The sentinel issue that has come up for consideration in these appeals is whether the views expressed by the Chief Justice of the High Court of Karnataka has got primacy ...
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.197-199 OF 2013
[Arising out of SLP (Civil) NOs.15658-15660 OF 2012]
Mr. Justice Chandrashekaraiah (Retd.) .. Appellant
Versus
Janekere C. Krishna & Ors. etc. .. Respondents
WITH
CIVIL APPEAL NOs. 200-202 OF 2013
[Arising out of SLP (Civil) Nos.16512-16514 OF 2012]
J U D G M E N T
K. S. Radhakrishnan, J.
1.Leave granted.
2.The sentinel issue that has come up for consideration in
these appeals is whether the views expressed by the Chief Justice
of the High Court of Karnataka has got primacy while making
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appointment to the post of Lokayukta or Upa Lokayukta by the
Governor of Karnataka in exercise of powers conferred on him
under Section 3(2)(a) and (b) of the Karnataka Lokayukta Act,
1984 (for short ‘the Act’).
3.The Division Bench of the Karnataka High Court took the
view that under the Act the opinion expressed by the Chief Justice
of the High Court of Karnataka has primacy while tendering
advice by the Chief Minister of the State to the Governor. The
Court held since, the order passed by the Governor of Karnataka,
appointing Justice Chandrashekaraiah as Upa Lokayukta on
21.1.2012, was without consulting the Chief Justice of the High
Court, the same was illegal. The High Court also issued various
directions including the direction to the State and the Principal
Secretary to the Governor to take steps for filling up the post of
Upa Lokayukta in accordance with the directions contained in the
judgment. Aggrieved by the Judgment of the High Court, these
appeals have been preferred by Justice Chandrashekaraiah and
the State of Karnataka.
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Facts
4.The notification dated 21.1.2012 issued in the name of the
Governor was challenged by two practicing lawyers in public
interest contending that the institution of Lokayukta was set up in
the State for improving the standard of public administration by
looking into complaints against administrative actions including
cases of corruption, favouritism and official indiscipline in
administrative machinery and if the Chief Minister’s opinion has
primacy, then it would not be possible for the institution to work
independently and impartially so as to achieve the object and
purpose of the Act.
5.The office of the Karnataka Upa Lokayukta fell vacant on the
resignation of Justice R. Gururajan and the Chief Minister initiated
steps for filling up that vacancy. Following that, the Chief Minister
on 18.10.2011 addressed separate letters to the Chief Justice of
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the High Court of Karnataka, Chairman of the Karnataka
Legislative Council, Speaker of the Karnataka Legislative
Assembly, Leader of the Opposition in the Legislative Council and
Leader of the Opposition in the Legislative Assembly requesting
them to suggest a panel of eligible persons for appointment as
Upa Lokayukta on or before 24.10.2011.
6.The Chief Justice suggested the name of Mr. H.
Rangavittalachar (Retd.), the Leader of the Opposition in the
Karnataka Legislative Council and the Leader of the Opposition in
the Karnataka Legislative Assembly suggested the names of Mr.
Justice K. Ramanna (Retd.) and Mr. Justice Mohammed Anwar
(Retd.). The Chairman of the Karnataka Legislative Council and
the Speaker of the Karnataka Legislative Assembly suggested the
name of Justice Chandrashekaraiah (Retd.). The Chief Minister
then advised the Governor to appoint Justice Chandrashekaraiah
as Upa Lokayukta. The Governor, accepting the advice of the
Chief Minister, passed the order dated 20.1.2012 appointing
Justice Chandrashekaraiah as the Upa Lokayukta.
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7.The Chief Justice on 21.01.2012 received an invitation for
attending the oath taking ceremony of Justice Chandrashekaraiah
as Upa Lokayukta in the morning which, according to the Chief
Justice, was received only in the evening. The Chief Justice then
addressed a letter dated 04.02.2012 to the Chief Minister stating
that he was not consulted in the matter of appointment of Justice
Chandrashekaraiah as Upa Lokayukta and expressed the opinion
that the appointment was not in conformity with the
constitutional provisions and requested for recalling the
appointment.
8.The stand taken by the Chief Justice was widely published in
various newspapers; following that, as already indicated, two writ
petitions were filed in public interest for quashing the
appointment of Justice Chandrashekaraiah as Upa Lokayukta. A
writ of quo warranto was also preferred against the functioning of
Justice Chandrashekaraiah as Upa Lokayukta.
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Arguments
9.Shri K.V. Viswanathan, learned senior counsel appearing for
the State of Karnataka took us extensively to the objects and
reasons and to the various provisions of the Act and submitted
that the nature and functions of the office of Lokayukta or Upa
Lokayukta are to carry out investigation and enquiries and the
institution of Lokayukta, as such, does not form part of the judicial
organ of the State. Learned senior counsel also submitted that
the functions and duties of the institution of Lokayukta, as such,
cannot be compared with the functions and duties of the
Judiciary, Central Administrative Tribunals, State Administrative
Tribunals or Consumer Disputes Redressal Forums etc.
10.Learned senior counsel, referring to the various provisions
such as Sections 3, 7, 9 etc. of the Act, submitted that Lokayukta
or Upa Lokayukta are appointed for the purpose of conducting
investigations and enquiries and they are not discharging any
judicial functions as such and their reports are only
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recommendatory in nature. Consequently, the Act never
envisaged vesting any primacy on the views of the Chief Justice of
the High Court in the matter of appointment of Lokayukta or Upa
Lokayukta. In support of his contentions, reference was made to
the various judgments of this Court, which we will discuss in the
latter part of this judgment. Shri Viswanathan, however, has
fairly submitted that, as per the Scheme of the Act, especially
under Section 3(2)(a) and (b), before making appointment to the
post of Lokayukta and Upa Lokayukta, it is obligatory on the part
of the Chief Minister to consult the Chief Justice of the State High
Court, even though the views of the Chief Justice has no primacy.
Learned senior counsel submitted that the Governor has to act on
the advice of the Chief Minister for filling up the post of Lokayukta
and Upa Lokayukta.
11.Shri P.V. Shetty, learned senior counsel appearing for Justice
Chandrashekaraiah (retd.) submitted that the primacy in terms of
Section 3 of the Act lies with the Chief Minister and not with the
Chief Justice. In support of his contention, reference was made to
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the various judgments of this Court, which we will discuss in the
latter part of the judgment. Learned senior counsel submitted
that the judgment delivered by the High Court holding that the
views of the Chief Justice has primacy relates to cases pertaining
to appointment of the Judges of the Supreme Court and High
Courts, appointment of the President of State Consumer Forum,
Central Administrative Tribunal and so on and the ratio laid down
in those judgments is inapplicable while interpreting Section 3(2)
(a) and (b) of the Act. Learned senior counsel also submitted that
the reasoning of the High Court that there should be specific
consultations with regard to the names suggested by the
Governor with the Chief Justice, is unsustainable in law. Shri P.V.
Shetty also submitted that the expression ‘consultation’ cannot
be understood to be consent of the constitutional authorities as
contemplated in the section.
12.Learned senior counsel submitted that the Chief Minister
advised the name of Justice Chandrashekaraiah, suggested by
some of the Consultees to the Governor who appointed him as
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Upa Lokayukta. Learned senior counsel submitted that assuming
that the Chief Justice had not been consulted, the views of the
Chief Minister had primacy and the Governor rightly accepted the
advice of the Chief Minister and appointed Justice
Chandrashekaraiah as Upa Lokayukta. Learned senior counsel
submitted that in any view the failure to consult the Chief Justice
would not vitiate the decision making process, since no primacy
could be attached to the views of the Chief Justice. Learned
senior counsel, therefore, submitted that the High Court has
committed a grave error in quashing the notification appointing
Justice Chandrashekaraiah as Upa Lokayukta. Learned senior
counsel submitted that the various directions given by the High
Court in its judgment is in the realm of rule making which is
impermissible in law.
13.Shri K.N. Bhat, learned senior counsel appearing for the
respondents endorsed the various directions given by the High
Court which according to him are of paramount importance
considering the nature and functions to be discharged by
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Lokayukta or Upa Lokayukta in the State of Karnataka. Learned
senior counsel pointed out that the institution of Lokayukta has
been set up for improving the standards of public administration
so as to examine the complaints made against administrative
actions, including the cases of corruption, favouritism and official
indiscipline in administrative machinery. Shri Bhat compared the
various provisions of the Act with the similar legislations in other
States and submitted that, so far as the Karnataka Act is
concerned, there is a multi-member team of consultees and also
there is no indication in the Act as to whose opinion should prevail
over others. Considerable reliance was placed on the judgment of
this Court in Justice K.P. Mohapatra v. Sri Ram Chandra
Nayak and Ors. (2002) 8 SCC 1, wherein this Court has taken
the view that the opinion of the Chief Justice has got primacy
which is binding on the State. Learned senior counsel submitted
that the conduct and functions to be discharged by Lokayukta or
Upa Lokayukta are apparent, utmost importance has to be given
in seeing that unpolluted administration of the State is
maintained and maladministration is exposed. Learned senior
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counsel submitted that the functions of the Karnataka Lokayukta
are identical to that of Lokpal of Orissa and that the principle laid
down in that judgment would also apply while interpreting
Sections 3(2)(a) and (b) of the Act.
14.Learned senior counsel submitted that the primacy has to be
given to the views expressed by the Chief Justice, not because the
persons appointed are discharging judicial or quasi-judicial
functions but the source from which the persons are advised for
appointment consists of former judges of the Supreme Court and
Chief Justices of High Courts and judges of the High Courts in the
matter of appointment of Upa Lokayukta. Learned senior counsel
submitted that the Chief Justice of the High Court, therefore,
would be in a better position to know about suitability of the
persons to be appointed to the posts since they were either
former judges of the Supreme Court or Chief Justices of the High
Courts or judges of the High Courts.
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15.Let us examine the various contentions raised at the bar
after delving into the historical setting of the Act.
Historical Setting
16.The President of India vide notification No. 40/3/65-AR(P)
dated 05.01.1966 appointed the Administrative Reforms
Commission for addressing “Problems of Redress of Citizens’
Grievances” inter alia with the object for ensuring the highest
standards of efficiency and integrity in the public services, 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 responsive
to people. The Commission was asked to examine the various
issues including the Problems of Redress of Citizens’ Grievances.
One of the terms of reference specifically assigned to the
Commission required it to deal with the Problems of Redress of
Citizens’ Grievances, namely:
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(1)the adequacy of existing arrangements for redress of
grievances; and
(2) the need for introduction of any new machinery for
special institution for redress of grievances.
The Commission after elaborate discussion submitted its
report on 14.10.1966 to the Prime Minister vide letter dated
20.10.1966.
17.The Commission suggested that 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 and another authority in each State and at the Centre for
dealing with complaints against administrative acts of other
officials and all these authorities should be independent of the
executive, the legislative and the judiciary.
The Committee, in its report, has stated as follows:
“21.We have carefully considered the political
aspect mentioned above and while we recognize that
there is some force in it, we feel that the Prime
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Minister’s hands would be strengthened rather than
weakened by the institution. In the first place, the
recommendations of such an authority will save him
from the unpleasant duty of investigation against his
own colleagues. Secondly, it will be possible for him to
deal with the matter without the glare of publicity which
often vitiates the atmosphere and affects the judgment
of the general public. Thirdly, it would enable him to
avoid internal pressures which often help to shield the
delinquent. What we have said about the Prime
Minister applies mutatis mutandis to Chief Minister.
Cases of corruption:
23.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 mentioned above
might involve allegations or actual evidence of corrupt
motive and favourtism. We think that this institution
should deal with such cases as well, but where the
cases are such as 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 latter would then set
the machinery of law in motion after following
appropriate procedures and observing necessary
formalities. The present system of Vigilance
Commissions wherever operative will then become
redundant and would have to be abolished on the
setting up of the institution.
Designation of the authorities of the institution:
24.We suggest that the authority dealing with
complaints against Ministers and Secretaries to
Government may be designated “Lokpal” and the other
authorities at the Centre and in the States empowered
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to deal with complaints against other officials may be
designated “Lokayukta”. A word may be said about
our decision to include Secretaries actions along with
those of Ministers in the jurisdiction of the Lokpal. We
have taken this decision because we feel that at the
level at which Ministers and Secretaries function, it
might often be difficult to decide where the role of one
functionary ends and that of the other begins. The line
of demarcation between the responsibilities and
influence of the Minister and Secretary is thin; in any
case much depends on their personal equation and
personality and it is most likely that in many a case the
determination of responsibilities of both of them would
be involved.
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 favourtism.
(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.
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(g)They should not look forward to any benefit
or pecuniary advantage from the executive
Government.
Bearing in mind these essential features of the
institutions, the Commission recommend that the
Lokpal be appointed at the Centre and Lokayaukta at
the State level.
The Lokayukta
36.So far as the Lokayukta is concerned, we
envisage that he would be concerned with problems
similar to those which would face the Lokpal in respect
of Ministers and Secretaries though, in respect of action
taken at subordinate levels of official hierarchy, he
would in many cases have to refer complainants to
competent higher levels. We, therefore, consider that
his powers, functions and procedures may be
prescribed mutatis mutandis with those which we have
laid down for the Lokpal. His status, position,
emoluments, etc. should, however, be analogous to
those of a Chief Justice of a High Court and he should
be entitled to have free access to the Secretary to the
Government concerned or to the Head of the
Department with whom he will mostly have to deal to
secure justice for a deserving citizen. Where he is
dissatisfied with the action taken by the department
concerned, he should be in a position to seek a quick
corrective action from the Minister or the Secretary
concerned, failing which he should be able to draw the
personal attention of the Prime Minister or the Chief
Minster as the case may be. It does not seem
necessary for us to spell out here in more detail the
functions and powers of the Lokayukta and the
procedures to be followed by him.
Constitutional amendment-whether necessary?
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37.We have carefully considered whether the
institution of Lokpal will require any Constitutional
amendment and whether it is possible for the office of
the Lokpal to be set up by Central Legislation so as to
cover both the Central and State functionaries
concerned. We agree that for the Lokpal to be fully
effective and for him to acquire power, without conflict
with other functionaries under the Constitution, it would
be necessary to give a constitutional status to his
office, his powers, functions, etc. We feel, however,
that it is not necessary for Government to wait for this
to materialize before setting up the office. The Lokpal,
we are confident, would be able to function in a large
number of cases without the definition of his position
under the Constitution. The Constitutional amendment
and any consequential modification of the relevant
statute can follow. In the meantime, Government can
ensure that the Lokpal or Lokayukta is appointed and
takes preparatory action to set up his office, to lay
down his procedures, etc., and commence his work to
such extent as he can without the constitutional
provisions. We are confident that the necessary
support will be forthcoming from the Parliament.
Conclusion.
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 or 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
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need hardly to 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 a
recommendation on merits alone and are convinced
that we are making it not a day too soon.”
18.Based on the above report, the following Bill was presented
before the Karnataka Legislature which reads as follows:-
“The Administrative Reforms Commission had
recommended the setting up of the institution of
Lokayukta for the purpose of appointment of Lokayukta
at the state's level, to improve the standards of public
administration, by looking into complaints against the
administrative actions, including cases of corruption,
favouritism and official indiscipline in administrative
machinery.
One of the election promises in the election
manifesto of the Janata Party was the setting up of the
Institution of the Lokayukta.
The bill provides for the appointment of a
Lokayukta and one or more Upalokayuktas to
investigate and report on allegations or grievances
relating to the conduct of public servants.
The public servants who are covered by the Act
include :-
(1) Chief Minister;
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(2) all other Ministers and Members of the State
Legislature;
(3)all officers of the State Government;
(4)Chairman, Vice Chairman of local authorities,
Statutory Bodies or Corporations established by or
under any law of the State Legislature, including
Co-operative Societies;
(5)Persons in the service of Local Authorities,
Corporations owned or controlled by the State
Government, a company in which not less than
fifty-one per cent of the shares are held by the
State Government, Societies registered under the
Societies Registration Act, Co-operative Societies
and Universities established by or under any law
of the Legislature.
Where, after investigation into the complaint, the
Lokayukta considers that the allegation against a public
servant is prima facie true and makes a declaration that
the post held by him, and the declaration is accepted
by the Competent Authority, the public servant
concerned, if he is a Chief Minister or any other Minister
or Member of State Legislature shall resign his office
and if he is any other non-official shall be deemed to
have vacated his office, and, if an official, shall be
deemed to have been kept under suspension, with
effect from the date of the acceptance of the
declaration.
If, after investigation, the Lokayukta is satisfied
that the public servant has committed any criminal
offence, he may initiate prosecution without reference
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to any other authority. Any prior sanction required
under any law for such prosecution shall be deemed to
have been granted.
The Vigilance Commission is abolished. But all
inquiries and investigations and other disciplinary
proceedings pending before the Vigilance Commission
will be transferred to the Lokayukta.”
The Bill became an Act with some modifications as the
Karnataka Lokayukta Act, 1984.
Relevant Provisions
19.The matters which have to be investigated are provided in
Section 7 of the Act which is extracted hereunder for easy
reference:
“7. Matters which may be investigated by
the Lokayukta and an Upalokayukta .– (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.-
(i) the Chief Minister;
(ii) a Minister or a Secretary;
(iii) a member of the State Legislature; or
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(iv) any other public servant being a public
servant of a class notified by the State
Government in consultation with the
Lokayukta in this behalf;
in any case where a complaint involving a grievance or
an allegation is made in respect of such action.
(2) Subject to the provisions of the Act, an Upa-
lokayukta may investigate any action which is taken by
or with the general or specific approval of, any public
servant not being the Chief Minister, Minister, Member
of the Legislature, Secretary or other public servant
referred to in sub-section (1), in any case where a
complaint involving a grievance or an allegation is
made in respect of such action or such action can be or
could have been, in the opinion of the Upa-lokayukta,
the subject of a grievance or an allegation.
(2-A) Notwithstanding anything contained in sub-
sections (1) and (2), the Lokayukta or an Upa-lokayukta
may investigate any action taken by or with the general
or specific approval of a public servant, if it is referred
to him by the State Government.
(3) Where two or more Upa-lokayuktas are
appointed under this Act, the Lokayukta may, by
general or special order, assign to each of them
matters which may be investigated by them under this
Act:
Provided that no investigation made by an Upa-
lokayukta under this Act, and no action taken or things
done by him in respect of such investigation shall be
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open to question on the ground only that such
investigation relates to a matter which is not assigned
to him by such order.
(4) Notwithstanding anything contained in sub-
sections (1) to (3), when an Upa-lokayukta is unable to
discharge his functions owing to absence, illness or any
other cause, his function may be discharged by the
other Upa-lokayukta, if any, and if there is no other
Upa-lokayukta by the Lokayukta.”
20.Few matters are not subjected to the investigation of
Lokayukta or Upa Lokayukta which is provided in Section 8 of the
Act, which is also extracted hereunder for easy reference:
“8. Matters not subject to investigation .- (1)
Except as hereinafter provided, the Lokayukta or an
Upa-lokayukta shall not conduct any investigation
under this Act in the case of a complaint involving a
grievance in respect of any action, -
(a) if such action relates to any matter specified
in the Second Schedule; or
(b) if the complainant has or had, any remedy by
way of appeal, revision, review or other
proceedings before any Tribunal, Court
Officer or other authority and has not availed
of the same.
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(2) The Lokayukta or an Upa-lokayukta shall not
investigate, -
(a) any action in respect of which a formal and
public eiquiry has been ordered with the prior
concurrence of the Lokayukta or an
Upalokayukta, as the case may be;
(b) any action in respect of a matter which has
been referred for inquiry, under the
Commission of Inquiry Act, 1952 with the
prior concurrence of the Lokayukta or an
Upalokayukta, as the case may be;
(c) any complaint involving a grievance made
after the expiry of a period of six months
from the date on which the action
complained against becomes known to the
complainant; or
(d) any complaint involving an allegation made
after the expiry of five years from the date on
which the action complained against is
alleged to have taken place:
Provided that he may entertain a complaint
referred to in clauses (c) and (d) if the complainant
satisfies that he had sufficient cause for not making the
complaint within the period specified in those clauses.
(3) In the case of any complaint involving a
grievance, nothing in this Act shall be construed as
empowering the Lokayukta or an Upa-lokayukta to
question any administrative action involving the
exercise of discretion except where he is satisfied that
the elements involved in the exercise of the discretion
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are absent to such an extent that the discretion can
prima facie be regarded as having been improperly
exercised.”
21.Section 9 of the Act pertains to provisions relating to
‘complaints’ and ‘investigations’ which is extracted hereunder:
“9. Provisions relating to complaints and
investigations.- (1) Subject to the provisions of this
Act, any person may make a complaint under this Act
to the Lokayukta or an Upa-lokayukta.
(2) Every complaint shall be made in the
form of a statement supported by an affidavit and
in such forms and in such manner as may be
prescribed.
(3) Where the Lokayukta or an Upa-
lokayukta proposes, after making such preliminary
inquiry as he deemed fit, to conduct any
investigation under this Act, he.-
(a) shall forward a copy of the complaint to
the public servant and the Competent
Authority concerned;
(b) shall afford to such public servant an
opportunity to offer his comments on
such complaint;
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(c) may make such order as to the safe
custody of documents relevant to the
investigation, as he deems fit.
(4) Save as aforesaid, the procedure for
conducting any such investigation shall be such, and
may be held either in public or in camera, as the
Lokayukta or the Upa-lokayukta, as the case may be,
considers appropriate in the circumstances of the
case.
(5) The Lokayukta or the Upa-lokayukta may, in
his discretion, refuse to investigate or cease to
investigate any complaint involving a grievance or an
allegation, if in his opinion.-
(a) the complaint is frivolous or vexatious or is
not made in good faith;
(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 the
case it would be more proper for the
complainant to avail such remedies.
(6) In any case where the Lokayukta or an Upa-
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 servant
concerned.
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(7) The conduct of an investigation under this Act
against a Public servant in respect of any action shall
not affect such action, or any power or duty of any
other public servant to take further action with respect
to any matter subject to the investigation.”
22.Section 10 empowers Lokayukta or Upa Lokayukta to
exercise certain powers in relation to search and seizure. It says
that the provisions of the Code of Criminal Procedure, relating to
search and seizure, would apply only for the limited purpose of
investigation carried out by the incumbent, in consequence of
information in his possession, while investigating into any
grievance, allegation against any administrative action.
23.Section 11 deals with the producing, recording, etc. of
evidence for the purpose of investigation under the Act. Sub-
sections (1) and (2) of Section 11 read as follows:
“11. Evidence.- (1) Subject to the provisions of this
section, for the purpose of any investigation (including
the preliminary inquiry if any, before such investigation)
under this Act, the Lokayukta or an Upa-lokahukta may
require any public servant or any other person who, in
his opinion, is able to furnish information or produce
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documents relevant to the investigation to furnish any
such information or produce any such document.
(2) For the purpose of any
investigation (including the preliminary inquiry) the
Lokayukta or Upa-lokayukta shall have all the powers of
a Civil Court while trying a suit under that the Code of
Civil Procedure Code, 1908, in respect of the following
matters only:-
(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.”
Sub-section (3) of Section 11 provides for applicability of Section
193 of the Indian Penal Code (Punishment for false evidence), for
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proceedings before the Lokayukta or Upa Lokayukta, while
exercising its powers conferred under sub-section (2) of Section
11, and only for that limited extent is considered a judicial
proceeding.
24.Section 12 deals with the reports of Lokayukta which
essentially deals with the following aspects:
i)The Lokayukta or Upa Lokayukta can sent a report with
certain recommendations and findings as envisaged in
sub section (1) and (3) of Section 12.
ii)Under sub section (2) of Section 12, the competent
authority is required to intimate or cause to intimate
the Lokayukta or the Upa Lokayukta on the action
taken on the report as provided under sub section (1) of
Section 12, within 1 month.
iii)Failure to intimate the action taken on the report
submitted under section (1) has not been dealt with
specifically, however if in the opinion of Lokayukta /
Upa Lokayukta satisfactory action is not taken by the
competent authority under Section 12(2), he is at
liberty to send a ‘Special report’ to the governor as
provided for under sub section (5) of Section 12.
Page 29 29
iv)Findings and recommendations to be given by the
Lokayukta or Upa-lokayukta under sub section 3 of
Section 12, include those as contemplated under
Section 13 of the Act.
v)Sub-section (4) of Section 12 requires the competent
authority to examine the report forwarded under sub-
section (3), within three months and intimate the
Lokayukta or the Upa Lokayukta on the action taken or
proposed to be taken on the basis of the report.
vi)Failure to intimate the action taken on the report
submitted under section (3) has not been dealt with
specifically, however if in the opinion of Lokayukta /
Upa Lokayukta, satisfactory action taken is not taken by
the competent authority under Section 12(4), he is at
liberty to send a ‘Special report’ to the governor as
provided for under sub section (5) of Section 12.
vii)If any Special Report as contemplated under sub-
section (5) is received and the annual report of the
Lokayukta under sub section (6), would have to be laid
before each house of the State legislature along with an
explanatory note of the Governor.
viii)It is important to note that the act neither binds the
Governor nor the State Legislature to accept the
recommendations or findings of the incumbent, thereby
ensuring no civil consequences follow from the direct
action of the Lokayukta or Upa Lokayukta.
Page 30 30
Section 13 prescribes when a public servant would have to
vacate office, which reads as follows:
“13. Public servant to vacate office if directed by
Lokayukta etc. (1) Where after investigation into a
complaint the Lokayukta or an Upalokayukta is satisfied
that the complaint involving an allegation against the
public servant is substantiated and that the public
servant concerned should not continue to hold the post
held by him, the Lokayukta or the Upalokayukta shall
make a declaration to that effect in his report under
sub-section (3) of section 12. Where the competent
authority is the Governor, State Government or the
Chief Minister, it may either accept or reject the
declaration. In other cases, the competent authority
shall send a copy of such report to the State
Government, which may either accept or reject the
declaration. If it is not rejected within a period of three
months from the date of receipt of the report, or the
copy of the report, as the case may be, it shall be
deemed to have been accepted on the expiry of the
said period of three months.
(2) If the declaration so made is accepted or is deemed
to have been accepted, the fact of such acceptance or
the deemed acceptance shall immediately be intimated
by Registered post by the Governor, the State
Government or the Chief Minister if any of them is the
competent authority and the State Government in other
cases then, notwithstanding anything contained in any
law, order, notification, rule or contract of appointment,
the public servant concerned shall, with effect from the
date of intimation of such acceptance or of the deemed
acceptance of the declaration,
Page 31 31
(i) if the Chief Minister or a Minister resign his office
of the Chief Minister, or Minister, as the case may be.
(ii) If a public servant falling under items (e) and (f),
but not falling under items (d) and (g) of clause (12) of
section 2, be deemed to have vacated his office: and
(iii) If a public servant falling under items (d) and (g)
of clause (12) of section 2, be deemed to have been
placed under suspension by an order of the appointing
authority.
Provided that if the public servant is a member of an All
India Service as defined in section 2 of the All India
Services Act, 1951 (Central Act 61 to 1951) the State
Government shall take action to keep him under
suspension in accordance with the rules or regulations
applicable to his service.”
Section 14 deals with the initiation of prosecution which
reads as follows:
“14. Initiation of prosecution.- If after
investigation into any complaint the Lokayukta or an
Upa-lokayukta is satisfied that the public servant has
committed any criminal offence and should be
prosecuted in a court of law for such offence, then, he
may pass an order to that effect and initiate
prosecution of the public servant concerned and if prior
sanction of any authority is required for such
prosecution, then, notwithstanding anything contained
in any law, such sanction shall be deemed to have been
granted by the appropriate authority on the date of
such order.”
Investigative in nature
Page 32 32
25.The provisions discussed above clearly indicate that the
functions to be discharged by Lokayukta or Upa Lokayukta are
investigative in nature and the report of Lokayukta or Upa
Lokayukta under sub-sections (1) and (3) of Section 12 and the
Special Report submitted under sub-section (5) of Section 12 are
only recommendatory. No civil consequence as such follows from
the action of Lokayukta and Upa Lokayukta, though they can
initiate prosecution before a competent court. I have extensively
referred to the object and purpose of the Act and explained the
various provisions of the Act only to indicate the nature and
functions to be discharged by Lokayukta or Upa Lokayukta under
the Act.
26.The Act has, therefore, clearly delineated which are the
matters to be investigated by the Lokayukta and Upa Lokayukta.
They have no authority to investigate on a complaint involving a
grievance in respect of any action specified in the Second
Schedule of the Act, which are as follows:
Page 33 33
(a) Action taken for the purpose of powers
investigating crimes relating to the security of the
State.
(b) Action taken in the exercise of powers in relation
to determining whether a matter shall go to a Court or
not.
(c) Action taken in matters which arise out of the
terms of a contract governing purely commercial
relations of the administration with customers or
suppliers, except where the complaint alleges
harassment or gross delay in meeting contractual
obligations.
(d) Action taken in respect of appointments, removals,
pay, discipline, superannuation or other matters
relating to conditions of service of public servants but
not including action relating to claims for pension,
gratuity, provident fund or to any claims which arise on
retirement, removal or termination of service.
(e) Grant of honours and awards.
27.Further if the complainant has or had any remedy by way of
appeal, revision, review or other proceedings before any tribunal,
court officer or other authority and has not availed of the same,
the
Page 34 34
Lokayukta and Upa Lokayukta shall not conduct any investigation
under the Act, in other words, they have to act within the four
corners of the Act.
28.The Act has also been enacted to make provision for making
enquiries by the Lokayukta and Upa Lokayukta into the
administrative action relatable to matters specified in List II or List
III of the Seventh Schedule to the Constitution, taken by or on
behalf of the Government of Karnataka or certain public
authorities in the State of Karnataka, including any omission or
commission in connection with or arising out of such action etc.
29.Lokayukta or Upa Lokayukta under the Act are established to
investigate and report on allegations or grievances relating to the
conduct of public servants which includes the Chief Minister; all
other Minister and members of the State Legislature; all officers of
the State Government; Chairman, Vice Chairman of Local
Authorities, Corporations, owned or controlled by the State
Government, a company in which not less than fifty one per cent
Page 35 35
of the shares are held by the State Government, Societies
registered under the Societies Registration Act, Co-operative
Societies and Universities established by or under any law of the
Legislature.
30.Lokayukta and Upa Lokayukta while exercising powers under
the Act, of course, is acting as a quasi judicial authority but it
functions are investigative in nature. The Constitution Bench of
this Court in Nagendra Nath Bora and another v.
Commissioner of Hills Division and Appeals, Assam and
others AIR 1958 SC 398 held whether or not an administrative
body or authority functions as purely administrative one or in a
quasi-judicial capacity, must be determined in each case, on an
examination of the relevant statute and rules framed thereunder.
This Court in Indian National Congress (I) v. Institute of
social Welfare and others (2002) 5 SCC 685, while dealing with
the powers of the Election Commission of India under the
Representation of the People Act, 1951 held that while exercising
Page 36 36
power under Section 29-A, the Commission acts quasi-judicially
and passes quasi judicial orders.
31.The Court held that what distinguishes an administrative act
from a quasi-judicial act is, in the case of quasi-judicial functions,
under the relevant law, the statutory authority is required to act
judicially. In other words, where law requires that an authority
before arriving at a decision must make an enquiry, such a
requirement of law makes the authority a quasi-judicial authority.
Noticing the above legal principles this Court held in view of the
requirement of law that the Commission is to give decision only
after making an enquiry, wherein an opportunity of hearing is to
be given to the representative of the political party, the Election
Commission is is required to act judicially.
32.Recently, in Automotive Tyre Manufactures Association
v. Designated Authority and others (2011) 2 SCC 258, this
Court examined the question whether the Designated Authority
appointed by the Central Government under Rule 3 of the
Customs Tariff (Identification, Assessment and Collection of Anti-
Page 37 37
Dumping Duty on dumped Articles and for Determination of
Injury) Rules, 1995 (1995 Rules) for conducting investigation, for
the purpose of levy of anti dumping duty in terms of Section 9-A
of the Customs Act, 1962, is functioning as an administrative or
quasi judicial authority. The Court after examining the scheme of
the Tariff Act read with 1995 Rules and the nature of functions to
be discharged by the Designated Authority took the view that the
authority exercising quasi-judicial functions is bound to act
judicially. Court noticed that the Designated Authority
determines the rights and obligations of the “interested parties”
by applying objective standards based on the
material/information/evidence presented by the exporters, foreign
producers and other “interested parties” by applying the
procedure and principles laid down in the 1995 Rules.
33.Provisions of Sections 9, 10 and 11 clearly indicate that
Lokayukta and Upa Lokayukta are discharging quasi-judicial
functions while conducting the investigation under the Act. Sub-
section (2) of Section 11 of the Act also states that for the
Page 38 38
purpose any such investigation, including the preliminary inquiry
Lokayukta and Upa Lokayukta shall have all the powers of a Civil
Court while trying a suit under the Code of Civil Procedure, 1908,
in the matter of summoning and enforcing the attendance of any
person and examining him on oath. Further they have also the
power for 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 examination of witnesses of documents etc.
Further, sub-section (3) of Section 11 stipulates that any
proceedings before the Lokayukta and Upa Lokayukta shall be
deemed to be a judicial proceeding within the meaning of Section
193 of the Indian Penal Code. Therefore, Lokayukta and Upa
Lokayukta, while investigating the matters are discharging quasi-
judicial functions, though the nature of functions is investigative.
Consequence of the report
34.The Governor of the State, acting in his discretion, if accepts
the report of the Lokayukta against the Chief Minister, then he
Page 39 39
has to resign from the post. So also, if the Chief Minister accepts
such a report against a Minister, then he has to resign from the
post. Lokayukta or Upa Lokayukta, however, has no jurisdiction
or power to direct the Governor or the Chief Minister to
implement its report or direct resignation from the Office they
hold, which depends upon the question whether the Governor or
the Chief Minister, as the case may be, accepts the report or not.
But when the Lokayukta or Upa Lokayukta, if after the
investigation, is satisfied that the public servant has committed
any criminal offence, prosecution can be initiated, for which prior
sanction of any authority required under any law for such
prosecution, shall also be deemed to have been granted.
Nature of Appointment
35.We are, in this case, as already indicated, called upon to
decide the nature and the procedure to be followed in the matter
of appointment of Lokayukta or Upa Lokayukta under the Act for
which I have elaborately discussed the intention of the legislature,
objects and purpose of the Act and the nature and functions to be
Page 40 40
discharged by Lokayukta or Upa Lokayukta, its investigative
nature, the consequence of its report etc. Section 3 of the Act
deals with the appointment of Lokayukta and Upa Lokayukta,
which reads as follows:
3.Appointment of Lokayukta and Upa-
lokayukta-
(1) For the purpose of conducting investigations
and enquiries in accordance with the provisions of this
Act, the Governor shall appoint a person to be known as
the Lokayukta and one or more persons to be known as
the Upa-lokayukta or Upa-lokayuktas.
(2)(a) A person to be appointed as the Lokayukta
shall be a person who has held the office of a Judge of
the Supreme Court or that of the Chief Justice of a High
Court and shall be appointed on the advice tendered by
the Chief Minister in consultation with the Chief Justice
of the High Court of Karnataka, the Chairman,
Karnataka Legislative Council, the Speaker, Karnataka
Legislative Assembly, the Leader of the Opposition in
the Karnataka Legislative Council and the Leader of the
Opposition in the Karnataka Legislative Assembly.
(b) A person to be appointed as an Upa-lokayukta
shall be a person who has held the office of the Judge of
a High Court and shall be appointed on the advice
tendered by the Chief Minister in consultation with the
Chief Justice of the High Court of Karnataka, the
Chairman, Karnataka Legislative Council, the Speaker,
Karnataka Legislative Assembly, the Leader of the
opposition in the Karnataka Legislative Council and the
Page 41 41
Leader of the opposition in the Karnataka Legislative
Assembly.
(3) A person appointed as the Lokayukta or an
Upa-lokayukta shall, before entering upon his office,
make and subscribe before the Governor, or some
person appointed in that behalf of him, an oath or
affirmation in the form set out for the purpose in the
First Schedule."
36. The purpose of appointment of Lokayukta or Upa Lokayukta
is clearly spelt out in Section 3(1) of the Act which indicates that it
is for the purpose of conducting investigation and enquiries in
accordance with the provisions of the Act. The procedure to
conduct investigation has been elaborately dealt with in the Act.
The scope of enquiry is however limited, compared to the
investigation that is only to the ascertainment of the truth or
falsehood of the allegations. The power has been entrusted by
the Act on the Governor to appoint a person to be known as
Lokayukta and one or more persons to be known as Upa
Lokayukta and Upa Lokayuktas. The person to be appointed as
Lokayukta shall be a person who has held the office of a Judge of
the Supreme Court of India or that of the Chief Justice of the High
Court. The Governor, as per Section 3(2)(a), is empowered to
Page 42 42
appoint Lokayukta on the advice tendered by the Chief Minister,
in consultation with the Chief Justice of the High Court of
Karnataka, the Chairman, Karnataka Legislative Council, the
Speaker, Karnataka Legislative Assembly, the Leader of the
Opposition in the Karnataka Legislative Council and the Leader of
the Opposition in the Karnataka Legislative Assembly. It is,
therefore, clear that all the above five dignitaries have to be
consulted before tendering advice by the Chief Minister to the
Governor of the State.
37.Section 3(2)(b) of the Act stipulates that, so far as the Upa
Lokayukta is concerned, he shall be a person who has held the
office of a Judge of the High Court and shall be appointed on the
advice tendered by the Chief Minister. The Chief Minister has to
consult the five dignitaries, the Chief Justice of the High Court of
Karnataka, the Chairman, Karnataka Legislative Council, the
Speaker, Karnataka Legislative Assembly, the Leader of the
Opposition in the Legislative Council and the Leader of Opposition
in the Karnataka Legislative Assembly. Therefore, for the purpose
Page 43 43
of appointment of Lokayukta or Upa Lokayukta all the five
consultees are common. The appointment has to be made by the
Governor on the advice tendered by the Chief Minister in
consultation with those five dignitaries.
Legislations in few other States.-
38.Legislatures in various States have laid down different
methods of appointment and eligibility criterias for filling up the
post of Lokayukta and Upa-Lokayuktas, a comparison of which
would help us to understand the intention of the legislature and
the method of appointment envisaged.
39.ANDHRA PRADESH LOKAYUKTA ACT, 1983
Section 3 – Appointment of Lokayukta and Upa-
Lokayukta: (1) For the purpose of conducting
investigation 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
and one or more persons to be known as the Upa-
Lokayukta or Upa-Lokayuktas:
Page 44 44
Provided that,-
(a) the person to be appointed as the Lokayukta
shall be a Judge or a retired Chief Justice of a High
Court;
(b) the Lokayukta shall be appointed after
consultation with the Chief Justice of the High
Court concerned;
(c) the Upa-Lokayukta shall be appointed from
among the District Judges of Grade I, out of a
panel of five names forwarded by the Chief Justice
of the High Court of Andhra Pradesh.
(2) In the Andhra Pradesh Lokayukta and Upa –
Lokayukta Act, 1983 (hereinafter referred to as the
principal Act) for sub-section (2) of Section 3, the
following shall be substituted, namely:-
(i) Every person appointed to be the Lokayukta
shall, before entering upon his office, make and
subscribe, before the Governor an oath or
affirmation according to the form set out for the
purpose in the First Schedule.
(ii) Every person appointed to be the Upa-
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 according to the form setout for the
purpose in the First Schedule.
Page 45 45
(3) The Upa-Lokayukta shall function under the
administrative control of the Lokayukta and in
particular, for the purpose of convenient disposal of
investigations under this Act, the Lokayukta may issue
such general or special directions, as he may consider
necessary, to the Upa-Lokayukta:
Provided that nothing in this sub-section shall be
construed to authorize the Lokayukta to question any
decision, finding, or recommendation of the Upa-
Lokayukta.
40.ASSAM LOKAYUKTA AND UPA-LOKAYUKTAS ACT,
1985
Section 3 – Appointment of Lokayukta and Upa-
Lokayuktas.- 1. For the purpose of conducting
investigations 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 Lokayukta and
one or more persons to be known as Upa-Lokayukta or
Upa-Lokayuktas:
Provided that:-
(a) The Lokayukta shall be appointed after
consultation with the Chief Justice of the Gauhati
High Court, the Speaker and the leader of the
opposition in the Assam Legislative Assembly and
if there be no such leader a person elected in this
Page 46 46
behalf by the members of the opposition in that
house in such manner as the speaker may direct;
(b) The Upa-Lokayukta or Upa-Lokayuktas shall be
appointed after consultation with the Lokayukta
Provided further that where the Speaker of
the Legislative Assembly is satisfied that
circumstances exists on account of which it is
not practicable to consult the leader of the
opposition in accordance with Cl(a) of the
preceding proviso he may intimate the
Governor the name of any other member or
the opposition in the Legislative Assembly
who may be consulted under that clause
instead of the leader of the opposition.
(2) Every person appointed as the Lokayukta or Upa-
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.
(3) The Upa-Lokayuktas shall be subject to the
administrative control of the Lokayukta and, in
particular, for the purpose of convenient disposal of
investigations under this Act, the Lokayukta may issue
such general or special direction, as he may consider
necessary to the Upa-Lokayukta
Page 47 47
Provided that nothing in this sub-section shall be
construed to authorize the Lokayukta to question any
finding, conclusion or recommendation of an Upa
Lokayukta.
41.THE BIHAR LOKAYUKTA ACT, 1973:
3. Appointment of Lokayukta.- (1) For the purpose
of conduction investigations in accordance with the
provisions of this Act the Governor shall by warrant
under his hand and shall appoint a person to be known
as the Lokayukta of Bihar;
Provided that the Lokayukta shall be appointed
after consultation with the Chief Justice of the Patna
High Court and the Opposition in the State Legislative
Assembly or if there be no such leader a person elected
in this behalf by the Opposition in the State Legislative
Assembly in such manner as the Speaker may direct.
(2) The 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 the Governor, an oath or affirmation in the
form set out for the purposes in the First Schedule.
42.CHHATTISGARH LOK AAYOG ADHYADESH, 2002
3. Constitution of Lok Aayog:- (1) There shall be a
Lok Aayog for the purpose of conducting inquiries in
accordance with the provisions of this Ordinance.
Page 48 48
(2) The Lok Aayog shall consist of two members,
one to be known as the Pramukh Lokayukt, and the
other as the Lokayukt.
(3) The Pramukh Lokayukt shall be a person who
has been a Judge of a High Court or has held a judicial
officer higher than that of a Judge of a High Court.
(4) The Lokayukta shall be a person with
experience in administrative and quasi-judicial matters,
and shall have functioned at the level of a Secretary to
the Government of India or the Chief Secretary to any
State Government in India.
Provided that the Pramukh Lokayukta shall have
administrative control over the affairs of the Lok Aayog.
(5) Governor shall, by warrant under his hand and
seal, appoint the Pramukh Lokayukta and the
Lokayukta, on the advice of the Chief Minister who shall
consult the Chief Justice of the High Court of
Chattisgarh and the Speaker of the Chattisgarh
Legislative Assembly.
(6) Every person appointed as a Pramukh Lokayukt
or a L Lokayukt shall, before entering upon his office,
take and subscribe before the Governor, or some
person appointed in that behalf by him, an oath of
affirmation in the form set out for the purpose in the
First Schedule.
(7) The Pramukh Lokayukt or the Lokayukt shall
not hold any other office of trust or profit or be
connected with any political party or carry on any
business or practice any profession or hold any post in
any society, including any cooperative society, trust, or
Page 49 49
any local authority, or membership of the Legislative
Assembly of any State or of the Parliament.
43.DELHI LOKAYUKTA AND UPLOKAYUKTA ACT,
1995:
Section 3 – Appointment of Lokayukta and
Uplokayukta.- (1) For the purpose of conducting
investigations and inquiries in accordance with the
provisions of this Act, the Lieutenant Governor shall,
with the prior approval of the President, appoint a
person to be known as the Lokayukta and one or more
persons to be known as Upalokayukta;
Provided that-
(a) the Lokayukta shall be appointed after
consultation with the Chief Justice of the High
Court of Delhi and the Leader of the Opposition in
the Legislative Assembly and if there be no such
leader, a person selected in this behalf by the
Members of the Opposition in that House in such
manner as the Speaker may direct;
(b) the Upalokayukta shall be appointed in
consultation with the Lokayukta.
(2) A person shall not be qualified for
appointment as-
(a) the Lokayukta, unless he is or has been Chief
Justice of any High Court in India, or a Judge of a
High Court for seven years;
Page 50 50
(b) an Upalokayukta, unless he is or has been a
Secretary to the Government or a District Judge in
Delhi for seven years or has held the post of a
Joint Secretary to the Government of India.
3. Every person appointed as Lokayukta or
Upalokayukta shall, before entering upon his office,
make and subscribe before the Lieutenant 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. The Upalokayukta shall be subject to the
administrative control of the Lokayukta and in
particular, for the purpose of convenient disposal of
investigations under this Act, the Lokayukta may issue
such general or special directions as he may consider
necessary to the Upalokayukta and may withdraw to
himself or may, subject to the provisions of Section 7,
make over any case from himself to an Upalokayukta or
from one Upalokayukta to another Upalokayukta for
disposal
Provided that nothing in this sub-section shall be
construed to authorize the Lokayukta to question any
finding, conclusion, recommendation of an
Upalokayukta.
44.GUJARAT LOKAYUKTA ACT, 1986
Section 3 – Appointment of Lokayukta- 1) For the
purpose of conducting investigations in accordance
with the provisions of this Act, the Governor shall by
Page 51 51
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 Opposition in that house
in the 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 the 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.
45.THE JHARKHAND LOKAYUKTA ACT, 2001
3. Appointment of Lokayukta- (1) For the
purpose of conduction 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 of Jharkhand;
Page 52 52
Provided that the Lokayukta shall be appointed
after consultation with the Chief Justice of the
Jharkhand High Court, Ranchi and the Leader of the
Opposition in the State Legislative Assembly or if there
be no such leader a person elected in this behalf by the
Members of the Opposition in the State Legislative
Assembly in such manner as the Speaker may direct.
(2) The 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 the Governor, an oath or affirmation in the form set
out for the purposes in the First Schedule.
46.HARYANA LOKAYUKTA ACT, 2002:
Section 3 – Appointment of Lokayukta- (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 on
the advice of the Chief Minister who shall consult
the Speaker of Haryana Legislative Assembly,
Leader of Opposition and the Chief Justice of India
in case of appointment of a person who is or has
been a Judge of the Supreme Court or Chief Justice
of the High Court, and Chief Justice of the Punjab
and Haryana High Court in case of appointment of
a person who is or has been a Judge of a High
Court.
Page 53 53
Provided further that the result of consultation
shall have persuasive value but not binding on the
Chief Minister.
(2) A notification by the State Government about the
consultation having been held as envisaged in sub-
section (1) shall be conclusive proof thereof.
(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 of affirmation in the form set out
for the purpose in the Schedule.
47.KERALA LOK AYUKTA ACT, 1999
Section 3 – Appointment of Lok Ayukta and
Upa-Lok Ayuktas- 1) For the purpose of conducting
investigations and inquiries in accordance with the
provisions of this Act, the Governor shall appoint a
person to be known as Lok Ayukta and two other
persons to be known as Upa-Lok Ayuktas.
(2) A person to be appointed as Lok Ayukta shall
be a person who has held the office of a Judge of the
Supreme Court or that of the Chief Justice of a High
Court and shall be appointed on the advice tendered by
the Chief Minister, in consultation with the Speaker of
the Legislative Assembly of the State and the Leader of
Opposition in the Legislative Assembly of the State.
(3) A person to be appointed as an Upa-Lok Ayukta
shall be a person who holds or has held the office of a
Judge of a High Court and shall be appointed on the
Page 54 54
advice tendered by the Chief Minister in consultation
with the Speaker of the Legislative Assembly of the
state and the leader of Opposition in the Legislative
Assembly of the state.
Provided that the Chief Justice of the High Court
concerned shall be consulted, if a sitting judge is
appointed as an Upa-Lok Ayukta.
(4) A person appointed as Lok Ayukta or Upa-Lok
Ayukta shall, before entering upon his office, make and
subscribe, before the Governor or a person appointed
by him in that behalf, an oath or affirmation in the form
set out for the purpose in the First Schedule.”
48.A brief survey of the above statutory provisions would show
that State Legislatures of various States have adopted different
eligibility criteria, method of selection, consultative procedures
etc. in the matter of appointment of Lokayukta, Upa-Lokayukta in
their respective States. For instance, in Andhra Pradesh
Lokayukta Act the Chief Minister as such has no role and the only
consultee for the post of Lokayukta is the Chief Justice. Upa
Lokayukta is appointed not from the category of Judges of the
High Court, sitting or former, but from a panel of five names of
District Judges of Grade I forwarded by the Chief Justice. Further
in the States of Assam, Delhi, Gujarat, etc., the Chief Ministers
Page 55 55
have no role as such. However, in the States of Chattisgarh,
Haryana etc., the Governor appoints on the advice of the Chief
Minister. In the State of Chhattisgarh the Act says, the Pramukh
Lokayukta shall be a person who has been a judge of a High Court
or has held a judicial office higher than that of a High Court Judge.
Lokayukta shall be a person who has functioned at the level of a
Secretary, both Government of India or the Chief Secretary to any
State Government. The Chief Justice of the High Court is a
consultee, in the Lokayukta Act of Assam, Bihar, Delhi, Gujarat,
Jharkhand and so on. However, in the Kerala Lokayukta Act, the
Chief Justice is not a consultee at all. In few States, Upa-
lokayuktas are appointed from a panel of District Judges, not from
the High Court Judges sitting or former. Legislatures of the
various States, in their wisdom, have, therefore, adopted different
sources, eligibility criteria, methods of appointment etc. in the
matter of appointment of Lokayukta and Upa-Lokayuktas.
Recently, this Court had an occasion to consider the scope of
Section 3(1) of the Gujarat Lokayukta Act, 1986 in State of
Gujarat v. Hon’ble Mr. Justice R.A. Mehta (Retd.) reported in
Page 56 56
2013 (1) SCALE 7. Interpreting that provision this Court held that
the views of the Chief Justice have primacy in the matter of
appointment of Lokayukta in the State of Gujarat. Every Statute
has, therefore, to be construed in the context of the scheme of
the Statute as a whole, consideration of context, it is trite, is to
give meaning to the legislative intention according to the terms in
which it has been expressed.
49.Constitution of India and its articles, judicial pronouncements
interpreting various articles of the Constitution confer primacy to
the views of Chief Justice of India or to the Chief Justice of a High
Court in the matter of appointment to certain posts the
incumbents of which have to discharge judicial or quasi judicial
functions.
APPOINTMENT TO THE POSTS OF DISTRICT JUDGE/HIGH
COURT JUDGES :
50.The views of the High Court has primacy in the matter of
appointment of District Judges. Chandra Mohan v. State of
Page 57 57
U.P. 1967 (1) SCR 77 was a case relating to the appointment of
District Judges wherein this Court had occasion to consider the
scope of Articles 233-236 of the Constitution. Interpreting the
word “consultation” in Article 233, this Court has taken the view
that the exercise of power of appointment by the Governor is
conditioned by his consultation with the High Court, meaning
thereby the Governor can only appoint a person to the post of
District Judge in consultation with the High Court. The purpose
and object of consultation is that the High Court is expected to
know better in regard to the suitability or otherwise of a person,
belonging either to the judicial service or to the Bar, to be
appointed as a district Judge. The duties enjoined on the
Governor are, therefore, to make the appointment in consultation
with the body which is the appropriate authority to give advice to
him. In Chandramouleshwar Prasad v. Patna High Court
(1969) 3 SCC 56, Justice Mitter J. while interpreting the Article 233
held “that the High Court is the body which is intimately familiar
with the efficiency and quality of officers who are fit to be
promoted as District Judges. It was held that consultation with
Page 58 58
the High Court under Article 233 is not an empty formality.
Further, it was also stated that consultation or deliberation is not
complete or effective before the parties thereto make their
respective points of view known to the other others and discuss
and examine the relative merits of their views”.
51.In Samsher Singh v. State of Punjab and another
(1974) 2 SCC 831, Justice Krishna Iyer, in his concurring
judgment, highlighted the independence of Judiciary and held “it
is a cardinal principle of the Constitution and has been relied on
to justify the deviation, is guarded by the relevant article making
consultation with the Chief Justice of India obligatory”. In Union
of India v. Sankalchand Himatlal Sheth and another (1977)
4 SCC 193 this Court high-lighted the rationale behind consulting
the Chief Justice of India on matters pertaining to judiciary, in the
light of Article 222 of the Constitution of India. This Court held
that “Article 222(1) requires the President to consult the Chief
Justice of India on the premises that in a matter which concerns
the judiciary vitally, no decision ought to be taken by the
Page 59 59
executive without obtaining the views of the Chief Justice of India
who, by training and experience, is in the best position to
consider the situation fairly, competently and objectively”.
52.In Supreme Court Advocates-on-Record Association
and others v. Union of India (1993) 4 SCC 441 while
interpreting the Article 217 of the Constitution, i.e. in the matter
of appointment of Judges to the Higher Judiciary, it was held that
the opinion of the Chief Justice of India has got primacy in the
process of consultation. Primacy of the opinion of the Chief
Justice of India is, in effect, the primacy of the opinion of the Chief
Justice of India formed collectively, that is, after taking into
account the views of his senior colleagues who are required to be
consulted by him for the formation of the opinion. The Court has
also proceeded on the premises that the President is
constitutionally obliged to consult the Chief Justice of India in the
case of appointment of Judges of the Supreme Court of India, as
per the proviso to Article 124(2) and in the case of appointment of
the Judges of the High Court the President is obliged to consult
Page 60 60
the Chief Justice of India and the Governor of the State in addition
to the Chief Justice of the High Court concerned. In the matter of
appointment of Judges of the Supreme Court as well as that the
High Courts, the opinion of the collegium of the Supreme Court of
India has primacy. Judgments referred to above are primarily
concerned with the appointment of District Judges in the
subordinate judiciary, High Court Judges and the Supreme Court.
Primacy to the executive is negatived, in view of the nature of
functions to be discharged by them and to make the judiciary
independent of the executive.
APPOINTMENT TO THE CENTRAL AND STATE
ADMINISTRATIVE TRIBUNALS
53.Central Administrative Tribunal as a Tribunal constituted
under Article 323-A of the Constitution and is expected to have
the same jurisdiction as that of the High Court. Such Tribunal
exercises vast judicial powers and the members must be ensured
absolute judicial independence, free from any executive or
political interference. It is for this reason, sub-section (7) to
Section 6 of the Administrative Tribunals Act, 1985 requires that
Page 61 61
the appointment of a member of the Tribunal cannot be made
“except after consultation with the Chief Justice of India”.
Considering the nature of functions to be discharged by the
Tribunal which is judicial, the views of the Chief Justice of India
has primacy. In Union of India and others v. Kali Dass Batish
and another (2006) 1 SCC 779 this Court has interpreted the
expression “after consultation with the Chief Justice of India” as
appearing in Section 6(7) of the Administrative Tribunal Act, 1985
and held that the judicial powers are being exercised by the
Tribunal and hence the views of the Chief Justice of India be given
primacy in the matter of appointment in the Central
Administrative Tribunal. Similar is the situation with regard to the
State Administrative Tribunals as well, where the views of the
Chief Justice of the High Court has primacy, since the Tribunal is
exercising judicial powers and performing judicial functions.
APPOINTMENT TO THE NATIONAL AND STATE CONSUMER
REDRESSAL COMMISIONS:
Page 62 62
54.This Court in Ashish Handa, Advocate v. Hon’ble the
Chief Justice of High Court of Punjab and Haryana and
others (1996) 3 SCC 145, held in the matter of appointment of
President of the State Commissions and the National
Commissions under the Consumer Protection Act, 1986, the
consultation with the Chief Justice of the High Court and Chief
Justice of India is in the same manner, as indicated by the
Supreme Court in Supreme Court Advocates-on-Record
Association case (supra) for appointment of High Court and
Supreme Court Judges. This Court noticed that the functions
discharged by the Commission are primarily the adjudication of
consumer disputes and, therefore, a person from the judicial
branch is considered to be suitable for the office of the President.
The Court noticed the requirement of consultation with the Chief
Justice under the proviso to Section 16(1)(a) and Section 20(1)(a)
of the Consumer Protection Act, is similar to that in Article 217.
Consequently, it was held that principle enunciated in the
majority opinion in the Supreme Court Advocates-on-Record
Page 63 63
Association case (supra) must apply even for initiating the
proposal for appointment.
55.This Court, however, in Ashok Tanwar and another v.
State of H.P. and others (2005) 2 SCC 104, relying on
Supreme Court Advocates-on-Record Association case
(supra) disagreed with Ashish Handa only to the limited extent
that for the purpose of the Consumer Protection Act, 1986
‘consultation’ would not be with the collegium, but would rest
only with the Chief Justice. In N. Kannadasan v. Ajoy Khose
and others (2009) 7 SCC 1, this Court held that primacy must be
with the opinion of the Chief Justice inter alia because the
appointment is to a judicial post and in view of the peremptory
language employed in the proviso to Section 16(1)(a) of the
Consumer Protection Act, 1986. This Court held that the word
“consultation” may mean differently in different situations
depending on the nature and purpose of the Statute.
Page 64 64
56.Judgments discussed above would indicate that the
consultation is held to be mandatory if the incumbent to be
appointed to the post is either a sitting or a retired judge who has
to discharge judicial functions and the orders rendered by them
are capable of execution. Consultation, it may be noted, is never
meant to be a formality, but meaningful and effective and
primacy of opinion is always vested with the High Court or the
Chief Justice of the State High Court or the collegium of the
Supreme Court or the Chief Justice of India, as the case may be,
when a person has to hold a judicial office and discharge
functions akin to judicial functions.
57.The High Court, in the instant case has, placed considerable
reliance on the Judgment of this Court in K.P. Mohapatra (supra)
and took the view that consultation with the Chief Justice is
mandatory and his opinion will have primacy. Above Judgment
has been rendered in the context of the appointment of Orissa
Lokpal under Section 3 of the Orissa Lokpal and Lokayuktas Act.
The proviso to Section 3(1) of the Act says that the Lokpal shall be
Page 65 65
appointed on the advice of the Chief Justice of the High Court of
Orissa and the Leader of the Opposition, if there is any.
Consultation with the Chief Justice assumes importance in view of
the proviso. The Leader of the Opposition need be consulted, if
there is one. In the absence of the Leader of the Opposition, only
the Chief Justice remains as the sole consultee. In that context
and in view of the specific statutory provision, it has been held
that the consultation with the Chief Justice assumes importance
and his views has primacy.
58.In that case, the Chief Justice approved the candidature of
Justice K.P. Mahapatra, but the Leader of the Opposition later
recommended another person, but the State Government
appointed the former but the High Court interfered with that
appointment. Reversing the judgment of the High Court, this
Court held that the opinion rendered by the Leader of the
Opposition is not binding on the State Government.
Page 66 66
59.I am of the view that the judgment of this Court in K. P.
Mahapatra (supra) is inapplicable while construing the
provisions of the Karnataka Lokayukta Act, 1984, since the
language employed in that Act and Section 3 of the Orissa Lokpal
and Lokayukta Act, 1985 are not pari materia.
60.We have, therefore, to interpret the provisions of Section
3(2)(a) and (b) as it stands in the Karnataka Lokayukta Act, where
the language employed, in my view, is clear and unambiguous
and we have to apply the golden rule of interpretation i.e. the
literal interpretation which clearly expresses the intention of the
legislature which I have already indicated, supports the objects
and reasons, the preamble, as well as various other related
provisions of the Act.
61.Tindal, C.J., as early as 1844, has said that “If the words of
the statute are in themselves precise and unambiguous, then no
more can be necessary than to expound those words in their
natural and ordinary sense. The words themselves do alone in
Page 67 67
such case best declare the intent of the lawgiver”. In other
words, when the language is plain and unambiguous and admits
of only one meaning no question of construction of a statute
arises, for the Act speaks for itself. Viscount Simonds, L.C. in
Empror v. Benoarilal Sarma AIR 1945 PC 48 has said “in
construing enacted words we are not concerned with the policy
involved or with the results, injurious or otherwise, which may
follow from giving effect to the language used”. Blackstone, in
Commentaries on the Laws of England, Vol.1 page 59 has said
“the most fair and rational method for interpreting a statute is by
exploring the intention of the Legislature through the most
natural and probable signs which are either the words, the
context, the subject-matter, the effects and consequence, or the
spirit and reasons of the law. In Kanailal Sur v. Paramnidhi
Sadhu Khan AIR 1957 SC 907, Justice Gajendragadkar stated
that, “if the words used are capable of one construction only then
it would not be open to the courts to adopt any other hypothetical
construction on the ground that such construction is more
consistent with the alleged object and policy of the Act”. It is
Page 68 68
unnecessary to multiply that principle with decided cases, as the
first and primary rule of construction is that the intention of the
Legislature must be found in the words used by the Legislature
itself.
62.Section 3(2)(a) and (b) when read literally and contextually
admits of not doubt that the Governor of the State can appoint
Lokayukta or Upa Lokayukta only on the advice tendered by the
Chief Minister and that the Chief Justice of the High Court is only
one of the consultees and his views have no primacy. The
Governor, as per the statute, can appoint only on the advice
tendered by the Chief Minister and not on the opinion expressed
by the Chief Justice or any of the consultees.
Consultation
63.The Chief Minister is legally obliged to consult the Chief
Justice of the High Court and other four consultees, which is a
mandatory requirement. The consultation must be meaningful
and effective and mere eliciting the views or calling for
Page 69 69
recommendations would not suffice. Consultees can suggest
various names from the source stipulated in the statute and those
names have to be discussed either in a meeting to be convened
by the Chief Minister of the State for that purpose or by way of
circulation. The Chief Minister, if proposes to suggest or advise
any name from the source ear-marked in the statute that must
also be made available to the consultees so that they can also
express their views on the name or names suggested by the Chief
Minister. Consultees can express their honest and free opinion
about the names suggested by the other consultees including the
Chief Justice or the Chief Minister. After due deliberations and
making meaningful consultation, the Chief Minister of the State is
free to advise a name which has come up for consideration
among the consultees to the Governor of the State. The advice
tendered by the Chief Minister will have primacy and not that of
the consultees including the Chief Justice of the High Court.
64.I may point out that the source from which a candidate has
to be advised consists of former judges of the Supreme Court or
Page 70 70
Chief Justices of the State High Courts for the post of Lokayukta
and former judges of the High Courts for the post of Upa
Lokayukta. Persons, who fall in that source, have earlier held
constitutional posts and are presumed to be persons of high
integrity, honesty and ability and choosing a candidate from that
source itself is sometimes difficult. The Governor cannot appoint
a person who does not fall in that source and satisfies the other
eligibility criteria. Contention was raised that since the source
consists of persons who have held the office of the Judge of the
Supreme Court or the Chief Justice of the High Court, the Chief
Justice of the High Court would be in a better position to compare
the merits and demerits of those candidates. I find it difficult to
accept that contention. Apart from a person’s competence,
integrity and character as a judge, various other information have
also to be gathered since the persons who fall in that source are
retired judges. Government has its own machinery and system to
gather various information about retired judges. The Chief
Minister, it may be noted, cannot advise a name from that source
without making a meaningful and effective consultation after
Page 71 71
disclosing the relevant materials. This, in my view, is a sufficient
safeguard against arbitrary selection and advice. Further, as
already noticed, the duties and functions of the Lokayukta or Upa
Lokayukta are investigative in nature and their orders as such
cannot be executed. In such situation, the legislature, in its
wisdom, felt that no primacy need be attached to views of the
consultees including the Chief Justice but on the advice of the
Chief Minister.
65.In my view that this is the scheme of Section 3(2)(a) and (b)
of the Act and however, much we strain, nothing spells out from
the language used in Section 3(2)(a) and (b) to hold that primacy
be attached to the opinion expressed by the Chief Justice of the
High Court of Karnataka. I am, therefore, of the view that the
various directions given by the High Court holding that the views
of the Chief Justice has got primacy, is beyond the scope of the
Act and the High Court has indulged in a legislative exercise
which is impermissible in law. I, therefore, set aside all the
Page 72 72
directions issued by the High Court, since they are beyond the
scope of the Act.
66.The Chief Minister, in my view, has however committed an
error in not consulting the Chief Justice of the High Court in the
matter of appointment of Justice Chandrashekaraiah as Upa
Lokayukta. Records indicate that there was no meaningful and
effective consultation or discussion of the names suggested
among the consultees before advising the Governor for
appointment to the post of Upa Lokayukta. The appointment of
Justice Chandrashekaraiah as Upa Lokayukta, therefore, is in
violation of Section 3(2)(b) of the Act since the Chief Justice of the
High Court was not consulted nor was the name deliberated upon
before advising or appointing him as Upa Lokayukta,
consequently, the appointment of Justice Chandrasekharaiah as
Upa Lokayukta cannot stand in the eye of law and he has no
authority to continue or hold the post of Upa Lokayukta of the
State.
Page 73 73
67.Judgment of the High Court is accordingly set aside, with a
direction to the Chief Minister of the State to take appropriate
steps for appointment of Upa Lokayukta in the State of Karnataka,
in accordance with law. Since nothing adverse has been found
against Justice Chandrasekharaiah, his name can still be
considered for appointment to the post of Upa Lokayukta along
with other names, if any, suggested by the other five consultees
under the Act. I, however, make it clear that there is no primacy
in the views expressed by any of the consultees and after due
deliberations of the names suggested by the consultees including
the name, if any suggested by the Chief Minister, the Chief
Minister can advise any name from the names discussed to the
Governor of the State for appointment of Upa Lokayukta under
the Act. Appeals are allowed as above, with no order as to costs.
……………………………..J.
(K.S. Radhakrishnan)
New Delhi,
January 11, 2013
Page 74 74
Page 75 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.197-199 OF 2013
[Arising out of SLP (Civil) Nos. 15658-15660 OF 2012]
Mr. Justice Chandrashekaraiah (Retd.) ... Appellant
Versus
Janekere C. Krishna & Ors.etc. ... Respondents
WITH
CIVIL APPEAL Nos.200-202 OF 2013
[Arising out of SLP (Civil) Nos. 16512-16514 OF 2012]
J U D G M E N T
Madan B. Lokur, J.
1.Leave granted.
2.Brother Radhakrishnan has elaborately dealt with the
issues raised – and I agree with his conclusions.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 75 of 134
Page 76 Nevertheless, I think it necessary to express my
views on the various issues raised.
The issues raised:
3.My learned Brother has stated the material facts of
the case and it is not necessary to repeat them.
4.The principal question for consideration is whether
the appointment of Justice Chandrashekaraiah as an
Upa-lokayukta was in accordance with the provisions
of Section 3(2)(b) of the Karnataka Lokayukta Act,
1984 which requires consultation, inter alia, with the
Chief Justice of the Karnataka High Court. In my
opinion, the Karnataka High Court was right in
holding that there was no consultation with the Chief
Justice specifically on the appointment of Justice
Chandrashekaraiah as an Upa-lokayukta. His
appointment, therefore, is void ab initio.
5.Several related questions require consideration,
including whether the Upa-lokayukta is a quasi-
judicial authority or is only (without meaning any
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 76 of 134
Page 77 disrespect) an investigator; who should initiate the
process of appointment of an Upa-lokayukta; what is
meant by ‘consultation’ in the context of Section 3(2)
(b) of the Karnataka Lokayukta Act, 1984 (for short
the Act); whether consultation is at all mandatory
under Section 3(2)(b) of the Act; how is the process
of consultation required to be carried out; whether
the view of the Chief Justice of the Karnataka High
Court regarding the suitability of a person for
appointment as Upa-lokayukta has primacy over the
views of others involved in the consultation and
finally, whether the Karnataka High Court was right in
directing a particular procedure to be followed for the
appointment of an Upa-lokayukta.
6.The interpretation of Section 3 of the Karnataka
Lokayukta Act, 1984 arises for consideration. This
Section reads as follows:
“Section 3: Appointment of Lokayukta and
Upa-lokayukta
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 77 of 134
Page 78 (1) For the purpose of conducting investigations and
enquiries in accordance with the provisions of this
Act, the Governor shall appoint a person to be known
as the Lokayukta and one or more persons to be
known as the Upa-lokayukta or Upa-lokayuktas.
(2) (a) A person to be appointed as the Lokayukta
shall be a person who has held the office of a
Judge of the Supreme Court or that of the Chief
Justice of a High Court and shall be appointed on
the advice tendered by the Chief Minister in
consultation with the Chief Justice of the High
Court of Karnataka, the Chairman, Karnataka
Legislative Council, the Speaker, Karnataka
Legislative Assembly, the Leader of the
Opposition in the Karnataka Legislative Council
and the Leader of the Opposition in the
Karnataka Legislative Assembly.
(b) A person to be appointed as an Upa-
lokayukta shall be a person who has held the
office of a judge of a High Court and shall be
appointed on the advice tendered by the Chief
Minister in consultation with the Chief Justice of
the High Court of Karnataka, the Chairman,
Karnataka Legislative Council, the Speaker,
Karnataka Legislative Assembly, the Leader of
the Opposition in the Karnataka Legislative
Council and the Leader of the Opposition in the
Karnataka Legislative Assembly.
(3) A person appointed as the Lokayukta or an Upa-
lokayukta shall, before entering upon his office, make
and subscribe, before the Governor, or some person
appointed in that behalf by him, an oath or
affirmation in the form set out for the purpose in the
First Schedule.”
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 78 of 134
Page 79 Whether the Upa-lokayukta a quasi-judicial
authority:
7.Without intending to belittle the office of the Upa-
lokayukta, it was submitted by learned counsel for
the State of Karnataka (hereafter “the State”) that
the Upa-lokayukta is essentially required to
investigate complaints and inquire into grievances
brought before him. In this process, he may be
exercising some quasi-judicial functions, but that
does not make him a quasi-judicial authority. The
significance of this submission lies in the further
submission that if the Upa-lokayukta is not a quasi-
judicial authority then the opinion of the Chief Justice
of the Karnataka High Court would not have primacy
in the appointment and consultation process,
otherwise it would have primacy.
(i) View of the High Court:
8.After discussing the provisions of the Act and the
case law on the subject, the High Court was of the
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 79 of 134
Page 80 opinion that the Upa-Lokayukta performs functions
that are in the nature of judicial, quasi-judicial and
investigative. The High Court expressed the view that
if the functions of an Upa-Lokayukta were purely
investigative, the legislature would not have insisted
on a person who has held the office of a judge of a
High Court as the qualification for appointment and
consultation with the Chief Justice as mandatory.
9.In coming to this conclusion, the High Court drew
attention to N. Gundappa v. State of Karnataka,
1989 (3) KarLJ 425 wherein it was held that “the
Upa-lokayukta ….while conducting investigation into
a complaint and making a report on the basis of such
investigation, exercises quasi judicial power. It
determines the complaint made against a public
servant involving a 'grievance' or an 'allegation' and
the report becomes the basis for taking action
against the public servant by the Competent
Authority.” The Division Bench of the Karnataka High
Court upheld this conclusion by a very cryptic order
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 80 of 134
Page 81 in State of Karnataka v. N. Gundappa , ILR 1990
Kar 4188.
10.The High Court also drew attention to Prof. S.N.
Hegde v. The Lokayukta, ILR 2004 Kar 3892
wherein the scope of Sections 9,11 and 12 of the Act
were considered and it was held that proceedings
under Section 9 of the Act are judicial proceedings, or
in any event, they are quasi-judicial proceedings. It
was said:
“Therefore, the investigation to be conducted under
Section 9 would be in the nature of a judicial
proceeding and it would be in the nature of a suit and
oral evidence is recorded on oath and documentary
evidence is also entertained. Therefore, it is clear
that the investigation under Section 9 of the Act
would be in the nature of judicial proceedings or at
any rate it is a quasi-judicial proceedings where the
principles of natural justice had to be followed and if
any evidence is recorded the public servant has the
right to cross-examine those witnesses.”
(ii) Functions, powers, duties and responsibilities of
the Upa-lokayukta
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 81 of 134
Page 82 11.The appointment of an Upa-lokayukta is dealt with in
Section 3 of the Act. This Section requires that the
Upa-lokayukta must be with a person who has held
the office of a judge of a High Court. The Upa-
lokayukta is, therefore, expected to be impartial and
having some (if not considerable) judicial experience
and abilities. The reason for this, quite obviously, is
that he would possibly be required to deal with
complaints and grievances against public servants in
the State.
12.Given the importance of the office of the Upa-
lokayukta, he is appointed by the Governor of the
State on the advice of the Chief Minister, in
consultation with the Chief Justice of the High Court,
the Chairman of the Karnataka Legislative Council,
the Speaker of the Karnataka Legislative Assembly,
the Leader of the Opposition in the Karnataka
Legislative Council and the Leader of the Opposition
in the Karnataka Legislative Assembly. In other
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 82 of 134
Page 83 words, the appointment of the Upa-lokayukta is the
concern of constitutional authorities of the State.
13.The oath of office taken by the Upa-lokayukta in
terms of Section 3(3) of the Act is similar to the oath
of office taken by a judge of a High Court under
Schedule III to the Constitution. The only substantial
difference between the two is that, in addition, a
judge of the High Court takes an oath to uphold the
sovereignty and integrity of India and uphold the
Constitution of India and the laws.
14.The term of office and other conditions of service of
an Upa-lokayukta are dealt with in Section 5 of the
Act. This Section, read with Section 6 of the Act
(which deals with the removal of an Upa-lokayukta),
provides security of tenure to the Upa-lokayukta. He
has a fixed term of five years and cannot be removed
“except by an order of the Governor passed after an
address by each House of the State Legislature
supported by a majority of the total membership of
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 83 of 134
Page 84 the House and by a majority of not less than two-
thirds of the members of that House present and
voting”. The removal of an Upa-lokayukta can only
be on the ground of proved misbehavior or incapacity
and the procedure for investigation and proof of
misbehavior or incapacity is as provided in the
Judges (Inquiry) Act, 1968 which applies mutatis
mutandis to an Upa-lokayukta.
15.On ceasing to hold office, an Upa-lokayukta is
ineligible for further employment to any office of
profit under the State or any other authority,
corporation, company, society or university referred
to in the Act. The salary of an Upa-lokayukta is equal
to that of a judge of the High Court and the
conditions of service cannot be varied to his
disadvantage after his appointment. All the
administrative expenses of the Upa-lokayukta are
charged on the Consolidated Fund of the State.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 84 of 134
Page 85 16.In a sense, therefore, the Upa-lokayukta is a high
dignitary in the State of Karnataka.
17.Section 7 of the Act provides for matters that may be
investigated by the Upa-lokayukta while Section 8 of
the Act provides for matters that may not be
investigated by the Upa-lokayukta. For the purposes
of this judgment, it is not necessary to refer to
Section 8 of the Act. In terms of Section 7(2) of the
Act, the Upa-lokayukta is entitled to investigate
(upon a complaint involving a grievance or an
allegation) any action taken by or with the general or
special approval of a public servant other than one
mentioned in Section 7(1) of the Act. Only the
Lokayukta can investigate action taken by or with the
general or special approval of a public servant
mentioned in Section 7(1) of the Act. The power
vested in an Upa-lokayukta is, therefore, quite wide
though hierarchically circumscribed.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 85 of 134
Page 86 18.Section 9 of the Act relates to complaints and
investigations thereon by an Upa-lokayukta. A
complaint may be made to him in the form of a
statement supported by an affidavit. If the Upa-
lokayukta, after making a preliminary enquiry
proposes to conduct an investigation in respect of the
complaint, he shall follow the procedure provided in
Section 9(3) of the Act which broadly conforms to the
principles of natural justice by giving an opportunity
to the public servant against whom the complaint is
being investigated to offer comments on the
complaint.
19.For the purposes of any enquiry or other proceedings
to be conducted by him, an Upa-lokayukta is
empowered by Section 10 of the Act to issue a
warrant for search and seizure against any person or
property. The warrant can be executed by a police
officer not below the rank of Inspector of Police
authorized by the Upa-lokayukta to carry out the
search and seizure. The provisions of Section 10 of
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 86 of 134
Page 87 the Act also make it clear that the provisions of the
Code of Criminal Procedure, 1973 relating to search
and seizure shall apply.
20.By virtue of Section 11 of the Act, an Upa-lokayukta
has all the powers of a Civil Court for the purpose of
carrying out an investigation. These powers include
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 and other related powers.
Proceedings before the Upa-lokayukta are deemed to
be judicial proceedings within the meaning of Section
193 of the Indian Penal Code. In this context, Section
17-A of the Act is important and this Section enables
the Upa-lokayukta to exercise the same powers of
contempt of itself as a High Court and for this
purpose, the provisions of the Contempt of Courts
Act, 1971 shall have effect mutatis mutandis.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 87 of 134
Page 88 21.The Upa-lokayukta is protected by virtue of Section
15 of the Act in respect of any suit, prosecution or
other legal proceedings in respect of anything that is
done in good faith while acting or purporting to act in
the discharge of his official duties under the Act.
22.The Upa-lokayukta is statutorily obliged under
Section 12(1) of the Act to submit a report in writing
if, after investigation of any grievance, he is satisfied
that the complainant has suffered some injustice or
undue hardship. In his report to the Competent
Authority, as defined in Section 2(4) of the Act, the
Upa-lokayukta shall recommend that the injustice or
hardship be remedied or redressed in a particular
manner and within a specified time frame. Sub-
section (2) of Section 12 of the Act requires the
Competent Authority to submit an ‘action taken
report’ to the Upa-lokayukta within one month on the
report given by him. Sub-section (3) and sub-section
(4) of Section 12 of the Act are similar to sub-section
(1) and (2) thereof except that they deal with an
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 88 of 134
Page 89 ‘action taken report’ in respect of an investigation
resulting in the substantiation of an allegation. In
such a case, the Competent Authority is obliged to
furnish an ‘action taken report’ within three months
of receipt of the report of the Upa-lokayukta. Sub-
section (5) and sub-section (7) of Section 12 of the
Act provide that in the event the Upa-lokayukta is not
satisfied with the action taken report, he may make a
special report upon the case to the Governor of the
State who shall cause a copy thereof to be laid before
each House of the State Legislature together with an
explanatory memorandum.
23.In short, Section 12 of the Act confers a decision-
making obligation on the Upa-lokayukta in respect of
grievances and complaints received by him.
24.Section 13 of the Act requires a public servant to
vacate his office if so directed by the Upa-lokayukta if
a declaration is made to that effect in a report under
Section 12(3) of the Act. Even though the declaration
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 89 of 134
Page 90 may not be accepted, it does not whittle down the
authority of the Upa-lokayukta.
25.Section 14 of the Act enables the Upa-lokayukta to
prosecute a public servant and if such an action is
taken, sanction to prosecute the public servant shall
be deemed to have been granted by the appropriate
authority.
26.The conditions of service of the staff of the Upa-
lokayukta are referred to in Section 15 of the Act.
They may be prescribed in consultation with the
Lokayukta in such a manner that the staff may act
without fear in the discharge of their functions.
Section 15 of the Act also enables the Upa-lokayukta
to utilize the services of any officer or investigating
agency of the State or even of the Central
Government, though with the prior concurrence of
the Central Government or the State Government.
Section 15(4) of the Act makes it clear that the
officers and other employees of the Upa-lokayukta
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 90 of 134
Page 91 are under the administrative and disciplinary control
of the Lokayukta.
27.The broad spectrum of functions, powers, duties and
responsibilities of the Upa-lokayukta, as statutorily
prescribed, clearly bring out that not only does he
perform quasi-judicial functions, as contrasted with
purely administrative or executive functions, but that
the Upa-lokayukta is more than an investigator or an
enquiry officer. At the same time, notwithstanding his
status, he is not placed on the pedestal of a judicial
authority rendering a binding decision. He is placed
somewhere in between an investigator and a judicial
authority, having the elements of both. For want of a
better expression, the office of an Upa-lokayukta can
only be described as a sui generis quasi-judicial
authority.
(iii) Decisions on the subject:
28.Learned counsel for the State referred to The
Bharat Bank Ltd., Delhi v. Employees of the
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 91 of 134
Page 92 Bharat Bank Ltd., Delhi, [1950] SCR 459 to
highlight the difference between a court and a
tribunal. It is not necessary to go into this issue
because the question is not whether the Upa-
lokayukta is a court or a tribunal – the question is
whether he is a quasi-judicial authority or an
administrative authority. To this extent, the decision
of the Constitution Bench does not add to an
understanding of the issue under consideration.
29.However, the decision does indicate that an Upa-
lokayukta is certainly not a court. He does not
adjudicate a lis nor does he render a “judicial
decision” derived from the judicial powers of the
State. An Upa-lokayukta is also not a tribunal,
although he may have the procedural trappings (as it
were) of a tribunal. The final decision rendered by the
Upa-lokayukta, called a report, may not bear the
stamp of a judicial decision, as would that of a court
or, to a lesser extent, a tribunal, but in formulating
the report, he is required to consider the point of
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 92 of 134
Page 93 view of the person complained against and ensure
that the investigation reaches its logical conclusion,
one way or the other, without any interference and
without any fear. Notwithstanding this, the report of
the Upa-lokayukta does not determine the rights of
the complainant or the person complained against.
Consequently, the Upa-lokayukta is neither a court
nor a tribunal. Therefore, in my opinion, the Upa-
lokayukta can best be described as a sui generis
quasi-judicial authority.
30.Reference by learned counsel for the State to Durga
Shankar Mehta v. Thakur Raghuraj Singh and
Others, [1955] 1 SCR 267 also does not take us
much further in determining whether an Upa-
lokayukta is a quasi-judicial authority or not. That
case concerned, inter alia, the competency of an
appeal on special leave under Article 136 of the
Constitution from a decision of the Election Tribunal.
In that case, it was clearly laid down that courts and
tribunals are “constituted by the State and are
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 93 of 134
Page 94 invested with judicial as distinguished from purely
administrative or executive functions”.
31.However, the issue is more specifically dealt with in
Associated Cement Companies v. P.N. Sharma,
1965 (2) SCR 366. In that case, Kania, C.J. held:
“It seems to me that the true position is that when
the law under which the authority is making a
decision, itself requires a judicial approach, the
decision will be quasi-judicial. Prescribed forms of
procedure are not necessary to make an inquiry
judicial, provided in coming to the decision the well-
recognised principles of approach are required to be
followed.”
32.Similarly, Das, J held, after reviewing a large number
of cases where there were two disputing parties and
an authority to adjudicate their dispute and where
there were no two disputing parties but there was an
authority to sit in judgment. I am presently
concerned with the second line of cases. The learned
Judge held:
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 94 of 134
Page 95 “What are the principles to be deduced from the two
lines of cases I have referred to? The principles, as I
apprehend them, are: (i) that if a statute empowers
an authority, not being a Court in the ordinary sense,
to decide disputes arising out of a claim made by one
party under the statute which claim is opposed by
another party and to determine the respective rights
of the contesting parties who are opposed to each
other, there is a lis and prima facie and in the
absence of anything in the statute to the contrary it
is the duty of the authority to act judicially and the
decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any
act which will prejudicially affect the subject, then,
although there are not two parties apart from the
authority and the contest is between the authority
proposing to do the act and the subject opposing it,
the final determination of the authority will yet be a
quasi-judicial act provided the authority is required
by the statute to act judicially.”
33.As mentioned above, an Upa-lokayukta does function
as an adjudicating authority but the Act places him
short of a judicial authority. He is much more
“judicial” than an investigator or an inquisitorial
authority largely exercising administrative or
executive functions and powers. Under the
circumstances, taking an overall view of the
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 95 of 134
Page 96 provisions of the Act and the law laid down, my
conclusion is that the Upa-lokayukta is a quasi-
judicial authority or in any event an authority
exercising functions, powers, duties and
responsibilities conferred by the Act as a sui generis
quasi-judicial authority.
34.However, this is really of not much consequence in
view of my conclusion on the issue of primacy of the
opinion of the Chief Justice.
Initiating the process of appointment of an Upa-
lokayukta:
35.Having held that the Upa-lokayukta is a sui generis
quasi-judicial authority, the question for
consideration is who should initiate the process for
the appointment of an Upa-lokayukta. The
significance of this is that it is tied up with the
primacy of the views of the Chief Justice of the High
Court. That in turn is tied up with not only
maintaining the independence of the office but also
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 96 of 134
Page 97 of the Upa-lokayukta not being dependent on the
Executive for the appointment.
(i) View of the High Court:
36.The High Court was of the opinion that to maintain
the independence of the office of the Lokayukta and
the Upa-lokayukta under the Act, the
recommendation for appointment to these offices
must emanate only from the Chief Justice and only
the name recommended by him should be
considered. The High Court opined:
“[T]he name of the Lokayukta and Upa-Lokayukta to
be appointed has to necessarily emanate from a
person who is not within their jurisdiction. The only
person who is outside the ambit of Lokayukta is the
Chief Justice and all other Constitutional authorities
mentioned in the provision come within his
jurisdiction. They will not have the right to suggest
the name. Only the Chief Justice would have the right
to suggest the name which, of course the other
Constitutional authorities can consider. Though all of
them are constitutional authorities, all of them
cannot be placed on the same pedestal. The Chief
Justice is the head of the Judiciary in the State, and
he cannot be compared with others. That is why the
legislature has consciously enacted the provision in
such a manner that the first person to be consulted is
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 97 of 134
Page 98 the Chief Justice. The intention of the legislature is
clear. The name has to emanate from the Chief
Justice alone. Therefore, the law laid down by the
Constitution Bench of the Apex Court squarely
applies to the appointment of Lokayukta and Upa-
Lokayukta. Therefore, we have no hesitation in
holding that under Section 3 of the Act, it is only the
Chief Justice who shall suggest the name of the Judge
for being appointed as Lokayukta or Upa-Lokayukta.
Other constitutional functionaries have no such right
to suggest the name. It is only "one" name and not
panel of names as there is no indication to that effect
in the provision.”
(ii) Submissions and decisions on the subject:
37.Learned counsel first made a reference to Sarwan
Singh Lamba v. Union of India, (1995) 4 SCC
546 in which the Chief Minister of the State initiated
the process for the appointment of the Vice-
Chairman and members of the State Administrative
Tribunal. It was contended that their appointments
were, inter alia, contrary to the procedure laid down
in the decision of this Court in S.P. Sampath Kumar
v. Union of India, (1987) 1 SCC 124 . The
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 98 of 134
Page 99 Constitution Bench noted that the State Government
had initiated the process of appointment and that the
Chief Minister of the State had mooted the name of
one of the candidates selected by a Selection
Committee headed by the Chief Justice of the High
Court. However, since the appointees were duly
qualified and eligible to hold the post to which they
were appointed; there was no allegation regarding
their suitability or otherwise; and the appointments
having been made after consultation with the then
Chief Justice of India, this Court concluded that no
law was violated in the appointment process.
Accordingly, the Constitution Bench declined to
interfere with their appointments. The issue whether
the appointment process could or could not have
been initiated by the Executive was not specifically
discussed.
38.Ashish Handa v. Hon’ble the Chief Justice of
High Court of Punjab & Haryana and Others,
(1996) 3 SCC 145 related to the appointment of the
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 99 of 134
Page 100 President of the State Consumer Disputes Redressal
Commission, being a person who is or has been a
judge of the High Court. This Court held that for the
purposes of initiating the proposal for appointment of
the President of the State Commission, the Executive
is expected to approach the Chief Justice of the High
Court for suggesting a candidate for appointment. In
other words, the Chief Justice should initiate the
appointment process. Sarwan Singh Lamba was
distinguished by observing that “[I]n the facts of that
case, substantial compliance of the requirement of
approval by the Chief Justice of India was found
proved and, therefore, the appointments were valid.”
39.The appointment of the President of the State
Commission again came up for deliberation in Ashok
Tanwar and Another v. State of Himachal
Pradesh and Others, (2005) 2 SCC 104 . However,
in that case, the Constitution Bench did not comment
on the view expressed in Ashish Handa that the
Chief Justice of the High Court must initiate the
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 100 of 134
Page 101 process for appointment of the President of the State
Commission and not the Executive of the State. The
law laid down in Ashish Handa to this extent
remained unchanged. However, Ashish Handa was
overruled on the modality of the consultation
process, which I will consider in another section of
this judgment. That Ashish Handa was overruled on
the modality of the consultation process for the
appointment of the President of the State
Commission under Section 16 of the Consumer
Protection Act was confirmed in State of Haryana
v. National Consumer Awareness Group, (2005)
5 SCC 284.
40.In N. Kannadasan v. Ajoy Khose and Others,
(2009) 7 SCC 1 the appointment of the President of
the State Commission under Section 16 of the
Consumer Protection Act once again came up for
consideration. After referring to Ashish Handa ,
Ashok Tanwar and National Consumer
Awareness Group it was held in paragraph 153 of
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 101 of 134
Page 102 the Report that the process of selection must be
initiated by the High Court. It was observed that the
Chief Justice should recommend only one name and
not a panel, for if the choice of selection from a panel
is left to the Executive, it would erode the
independence of the Judiciary.
41.One significant fact may be noticed from a reading of
the cases cited above, namely, that for the
appointment of the Vice Chairman or Member of the
State Administrative Tribunal or the President of the
State Consumer Disputes Redressal Commission,
only the Chief Justice of India or the Chief Justice of
the High Court is required to be consulted, and not
several persons. It is this context that it was held that
the Chief Justice of the High Court must initiate the
process of appointment. Sarwan Singh Lamba is
perhaps the only exception to this rule and was,
therefore, confined to its own facts. A situation where
more than one person is required to be consulted
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 102 of 134
Page 103 was not dealt with in any of the decisions referred to
above. That question arises in this case.
42.A reading of the cited decisions also suggests that
the Chief Justice must recommend only one name
and not a panel of names. The purpose of this is to
ensure the independence of the persons appointed
and to obviate any possibility of executive influence.
The acceptance or non-acceptance of the candidate
recommended by the Chief Justice is a different
matter concerning the consultation process.
43.What are the mechanics of initiating the process of
appointment? Is the Chief Justice expected to inform
the State Government that a statutory judicial
position is lying vacant and that someone is being
recommended to fill up that position? Or does it
imply that the State Government should bring it to
the notice of the Chief Justice that there is a statutory
judicial position lying vacant and that it needs to be
filled up and to then request the Chief Justice to
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 103 of 134
Page 104 make a recommendation? No clear answer is
available from the cited cases, but it does appear
that the responsibility is of the Executive to inform
the Chief Justice of the existence of a vacancy and to
request him to recommend a suitable person for
filling it up. However, this would not preclude the
Chief Justice from initiating the appointment process,
particularly in the event of the failure of the
Executive to take necessary steps.
44.What would happen if the Executive, while initiating
the process of appointment were to recommend the
name of a person? Would it vitiate the process or
would the process be only irregular? Again, no clear-
cut answer is available. Sarwan Singh Lamba
seems to suggest that the procedure would not be
vitiated but would, at best, only be irregular. But,
Ashok Tanwar seems to suggest, sub silentio, that
the appointment procedure would be vitiated.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 104 of 134
Page 105 45.Would these principles laid down by this Court apply
to initiating the process of appointment of the Upa-
lokayukta under the Act? I think not. In the
appointment of the Upa-lokayukta, the Chief Minister
must consult not only the Chief Justice but several
other constitutional authorities also and given the
fact that the Upa-Lokayukta is not a purely judicial
authority, it hardly matters who initiates the process
of appointment of the Upa-Lokayukta. Ordinarily, it
must be the Chief Minister since he has to tender
advice to the Governor and, in a sense, the
appointment is his primary responsibility. But this
does not preclude any of the other constitutional
authorities who are required to be consulted from
bringing it to the notice of the Chief Minister that the
post of the Upa-Lokayukta needs to be filled up and
that the appointment process ought to commence –
nothing more than that. None of them ought to
suggest a name since constitutional courtesy would
demand that only the Chief Minister should initiate
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 105 of 134
Page 106 the appointment process. There is no reason to hold
that merely because the Upa-Lokayukta is a sui
generis quasi-judicial authority, only the Chief Justice
must initiate the process of appointment. It must not
be forgotten that the selection of the Upa-lokayukta
is a consultative process involving several
constitutional authorities and in the context of the
Act, no constitutional authority is subordinate to the
other.
46.In the present case, the process of appointment of
the Upa-lokayukta commenced with a letter written
by the Chief Minister to the Chief Justice of the
Karnataka High Court on 18
th
October 2011 for
suggesting “a panel of eligible persons for
appointment as Karnataka Upa Lokayukta on or
before 24
th
October, 2011 so as to fill up the post of
Upa Lokayukta”. I cannot fault the Chief Minister for
this. He did not initiate the appointment process as
understood in the decisions referred to above by
recommending any candidate for appointment – he
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 106 of 134
Page 107 merely invited recommendations. He also did not err
in law in inviting a panel of names since the
consultation process involved more than one person.
It was for the persons concerned to recommend a
panel of names or make one recommendation or
make no recommendation at all. As far as the Chief
Justice was concerned, in keeping with the general
view expressed by this Court in Kannadasan it was
proper and appropriate for him to have
recommended only one name to the Chief Minister
and, as required by propriety, he correctly did so by
recommending only one person for appointment as
the Upa-lokayukta.
47.I am, therefore, not in agreement with the High Court
that the recommendation for appointing the Upa-
lokayukta under the Act must emanate only from the
Chief Justice and only the name recommended by
him should be considered. To this extent, the
decision of the High Court is set aside. It is made
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 107 of 134
Page 108 clear that this view does not apply to judicial
appointments.
Consultation in the appointment of an Upa-
lokayukta:
48.What does ‘consultation’ occurring in Section 3(2)(b)
of the Act postulate? Learned counsel for the State,
as well as learned counsel for Justice
Chandrashekaraiah and the writ petitioner in the
High Court firstly referred to the above decisions of
this Court to explain the meaning of ‘consultation’ in
the context of the appointment process and secondly
in the context of the issue whether the view of the
Chief Justice of the Karnataka High Court would have
primacy in the process of consultation.
(i) View of the High Court:
49.The High Court gave a realistic meaning to
‘consultation’ generally and, in my opinion,
specifically to the meaning of the word as occurring
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 108 of 134
Page 109 in Section 3(2)(b) of the Act. This is what the High
Court had to say:
“The word 'consult' implies a conference of two or
more persons or impact of two or more minds in
respect of a topic/subject. A person consults
another to be elucidated on the subject matter of
the consultation. Consultation is a process which
requires meeting of minds between the parties
involved in the process of consultation on the
material facts and points involved to evolve a
correct or atleast satisfactory solutions. There
should be meeting of minds between the proposer
and the persons to be consulted on the subject of
consultation. A consultation may be between an
uninformed person and an expert or between two
experts. In either case, the final decision is with the
consultor, but he will not be generally ignoring the
advice except for good reasons. The consultation is
not complete or effective before the parties thereto
making their respective points of view known to the
other or others and discuss and examine the
relative merits of their views. In order for two minds
to be able to confer and produce a mutual impact,
it is essential that each must have for its
consideration fully and identical facts, which can at
once constitute both the source and foundation of
the final decision. Such a consultation may take
place at a conference table or through
correspondence. The form is not material but the
substance is important. If there are more than one
person to be consulted, all the persons to be
consulted should know the subject with reference to
which they are consulted. Each one should know
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 109 of 134
Page 110 the views of the other on the subject. There should
be meeting of minds between the parties involved
in the process of consultation on the material facts
and points involved. The consultor cannot keep one
consultee in dark about the views of the other
consultee. When consultation is prescribed with
more than one person, there cannot be bilateral
consultations or parallel consultations, behind the
back of others, who are to be consulted in the
process. Consultation is not complete or effective
before the parties thereto make their respective
points of view known to the other and discuss and
examine the relative merit of their views. They may
discuss, but may disagree. They may confer but
may not concur. However, consultation is different
from consentaneity.”
(ii) Consultation in the appointment process:
50.Sarwan Singh Lamba did not deal with the issue of
consultation, but Ashish Handa , Ashok Tanwar
and Kannadasan did. That being so, reference may
be made to the relevant portion of Section 16(1) of
the Consumer Protection Act which relates to the
President of the State Commission. This extract reads
as follows:-
“16.Composition of the State Commission. — (1)
Each State Commission shall consist of—
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Page 111 (a) a person who is or has been a Judge of a
High Court, appointed by the State Government,
who shall be its President:
Provided that no appointment under this clause
shall be made except after consultation with the
Chief Justice of the High Court;
(b) xxx”
51.It was observed in Ashish Handa that the function
of the State Commission is primarily to adjudicate
consumer disputes and therefore a person from the
judicial branch is considered suitable for the office of the
President of the State Commission under Section 16 of the
Consumer Protection Act. Given this context, prior
consultation with the Chief Justice of the High Court is
obvious since the Chief Justice is the most appropriate
person to know the suitability of the person to be
appointed as the President of the State Commission.
Further elaborating on this, it was held that the procedure
of consultation should be the same as laid down in Article
217 of the Constitution as interpreted in Supreme Court
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 111 of 134
Page 112 Advocates on Record Association v. Union of India,
AIR 1994 SC 268.
52.In Ashok Tanwar the Constitution Bench considered
the dictum laid down in Ashish Handa and categorically
distinguished the process of the appointment of a judge of
a superior court under Article 217 of the Constitution from
that of the President of the State Commission. It was
observed in paragraph 16 of the Report as follows:-
“The process of consultation envisaged under Section
16 of the Act can neither be equated to the
constitutional requirement of consultation under
Article 217 of the Constitution in relation to
appointment of a Judge of a High Court nor can it be
placed on the same pedestal. Consultation by the
Chief Justice of the High Court with two senior most
Judges in selecting a suitable candidate for
appointment as a Judge is for the purpose of selecting
the best person to the high office of a Judge of the
High Court as a constitutional functionary.
Consultation with the Chief Justice of the High Court
in terms of Section 16 of the Act is a statutory
requirement.”
53.Further, while referring to Aruna Roy v. Union of
India, (2002) 7 SCC 368 it was observed that:
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Page 113 “… the words and expressions used in the
Constitution, …. have no fixed meaning and must
receive interpretation based on the experience of the
people in the course of working of the Constitution.
The same thing cannot be said in relation to
interpreting the words and expressions in a statute.”
54.This Court categorically rejected the view that
‘consultation’ postulated in Article 217 of the Constitution
in relation to the appointment of a High Court judge be
read in the same way as ‘consultation’ as contemplated
under Section 16 of the Consumer Protection Act.
55.In Kannadasan it was noted that the collegium of
judges of the Supreme Court had found N. Kannadasan
unfit to continue as a judge of the High Court. In this
context, it was observed that the expression “retired
judge” would mean a person who has retired without
blemish and not merely a person who has been a judge
and, therefore, attention was drawn to the conclusion of
Fazal Ali, J in S.P. Gupta v. Union of India, 1981 Supp
SCC 87 (after referring to Union of India v.
Sankalchand Himmatlal Seth, (1977) 4 SCC 193 ) that
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Page 114 both the “consultor” and the “consultee” must have
before them full and identical facts.
56.It follows from the decisions placed before us that
there is a clear distinction between ‘consultation’ in the
appointment of a judge of a superior court and
‘consultation’ in the appointment to a statutory judicial
position. For the former, the Chief Justice must consult the
collegium of judges, while it is not necessary for the latter.
In both cases, consultation is mandatory.
57.The further question that arises is whether the law
laid down in these decisions would be applicable to the
appointment of an Upa-Lokayukta who is not a judicial or a
constitutional authority but is a sui generis quasi-judicial
authority? In my opinion, the answer to this question
must be in the affirmative.
58.At this stage, it is necessary to mention that on a
plain reading of Section 3(2)(b) of the Act, there can be no
doubt that consultation with all the constitutional
authorities, including the Chief Justice of the Karnataka
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Page 115 High Court, is mandatory. There was no dispute on this –
the controversy was limited to the meaning of
‘consultation’. I have already held that an Upa-lokayukta is
not a judicial authority, let alone a constitutional authority
like a judge of a High Court. Therefore, on reading of the
above decisions, it is clear that the mandatory
consultation in the appointment process as postulated by
Section 3(2)(b) of the Act is with the Chief Justice in his
individual capacity and not consultation in a collegial
capacity.
(iii) The process of consultation:
59.How is this ‘consultation’ to take place? There are
absolutely no ‘consultation’ guidelines laid down in the
Act. But the High Court seems to endorse the view that
consultation ought take place across a table or through
correspondence. It was also suggested by learned counsel
for the State that it would be more appropriate that all
constitutional authorities have a meeting where the
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Page 116 suitability of the person recommended for appointment
may be discussed.
60.I do not think it necessary to circumscribe the
manner of consultation. The Chief Minister may consult
the other constitutional authorities collectively or in
groups or even individually – this hardly matters as long as
there is meaningful and effective consultation. Similarly, I
do not think it necessary to restrict the mode of
consultation. It may be in a meeting or through
correspondence. Today, with available technology,
consultation may even be through a video link. The form
of consultation or the venue of consultation is not
important - what is important is the substance of the
consultation. The matter has to be looked at pragmatically
and not semantically. It is important, as held by the High
Court, that no constitutional authority is kept in the dark
about the name of any candidate under consideration and
each constitutional authority mentioned in Section 3(2)(b)
of the Act must know the recommendation made by one
another for appointment as an Upa-Lokayukta. In addition,
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Page 117 they must have before them (as Fazal Ali, J concluded in
S.P. Gupta) full and identical facts. As long as these basic
requirements are met, ‘consultation’ could be said to have
taken place.
(iv) Consultation in this case:
61.Was there ‘consultation’ (as I have understood it)
between the various constitutional authorities before the
Chief Minister recommended the name of Justice
Chandrashekharaiah? I think not. In response to the
letter of the Chief Minister, the Chief Justice
recommended the name of Justice Rangavittalachar; the
Speaker of the Legislative Assembly recommended
Justice Chandrashekharaiah; the Chairman of the
Legislative Council recommended Justice
Chandrashekharaiah; the Leader of the Opposition in the
Legislative Assembly recommended Justice Mohammed
Anwar and Justice Ramanna; the Leader of the
Opposition in the Legislative Council recommended
Justice Mohammed Anwar and Justice Ramanna.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 118 Therefore, as many as four retired judges were
recommended for appointment as Upa-lokayukta. It is
not clear whether the names of all these judges were
disclosed to all the constitutional authorities. The name
of Justice Chandrashekharaiah was certainly not
disclosed to the Chief Justice, as is evident from his letter
dated 4
th
February 2012 wherein he stated four times
that he was not consulted on the appointment of Justice
Chandrashekharaiah. This is what he stated:
“I was not consulted on the said name (Shri Justice
Chandrashekaraiah) for the position of Karnataka
Upa Lokayukta.
… … …
“I had not recommended the name of Shri. Justice
Chandrashekaraiah for consideration for
appointment as Karnataka Upa Lokayukta.
Thereafter, I have not heard anything from you. I
emphasise that the appointment of Shri. Justice
Chandrashekaraiah has been made without
consultation with the Chief Justice. Therefore, it is in
violation of mandatory requirements of law.
… … …
“To put the matter plainly, there is no gainsaying
the fact that there never ever was any consultation
on the name of Shri Justice Chandrashekaraiah for
appointment to the position of Upa Lokayukta
between you and myself.
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Page 119 … … …
“I reiterate that in this particular case, not even the
name was shared by you (the Chief Minister) with
me (the Chief Justice), leave alone eliciting my
views on the suitability of the person for holding the
post of Upa Lokayukta.”
62.The contents of this letter are not denied by the State
and are quite obviously admitted. Significantly, the Chief
Minister did not reply to this letter. Clearly, the Chief
Justice was kept in the dark about the name of a candidate
and there was no full and complete disclosure of facts.
Ergo, the Chief Minister did not recommend the name of
Justice Chandrashekharaiah in consultation with the Chief
Justice. This was contrary to the mandatory requirement of
Section 3(2)(b) of the Act and so, it must be held that the
appointment of Justice Chandrashekharaiah was void ab
initio.
63.In this context, reference was made to Indian
Administrative Service (S.C.S.) Association U.P. and
Others v. Union of India and Others, 1993 Supp. (1)
SCC 730 to contend that since the views of the
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Page 120 constitutional authorities are not binding on the Chief
Minister, the process of consultation is not mandatory. In
that case, this Court was considering Section 3(1) of the
All India Service Act, 1951 which reads as follows:
“Regulation of recruitment and conditions of
services.- (1) The Central Govt. may, after
consultation with the Governments of the States
concerned (including the State of Jammu and
Kashmir), (and by notification in the Official
Gazette) make rules for the regulation of
recruitment, and the conditions of service of
persons appointed to an All India Service.”
64.The fifth conclusion mentioned in IAS Association
was relied on in support of this contention. This conclusion
reads as follows:
“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
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Page 121 or has/have authority to pass appropriate orders or
take decision thereon. In such circumstances it
amounts to an action 'after consultation'.”
65.This conclusion must not be read in isolation but
along with the other conclusions arrived at in IAS
Association. This Court referred to ‘prior consultation’ in
the context of the “subject of consultation” as mentioned
in the first conclusion. This ‘prior consultation’ is not
always mandatory. Then there is ‘consultation’ as a part of
“fair procedure” as mentioned in the second conclusion.
This is mandatory. Finally, there is the conclusion arrived
at which is ‘after consultation’. In some cases the
‘consultor’ may be bound to accept the conclusion arrived
at and in some cases he may not. That is a matter of
interpretation of the statute and the purpose of the
consultation process. But to say that since the ‘consultor’
is not bound by the conclusion arrived at, he need not go
through the consultation process would be stretching the
law laid down in IAS Association to the vanishing point.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 121 of 134
Page 122 66.This Court held in IAS Association, with reference to
the above provision, that ‘prior consultation’ was not
mandatory as long as the relevant rules were made ‘after
consultation’. The present case is not concerned with the
issue of ‘prior consultation’. All that is of concern in the
present case is whether the Chief Minister acted in
consultation with the constitutional authorities referred to
Section 3(3)(b) of the Act and the answer to this is in the
negative.
67.‘Consultation’ for the purposes of Section 3(2)(b) of
the Act does not and cannot postulate concurrence or
consent. This is quite obvious given the large number of
constitutional authorities involved in the consultation
process. There is always a possibility of an absence of
agreement on any one single person being recommended
for appointment as an Upa-lokayukta, as has actually
happened in the present case. In such a situation, it is
ultimately the decision of the Chief Minister what advice to
tender to the Governor, since he alone has to take the
final call.
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 123 68.Can the Chief Minister advice the Governor to appoint
a person not recommended by any of the constitutional
authorities? I see no reason why he cannot, as long as he
consults them – the ‘consultation’ being in the manner
postulated above. The Chief Minister can recommend a
completely different person, other than any of those
recommended by any of the constitutional authorities as
long as he does not keep them in the dark about the name
of the candidate and there is a full and complete
disclosure of all relevant facts. In M.M. Gupta v. State
of Jammu & Kashmir, (1982) 3 SCC 412 this Court
explained ‘consultation’ in the matter of judicial
appointments in the following words (which apply equally
to the present case):
“It is well settled that consultation or deliberation is
not complete or effective before the parties thereto
make their respective points of view known to the
other or others and discuss and examine the relative
merits of their views. If one party makes a proposal
to the other who has a counter proposal in his minds
which is not communicated to the proposer, the
direction to give effect to the counter proposal
without anything more, cannot be said to have been
done after consultation.”
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 124 69.On the facts of this case, I hold that there was no
consultation between the Chief Minister and the Chief
Justice on the appointment of Justice Chandrashekharaiah
as an Upa-lokayukta. His appointment was, therefore, void
ab initio.
(v) Primacy of the view of the Chief Justice:
70.The High Court was of the opinion that primacy is
required to be given to the view of the Chief Justice of the
Karnataka High Court in the matter of the appointment of
the Upa-lokayukta. In fact, it was said that since the Chief
Justice is the best person to know the suitability or
otherwise of a retired judge of a High Court. It was also
said that, “Requesting the Chief Justice to suggest a name
and on receipt of the same, ignoring the said name and
tendering advice to the Governor to appoint somebody
else, would make the consultation a farce.”
71.In Ashok Tanwar the Constitution Bench did make a
reference to the primacy of the Chief Justice of India in the
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Page 125 context of the appointment of a judge of the superior
court and noted that the Chief Justice is best equipped to
know and assess the work of the candidate and his
suitability for appointment. However, the Constitution
Bench did not express any opinion on the question of
primacy of the opinion of the Chief Justice in regard to the
appointment of the President of the State Commission
under Section 16 of the Consumer Protection Act, although
I think it would naturally follow.
72.In any event, in Kannadasan it was held that for the
appointment of the President of the State Commission, the
view of the Chief Justice was final and for all intents and
purposes decisive, and except for very cogent reasons, his
recommendation must be accepted. It was held in
paragraph 156 of the Report that:
“For the appointment as President of the State
Commission, the Chief Justice of the High Court shall
have the primacy and thus the term “consultation”
even for the said purpose shall mean “concurrence”
only.”
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 126 73.As noted above, the Chief Justice of India or the Chief
Justice of the High Court is the only constitutional
authority required to be consulted in the appointment of a
Vice Chairman or Member of the State Administrative
Tribunal or the President of the State Consumer Disputes
Redressal Commission. In that context, it is quite
understandable that the recommendation of the Chief
Justice must be accepted, unless there are strong and
cogent reasons for not doing so. The reasons would,
naturally, have to be disclosed to the Chief Justice as a
part of the process of consultation. It is also quite
understandable that the Chief Justice would be the best
person to assess the suitability of a person for
appointment to such a position. But, the situation is rather
different in the appointment of an Upa-lokayukta where
the constitutional authorities to be consulted include not
only the Chief Justice of the Karnataka High Court but
several other constitutional authorities as mentioned in
Section 3(2)(b) of the Act. Can their views be subordinated
to the views of the Chief Justice, and if so, why?
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 127 74.In this regard, reliance was placed on Justice K.P.
Mohapatra v. Sri Ram Chandra Nayak, (2002) 8 SCC
1. In that case, the provisions of Section 3 of the Orissa
Lokpal and Lokayuktas Act, 1999 were under
consideration. That Section reads as follows:
“3. Appointment of Lokpal and Lokyktas.- (1)
For the purpose of conducting investigations in
accordance with the provisions of this Act, the
Governor shall appoint a person to be known as the
Lokpal and one or more persons to be known as the
Lokayukta or Lokayuktas:
Provided that--
(a) the Lokpal shall be appointed after consultation
with the Chief Justice of the High Court of Orissa
and the Leader of the Opposition, if there is any;
(b) the Lokayukta or Lokayuktas shall be appointed
after consultation with the Lokpal.
(2) A person shall not be qualified for appointment
as—
(a) (sic) unless he is or has been a Judge of the
Supreme Court or of a High Court;
(b) A Lokayukta unless he is qualified to be a Judge
of a High Court.”
75.This Court took the view that primacy is to be
accorded to the opinion of the Chief Justice in the matter
of appointment of the Lokpal since his opinion would be
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 128 totally independent and he would be in a position to find
out who is the most or more suitable for that office. It was
also held that consultation with him is a sine qua non, and
if there is a Leader of the Opposition then he “is also
required to be consulted”. But if there is no Leader of the
Opposition, obviously consultation with him is not
possible. This Court then said, “This would indicate nature
of such consultation and which is to apprise him [the
Leader of the Opposition] of the proposed action but his
opinion is not binding to the Government.” With respect,
this does not follow. If the law requires consultation then it
must take place; whether the opinion expressed during
the consultation process is binding or not is a different
matter altogether. This Court went a bit further in Justice
Mohapatra and held that though the Leader of the
Opposition is entitled to express his views but he cannot
suggest any other name for consideration.
76.I am afraid, however uncomfortable one may feel
about it, Section 3 of the Orissa Lokpal and Lokayuktas
Act, 1999 as I read it, simply does not prohibit the Leader
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 129 of the Opposition from suggesting some other name for
consideration for appointment as a Lokpal. This restriction
is not warranted by the words of the statute and would,
even otherwise, give that Section far too restricted a
meaning. As concluded in IAS Association “The object of
the consultation is to render consultation meaningful to
serve the intended purpose.” Giving ‘consultation’ a
constricted meaning in Section 3 of the Orissa Lokpal and
Lokayuktas Act, 1999 would defeat this. It was observed in
Maharashtra State Financial Corporation v. Jaycee
Drugs and Pharmaceuticals, (1991) 2 SCC 637 :
“It is a settled rule of interpretation of statutes that if
the language and words used are plain and
unambiguous, full effect must be given to them as
they stand and in the garb of finding out the intention
of the Legislature no words should be added thereto
or subtracted therefrom.”
77.I would, therefore, confine the law laid down in
Justice Mohapatra to the facts of that case only. In any
event, the view expressed in Justice Mohapatra is not
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
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Page 130 helpful in interpreting Section 3(2)(b) of the Karnataka
Lokayukta Act, 1984 and I leave the matter at that.
78.As far as Section 3(2)(b) of the Act is concerned, the
primary ‘responsibility’ for the appointment of the Upa-
Lokayukta rests with the Chief Minister who has to advice
the Governor. Since the Chief Justice is only one of the
constitutional authorities required to be consulted by the
Chief Minister before advice is tendered to the Governor, it
cannot be said that only his view would prevail over the
views of other constitutional authorities. If that were so,
then (to rephrase the High Court) consultation with the
other constitutional authorities including the Chairman of
the Karnataka Legislative Council, the Speaker of the
Karnataka Legislative Council and the Leader of the
Opposition in the Karnataka Legislative Council and in the
Karnataka Legislative Assembly would be reduced to a
farce. It must be appreciated that these constitutional
authorities also have an equal say in the executive
governance of the State and there is nothing to suggest
that their opinion should be subordinated to the opinion of
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Page 131 the Chief Justice or that the Chief Justice can veto their
views. On the other hand, since it is ultimately the Chief
Minister who has to advice the Governor, it is he alone
who has to take the final call and shoulder the
responsibility of correctly advising the Governor in the
matter of appointing the most suitable person as an Upa-
lokayukta.
79.The mechanics of the working of a statute has to be
decoded from the contents of the statute and the words
used therein; otherwise there is a possibility of committing
a serious error. If, as a general principle, it is held (as has
been argued before us) that the view of the Chief Justice
must have primacy over the views of everybody else, how
would one explain the omission of the Chief Justice in the
consultation process in the Kerala Lokayukta Act, 1999?
Similarly, if as a general principle, it is held that the view
of the Chief Minister must have primacy over the views of
everybody else, how would one explain the omission of
the Chief Minister in the consultation process in the Orissa
Lokpal and Lokayuktas Act, 1995? It is for this reason that
SLP(C) Nos. 15658-15660 of 2012 Civil Appeal Nos.197-199 of 2013
Page 131 of 134
Page 132 I would hold that a statute must be considered and
understood on its own terms. In so construing the Act, I
see no reason to accord primacy to the views of the Chief
Justice in the appointment of an Upa-lokayukta under the
Karnataka Lokayukta Act, 1984. The judgment of the High
Court, to this extent, is set aside.
Other contentions:
80.It was submitted that the practice followed for the
appointment of the Upa-lokayukta in the present case is
the same or similar to the practice followed in the past
and, therefore, this Court should not interfere with the
appointment already made. If at all interference is called
for, the doctrine of ‘prospective overruling’ should be
applied.
81.I am not inclined to accept either contention. Merely
because a wrong has been committed several times in the
past does not mean that it should be allowed to persist,
otherwise it will never be corrected. The doctrine of
‘prospective overruling’ has no application since there is
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Page 133 no overwhelming reason to save the appointment of the
Upa-lokayukta from attack. As already held, in the
absence of any consultation with the Chief Justice, the
appointment of Justice Chandrashekharaiah as an Upa-
lokayukta is void ab initio. However, this will not affect any
other appointment already made since no such
appointment is under challenge before us.
82.It was also contended that the High Court ought not
to have laid down any procedure for the appointment of
the Upa-lokayukta. In the view that I have taken, it is not
necessary to comment on the procedure proposed by the
High Court.
Conclusion:
83.The appointment of Justice Chandrashekharaiah as
the Upa-lokayukta is held void ab initio. Since some of the
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Page 134 contentions urged by the appellants are accepted, the
appeals are partly allowed to that extent only.
….…….…………………….. J.
(Madan B. Lokur)
New Delhi,
January 11, 2013
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