thereby allow any authority to overreach the mandates of the Constitution. This thin and yet vital balance needs to be inevitably maintained Neither in the name of delay nor in the name of growing demand, nor in an attempt to set right the lapse of long period of appointment, shortcut made impermissible by the Constitution can be endorsed by the Court of law more particularly, when facts discussed hereinabove indicate no such necessity to permit such a course otherwise not allowed.

109. Apex Court in case of S.R.Chaudhari V/s. State of Punjab (Supra ), after referring to Prof. B.O. Nwabueze from his book “Constitutionalism in the Emergent States” (1973 Edition) stated thus :

41. Prof. Nwabueze’s warning has great relevance today in the context under our consideration. For parliamentary democracy to evolve and grow certain principles and policies of public ethics must from its functioning base. Actions such as in the present case, pose grave danger to foundations and principles of constitutionalism and the same must be warded off by developing right attitude towards constitutional provisions. Constitutional restraints must not be ignored or by-passed if found inconvenient or bent to suit “political expediency”. We should not allow erosion of principles of constitutionalism.”

110. It would be appropriate to quote Nani Palkhiwala here from his book “We the Nation” :

“—– We have woefully failed to build up healthy constitutional traditions and have proved ourselves alarming inefficient in self discipline as far that matter in any other type of discipline. The power of self discipline is the very opposite of the fatal annoyance of power which confidently asserts that whatever is technically possible is licit. We need to build up salutary conventions to preserve our nation from the tamper which hardens the heart and perverts the understanding. Decency in public life is the only solution if we are to preserve the true spirit of democracy and not be left mearly with the task of camatose constitution. We are faced with the stark alternatives of either ‘dharma’ in public life or the twilight of Indian democracy ”

111. Declaratory Relief :-

With this, the area that needs to be touched is of the relief sought for in the said petition.

As the respondent No.1 has not taken the charge as Lokayukta, as held by the Apex Court in case of University of Mysore V/s. Govindrao (Supra) as well as by the Bombay High Court in case of Pundlik Vishwanathan(Supra) , the petition of writ of quo warranto would not lie where the person concerned has not assumed the office. One is conscious that there has been a shift in this approach and the declaratory relief mentioned in the case of N. Kannadasan vs. Ajoy Khose and others (supra) is available and the same may suffice in the instant case.

112. Before concluding, it is imperative to mention that when the petition of the State is being allowed, there would arise the question of void as for all these years, no appointment has been made to the post of Lokayukta and, therefore, without entering into the technicality and considering the fact that there is already a petition in the form of Public Interest Litigation pending before this Court, the direction for an early appointment would be necessary.

Final Conclusion :

113. Accordingly, I conclude as under:-

(1) The appointment of Lokayukta, as provided under Section 3 of the Gujarat Lokayukta Act, 1986 requires to be made by the Governor, only with the aid and advice of the Council of Ministers.

(2) Consultation process, as far as the name of respondent No.1 is concerned, between the Chief Justice and the Council of Ministers was not yet over and, therefore, it cannot be said that there was a stalemate, which necessitated any other or further act on the part of the Governor.

(3) In consultation process, primacy is always required to be given to the opinion of the Chief Justice as discussed, Governor could not have acted independently in overreaching the well laid down constitutional requirement.

(4) There are no exceptional circumstances existed as carved out by the Constitution or otherwise laid down by the decisions of the Apex Court , permitting the appointment of Lokayukta by allowing the settled principles of Parliamentary democracy to take a back seat.

(5) The office of the Lokayukta is neither a Court nor has trappings of the Court.

(6) Insistence of only one name instead of panel as made applicable for the judicial post cannot be made applicable to the post of Lokayukta. However, the proposal and recommendation shall need to be made by the Chief Justice whose opinion shall have primacy in the appointment.

(7) The post of Lokayukta for the State shall be filled up within the period of 4 months from the date of receipt of the order.

114. With this, the petition of the State being SCA No. 12632 of 2011 is allowed declaring the action of appointment in valid and contrary to Constitutional mandate with the consequential relief of quashing the warrant dated 25.8.2010 appointing respondent No.1 as Lokayukta for the State of Gujarat.

115. In the result, Special Civil Application No.13499 of 2011 is also required to be allowed.

116. In this premise, SCA No. 12632 of 2011 and SCA 13499 of 2011 and other Civil Applications stand disposed of in light of above declaration .

(Ms. Sonia Gokani, J. )