Saturday, January 12, 2013


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CIVIL APPEAL NOS. 8814-8815  OF 2012
State of Gujarat & Anr.        … Appellants
Hon’ble Mr. Justice R.A. Mehta (Retd) & Ors.          … Respondents
S.L.P(C) Nos. 2625-2626 of 2012 & 2687-2688 of 2012
1. These appeals have been preferred against the judgments and
orders of the High Court of Gujarat at Ahmedabad in Special
Civil Application No. 12632 of 2011, dated 10.10.2011 and
18.1.2012.Page 2
2. The facts and circumstances giving rise to these appeals are as
A. The legislature of Gujarat enacted the Gujarat Lokayukta Act
1986 (hereinafter referred to as the, ‘Act, 1986’), which provided for
the appointment of a Lokayukta, who must be a retired Judge of the
High  Court.   The  said  statute,  was  given  effect  to,  and  various
Lokayuktas were appointed over time, by following the procedure
prescribed under the Act, 1986, for the said purpose, i.e., the Chief
Minister of Gujarat, upon consultation with the Chief Justice of the
Gujarat  High  Court,  and  the  Leader  of  Opposition  in  the  House,
would  make  a  recommendation  to  the  Governor,  on  the  basis  of
which, the Governor would then issue requisite letters of appointment.
B. The post of the Lokayukta became vacant on 24.11.2003, upon
the resignation of Justice S.M. Soni.  The Chief Minister, after the
expiry of about three years, wrote a letter dated 1.8.2006 to the Chief
Justice, suggesting the name of Justice K.R. Vyas for appointment to
the post of Lokayukta. The name of Justice K.R. Vyas was approved
by  the  Chief  Justice,  vide  letter  dated  7.8.2006,  and  the  Chief
Minister, after completing other required formalities, forwarded the
said name, to the Governor on 10.8.2006, seeking his approval, as
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regards  appointment. The file remained pending for a period of 3
years, and was returned on 10.9.2009, as Justice K.R. Vyas had been
appointed  as  Chairman  of  the  Maharashtra  State  Human  Rights
Commission, on 21.8.2007.
C. On 29.12.2009, Private Secretary, to the Governor of Gujarat,
addressed  a  letter  to  the  Registrar  General  of  the  High  Court  of
Gujarat, requesting that a panel of names be suggested by the Chief
Justice, so that the same could be considered by the Governor, with
respect to their possible appointment, to the post of  Lokayukta.
D. The Chief Minister, also wrote a letter dated 8.2.2010, to the
Chief Justice, requesting him to send a panel of names of three retired
Judges for the purpose of consideration of one of them to be finally
appointed  as  Lokayukta.  The  Chief  Justice,  vide  letter  dated
24.2.2010, suggested the names of four retired Judges, taking care to
stipulate  that  the  said  names  were  not  arranged  in  any  order  of
preference,  and that any one of them,  could thus,  be chosen by the
E. The Chief Minister after receiving the aforementioned letter,
made an attempt to consult the Leader of Opposition, regarding the
said names by writing a letter dated 2.3.2010, who vide letter dated
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3.3.2010,  was  of  the  opinion  that  under  the  Act,  1986  the  Chief
Minister, had no right to embark upon any consultation, with respect
to  the  appointment  of  the  Lokayukta.  There  was  some  further
correspondence of a similar nature between them on this issue.
F. The Leader of Opposition, vide letter dated 4.3.2010, pointed
out to the Chief Minister, that the process of consultation regarding
the appointment of the Lokayukta, had already been initiated by the
Governor  directly, and thus, the Chief Minister should not attempt to
interfere with the same. The Leader of Opposition did not attend any
meeting held in this regard, and the Governor also did not think it
proper to indulge in any further consultation with the Chief Minister
with respect to the said issue.
G. In the meantime, as has been mentioned above, not only were
the meetings called by the Chief Minister, not attended by the Leader
of Opposition, but it also appears that simultaneously, the Council of
Ministers had already considered the names as recommended by the
Chief  Justice,  and  vide  letter  dated  24.2.2010,  had  proceeded  to
approve the name of Justice J.R. Vora (Retd.), for appointment to the
post of Lokayukta, and the file was sent to the Governor for approval
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and consequential appointment. However, no orders were passed by
the Governor.
H. The  Governor  instead  sought  the  opinion  of  the  Attorney
General of India, as regards the nature of the process of consultation,
required to be adopted in the matter of appointment of the Lokayukta.
The  Governor  also  addressed  a  letter  to  the  Chief  Justice  dated
23.4.2010, soliciting his opinion as to who would be a better choice
for  appointment  to  the  post  of  Lokayukta,  between  Justice  R.P.
Dholakia (Retd.), who was the President of the Gujarat Consumer
Disputes Redressal Commission and Justice J.R. Vora (Retd.), from
among the panel of names that had been sent by the Chief Justice,
vide letter dated 24.2.2010.
I. The Attorney General in his opinion dated 23.4.2010, stated
that the Chief Justice ought to have suggested only one name, and that
he could not have required to recommend a panel of names. The Chief
Justice  on  27.4.2010,  wrote  to  the  Governor  stating  that,  in  his
opinion, Justice R.P. Dholakia (Retd.) would be the more appropriate
choice. However, despite this, the Governor did not issue a letter of
appointment to anyone, and requested the Chief Justice vide letter
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dated  3.5.2010,  to  recommend  only  one  name,  as  opined  by  the
Attorney General, vide his letter dated 23.4.2010.
J. In response to the suggestion made by the Governor, the Chief
Justice wrote to the Governor on 29.12.2010, recommending the name
of  Justice  S.D.  Dave  (Retd.),  for  appointment  to  the  post  of
Lokayukta. The Chief Justice also wrote a letter to the Chief Minister
on 31.12.2010, recommending the name of Justice S.D. Dave, in place
of that of Justice J.R. Vora, as Justice J.R. Vora had already been
appointed elsewhere.
K. The Chief Minister wrote a letter dated 21.2.2011, to the Chief
Justice  by  way  of  which,  he  re-iterated   the  request  of  the  State
Government, to appoint Justice J.R. Vora as Lokayukta, owing to the
fact that the process of consultation was already complete and further
that, Justice J.R. Vora had expressed his willingness to accept his
appointment to the post of Lokayukta, if the same was offered to him,
and in this regard, the Chief Minister even wrote a second letter, dated
4.5.2011, to the Chief Justice, requesting him to reconsider the said
L. The Chief Justice, vide letter dated 7.6.2011, made a suggestion
to  the  Governor to the effect  that,  Justice  R.A.  Mehta  (Retd.)  be
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appointed as Lokayukta, and the said recommendation was also sent
by the Chief Justice, to the Chief Minister. The Governor, on the same
day, i.e. 7.6.2011, requested the Chief Minister to expedite the process
for the appointment of Justice R.A. Mehta, as Lokayukta.
M. The Chief Minister, vide letter dated 16.6.2011, requested the
Chief Justice to consider certain objections raised by him against the
appointment  of  Justice  R.A.  Mehta  as Lokayukta,  which  included
among other things, the fact that Justice R.A. Mehta was above 75
years of age, as also his association with NGOs and social activist
groups,  known  for  their  antagonism  against  the  State
Government;  and  further,  that  he  possessed a  specific  biased
disposition, against the Government. To support the apprehensions
raised by him, the Chief Minister annexed along with his letter, 11
clippings of newspaper.
N. The Chief  Justice,  vide  letter dated  2.8.2011,  replied to the
aforementioned letter of the Chief Minister, pointing  out that Justice
R.A.  Mehta  was  not  ineligible  for  appointment  to  the  post  of
Lokayukta  on  the  basis  of  any  of  the  points  raised  by  the  Chief
Minister, and that he was a man of great repute and high integrity.
Justice R.A. Mehta had never made any public statement detrimental
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to the society as a whole, nor had he ever shown any bias either with
respect to, or against any government, and finally, that he was not a
member of any NGO. Even otherwise, membership of a person of an
NGO, or his social activities, cannot be treated as a basis for his
disqualification, for being appointed to the post of  Lokayukta.
O. The Governor, vide letter dated 16.8.2011, requested the Chief
Minister  to  process  the  appointment  of  Justice  R.A.  Mehta  as
Lokayukta.  The  Leader  of  Opposition  also  wrote  a  letter  dated
16.8.2011, to the Chief Minister, informing him of the fact that he had
already been consulted by the Governor, as regards the said issue, and
that in connection with the same, he had agreed to the appointment of
Justice  R.A.  Mehta  as  Lokayukta.  At  this  juncture,  the  Governor
issued the requisite warrant from her office on 25.8.2011, appointing
Justice R.A. Mehta as Lokayukta.  
P. The Gujarat Lokayukta (Amendment) Bill, 2011 was passed by
the Legislative Assembly of the State of Gujarat on 30.3.2011, which
primarily  sought  to  widen  the  definition  of  the  term,  “public
functionaries”,  contained  in  Section  2(7)  of  the  Act,  1986,  by
including a large number of other functionaries, within its purview,
such as Mayors, Deputy Mayors of the Municipal Corporation, the
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President or the Vice-President of Municipalities, the Sarpanch and
Up-Sarpanch of Village Panchayats etc. The Governor returned the
said  Bill  for  reconsideration,  as  she  realised  that  the  Lokayukta,
however competent and efficient he may be, would be unable to look
into complaints of irregularities made against such a large number of
Q. The Governor also refused to issue an Ordinance to amend the
Act, 1986, wherein Section 3 was to be amended, which would have
changed the composition of the consultees as contemplated under the
Act, 1986, for the purpose of deciding upon the appointment of the
Lokayukta,  on  the  ground  that  there  was  no  grave  urgency  for
bringing in such an Ordinance, all of a sudden.
R. The State of Gujarat filed writ petition No. 12632 of 2011 dated
5.9.2011, in the High Court of Gujarat, challenging the appointment
of  Justice  R.A.  Mehta  to  the  post  of  Lokayukta.  The  matter  was
decided vide judgment and order dated 10.10.2011, wherein the two
Judges while hearing the case  differed in their views to a certain
extent. Accordingly, the matter was then referred to a third Judge,
who delivered his judgment dated 18.1.2012, dismissing the said writ
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Hence, these appeals.  
3. Mr. K.K. Venugopal, Mr. Soli Sorabjee, Dr. Rajeev Dhavan,
Mr. Mihir J. Thakore, and Mr. Yatin Oza, learned senior counsel
appearing for the appellants, have submitted that the Governor, being
a titular head of State, is bound to act only in accordance with the aid
and advice of the Council of Ministers, headed by the Chief Minister,
and that the actions of the Governor, indulging in correspondence
with, and issuing directions to other statutory authorities, are contrary
to the principles of Parliamentary democracy, and thus, the Governor
ought not to have corresponded with, and consulted the Chief Justice
of the High Court of Gujarat directly. It was also contended that, the
Chief Justice  ought to have  recommended, a  panel of names for
consideration  by the other consultees,  i.e., the Chief Minister and
Leader of Opposition, and that he could not recommend  only one
name, as the same would cause the entire process to fall within the
ambit of concurrence, rather than that of consultation. Furthermore,
consultation by the Governor with the Attorney General of India, who
is alien to the Act, 1986, runs contrary to the statutory provisions of
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the  said  Act.   The  Governor  is  not  acting  merely  as  a  statutory
authority, but as the Head of the State, and hence, the entire procedure
adopted  by  her  is  in  clear  contravention  of  the  actual  procedure,
contemplated  by  the  statute,  for  the  purpose  of  selection  of  the
Lokayukta. The Chief Justice ought to have taken into consideration,
the objections raised by the appellants, qua the recommendation made
by the Chief Justice with respect to the appointment of respondent no.
1.  The  third  Hon’ble  Judge  made  unwarranted  and  uncalled  for
remarks in carping language in connection with the Chief Minister
which tantamount to resounding strictures, and the same require to be
expunged.  Thus, the appeals deserve to be allowed and the majority
judgments (impugned), set aside.
4. Per  contra,  Mr.  R.F.  Nariman,  learned  Solicitor  General  of
India,  Mr.  P.P.Rao,  Dr.  A.M.  Singhvi,  and  Mr.  Huzefa  Ahmadi,
learned senior counsel appearing on behalf of the respondents, have
opposed the appeals, contending that the Governor had acted as a
statutory authority under the Act, 1986, and not as the head of the
State, and thus, she was not required to act in accordance with the aid
and advice of the Council of Ministers.  Furthermore, no fault can be
found with the procedure adopted by the Governor, as the objections
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raised by the Chief Minister were thoroughly considered by the Chief
Justice, and no substance was found therein.  The Chief Justice has
primacy of opinion in the matter of consultation, and therefore, the
sending of a panel of  names instead of just one name, does not
amount to a violation of the scheme of the Act.  A perusal of the
statute and the sequence of events herein, makes it crystal clear, that
the Governor acted in correct perspective, and that no fault can be
found with the selection of respondent no. 1 to the post of Lokayukta.
The  appellants  have  in  fact,  been  avoiding  the  appointment  of  a
Lokayukta for a period of more than nine years, for which there can
be no justification.  The harsh language used by the 3
 Judge was
warranted  because  of  the  defiant  attitude  adopted  by  the  Chief
Minister which was appalling, and thus, the remarks do not need to be
expunged.  The  appeals  hence,  lack  merit  and  are  liable  to  be
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
These  appeals  raise  legal  issues  of great  public  importance,
such as, what is the meaning of the term ‘consultation’ contained in
Section 3 of the Act, 1986, and also whether the opinion of the Chief
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Justice  has  primacy with  respect  to  the  appointment  of  the
The  twin  issues  of  consultation  vis-à-vis  concurrence  and
primacy,  have  been  debated  extensively  before  this  Court  and
answered by larger benches while interpreting Article 124(2) of the
Constitution in matters relating to appointment of Judges of Supreme
Court  and  High  Court.  The  present  case  also  involves  the
determination of the meaning of the word “consultation” in Section 3
of the Act, 1986 in the said context.
However, a two-Judges bench in the case of Suraz Trust India
v. Union of India & Anr., (2011) 4 SCALE 252, has entertained the
questions raised while doubting the correctness of the larger bench
decisions  that is pending consideration  before a three-Judges bench
presided over by Hon’ble the Chief Justice.
6. In The Keshav Mills Co. Ltd., Petlad v. The Commissioner
of Income-tax, Bombay North, Ahmedabad, AIR 1965 SC 1636,
this Court held:
“……When this Court decides questions of law, its
decisions  are,  under  Art.  141,  binding  on  all
Courts within the territory of India, and so, it must
be  the  constant  endeavour  and  concern  of  this
Court  to  introduce  and  maintain  an  element  of
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certainty  and  continuity  in  the  interpretation  of
law in the country. Frequent exercise by this Court
of its power to review its earlier decisions on the
ground  that  the  view  pressed  before  it  later
appears to the Court to be more reasonable, may
incidentally  tend  to  make  law  uncertain  and
introduce  confusion  which  must  be  consistently
avoided. That is not to say that if on a subsequent
occasion,  the  Court  is  satisfied  that  its  earlier
decision was clearly erroneous, it should hesitate
to correct the error; but before a previous decision
is pronounced to be plainly erroneous, the Court
must be satisfied with a fair amount of unanimity
amongst its members that a revision of the said
view  is  fully  justified.  It  is  not  possible  or
desirable, and in any case it would be inexpedient
to lay down any principles which should govern
the  approach  of  the  Court  in  dealing  with  the
question  of  reviewing  and  revising  its  earlier
decisions. It would always depend upon several
relevant considerations:- What is the nature of the
infirmity or error on which a plea for a review and
revision  of  the  earlier  view  is  based?  On  the
earlier occasion, did some patent aspects of the
question remain unnoticed, or was the attention of
the Court not drawn to any relevant and material
statutory provision, or was any previous decision
of this Court bearing on the point not noticed ? Is
the Court hearing such plea fairly unanimous that
there is such an error in the earlier view? What
would be the impact of the error on the general
administration of law or on public good ? Has the
earlier  decision  been  followed  on  subsequent
occasions  either  by  this  Court  or  by  the  High
Courts?  And,  would  the  reversal  of  the  earlier
decision lead to public inconvenience, hardship or
mischief? These and other relevant considerations
must  be  carefully  borne  in  mind  whenever  this
Court is called upon to exercise its jurisdiction to
review  and  revise  its  earlier  decisions.  These
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considerations become still more significant when
the earlier decision happens to be a unanimous
decision of a Bench of five learned Judges of this
7. It is, therefore, evident that before making a reference to a
larger  Bench,  the  Court  must  reach  a  conclusion  regarding  the
correctness of the judgment delivered by it previously, particularly
that, which has been delivered by a Bench of nine Judges or more, and
adjudge  the  effect  of  any  error  therein,  upon  the  public,  what
inconvenience, hardship or mischief it would cause, and what the
exact nature of the infirmity or error that warrants a review of such
earlier judgments.
In  the  instant  case,  we  do  not  find  any  such  compelling
circumstance  that  may  warrant  a  review,  and  thus,  taking  into
consideration the facts of the present case, we are not convinced that
this matter requires a reference to a larger Bench.
8. Before  proceeding  with  the  case,  it  is necessary  to refer to
certain relevant statutory provisions:
It  is  evident  from  the  Preamble  of  the  Act,  1986  that  the
Lokayukta  has  two  duties,  firstly,  to  protect  honest  public
functionaries from false complaints and allegations, and secondly, to
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investigate charges of corruption filed against public functionaries.
Hence,  investigation  of  such  charges  of  corruption  against  public
functionaries  is  not  the  only  responsibility  that  the  Lokayukta  is
entrusted with.
Section  2(8)  of  the  Act,  1986,  defines  the  term,  “Public
servant”, as having the same meaning, that has been given to it, under
Section 21 of the Indian Penal Code, 1860.
Section 3 (1) of the Act, 1986, reads as under:
“For  the  purpose  of  conducting  investigations  in
accordance  with  provisions  of  this  Act,  the  Governor
shall,  by  warrant  under  his  hand  and  seal,  appoint  a
person to be known as the Lokayukta.
Provided  that  the  Lokayukta  shall  be  appointed
after consultation with the Chief Justice of the High
Court and except where such appointment is to be made
at a time when the Legislative Assembly of the State of
Gujarat  has  been  dissolved  or  a  Proclamation  under
Article 356 of the Constitution is in operation in the State
of Gujarat, after  consultation also with the Leader of
the Opposition in the Legislative Assembly, or if there
be no such Leader, a person elected in this behalf by the
members of the Opposition in that House in such manner
as the Speaker may direct.”                   (Emphasis added)
Section 4 prescribes certain disabilities/disqualifications with
respect to the appointment of the Lokayukta, and stipulates that he
must not be a Member of Parliament or of any State Legislature, and
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also that he must not hold any office of trust, or profit and even if he
does hold any such post, that he must tender his resignation as regards
the same, before he is appointed as Lokayukta, and also further, that
he must not be affiliated with any political party.
Section 6 of the said Act, provides that the Lokayukta shall not
be removed from office, except under an order made by the Governor,
on the grounds of proven misbehaviour, or incapacity, after an inquiry
into the same which has been conducted by the Chief Justice of the
High Court of the State, or by a Judge nominated by him, in which,
the Lokayukta is informed of the charges against him, and has been
given, a reasonable opportunity of being heard, with respect to the
Section 7 of the Act, 1986 provides for matters which may be
investigated by the Lokayukta, against  public functionaries, which
may include the Chief Minister and the Council of Ministers also.
Section 12 of the Act, 1986 provides that the Lokayukta, after
investigation  of  a  complaint  against  the  Chief  Minister,  if  any
substance  is  found  therein,  shall  submit  a  written  report,
communicating  the  findings  arrived  at  by  him,  along  with  such
relevant  materials/documents  and  other  evidence,  that  are  in  his
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possession, to the Chief Minister himself.  Clause 2 thereof provides
that, the Chief Minister shall then place the said report, without any
delay, before the Council of Ministers.
Section  19  of  the  Act,  empowers  the  Governor  to  confer
additional functions upon the Lokayukta, after having consultation
with the Lokayukta, in relation to the eradication of corruption, which
may be specified, by publishing a notification with respect to the
same, in the Official Gazette.
Section  20  of  the  Act,  deals  with  the  power  to  exclude
complaints against certain classes of public functionaries.  Under this
Section, the State Government, upon a recommendation made by the
Lokayukta,  may  exclude,  by  Notification  in  the  Official  Gazette,
complaints  involving  allegations  against  persons  belonging  to  a
particular class of public functionaries, as has been  specified in the
said notification, from under the jurisdiction of the Lokayukta.
9. In  State of Gujarat & Anr. v. Gujarat Revenue Tribunal
Bar Association & Anr., JT 2012 (10) SC 422, this Court  held  that,
the object of consultation is to render its process meaningful, so that it
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may serve its intended purpose. Consultation  requires the meeting of
minds  between  the  parties  that  are  involved  in  the  consultative
process, on the basis of material facts and points, in order to arrive at a
correct, or at least a satisfactory solution. If a certain  power can be
exercised  only  after  consultation,  such  consultation  must  be
conscious, effective, meaningful and purposeful. To ensure this, each
party must disclose to the other, all relevant facts, for due deliberation.
The  consultee  must  express  his  opinion  only  after  complete
consideration of the matter, on the basis of all the relevant facts and
quintessence.  Consultation may have different meanings in different
situations, depending upon the nature and purpose of the statute.
 (See also: UOI v. Sankalchand Himatlal Sheth & Anr., AIR 1977
SC 2328;  State of Kerala v. Smt. A. Lakshmikutty & Ors., AIR
1987 SC 331; High Court of Judicature for Rajasthan v. P.P Singh
& Anr., AIR 2003 SC 1029;  UOI & Ors. v. Kali Dass Batish &
Anr., AIR 2006 SC 789; Andhra Bank v. Andhra Bank Officers &
Anr., AIR  2008  SC  2936;  and  Union  of  India  v.  R.  Gandhi,
President, Madras Bar Association, (2010) 11 SCC 1).
10. In Chandramouleshwar Prasad v. The Patna High Court &
Ors.,  AIR  1970  SC  370,  this  Court  held  that,  consultation  or
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deliberation can neither be complete nor 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
mind, which is not communicated to the proposer, a direction issued
to give effect to the counter proposal, without any further discussion
with respect to such counter proposal, with the proposer cannot be
said to have been issued after consultation.
11. In  N. Kannadasan v. Ajoy Khose & Ors., (2009) 7 SCC 1,
this  Court  considered  a  case  regarding  the  appointment  of  the
Chairman  of  a  State  Consumer  Disputes  Redressal  Commission,
under  the  provisions  of  the  Consumer  Protection  Act  1986,  and
examined the communication between the consultant and consultee,
i.e. the State Government and the Chief Justice of the High Court, and
observed that, where the High Court had placed for consideration,
certain material against a person, whose name was proposed by the
State Government, for consideration with respect to his appointment
to the post of Chairman of the State Commission, and no specific
explanation was provided for the non-consideration of such material,
then an appointment made in light of such circumstances, cannot be
20Page 21
held to be an appointment made after due consultation. The Court held
as under:
“But, where a decision itself is thickly clouded by
non-consideration of the most relevant and vital
aspect,  the  ultimate  appointment  is  vitiated  not
because  the  appointee  is  not  desirable  or
otherwise,  but  because  mandatory  statutory
requirement of consultation has not been rendered
effectively and meaningfully”.
Thus, in such a situation, even if a person so appointed was in
theory, eligible for the purpose  of being considered for appointment
to the said post, the fact that the process of consultation was vitiated,
would render the ultimate order of appointment vulnerable, and liable
to questioning.  In this case, this Court also considered its earlier
decisions, in the cases of  Ashish Handa, Advocate v. Hon’ble the
Chief Justice of High Court of Punjab & Haryana & Ors., AIR
1996 SC 1308; and Ashok Tanwar & Anr. v. State of H.P. & Ors.,
AIR 2005 SC 614, and came to the conclusion that, the Chief Justice
must  send  only  one  name,  and  not  a  panel  of  names  for
consideration,  or  else,  the  word  ‘primacy’  would  lose  its
significance.  If the Chief Justice sends a panel of names, and the
Governor selects one from them, then it would obviously become the
21Page 22
primacy of the Governor, and would not remain the primacy of the
Chief Justice, which is the requirement under the law.
The concept of primacy in such a situation, has been included,
owing to the fact that, the Chief Justice of the High Court of the
concerned State, is the most appropriate person to judge the suitability
of a retired Judge, who will act as the Lokayukta and the object of the
Act would not be served, if the final decision is left to the executive.
The opinion of the Chief Justice would be entirely independent, and
he would most certainly be in a position to determine who the most
suitable candidate for appointment to the said office is.  This Court
has, therefore, explained that, the primacy of the opinion of the Chief
Justice must be accepted, except for cogent reasons, and that the term
consultation, for such purpose shall mean concurrence.
12. In N. Kannadasan (supra), while interpreting the provisions of
Section 16 of the Consumer Protection Act, 1986, this Court held that,
consultation under the said Act, cannot be equated with consultation,
as contemplated by the Constitution under Article 217, in relation to
the appointment of a Judge of the High Court. However, the Court
further held, that primacy will be given to the opinion of the Chief
Justice, where such consultation is statutorily required.
22Page 23
13. In  Centre For PIL & Anr. v. Union of India & Anr., AIR
2011 SC 1267, this Court considered the argument of unanimity, or
consensus, in the matter of the appointment of the Central Vigilance
Commissioner and observed:
“It was further submitted that if unanimity is ruled
out then the very purpose of inducting the Leader
of the Opposition in the process of selection will
stand defeated because if the recommendation of
the Committee were to be arrived at by majority it
would  always  exclude  the  Leader  of  the
Opposition since the Prime Minister and the Home
Minister will always be ad idem.
xx xx xx
  We find no merit in these submissions. To accept
the  contentions  advanced  on  behalf  of  the
petitioners  would  mean  conferment  of  a  “veto
right”  on  one  of  the  members  of  the  HPC.  To
confer such a power on one of the members would
amount to judicial legislation.”
14. This Court, in Justice K.P. Mohapatra v. Sri Ram Chandra
Nayak & Ors., AIR 2002 SC 3578, considered the provisions of
Section 3(1)(a) of the Orissa Lokpal and Lokayuktas Act, 1995, which
are  pari materia with those of Section 3 of the Act, 1986.  In the
aforementioned case,  the question that arose was with respect to the
meaning  of  consultation,  as  contemplated  under  the  Orissa  Act,
23Page 24
which is a verbatim replication of Section 3 of the Gujarat Act, and
upon consideration of the statutory provisions of the Act, this Court
came to the conclusion that:
“12. …….  The  investigation  which  Lokpal  is
required  to  carry  out  is  that  of  quasi-judicial
nature which would envisage not only knowledge
of law, but also of the nature and work which is
required to be discharged by an administrator. In
this  context,  the  word  “consultation”  used  in
Section  3(1)  proviso  (a)  would  require  that
consultation  with  the  Chief  Justice  of  the  High
Court of Orissa is a must or a sine qua non. For
such appointment, the Chief Justice of the High
Court would be the best person for proposing and
suggesting  such  person  for  being  appointed  as
Lokpal. His opinion would be totally independent
and he would be in a position to find out who is
most or more suitable for the said office. In this
context,  primacy is required  to be  given  to  the
opinion of the Chief Justice of the High Court.
xx        xx        xx        xx      xx
16. Applying  the  principle  enunciated  in  the
aforesaid judgment, scheme of Section 3(1) of the
Act read with the functions to be discharged by the
Lokpal and the nature of his qualification, it is
apparent  that  the  consultation  with  the  Chief
Justice is mandatory and his opinion would have
primacy.”                                  (Emphasis added)
The  aforesaid  appeal  was  filed  against  the  judgment  of  the
Orissa High Court in Ram Chandra Nayak v. State of Orissa, AIR
2002 Ori 25, wherein the High Court had held that the Governor,
24Page 25
while appointing a person as Lokpal, must act upon the aid and advice
of the Council of Ministers, and that there was no question of him
exercising any power or discretion in his personal capacity. The said
judgment was reversed by this Court on other grounds, but not on this
15. In  Indian Administrative Service (S.C.S.) Association, U.P.
& Ors. v. Union of India & Ors., (1993) Supp.1 SCC 730, this Court
explained the term `Consultation’, though the same was done in the
context of the promotion of certain officials under the provisions of
the  All  India  Services  Act,  1951.   The  Court  laid  down  various
propositions with respect to consultation, inter-alia:
“(6) No hard and fast rule could be laid, no useful
purpose would be served by formulating words or
definitions,  nor  would  it  be  appropriate  to  lay
down the manner in which consultation must take
place.    It is for the Court to determine in each
case  in the  light  of its facts and  circumstances
whether the action is ‘after consultation’; ‘was, in
fact,  consulted’  or  was  it  a  ‘sufficient
16. Thus, in view of the above, the meaning of consultation varies
from case to case, depending upon its fact-situation and the context of
the statute, as well as the object it seeks to achieve. Thus, no straight-
25Page 26
jacket  formula  can  be  laid  down  in  this  regard.  Ordinarily,
consultation means a free and fair discussion on a particular subject,
revealing all material that the parties possess, in relation to each other,
and then arriving at a decision. However, in a situation where one of
the  consultees  has  primacy of  opinion  under  the  statute,  either
specifically  contained  in  a  statutory  provision,  or  by  way  of
implication, consultation may mean  concurrence.  The court must
examine the fact-situation in a given case to determine whether the
process of consultation, as required under the particular situation did
in fact, stand complete.
17. In Samsher Singh v. State of Punjab & Anr., AIR 1974 SC
2192, this Court expounded the universal rule that, the Governor is
bound  to  act  only in  accordance  with  the  aid  and  advice  of  the
Council of Ministers, headed by the Chief Minister. The Rules of
Business and allocation of business among the Ministers, related to
the provisions of Article 53 in the case of the President, and Article
154  in  the  case  of  the  Governor,  state  that  executive  power  in
connection with the same, shall be exercised by the President or the
Governor  either  directly,  or  through  subordinate  officers. The
26Page 27
President is the formal or Constitutional head of the Executive. The
real executive powers, however, are vested in the Ministers of the
Cabinet. Wherever the Constitution requires the satisfaction of the
President or the Governor, for the purpose of exercise by the President
or the Governor, any power or function, such satisfaction is not the
personal satisfaction of the President, or of the Governor, in their
personal capacity, but the satisfaction of the President or Governor, in
the  Constitutional  sense  as  contemplated  in  a  Cabinet  system  of
Government, that is, the satisfaction of the Council of Ministers, on
whose  aid  and  advice  the  President,  or  the  Governor,  generally
exercise all their powers and functions. The President of India is not  a
glorified cipher. He represents the majesty of the State, and is at its
apex, though only symbolically, and has a different rapport with the
people and parties alike, being above politics. His vigilant presence
makes for good governance if only he uses, what Bagshot described
as, “the right to be consulted, to warn and to encourage”.
Whenever  the  Constitution  intends  to  confer  discretionary
powers upon the Governor, or to permit him to exercise his individual
judgment, it has done so expressly.  For this purpose, the provisions
of “Articles 200; 239(2); 371-A(1)(b); 371-A(1)(a); 371-A(2)(b); and
27Page 28
371-A(2)(f), VI Schedule, Para 9(2) (and VI Schedule, Para 18(3),
until omitted with effect from January 21, 1972), may be referred to.
Thus, discretionary powers exist only where they are expressly spelt
However,  the  power  to  grant  pardon  or  to  remit  sentence
(Article 161), the power to make appointments including that of the
Chief Minister (Article 164), the Advocate-General (Article 165), the
District  Judges  (Article  233),  the  Members  of  the  Public  Service
Commission (Article 316) are in the category where the Governor is
bound  to  act  on  the  aid  and  advice  of  the  Council  of  Ministers.
Likewise, the power to prorogue either House of Legislature or to
dissolve the Legislative Assembly (Article 174), the right to address
or send messages to the Houses of the Legislature (Article 175 and
Article 176), the power to assent to Bills or withhold such assent
(Article 200), the power to make recommendations for demands of
grants [Article 203(3)], and the duty to cause to be laid every year the
annual  budget  (Article  202),  the  power  to  promulgate  ordinances
during recess of the Legislature (Article 213) also belongs to this
species  of  power.  Again,  the  obligation  to  make  available  to  the
Election  Commission,  requisite  staff  for  discharging  functions
28Page 29
conferred upon it by Article 324(1) and Article 324(6), the power to
nominate a member of the Anglo-Indian Community to the Assembly
in certain situations (Article 333), the power to authorise the use of
Hindi  in  proceedings  in  the  High  Court  [Article  348(2)],  are
illustrative of the functions of the Governor, qua the Governor.
The Governor shall act with aid and advice of the Council of
Ministers, save in a few well known exceptional situations.  Without
being dogmatic or exhaustive, this situation relates to the choice of
the Chief Minister, dismissal of the government, and dissolution of the
18. In  M.P. Special Police Establishment v. State of M.P. &
Ors., AIR 2005 SC 325, the question that arose was whether, for the
purpose  of grant of sanction  for the prosecution  of Ministers,  for
offences under the Prevention of Corruption Act and/or, the Indian
Penal  Code,  the  Governor,  while  granting  such  sanction,  could
exercise his own discretion, or act contrary to the advice rendered to
him by the Council of Ministers.  The Court, in this regard, first
considered the object and purpose of the statutory provisions, which
are  aimed  at  achieving  the  prevention  and  eradication  of  acts  of
corruption by public functionaries.  The Court then also considered,
29Page 30
the  provisions  of  Article  163  of  the  Constitution,  and  took  into
consideration  with  respect  to  the  same,  a  large  number  of  earlier
judgments  of  this  Court,  including  the  cases  of  Samsher  Singh
(supra); and State of Maharashtra v. Ramdas Shrinivas Nayak &
Anr., AIR 1982 SC 1249, and thereafter, came to the conclusion that,
in a matter related to the grant of sanction required to prosecute a
public  functionary,  the  Governor  is  usually  required  to  act  in
accordance with the aid and advice rendered to him by the Council of
Ministers, and not upon his own discretion.  However, an exception
may  arise  while  considering  the  grant  of  sanction  required  to
prosecute the Chief Minister, or a Minister, where, as a matter of
propriety, the Governor may have to act upon his own discretion.
Similar  would  be  the  situation  in  a  case  where,  the  Council  of
Ministers disables or disentitles itself from providing such aid and
advice.  Such a conclusion by the court, was found to be necessary,
for the reason that the facts and circumstances of a case involving any
of the aforementioned fact situations, may indicate the possibility of
bias on the part of the Chief Minister, or the Council of Ministers.  
This Court carved out certain exceptions to the said provision.
For  instance,  where  bias  is  inherent  or  apparent;  or,  where  the
30Page 31
decision of  the Council of Ministers is wholly irrational, or, where the
Council of Ministers, because of some incapacity or other situation, is
disentitled from giving such advice; or, where it refrains from doing
so as matter of propriety; or in the case of a complete break down of
Article 163(2) of the Constitution provides that it would be
permissible  for  the  Governor  to  act  without  ministerial  advice  in
certain other situations, depending upon the circumstances therein,
even  though  they  may  not  specifically  be  mentioned  in  the
Constitution as discretionary functions; e.g., the exercise of power
under Article 356(1), as no such advice will be available from the
Council  of  Ministers,  who  are  responsible  for  the  break  down  of
Constitutional machinery, or where one Ministry has resigned, and the
other alternative Ministry cannot be formed. Moreover, Clause 2 of
Article 163 provides that the Governor himself is the final authority to
decide  upon  the  issue  of  whether  he  is required  by  or  under  the
Constitution,  to  act  in  his  discretion.   The  Council  of  Ministers
therefore, would be rendered incompetent in the event of there being a
difference of opinion with respect to such a question, and such a
decision  taken  by the Governor, would not be  justiceable in any
31Page 32
court. There may also be circumstances where, there are matters, with
respect to which the Constitution does not specifically require the
Governor to act in his discretion, but the Governor, despite this, may
be fully justified to act so e.g., the Council of Ministers may advise
the Governor to dissolve a House, which may be detrimental to the
interests of the nation.  In such circumstances, the Governor would be
justified in refusing to accept the advice rendered to him, and act in
his discretion. There may even be circumstances where ministerial
advice is not available at all, i.e., the decision regarding the choice of
Chief Minister under Article 164(1), which involves choosing a Chief
Minister  after  a  fresh  election,  or  in  the  event  of  the  death  or
resignation of the Chief Minister, or dismissal of the Chief Minister,
who loses majority in the House and yet refuses to resign, or agree to
dissolution.  The Governor is further not required to act on the advice
of the Council of Ministers, where some other body has been referred
for the purpose of consultation i.e., Article 192(2) as regards decisions
on questions related to the disqualification of members of the State
19. In  Brundaban Nayak v. Election Commission of India &
Anr., AIR 1965 SC 1892, this Court held  that while dealing with a
32Page 33
case under Article 192 of the Constitution, the Governor must act in
accordance with advice of the Election Commission, and that he does
not require any aid or advice from the Council of Ministers.
(See  also:  Election  Commission  of  India  &  Anr.  v.  Dr.
Subramanian Swamy & Anr., AIR 1996 SC 1810).
20. The issue of primacy of the Chief Justice in such cases, has also
been considered and approved by this Court in Ashish Handa (supra);
and Supreme Court Advocates-on-Record Association & Anr. v.
Union of India,  AIR 1994 SC 268.  
21. Thus, where the Governor acts as the Head of the State, except
in relation to areas which are earmarked under the Constitution as
giving discretion to the Governor, the exercise of power by him, must
only be upon the aid and advice of the Council of Ministers, for the
reason that the Governor, being the custodian of all executive and
other powers under various provisions of the Constitution, is required
to  exercise  his  formal  Constitutional  powers,  only  upon,  and  in
accordance with, the aid and advice of his Council of Ministers.  He
is, therefore, bound to act under the Rules of Business framed under
33Page 34
Article 166 (3) of the Constitution. (Vide: Pu Myllai Hlychho & Ors.
v. State of Mizoram & Ors., AIR 2005 SC 1537).
22. In  Ram Nagina Singh & Ors. v. S.V. Sohni & Ors., AIR
1976 Pat 36, the Patna High Court considered the issue  involved
herein,  i.e.,  the  appointment  of  the   Lokayukta,  under  the  Bihar
Lokayukta  Act,  1974,  and  held  that,  ordinarily,  when  a  power  is
vested, even by virtue of a statute, in the Governor, he must act in
accordance with the aid and advice tendered to him by the Council of
Ministers,  for the  simple reason that, he  does not cease  to be an
Executive Head, as mentioned under the Constitution, merely because
such authority is conferred upon him by a statute. It would, in fact, be
violative of the scheme of the Constitution, if it was held that the mere
use of the word, “Governor” in any statute, is sufficient to impute to
the legislature, an intention by it, to confer a power,  “eo nomine”.
Any  interpretation  other  than  the  one  mentioned  above,  would
therefore, be against the concept of parliamentary democracy, which
is one of the basic postulates of the Constitution.
In view of the Rules of Executive Business, the topic involving
appointment of the Lokayukta, must be brought before the Council of
Ministers.  Even if the appointment in question, is not governed by
34Page 35
any  specific  rule  in  the  Rules  of  Executive  Business,  such
appointment must still be made following the said procedure, for the
reason that the Rules of Executive Business cannot be such, so as to
override any bar imposed by Article 163(3) of the Constitution.
However, a different situation altogether may arise, where the
Governor ex-officio, becomes a statutory authority under some statute.
23. In  Hardwari Lal v. G.D. Tapase & Ors., AIR 1982 P & H
439,  the  powers  of  the  Governor,  with  respect  to  the
appointment/removal of the Vice-Chancellor of Maharshi Dayanand
University,  Rohtak  under  the  Maharshi  Dayanand  University
(Amendment) Act, 1980, were considered, wherein a direction was
sought with regard to the renewal of the term of the Vice-Chancellor
of the said University. Certain promises had been made in connection
with the same, while making such appointment. The Court held that,
as  the  Governor  was  the  ex-officio Chancellor  of  the  University,
therefore, by virtue of his office, he was not bound to act under the aid
and advice of the Council of Ministers. Under Article 154 of the
Constitution,  the  executive  powers  of  the  State  are  vested  in  the
Governor, which may be exercised by him either directly, or through
officers subordinate to him, in accordance with the provisions of the
35Page 36
Constitution. Article 161 confers upon the Governor, a large number
of  powers  including  the  grant  of  pardon,  reprieves,  respites  or
remissions of punishment etc. Such executive power can be exercised
by him, only in accordance with the aid and advice of the Council of
Ministers. Article 162 states that the executive power of the State,
shall extend to all such matters, with respect to which, the legislature
of the State has the power to make laws. Therefore, the said provision,
widens the powers of the Governor. Article 166(3) of the Constitution,
further bestows upon the Governor the power to make rules for more
convenient transactions of business, of the Government of the State,
and also for the purpose of allocating among the Ministers of State,
such business.
There are several ways by which, a power may be conferred
upon the Governor, or qua the Governor, which will enable him to
exercise  the  said  power,  by  virtue  of  his  office  as  Governor.
Therefore, there can be no gainsaying that all the powers that are
exercisable by the Governor, by virtue of his office, can be exercised
only  in  accordance  with  the  aid  and  advice  of  the  Council  of
Ministers, except insofar as the Constitution expressly, or perhaps by
necessary implication, provides otherwise.
36Page 37
Thus,  in  such  a  situation,  the  Statute  makes  a  clear  cut
distinction between two distinct authorities, namely, the Chancellor
and the State Government. When the legislature intentionally makes
such a distinction, the same must also be interpreted distinctly, and
while dealing with the case of the Vice-Chancellor, the Governor,
being  the  Chancellor  of  the  University,  acts  only  in  his  personal
capacity,  and  therefore,  the  powers  and  duties  exercised  and
performed by him under a statute related to the University, as its
Chancellor,  have  absolutely  no  relation  to  the  exercise  and
performance of the powers and duties by him, while he holds office as
the Governor of the State.
24. In  Vice-Chancellor, University of Allahabad & Ors. v. Dr.
Anand Prakash Mishra & Ors., (1997) 10 SCC 264, this Court dealt
with the power of the Governor of the State of U.P. ex-officio, with
respect to all the  Universities established under the provisions of the
U.P. State Universities Act, 1973 (hereinafter referred to as `the Act
1973).   Section 68 of the Act, 1973 empowers the Chancellor to
entertain  any  question,  related  to  the  appointment,  selection,
promotion or termination of any employee in the University. In the
meanwhile,  the Legislature  of the State of U.P., enacted the U.P.
37Page 38
Public  Services  (Reservation  of  Schedule  Castes,  Tribes  and
Backward  Classes)  Act,  1994  (hereinafter  referred  to  as  `the  Act
1994), providing for a particular reservation.  This Court held that,
Section 6 of the Act, 1994 enables the State Government to call for
records and direct enforcement of the provisions of the said Act. This
Court  also  held  that,  when  the  Governor  ex-officio, acts  as  the
Chancellor of a University, he acts under Section 68 of the Act, 1973,
and discharges statutory duties as mentioned under the Act, 1973, but
when  the  Government  calls  for  the  record of  appointment  of  any
employee, to examine whether the reservation policy envisaged under
the Act, 1994, has been given effect to or not, and takes action in such
respect, then he acts in his capacity as Governor, under Article 163 of
the Constitution of India and is therefore, bound to act upon the aid
and advice of the Council of Ministers.
25. The Constitutional provisions hence, clearly provide that the
Governor does not exercise any power by virtue of his office, in his
individual  discretion.  The  Governor  is  aided  and  advised  by  the
Council of Ministers in the exercise of such powers, that have been
assigned to him, under Article 163 of the Constitution. The executive
power of the State, is coextensive with the legislative power of the
38Page 39
State, and the Governor in the Constitutional sense, discharges the
functions assigned to him under the Constitution, with the aid and
advice of the Council of Ministers, except insofar as he is, by or under
the  Constitution,  required  to  exercise  such  functions  in  his  own
discretion.  The  satisfaction  of  the  Governor  for  the  purpose  of
exercise  of  his  other  powers  or  functions,  as  required  by  the
Constitution, does not mean the personal satisfaction of the Governor,
but refers to satisfaction in the Constitutional sense, under a Cabinet
system of Government. The executive must act, subject to the control
of the legislature. The executive power of the State, is vested in the
Governor, as he is the head of the executive. Such executive power is
generally described as residual power, which does not fall within the
ambit  of  either  legislative  or  judicial  power.  However,  executive
power may also partake legislative or judicial actions. All powers and
functions of the President, except his legislative powers as have been
mentioned, for example, in Article 123, viz., the ordinance making
power,  and  all  powers and  functions of  the  Governor,  except  his
legislative power, as also for example, under Article 213, which state
that  Ordinance making powers are executive powers of the Union,
vested  in  the  President  under  Article  53(1)  in  one  case,  and  are
39Page 40
executive powers of the State vested in the Governor under Article
154(1) in the other case. Clause (2) or clause (3) of Article 77 are not
limited in their operation, only with respect to the executive actions of
the Government of India, under clause (1) of Article 77. Similarly,
clause (2) or clause (3) of Article 166 are also not limited in their
operation,  only  with  respect  to  the  executive  actions  of  the
Government  of  the  State  under  clause  (1)  of  Article  166.  The
expression, ‘Business of the Government of India’ in clause (3) of
Article 77, and the expression, ‘Business of the Government of the
State’ in clause (3) of Article 166, include all executive business.
(Vide: Samsher Singh (supra); Ramdas Shrinivas Nayak (supra);
Bhuri Nath  & Ors. v. State of J & K & Ors., AIR 1997 SC 1711;
and Narmada Bachao Andolan v. State of Madhya Pradesh, AIR
2011 SC 3199).
In Maru Ram, Bhiwana Ram etc. etc. v. Union of India &
Ors. etc., AIR 1980 SC 2147, a Constitution Bench of this Court held
that,  “the  Governor  is  but  a  shorthand  expression  for  the  State
Government,  and  the  President  is  an  abbreviation  for  the  Central
40Page 41
26. The exceptions carved out in the main clause of Article 163(1),
permit the legislature to entrust certain functions to the Governor to be
performed by him, either in his discretion, or in consultation with
other authorities, independent of the Council of Ministers.  
The meaning of the words ‘by or under’ is well-settled. The
expression, `by an Act’, would mean by virtue of a provision directly
enacted in the statute in question and that, which is conceivable from
its  express  language  or  by  necessary  implication  therefrom.   The
words ‘under the Act’, would in such context, signify that which may
not directly be found in the statute itself, but which is conferred by
virtue of powers enabling such action(s),  e.g., by way of laws framed
by a subordinate law making authority competent to do so under the
Parent Act.  (Vide: Dr. Indramani Pyarelal Gupta & Ors. v. W.R.
Natu & Ors., AIR 1963  SC 274).
27. This Court in  Rameshwar Prasad (VI) v. Union of India,
(2006) 2 SCC 1 held:
57. The  expression  “required”  found  in  Article
163(1) is stated to signify that the Governor can
exercise his discretionary powers only if there is a
compelling  necessity  to  do  so.  It  has  been
reasoned  that  the  expression  “by  or  under  the
Constitution” means that the necessity to exercise
41Page 42
such powers may arise from any express provision
of the Constitution or by necessary  implication.
The Sarkaria Commission Report further adds that
such  necessity  may  arise  even  from  rules  and
orders made “under” the Constitution.
28. However, there is a marked distinction between the provisions
of Articles 74 and 163 of the Constitution.
The provisions of Article 74 of the Constitution, are not  pari
materia with the provisions of Article 163, as Article 74 provides that
there shall be a Council of Ministers, with the Prime Minister at their
head, to aid and advise the President, who shall, in the exercise of his
functions, act in accordance with such advice as is rendered to him,
provided that the President may require the Council of Ministers to
reconsider  such  advice,  either  generally  or  otherwise,  and  the
President shall act in accordance with the advice that is tendered, after
such reconsideration. While Article 163 provides that there shall be a
Council of Ministers with the Chief Minister at their head, to aid and
advise the Governor, in the exercise of his functions,  an exception
has been carved out with respect to situations wherein, he is by, or
under this Constitution, required to perform certain functions by
exercising his own discretion.
42Page 43
The exception  carved  out by  the main  clause  under  Article
163(1) of the Constitution, permits the legislature to bestow upon the
Governor,  the  power  to  execute  certain functions,  that  may  be
performed by him, in his own discretion, or in consultation with other
authorities, independent of the Council of Ministers. While dealing
with the powers of the Governor with respect to appointment and
removal, or imposing punishment for misconduct etc., the Governor is
required to act upon the recommendations made by the High Court,
and not upon the aid and advice rendered by the Council of Ministers,
for the reason that, the State is not competent to render aid and advice
to the Governor with respect to such subjects. While the High Court
retains powers of disciplinary control over the subordinate judiciary,
including the power to initiate disciplinary proceedings, suspend them
during inquiries, and also to impose punishments upon them, formal
orders,  in  relation  to  questions  regarding  the  dismissal,  removal,
reduction in rank or the termination of services of judicial officers on
any count, must be passed by the Governor upon recommendations
made by the High Court.   (Vide: Chandra Mohan v. State of U.P. &
Ors., AIR 1966 SC 1987; and  Rajendra Singh Verma  (dead) thr.
43Page 44
Lrs. & Ors. v. Lt. Governor (NCT of Delhi) & Ors.,   (2011) 10
SCC 1).
29. In Bhuri Nath (supra), the question that arose was in relation
to whether the Governor was bound to act in accordance with the aid
and advice of the Council of Ministers, or whether he could exercise
his  own  discretion,  independent  of  his  status  and  position  as  the
Governor, by virtue of him being the ex-officio Chairman of the Shri
Mata Vaishno Devi Shrine Board, under the Shri Mata Vaishno Devi
Shrine Act, 1988. The Shrine Board discharges functions and duties,
as  have  been  described  under  the  Act,  in  the  manner  prescribed
therein, and thus, after examining the scheme of the Act, this Court
held that, “the decision is his own decision, on the basis of his own
personal satisfaction, and not upon the aid and advice of the Council
of Ministers. The nature of exercise of his powers and functions under
the Act is distinct, and different from the nature of those that are
exercised by him formally, in the name of the Governor, under his
seal, for which responsibility rests only with his Council of Ministers,
headed by the Chief Minister”.
44Page 45
30. In  State of U.P. & Ors.  etc. v. Pradhan Sangh Kshettra
Samiti & Ors. etc., AIR 1995 SC 1512, this Court dealt with the
position of the Governor in relation to functions of the State and held
as under:
“Admittedly, the function under Article 243(g) is
to be exercised by the Governor on the aid and
advice  of  his  Council  of  Ministers.  Under  the
Rules of Business, made by the Governor under
Article 166(3) of the Constitution, it is in fact an
act of the Minister concerned, or of the Council of
Ministers,  as  the  case  may  be.  When  the
Constitution  itself  thus  equates  the  Governor
with the State Government for the purposes  of
relevant  functions,….…Further,  Section  3(60)(c)
of the General Clauses Act, 1897, defines ‘State
Government”  to  mean  “Governor”,  which
definition is in conformity with the provisions of
the  Constitution…The  Governor  means  the
Government  of  the  State  and  all  executive
functions which  are  exercised  by the Governor,
except where he is required under the Constitution
to  exercise  the  functions  in  his  discretion,  are
exercised by him on the aid and advice of Council
of Ministers.”                              (Emphasis added)
31.      In S.R. Chaudhuri v. State of Punjab & Ors., AIR 2001 SC
2707, this Court held as under:
“21. Parliamentary democracy generally envisages
(i)  representation  of the people, (ii)  responsible
government, and (iii) accountability of the Council
of Ministers to the Legislature. The essence of this
is to draw a direct line of authority from the people
through the Legislature to the executive.
45Page 46
xx xx xx xx
40. Chief Ministers or the Governors, as the case
may be, must forever remain conscious of their
constitutional obligations and not sacrifice either
political  responsibility  or  parliamentary
conventions at the altar of “political expediency.
…. Constitutional restraints must not be ignored or
bypassed  if  found  inconvenient  or  bent  to  suit
“political  expediency”.  We  should  not  allow
erosion of principles of constitutionalism.”
32. The  principle  of  check  and  balance  is  a  well  established
philosophy in the governance of our country, under our Constitution.
If we were all to have our way, each person would be allowed to wage
a war against every other person, i.e., Bellum Omnium Contra Omnes.
This reminds us to abide by Constitutional law followed by statutory
law, otherwise everybody would sit in appeal against the judgment of
33. In view of the aforesaid discussion, the law as evolved and
applicable herein can be summarised   to the effect that the Governor
is bound to act on the aid and advice of the Council of Ministers,
unless he acts as, “persona designata”  i.e. “eo nomine”, under a
46Page 47
particular statute, or acts in his own discretion under the exceptions
carved out by the Constitution itself.
34. Bias can be defined as the total absence of any pre-conceived
notions in the mind of the Authority/Judge, and in the absence of such
a situation, it is impossible to expect a fair deal/trial and no one would
therefore, see any point in holding/participating in one, as it would
serve  no  purpose.  The  Judge/Authority  must  be  able  to  think
dispassionately, and sub-merge any private feelings with respect to
each aspect of the case.  The apprehension of bias must be reasonable,
i.e., which a reasonable person would be likely to entertain. Bias is
one of the limbs of natural justice.  The doctrine of bias emerges from
the legal maxim -  nemo debet esse judex in causa propria sua.  It
applies only when the interest attributed to an individual is such, so as
to tempt him to make a decision in favour of, or to further, his own
cause.  There may not be a case of actual bias, or an apprehension to
the effect that the matter most certainly will not be decided, or dealt
with impartially, but where the circumstances are such, so as to create
a  reasonable  apprehension  in  the  minds of  others,  that  there  is a
47Page 48
likelihood of bias affecting the decision,  the  same is sufficient  to
invoke the doctrine of bias.
In the event that actual proof of prejudice is available, the same
will  naturally  make  the  case  of  a  party  much  stronger,  but  the
availability of such proof is not a necessary pre-condition, for what is
relevant, is actually the reasonableness of the apprehension in this
regard, in the mind of such party.  In case such apprehension exists,
the  trial/judgment/order  etc.  would  stand  vitiated,  for  want  of
impartiality, and such judgment/order becomes a nullity. The trial
becomes “coram non judice”.
While deciding upon such an issue, the court must examine the
facts and circumstances of the case, and examine the matter from the
view point of the people at large.  The question as regards, “whether
or not a real likelihood of bias exists, must be determined on the basis
of probabilities that are  inferred from the circumstances of the case,
by the court objectively, or, upon the basis of the impression that may
reasonably be left upon the minds of those aggrieved, or the public at
large”. (Vide:  S. Parthasarathi v. State of Andhra Pradesh, AIR
1973 SC 2701; State of Punjab v. V.K. Khanna & Ors., AIR 2001
SC 343; N.K. Bajpai v. Union of India & Anr., (2012) 4 SCC 653;
48Page 49
and State of Punjab v. Davinder Pal Singh Bhullar & Ors. etc.,
AIR 2012 SC 364).  
35. There  can  be  no  dispute  with  respect  to  the  settled  legal
proposition  that  a  judgment  of  this  Court  is binding,  particularly,
when the same is that of a co-ordinate bench, or of a larger bench.  It
is also correct to state that, even if a particular issue has not been
agitated earlier, or a particular argument was advanced, but was not
considered,  the  said  judgment  does  not  lose  its  binding  effect,
provided  that  the  point  with  reference  to  which  an  argument  is
subsequently  advanced,  has  actually  been  decided.  The  decision
therefore, would not lose its authority, “merely because it was badly
argued, inadequately considered or fallaciously reasoned”.  The case
must be considered, taking note of the ratio decidendi of the same i.e.,
the general reasons, or the general grounds upon which, the decision
of  the  court  is  based,  or  on  the  test  or  abstract,  of  the  specific
peculiarities of the particular case,  which finally gives rise  to the
decision. (Vide: Smt. Somavanti & Ors. v. The State of Punjab &
Ors., AIR 1963 SC 151; Ballabhdas Mathuradas Lakhani & Ors.
v. Municipal Committee, Malkapur, AIR 1970 SC 1002; Ambika
49Page 50
Prasad Mishra v. State of U.P. &  Ors., AIR 1980 SC 1762; and
Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr.,
AIR 2002 SC 1598).  
36. So  far  as  the  judgment  in  Ram  Nagina  Singh (supra),  is
concerned, para 9 of the said judgment, makes it clear that the High
Court had summoned the original record of proceedings, containing
communication between the prescribed statutory authorities therein,
wherein the Chief Minister had made a note, while writing to the
Governor, which reads as under:
“In this connection, I have already deliberated with
you. In my opinion, it is not necessary to obtain
the opinion of the Council of Ministers in this
connection”.  (Emphasis added)
In view of this, the counsel for the State took the same stand
before the High Court.  It was the counsel appearing for the Central
Government,  who  argued  otherwise.  In  fact,  the  Governor  had
appointed  the  Lokayukta  acting  upon  his  own  discretion,  without
seeking any aid or advice from the Council of Ministers. The said
judgment  was  approved  by  this  Court  in  Bhuri  Nath (supra).
Undoubtedly, the provisions of Section 18 of the Act, 1974, which are
analogous to the provisions of Section 20 of the Act, 1986, by virtue
50Page 51
of  which,  the  Act  enables  the  State  Government,  to  exclude
complaints made against certain classes of public servants, were not
considered by the court, as the same were not brought to its notice.
However, on this basis, it cannot be held that had the said provision
been brought to the notice of the court, the result would have been
37. This case must  be examined in  light of  the  aforesaid  settled
legal propositions, and  also taking  into  consideration, the  scheme
of the Act, as provided in its provisions, that have been referred to
38. The Act, 1986 stipulates that the institution of Lokayukta must
be demonstrably independent and impartial. A conjoint reading of
Sections 4 and 6 of the Act, 1986, makes it clear that the Lokayukta
must  be  entirely  independent  and  free  from  all  political  and
commercial associations. Investigation proceedings by the Lokayukta,
must be conducted in a formal manner.  The appointment must, as far
as possible, be non-political and the status of the Lokayukta, must be
equivalent to that of the highest judicial functionaries in the State.
51Page 52
The Act, 1986 provides for a proviso to sub-section (1) of Section 3 of
Act, 1986, which envisages the appointment of the Lokayukta when
the Legislative Assembly has been dissolved, or when a Proclamation
of Emergency under Article 356 of the Constitution is in operation,
upon consultation with the Chief Justice of the State and the Leader of
Opposition.   However,  such  consultation  with  the  Leader  of
Opposition also stands dispensed with, if the Assembly is dissolved or
suspended.   Thus,  it  is  evident  that  the  Governor  can  appoint  a
Lokayukta, even when there is no Council of Ministers in existence.
The aforesaid statutory provisions make it mandatory on the
part of the State to ensure that the office of the Lokayukta  is filled up
without any delay, as the Act provides for such filling up, even when
the Council of Ministers is not in existence.   In the instant case,
admittedly, the office of the Lokayukta has been lying vacant for a
period of more than 9 years i.e. from 24.11.2003, when Justice S.M.
Soni relinquished the office of Lokayukta, till date.
39. The  facts  of  the  case  also  reveal  that  the  Government,  for
reasons  best  known  to  it,  came  forward  with  a  request  to  the
Governor, to issue an Ordinance on 17.8.2011.  The said Ordinance
would have changed the manner of appointment of the Lokayukta, for,
52Page 53
if the manner of selection of the Lokayukta suggested by it would
have been accepted, then the institution of the Lokayukta would have
vested in not one, but several persons, and selection of such persons
would  have  been  done  by  a  committee  consisting  of  the  Chief
Minister, the Speaker of the Legislative Assembly, Minister (Incharge
of Legal Department), a sitting Judge of the High Court, as nominated
by the Chief Justice and the Leader of Opposition in the Legislative
40. In  a  democratic  set  up  of  government,  the  successful
functioning of the Constitution depends upon democratic spirit, i.e. a
spirit of fair play, of self restraint, and of mutual accommodation of
different views, different interests and different opinions of different
sets of persons. “There can be no Constitutional government unless
the  wielders  of  power  are  prepared  to  observe  limits  upon
governmental powers”.
It is evident that the Governor enjoys complete immunity under
Article 361(1) of the Constitution, and that under this, his actions
cannot be challenged, for the reason that the Governor acts only upon
the aid and advice of the Council of Ministers.  If this was not the
case,  democracy  itself  would  be  in  peril.  The  Governor  is  not
53Page 54
answerable to either House of State, or to the Parliament, or even to
the Council of Ministers, and his acts cannot be subject to judicial
review. In such a situation, unless he acts upon the aid and advice of
the Council of Ministers, he will become all powerful and this is an
anti-thesis  to  the  concept  of  democracy.  Moreover,  his  actions,
including  such  actions  which  may  be  challenged  on  ground  of
allegations  of  malafides,  are  required  to  be  defended  by  the
Union/State.  In spite of the fact that the Governor is immune from
any liability, it is open to him to file an affidavit if anyone seeks
review of his opinion, despite the fact that there is a bar against any
action of the court as regards issuing notice to, or for the purpose of
impleading, at the instance of a party, the President or the Governor in
a case, making him answerable.
41. The Gujarat Government Rules of Business, 1990, have been
framed under Article 166 of the Constitution,  and under the same, the
Governor  of  Gujarat  has  made  several  rules  for  the  convenient
transaction  of  business  of  the  Government  of  Gujarat,   and  the
subjects  allocated  in  this  context,  to  the  General  Administration
Department include the appointment of  High Court Judges (Serial
No. 36) and the Lokayukta (Serial No. 316A).
54Page 55
42. Be that as it may, the judgments referred to hereinabove, do not
leave  any room for doubt with respect  to the fact that, when the
Governor does not act as a statutory authority, but as the Head of the
State, being Head of the executive and appoints someone under his
seal and signature, he is bound to act upon the aid and advice of the
Council of Ministers. The Governor’s version of events, stated in her
letter dated 3.3.2010, to the effect that she was not bound by the aid
and advice of the Council of Ministers, and that she had the exclusive
right to appoint the Lokayukta, is most certainly not in accordance
with the spirit of the Constitution. It seems that this was an outcome
of  an  improper  legal  advice  and  the  opinion  expressed  is  not  in
conformity with the Rule of Law. The view of the Governor was
unwarranted and logically insupportable.
43. All the three learned Judges in the judgment under appeal have
recorded the following findings upon the issue with respect to whether
the  Governor  must  act  on  the  aid  and  advice  of  the  Council  of
Ministers, or not:
(1)      Mr. Justice Akil Kureshi came to the conclusion :
“The Governor under Section 3 of the Act acts under the
aid and advice of the Council of Ministers.”
55Page 56
(2)     Ms. Justice Sonia Gokani held as under:
“As  provided  under  Section  3  of  the  Lokayukta  Act,
appointment is expressly to be done by the Governor on
aid and advice of the Council of Ministers headed by the
Chief  Minister  who  are  required  to  so  do  it  after
consultation with the Chief Justice and the Leader of the
Opposition party.”
(3)      Mr. Justice V.M. Sahai has recorded his finding as under:
“However, the Chief Minister is the Head of the Council
of  Ministers.  Article  163  of  the  Constitution  of  India
provides  that  the  Council  of  Ministers  is  to  aid  and
advice the Governor in the exercise of all his functions.
The  exceptions  are  where  the  Governor  under  the
Constitution  is  required  to  exercise  functions  in  his
discretion. Therefore, the Chief Minister as the Head of
the Council of Ministers will automatically figure in the
matter of appointment of Lokayukta under Section 3 of
the  Act.  The  Governor is the  constitutional  or  formal
Head  of  the  State,  and  has  to  make  appointment  of
Lokayukta  with  the  aid and  advice  of  the Council  of
Ministers  as  provided  by  Article  163  of  the
Constitution…..The  Governor  was  justified  and
authorised to act under Section 3 of the Act and exercise
her  discretionary  powers  under  Article  163  of  the
Constitution,  in  the  fact-situation  of  this  case  in  the
manner  she  did  while  issuing  warrant/notification
appointing Justice (Retired) R.A. Mehta as Lokayukta of
the  Gujarat  State  without  or  contrary  to  the  aid  and
advice of the Council of Ministers headed by the Chief
Minister to save democracy and uphold rule of law. I am
of the considered opinion that the answer to the second
point is that the Governor of the State was authorised to
act in a manner she did while issuing warrant/notification
appointing Justice R.A. Mehta as Lokayukta of the State
without the aid and advice of the Council of Ministers.”
56Page 57
44. Such  findings  have  not  been  challenged  by  any  respondent
before this Court. Therefore, the controversy herein, lies within a very
narrow compass, as two of the learned Judges have held that the
consultation process herein, was in fact complete, and therefore, upon
considering the primacy of opinion of the Chief Justice in this regard,
they  held  that  the  appointment  of  respondent  no.1  to  the  post  of
Lokayukta was  valid. However, one learned Judge has differed only
as regards the factual aspect of the matter, stating that on the basis of
such  facts,  it  cannot  be  said  that  the  consultation  process  was
45.  The facts mentioned hereinabove, make it crystal clear that the
process of consultation stood complete as on 2.8.2011, as 3 out of 4
statutory authorities had approved the name of Justice R.A. Mehta and
the  Chief  Justice  provided  an  explanation  to  the  Chief  Minister
regarding  the  objections  raised  by  the  latter,  with  respect  to  the
appointment of Justice R.A. Mehta to the post of Lokayukta, vide
letter dated 16.6.2011. This is because, the Chief Minister had certain
objections  regarding  the  appointment  of  respondent  No.1,  as
Lokayukta, and his objections were considered by the Chief Justice,
after which, it was also explained to the Chief Minister, how the said
57Page 58
objections raised by him, were in fact, completely irrelevant, or rather,
not factually correct.  The position was clarified by the Chief Justice
after verifying all relevant facts, which is why, the Chief Justice took
six whole weeks to reply to the letter dated 16.6.2011. In the aforesaid
letter, it was mentioned that Justice R.A. Mehta was affiliated with
certain NGOs, social activist groups etc., and may therefore, have preconceived notions, or having prior opinions with respect to certain
issues of governance in the State. It was also mentioned that Justice
R.A. Mehta had shared a platform with such persons who are known
for their antagonism against the State Government. Moreover, he had
been a panelist for such NGOs, social activist groups etc., and had
expressed  his  dissatisfaction  as  regards  the  manner  in  which,  the
present government in the State was functioning. In support of the
allegations  regarding  the  aforesaid  associations  etc.,  newspaper
cuttings were also annexed to the said letter.
46. We have examined the objections raised by the Chief Minister
and the reasons given by the Chief Justice for not accepting the same,
and  reach  the  inescapable  conclusion  that  none  of  the  objections
raised  by  the  Chief  Minister  could  render  respondent  no.1
ineligible/disqualified or unsuitable for appointment to the said post.
58Page 59
On a close scrutiny, the reasons discussed by the Chief Justice appear
to  be  rational  and  based  on  facts  involved.  This  establishes  an
application  of  mind  and  a  reasonable  approach  with  hardly  any
element  of  perversity  to  invoke  a  judicial  review  of  the  decision
making  process.  The  issue  appears  to  have  been  dealt  with
objectively.  If  a  vigilant  citizen  draws  the  attention  of  the
State/Statutory  authority  to  the  apprehensions  of  the  minority
community in that State, then the same would not amount to a biased
attitude of such citizen towards the State.  Thus, there is no scope of
judicial review so far as the process of decision making in this case is
47. While considering the issue of bias, the Court must bear in
mind the impression which the public at large may have, and not that
of an individual.
48. A  perusal  of  the  Minutes  of  the  Meeting  dated  23.2.2010
regarding  the  discussion  upon  the  subject  of  consultation  for  the
purpose  of appointment  of  the Lokayukta,  between  the  Leader of
Opposition and the Hon’ble Chief Minister reveals that, the Chief
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Minister expressed his view stating that in the event a retired Judge
has been given some other assignment,  it is not permissible to
consider him for the appointment to the post of Lokayukta in the
State of Gujarat.  Furthermore, the Chief Minister also expressed his
view to the effect that in the process of consultation, the view of the
Hon’ble  Chief  Justice  of  the  Gujarat  High  Court  must  be  given
primacy, as also, the requirement of receiving a name suggested by
the Hon’ble Chief Justice, and finally that the Government, owing to
the  aforementioned  reasons,  should  not  restart  the  process  of
49. However,  the letter  dated 4.5.2011  reveals that the  Hon’ble
Chief Minister had changed his view as regards the said issue, and
suggested that in spite of the fact that Justice J.R. Vora was presently
engaged with another assignment, his name could be considered for
the purpose of appointment as Lokayukta, as the same was required in
public interest.  It is further revealed from this letter that Justice J.R.
Vora had even offered to resign if such an offer was made to him.
50. Letter  dated  16.6.2011,  revealed  that  while  opposing  the
appointment  of  Justice  R.A.  Mehta,  the  Hon’ble  Chief  Minister
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insisted that Justice J.R. Vora may be appointed so that this  long
standing issue would finally be resolved.  
51.  The Hon’ble Chief Minister in his letter dated 18.8.2011 to the
Governor even raised a question as to why the judgment of this Court
in Kannadasan (Supra) be followed in the State of Gujarat, when the
same  was  not  being  followed  elsewhere,  and  in  light  of  this,
questioned  the  insistence  of  the  Chief  Justice,  in  following  the
procedure prescribed in the aforementioned judgment.
52. In the letter dated 18.8.2011, written by Hon’ble Chief Minister
to the Chief Justice, a strange situation was created. The relevant part
of the letter reads as under:
“……Although,  I  have  no  personal  reservation
against the name of Hon’ble Mr. Justice (Retired)
R.A.  Mehta,  but  as  the  Head  of  the  State
Government, I am afraid,  I may not be able to
accept the name of Hon’ble Mr. Justice (Retired)
R.A.  Mehta,  who,  in  my  view,  cannot  be
considered the most suitable choice for the august
post  of Lokayukta,  Gujarat  State……”(Emphasis
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53. From the above, it, thus, becomes evident, that the Hon’ble
Chief Minister who had spoken, not only about the  primacy of the
opinion of the Chief Justice, but had also expressed his opinion as
regards the  supremacy of the same, and had expressed his solemn
intention to accept the recommendation of a name provided by the
Chief  Justice,  was  now  expressing  his inability  to  accept  such
54. On 16.8.2011, the process of consultation stood complete as
the  record  reveals,  there  was  nothing  left  for  the  consultees  to
It is pertinent to note that, in order to avoid an enquiry by the
Lokayukta, an enquiry commission was set up under the Commission
of  Inquiry  Act  by  the  State  Government  appointing  Hon’ble  Mr.
Justice M.B. Shah, a former Judge of this Court, as Chairman. In the
event  of  the  appointment  of  such  an  enquiry  commission,  the
Lokayukta is restrained under the provision of the Act, 1986, from
proceeding with such cases that the Commission is appointed to look
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55. The arguments advanced on the basis of the doctrine of bias in
the present case, are irrelevant, so far as the facts of the instant case
are concerned, for the reason that all the judgments cited at the Bar,
relate to the deciding of a case by the court, and are not therefore,
applicable, with respect to the issue of appointment of a person to a
particular post.  Such an apprehension of bias against a person, does
not render such person, ineligible/disqualified, or unsuitable for the
purpose of being   appointed to a particular post, or at least for the
purpose of which, the  writ of quo warranto is maintainable.  The Act,
1986 itself provides for statutory safeguards against bias. Section 8(3)
of the said Act for instance, provides that in the event of reasonable
apprehension of bias in the mind of the person aggrieved, such person
is  free  to  raise  his  grievance,  and  seek  recusal  of  the  person
concerned. Thus, prospective investigatees will not be apprehended as
potential victims unnecessarily.
Section  4  of  the  Act,  1986  makes  a  retired  Judge,  who  is
elected as a Member of the Parliament, or of a State Legislature,
eligible for the purpose of being appointed as Lokayukta, provided
that he resigns from the said House, and severs his relationship with
the political party to which he belongs.  It is therefore, difficult to
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imagine  a  situation  where  the  allegations  of  bias/prejudice  with
respect to a person would be accepted, merely on the basis of the fact
that such a person has some association with a particular NGO. We do
not  feel  that  that  objections  raised  by  the  State  Government,  are
cogent  enough to ignore the primacy  of the opinion of the Chief
Justice in this regard. Thus, we are of the opinion that the views of the
Hon’ble Chief Minister in this regard may not resonate with those of
the public at large and thus, such apprehension is misplaced.
The Court has to bear in mind the dicta of this Court in  Bidi
Supply Co. v. Union  of India & Ors. AIR 1956 SC 479 which is as
“…..that the Constitution is not for the exclusive benefit
of  Governments  and  States  …It  also  exists  for  the
common  man  for  the  poor  and  the  humble…for  the
‘butcher, the baker and the candlestick maker’….It lays
down for this land ‘a rule of law’ as understood in the
free democracies of the world.”
56. Without  reference  to  any  Constitutional  provision  or  any
judgment of this Court referred to earlier, even if we examine the
statutory  provisions  of  the  Act,  the  statutory  construction  itself
mandates  the  primacy of the  opinion  of  the  Chief  Justice  for the
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simple reason that Section 3 provides for the consultation with the
Chief Justice.  Section 6 provides for the removal of Lokayukta, and
lays down the procedure for such removal. The same can be done only
on proven misconduct in an inquiry conducted by the Chief Justice/his
nominee  with  respect  to  specific  charges.   Section  8(3)  further
provides for recusal  of the Lokayukta in a matter where a public
functionary  has  raised  the  objection  of  bias,  and  whether  such
apprehension of bias actually exists or not, shall be determined in
accordance with the opinion of the Chief Justice.
The purpose of giving primacy of opinion to the Chief Justice is
for the reason that he enjoys an independent Constitutional status, and
also because the  person eligible to be appointed as Lokayukta is from
among the retired Judges of the High Court and the Chief Justice is,
therefore, the best person to judge their suitability for the post.  While
considering the statutory provisions, the court has to keep in mind the
Statement of Objects and Reasons published in the Gujarat Gazette
(Extraordinary) dated 1.8.1986, as here, it is revealed that the purpose
of the Act is also to provide for the manner of removal of a person
from  the  office  of  the  Lokayukta,  and  the  Bill  ensured  that  the
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grounds  for  such  removal  are  similar  to  those  specified  for  the
removal of the Judges of the High Court.
57. As the Chief Justice has primacy of opinion in the said matter,
the non-acceptance of such recommendations, by the Chief Minister,
remains  insignificant.  Thus,  it  clearly  emerges  that  the  Governor,
under Section 3 of the Act, 1986 has acted upon the aid and advice of
the Council of Ministers.  Such a view is taken, considering the fact
that Section 3 of the Act, 1986, does not envisage unanimity in the
consultative process.
58. Leaving the finality of choice of appointment to the Council of
Ministers, would be akin to allowing a person who is likely to be
investigated,  to  choose  his  own  Judge.   Additionally,  a  person
possessing limited power, cannot be permitted to exercise unlimited
However, in light of the facts and circumstances of the case, it
cannot be held that the process of consultation was incomplete and
was not concluded as per the requirements of the Act, 1986.
59.     In M.P. Special Police Establishment  (Supra), this Court held
as under:
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“11…Thus, as rightly pointed out by Mr Sorabjee,
a  seven-Judge  Bench  of  this Court  has already
held that the normal rule is that the Governor acts
on the aid and advice of the Council of Ministers
and not independently or contrary to it. But there
are exceptions under which the Governor can act
in his own discretion. Some of the exceptions are
as set out hereinabove. It is, however, clarified
that the exceptions mentioned in the judgment
are not exhaustive. It is also recognised that the
concept of the Governor acting in his discretion or
exercising independent judgment is not alien to
the Constitution. It is recognised that there may
be  situations  where  by  reason  of  peril  to
democracy  or  democratic  principles,  an  action
may  be compelled which from its nature  is not
amenable to Ministerial advice. Such a situation
may be where bias is inherent and/or manifest in
the  advice  of  the  Council  of  Ministers.
(Emphasis added)
60. In  fact,  a  five  Judge  Bench  of  this Court,  in  this case  has
explained the judgment of a seven Judge Bench in  Samsher Singh
(Supra), observing that in exceptional circumstances, the Governor
may be justified in acting in his discretion, and that the exceptions
enumerated in Samsher Singh (Supra) are not exhaustive.
Thus, the view taken by the 3
 learned Judge, in which it has
been stated that it had become absolutely essential for the Governor to
exercise  his  discretionary  powers  under  Article  163  of  the
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Constitution,  must  be  read  in  light  of  the  above-mentioned
61. The office of the Lokayukta is very significant for the people of
the State, as it provides for a mechanism through which, the people of
the  State  can  get  their  grievances  heard  and  redressed  against
maladministration.   The right to administer, cannot obviously include
the right to maladminister. (Vide:  In Re. Kerela  Education Bill,
1957, AIR 1958 SC 956). In a State where society suffers from moral
denigration, and simultaneously, from rampant corruption, there must
be an effective forum to check the same.  Thus, the Lokayukta Act
may be termed as  a pro-people Act, as the object of the Act, 1986 is
to clean up augean  stables, and in view thereof, if a political party in
power, succeeds in its attempt to appoint a pliant Lokayukta, the same
would  be  disastrous  and  would  render  the  Act  otiose.   A  pliant
Lokayukta may not be able to take effective and required measures to
curb the menace of corruption.
62. Corruption in a civilised society is a disease like cancer, which
if not detected in time, is sure to spread its malignance among the
polity of the country, leading to disastrous consequences. Therefore, it
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is  often  described  as  royal  thievery.   Corruption  is  opposed  to
democracy and social order, as being not only anti people, but also
due to the fact that it affects the economy of a country and destroys its
cultural heritage.  It poses a threat to the concept of Constitutional
governance and shakes the very foundation of democracy and the rule
of  law.  It  threatens  the  security  of  the  societies  undermining  the
ethical  values  and  justice  jeopardizing  sustainable  development.
Corruption  de-values  human  rights,  chokes  development,  and
corrodes the moral fabric of society.  It causes considerable damage to
the national economy, national interest and the image of the country.
(Vide: Vineet Narain & Ors. v. Union of India & Anr., AIR 1998
SC 889; State of Madhya Pradesh & Ors. v. Shri Ram Singh, AIR
2000 SC 870;  State of Maharashtra thr. CBI, Anti Corruption
Branch,  Mumbai  v.  Balakrishna  Dattatrya  Kumbhar, JT  2012
(10)  SC  446;  and  Dr.  Subramanian  Swamy  v.  Dr.  Manmohan
Singh & Anr., AIR 2012 SC 1185).
63. The adverse impact of lack of probity in public life leads to a
high degree of corruption.  Corruption often results from patronage of
statutory/higher authorities and it erodes quality of life, and it has
links with organized crimes, economic crimes like money laundering
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etc., terrorism and serious threats to human security to flourish.  Its
impact  is  disastrous  in  the  developing  world  as  it  hurts  the  poor
disproportionately  by  diverting  funds  intended  for  development.
Corruption  generates  injustice  as  it  breeds  inequality  and  become
major obstacle to poverty alleviation and development.  United Nation
Convention Against Corruption, 2003, envisages the seriousness and
magnitude  of  the  problem.  December  9  has  been  designated  as
International  Anti-Corruption  Day.   India  is  a  party  to  the  said
convention with certain reservation.
64. In re:  Special Courts Bill, 1978, AIR 1979 SC 478, Justice
Krishna Iyer observed :
“Corruption  and  repression  –  cousins  in  such
situation  - hijack development process and in the
long run lagging national progress means ebbing
people’s  confidence  in  constitutional  means  to
social justice.”
65. Corruption in a society is required to be detected and eradicated
at the earliest as it shakes “the socio-economic-political system in an
otherwise healthy, wealthy, effective and vibrating society.”  Liberty
cannot last long unless the State is able to  eradicate corruption from
public life.  The corruption is a bigger threat than external threat to the
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civil  society  as  it  corrodes  the  vitals  of  our  polity  and  society.
Corruption  is  instrumental  in  not  proper  implementation  and
enforcement of policies adopted by the Government.  Thus, it is not
merely  a  fringe  issue  but  a  subject  matter  of  grave  concern  and
requires to be decisively dealt with.
66. In the process of statutory construction, the court must construe
the Act before it, bearing in mind the legal maxim ut res magis valeat
quam pereat –  which mean – it is better for a thing to have effect than
for it to be made void, i.e., a statute must be construed in such a
manner, so as to make it workable.  Viscount Simon, L.C. in the case
of Nokes v. Doncaster Amalgamated Collieries Ltd., (1940) 3 All
E.R. 549, stated as follows:
“……if the choice is between two interpretations,
the narrower of which would fail to achieve the
manifest  purpose  of  the  legislation  we  should
avoid  a  construction  which  would  reduce  the
legislation to futility, the should rather accept the
bolder  construction,  based  on  the  view  that
Parliament would legislate only for the purpose of
bringing about an effective result.”
Similarly in Whitney v. Inland Revenue Commissioner, 1926
AC 37, it was observed as under:
“A statute is designed to be workable, and the
interpretation  thereof  by  a  court  should  be  to
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secure that object unless crucial omission or clear
direction makes that end unattainable.”
67. The doctrine of purposive construction may be taken recourse
to for the purpose of giving full effect to statutory provisions, and the
courts must state what meaning the statute should bear, rather than
rendering the statute a nullity, as statutes are meant to be operative
and not inept.  The courts must refrain from declaring a statute to be
unworkable.   The  rules  of  interpretation  require  that  construction,
which carries forward the objectives of the statute, protects interest of
the parties and keeps the remedy alive, should be preferred, looking
into the text and context of the statute.  Construction given by the
court must promote the object of the statute and serve the purpose for
which it has been enacted and not efface its very purpose.  “The courts
strongly lean against any construction which stands to reduce a statute
to futility. The provision of the statute must be so construed so as to
make it effective and operative.” The court must take a pragmatic
view and must keep in mind the purpose for which the statute was
enacted, as the purpose of law itself provides good guidance to courts
as they interpret the true meaning of the Act and thus, legislative
futility must be ruled out. A statute must be construed in such a manner so
as to ensure that the Act itself does not become a dead letter, and the
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obvious intention of the legislature does not stand defeated, unless it
leads to a case of absolute intractability in use.  The court must adopt
a  construction  which  suppresses  the  mischief  and   advances  the
remedy  and  “to  suppress  subtle  inventions  and  evasions  for
continuance of the mischief, and  pro privato commodo, and to add
force and life to the cure and remedy, according to the true intent of
the makers of the Act, pro bono publico”.  The court must give effect
to the purpose and object of the Act for the reason that legislature is
presumed to have enacted a reasonable statute. (Vide: M. Pentiah &
Ors. v. Muddala Veeramallappa & Ors., AIR 1961 SC 1107; S.P.
Jain v. Krishna Mohan Gupta & Ors., AIR 1987 SC 222; Reserve
Bank of India v. Peerless General Finance and Investment Co.
Ltd. & Ors., AIR 1987 SC 1023;  Tinsukhia Electric Supply Co.
Ltd. v. State of Assam & Ors., AIR 1990 SC 123;  UCO Bank &
Anr.  v.  Rajinder  Lal  Capoor,  (2008)  5  SCC  257;  and  Grid
Corporation  of  Orissa  Limited  &  Ors.  v.  Eastern  Metals  and
Ferro Alloys & Ors., (2011) 11 SCC 334).
68. Governance  in  terms  of  Constitutional  perceptions  and
limitations  is  a  basic  feature  of  the  Constitution,  wherein  social,
economic  and  political  justice  is  a  Constitutional  goal.  We  must
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always keep in mind that the Constitution is a living organism and is
meant for the people, not just for the government, as it provides for
promotion of public welfare.
69. A pliant Lokayukta therefore, would render the Act completely
meaningless/ineffective, as he would no doubt reject complaints under
Section 7 of the Act, at the instance of the government, taking the
prima facie view that there is no substance in the complaint, and
further, he may also make a suggestion under Section 20 of the said
Act, to exclude a public functionary, from the purview of the Act,
which may include the Chief Minister himself.  Thus, Section 3 of the
Act, 1986 must be construed in the light of meaning given by the
courts to the word ‘consultation’ so as to give effect to the provisions
of the statute to make it operative and workable.
70. In the facts of this case, it may not be necessary for the court to
examine the submissions made on behalf of the appellants that the
Governor  should  neither  have  directly  sought  the  opinion  of  the
Attorney  General  of  India,  nor  should  have  directly  solicited  the
opinion of the Chief Justice on the issue, and further, that after doing
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so, she should not have asked the Chief Justice to send only one name
in the light of the opinion of the Attorney General, as such conduct of
the Governor could not be in consonance and conformity with the
Constitutional  scheme.  It  appears  that  the  Governor  had  been
inappropriately  advised  and  thus  mistook  her  role,  as  a  result  of
which, she remained under the impression that she was required to act
as a statutory authority under the Act, 1986, and not as the Head of the
State. Moreover, the advice of the Attorney General was based on the
judgments  of  this  Court,  referred  to  hereinabove,  and  the  Chief
Minister  was also  aware  of each  and  every  development  in these
71. It appears that the third learned Judge has used a harsh language
against the Chief Minister, after examining the various letters written
by him wherein he contradicted himself as at one place, he admits not
just to the primacy of the Chief Justice, but to his   supremacy in this
regard, and in another letter, he states that the recommendation made
by  the  Chief  Justice  would  not  be  acceptable to  him,  and  also
revealed his perpetual insistence as regards consideration of the name
of  Justice J.R. Vora  for appointment to the said post of Lokayukta.  
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At an earlier stage, the Chief Minister had taken a stand to the
effect that a retired Judge, who has been given some other assignment,
should not be considered for appointment to the post of Lokayukta.
However, with respect to the case of Justice J.R. Vora, he seems to
have taken an altogether different view.
72. The third learned Judge made numerous observations inter-alia
that a Constitutional mini crisis had been sparked by the actions of the
Chief Minister, compelling the Governor to exercise his discretionary
powers under Article 163 of the Constitution, to protect democracy
and  the  rule  of  law,  while  appointing  respondent  no.1  as  the
Lokayukta;  that,  there  was  an  open  challenge  by  the  Council  of
Ministers in their non-acceptance of the primacy of the opinion of the
Chief Justice of the Gujarat High Court, which revealed the discordant
approach  of  the  Chief  Minister;   that,  the  conduct  of  the  Chief
Minister demonstrated deconstruction of democracy and tantamounts
to  a  refusal  by  the  Chief   Minister  to  perform  his  statutory  or
Constitutional obligation and, therefore, in light of this, a responsible
Constitutional decision was required to be taken by the Governor so
as to ensure that democracy thrived, or to preserve democracy and
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prevent tyranny. The same seem to have been made after examining
the attitude of the Chief Minister, as referred to hereinabove.
73. This  Court  has  consistently  observed  that  Judges  must  act
independently and boldly while deciding a case, but should not make
atrocious remarks against the party, or a witness, or even against the
subordinate court. Judges must not use strong and carping language,
rather they must act with sobriety, moderation and restraint, as any
harsh and disparaging strictures passed by them, against any person
may be mistaken or unjustified, and in such an eventuality, they do
more harm and mischief, than good, therefore resulting in injustice.
Thus,  the  courts  should  not  make  any  undeserving  or  derogatory
remarks against any person, unless the same are necessary for the
purpose of deciding the issue involved in a given case.  Even where
criticism is justified, the court must not use intemperate language and
must maintain judicial decorum at all times, keeping in view always,
the  fact  that  the  person  making  such  comments,  is  also  fallible.
Maintaining  judicial  restraint  and  discipline  are  necessary  for  the
orderly  administration  of  justice,  and  courts  must  not  use  their
authority  to  “make  intemperate  comments,  indulge  in  undignified
banter  or  scathing  criticism”.  Therefore,  while  formation  and
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expression of honest opinion and acting thereon, is a necessity to
decide a case, the courts must always act within the four-corners of
the law. Maintenance of judicial independence is characterized by
maintaining a cool, calm and poised mannerism, as regards every
action and expression of the members of the Judiciary, and not by
using  inappropriate,  unwarranted  and  contumacious  language.  The
court  is  required  “to  maintain  sobriety,  calmness,  dispassionate
reasoning and poised restraint. The concept of  loco parentis  has to
take foremost place in the mind of a Judge and he must keep at bay
any uncalled for, or any unwarranted remarks.”  (Vide:  State of M.P.
& Ors. etc.etc. v. Nandlal Jaiswal & Ors. etc.etc., AIR 1987 SC
251; A.M. Mathur v. Pramod Kumar Gupta, AIR 1990 SC 1737;
State of Bihar & Anr. v. Nilmani Sahu & Anr., (1999) 9 SCC 211;
In the matter of: “K” a Judicial Officer, AIR 2001 SC 972; In the
matter of: “RV”, a Judicial Officer, AIR 2005 SC 1441; and  Amar
Pal Singh v. State of U.P. & Anr., AIR 2012 SC 1995).
Thus, in view of the above, we are of the view that the learned
Judge, even if he did not approve of the “my-way or the high way”
attitude  adopted  by  the  Hon’ble  Chief  Minister,  ought  to  have
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maintained a calm disposition and should not have used such harsh
language against a Constitutional authority, i.e.  the Chief Minister.
(i) The  facts  of  the  case  reveal  a  very  sorry  state  of  affairs,
revealing that in the State of Gujarat, the post of the Lokayukta has
been lying vacant for a period of more than 9 years, as it became
vacant on 24.11.2003, upon the resignation of  Justice S.M. Soni from
the said post.  Since then a few half-hearted attempts were made to fill
up the post of the Lokayukta, but for one reason or another, the same
could not be filled. The present Governor has misjudged her role and
has insisted, that under the Act, 1986, the Council of Ministers has no
role to play in the appointment of the Lokayukta, and that she could
therefore, fill it up in consultation with the Chief Justice of the Gujarat
High Court and the Leader of Opposition.  Such attitude is not in
conformity,  or  in  consonance  with  the  democratic  set  up  of
government envisaged in our Constitution. Under the scheme of our
Constitution, the Governor is synonymous with the State Government,
and can take an independent decision upon his/her own discretion
only when he/she acts as a statutory authority under a particular Act,
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or  under  the  exception(s),  provided  in  the  Constitution  itself.
Therefore, the appointment of the Lokayukta can be made by the
Governor, as the Head of the State, only with the aid and advice of the
Council of Ministers, and not independently as a Statutory Authority.
(ii) The Governor consulted the Attorney General of India for legal
advice, and communicated with the Chief Justice of the Gujarat High
Court  directly,  without  taking  into  confidence,  the  Council  of
Ministers. In this respect, she was wrongly advised to the effect that
she had to act as a statutory authority and not as the Head of the State.
Be that as it may, in light of the facts and circumstances of the present
case, it is evident that the Chief Minister had full information and was
in  receipt  of  all  communications  from  the  Chief  Justice,  whose
opinion is to be given primacy as regards such matters, and can only
be overlooked, for cogent reasons. The recommendation of the Chief
Justice suggesting only one name, instead of a panel of names, is in
consonance with the law laid down by this Court, and we do not find
any cogent reason to not give effect to the said recommendation.
(iii) The objections raised by the Chief Minister, have been duly
considered by the Chief Justice, as well as by this Court, and we are of
the considered view that none of them are tenable, to the extent that
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any of them may be labeled as cogent reason(s), for the purpose of
discarding the recommendation of the name of respondent no.1, for
appointment to the post of Lokayukta.
(iv) There are sufficient safeguards in the Statute itself, to take care
of  the  pre-conceived  notions  in  the  mind,  or  the  bias,  of  the
Lokayukta, and so far as the suitability of the person to be appointed
as Lokayukta is concerned, the same is to be examined, taking into
consideration the interests of the people at large, and not those of any
individual. The facts referred to hereinabove, make it clear that the
process of consultation stood complete, and in such a situation, the
appointment of respondent no.1 cannot be held to be illegal.
The appeals lack merit and are accordingly dismissed.
75. Before parting with the case, we would like to mention that as
the respondent no.1 did not join the post, because of the pendency of
the case, he may join now. Needless to say that the appellants shall
provide all facilities/office, staff etc., required to carry out the work of
the Lokayukta. More so, we have no doubt that appellants will render
all co-operation to respondent no.1 in performance of the work of the
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In view of the above, no separate order is required to be passed
in SLP (C) Nos. 2625-2626/2012; and 2687-2688/2012.  The said
petitions and all IAs, pending, (if any), stand disposed of in terms of
the aforesaid judgment.
        (Dr. B.S. CHAUHAN)
New Delhi,
January 2, 2013

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