Holding

The Governor may appoint Lokayukta or Upa‑Lokayukta only on the advice of the Chief Minister, who must consult the five dignitaries including the Chief Justice, but the consultation does not give primacy to any consultee; failure to consult renders the appointment void.

Summary

The Karnataka Lokayukta post of Upa‑Lokayukta became vacant and the Chief Minister advised the Governor to appoint Justice Chandrashekaraiah without consulting the Chief Justice of the Karnataka High Court, as required by s.3(2)(b) of the Karnataka Lokayukta Act, 1984. The High Court quashed the appointment, holding that consultation with the Chief Justice was mandatory and that his view had primacy. On appeal, the Supreme Court examined the meaning of “consultation” and whether any consultee’s opinion, including that of the Chief Justice, enjoys primacy. Interpreting the statutory language literally, the Court held that the Governor appoints only on the advice of the Chief Minister, who must consult five dignitaries, including the Chief Justice, but the consultation does not confer primacy on any of them. Because the Chief Justice was not consulted, the appointment was void ab initio. The Court set aside the High Court’s directions and ordered the Chief Minister to follow the proper consultative procedure for any future appointment.

Issues considered

Whether the opinion of the Chief Justice of the Karnataka High Court has primacy over other consultees in the appointment of Lokayukta or Upa‑Lokayukta under the Karnataka Lokayukta Act, 1984.
What the term “consultation” entails under s.3(2)(a) and (b) of the Act.
Whether consultation with the Chief Justice is mandatory and must be meaningful and effective.
Whether the Chief Minister may advise the Governor to appoint a person not recommended by any consultee.
Whether an appointment made without the required consultation is void ab initio.

Legislation cited

Code of Civil Procedure, 1908
Code of Criminal Procedure, 1973
Indian Penal Code, 1860s. 193
Karnataka Lokayukta Act, 1984s. 10, s. 11, s. 12, s. 3(2)(a), s. 3(2)(b), s. 9

Subjects

LokayuktaUpa‑LokayuktaAppointmentConsultationPrimacy of opinionKarnataka Lokayukta ActQuasi‑judicial authorityStatutory interpretation

Judgment

[2013] 3 S.C.R. 987

MR. JUSTICE CHANDRASHEKARAIAH (RETD.) A
v.
JANEKERE C. KRISHNA & ORS. ETC.
(Civil Appeal Nos.197-199 of 2013)
JANUARY 11, 2013
B
[K.S. RADHAKRISHNAN AND MADAN B. LOKUR, JJ.]

Karnataka Lokayukta Act, 1984 - s.3(2)(a) and (b) -
Appointment of Lokayukta I Upa Lokayukta under the Act by
the Governor of Karnataka - Nature and procedure to be C
followed - Requirement of 'consultation' in the context of
appointment process - Meaning of - Held: The Governor of
the State can appoint Lokayukta or Upa Lokayukta only on
the advice tendered by the Chief Minister- The Chief Minister
is mandatorily required to consult the Chief Justice of the High D
Court and four other consultees - The consultation must be
meaningful and effective - However, the advice tendered by
the Chief Minister will have primacy and not that of the
consultees including the Chief Justice of the High Court - On
facts, the Chief Minister erred in not consulting the Chief E
Justice of the High Court in the matter of appointment of
appellant as Upa Lokayukta - Appointment of appellant was
in violation of s.3(2)(b) of the Act since the Chief Justice of
the High Court was not consulted nor was the name
deliberated upon before advising or appointing him as Upa F
Lokayukta - Consequently appellant has no authority to
continue or hold the post of Upa Lokayukta.

Karnataka Lokayukta Act, 1984- s.3(2)(a) and (b)- State
of Karnataka - Duties and functions of the Lokayukta I Upa
Lokayukta - Nature of - Discussed. G

The office of the Karnataka Upa Lokayukta fell
vacant. The Chief Minister of the Karnataka State initiated
steps for filling up that vacancy and following that
987 H
988 SUPREME COURT REPORTS [2013] 3 S.C.R.

A advised the Governor to appoint Justice
Chandrashekaraiah as Upa Lokayukta. The Governor,
accepting the advice of the Chief Minister, passed order
dated 20.01.2012 appointing Justice Chandrashekaraiah
as the Upa Lokayukta.
B
The Chief Justice of the Karnataka High Court
addressed a letter dated 04.02.2012 to the Chief Minister
stating that he was not consulted in the matter of
appointment of Justice Chandrashekaraiah as Upa
Lokayukta and that the appointment was not in
C conformity with the constitutional provisions and
requested for recalling the appointment. Subsequently,
two writ petitions were filed in public interest for quashing
the appointment of Justice Chandrashekaraiah as Upa
Lokayukta. A writ of quo warranto was also preferred
D against the functioning of Justice Chandrashekaraiah as
Upa Lokayukta.

The High Court held that since there was no
consultation with the Chief Justice of the Karnataka High
E Court specifically on the appointment of Justice
Chandrashekaraiah as an Upa-lokayukta, his
appointment, therefore, was void ab initio. The High
Court held that under the Karnataka Lokayukta Act, 1984,
the opinion expressed by the Chief Justice of the High
F Court of Karnataka has primacy while tendering advice
by the Chief Minister of the State to the Governor and that
since, the. order passed by the Governor of Karnataka,
appointing Justice Chandrashekaraiah as Upa
Lokayukta, was without consulting the Chief Justice of
G the l:ligh Court, the same was illegal.
In the instant appeals preferred by Justice
Chandrashekaraiah and the State of "Karnataka, the
question which arose for consideration was whether the
view of the Chief Justice of the High Court of Karnataka
H has got primacy while making appointment to the post
JUSTICE CHANDRASHEKARAIAH (RETD.). v. . 989
JANEKERE C. KRISHNA

of Lokayukta or Upa Lokayukta by the Governor of A.
Karnataka in exercise of powers conferred on him under
Section 3(2)(a) and (b) of the Karnataka Lokayukta Act,
1984.

Disposing ofthe appeals, the Court B
Per Radhakrishnan, J. .
HELD: 1.1. The functions to be discharged by
Lokayukta or Upa Lokayukta are investigative in nature
and the report of Lokayukta or Upa Lokayukta under c
sub-sections (1) and (3) of Section 12 of the Act and the
Special Report ~ubmitted under sub-section (5) of
Section 12 of the Act are only recommendatory. No civil
. consequence as such follows from the action of
Lokayukta and Upa Lokayukta, though they can initiate o
prosecution before a competent court. Sections 9, 10 and
11 of the Act clearly indicate that Lokayukta and Upa
Lokayukta are discharging quasi-judicial functions while
conducting the investigation under the Act. Sub-section
(2) of Section 11 of the Act also states that for the purpose E
any such investig~tion, including the pretiminary inquiry
Lokayukta and Upa I
Lokayukta shall have all the powers
of a Civil Court while trying a suit .under the Code of Civil
Procedure, 1908, in the matter of summoning and
enforcing the attendance of any person and examining F
him on oath. Further they have also the power for
requiring the discovery and p"roduction of any document,
receiving evidence on affidavits, requisitioning any public
record or copy thereof from any court or office, issuing
commissions for examination of witnesses of documents
etc. Further, sub-section (3) of Section 11 stipulates that G
any proceedings before the Lokayukta and Upa
Lokayukta shall be deemed to be a judicial proceeding
within the meaning of Section 193 of the Indian Penal
Code. Therefore, Lokayukta and Upa Lokayukta, whilt!
H
990 SUPREME COURT REPORTS [2013] 3 S.C.R.

A investigating the matters are discharging quasi-judicial
functions, though the nature of functions is investigative.
[Paras 25, 33] [1024-A-B; 1027-B-F]

1.2. The Governor, as per Section 3(2)(a) of the
Karnataka Lokayukta Act, 1984, is empowered to appoint
8
Lokayukta on the advice tendered by the Chief Minister,
in consultation with the Chief Justice of the High Court
of Karnataka, the Chairman, Karnataka Legislative
Council, the Speaker, Karnataka Legislative Assembly,
C the Leader of the Opposition in the Karnataka Legislative
Council and the Leader of the Opposition in the
Karnataka Legislative Assembly. It is, therefore, clear that
all the above five dignitaries have to be consulted before
tendering advice by the Chief Minister to the Governor of
the State. Section 3(2)(b) of the Act stipulates that, so far
D as the Upa Lokayukta is concerned, he shall be a person
who has held the office of a Judge of the High Court and
shall be appointed on the advice tendered by the Chief
Minister. The Chief Minister has to consult the five
dignitaries, the Chief Justice of the High Court of
E Karnataka, the Chairman, Karnataka Legislative Council,
the Speaker, Karnataka Legislative Assembly, the Leader
of the Opposition in the Legislative Council and the
Leader of Opposition in the Karnataka Legislative
Assembl.y. Therefore, for the purpose of appointment of
F Lokayukta or Upa Lokayukta all the five consultees are
common. The appointment has to be made by the
Governor on the advice tendered by the Chief Minister in
consultation with those five dignitaries. [Paras 36, 37]
[1029-F-H; 1030-A-D]
G .
1.3. The language employed in Section 3(2)(a) and (b)
of the Karnataka Lokayukta Act, 1984 is clear and
unambiguous and one has to apply the golden rule of
interpretation i.e. the literal interpretation. When the
H language is plain and unambiguous and admits of only
• /
. ':JUSTICE 'Cl;iANDRASHEKARAIAH:(RETD.):v:: 991 /,
• JANEKERE C. KRISHNA'
one'. meaning .no question .of construction of a statute A
arises, forthe Act speaks for itself. Section 3(2)(a)"and (b)
' when read literally and contextually admit of no doubt that·
the Governor; of the: State can 'appoint· Lokayukta or- Upa .
Lokayukta;only:on the ·advice .ten.dered• by .the Chief
Minister and that.the Chief Justice<of the' High Court!is B
only onelof·the consultees:and •his .views· have· no
primacy;,The !Governor; as per. the statute,' can appoint
· only on the advice tendered by-the Chief Minister and not .
on tlie·cipinion expressed by the Chief Justice or any of
the:consultees.·[Paras 60, 61 and 62]:[1045-F-G; 1046-A- c
_ B~~F.;G]l:1~: r. ;·· .';:·:·r. :~:·~;1··1i.r.1 1;~.;.-_1 : ~~ ·:'.·.-~! 1.:n•,_~(~\:1-:.;~\
-\,·;·j-.·~!':"". ·~ ~(,d•r,,: :. ,_~-l-.<~;; ~. -~, ~ :·;_.:,;;.> ·'. t;-:1i:-"·:_r. :!r:·.-~; ...~~·.·--~- :--
, ,1.4. The Ch ref Mrnrster 1s legally obliged
.~-l" .,\ q,\<·. '' .,.l. '11:
I!
to consult the
'" ;,_, , -:~.}JI[;" "">II)
Chief
•. /•
Justice of
,_J -d' '·
the High
·-"~!. ~
Court and other
~,·;. · ;,; '. t·'~ · -,.·;1\-I
four ~
consultees,
• • , __,,:·~· ,.
_whrch is.a: 1mandatory, requirement.The consultation must
be- ,meanin I
1
gfu1- : and
'. l. ,
effective
I j:
net' ell citing "a mere
• '.' ' ••. ' . '; ~\ , • . • . ' -• - I'_, I!
j j -
viiiws'
• 1• 'I
D ttie
or calling for recommendations • ..) ... ~J.,.O•i
would not suffice;
:•)'"•••<' ,;,_ ~
,- •' · ., ,,, 0 ••.:: .• ·
• .i 1.-i · · '
;.'•_, "I•

C~nsulte~s:~?n ~~gge~tJ va.~!o~s .~~mes, fro~ ~~.El, ~o,p~c~~
stipulated m the statute and those,names .have to be
' ' • ' • • • }·· .... - ,• .: > • ~ • j_ • ' •

discussed either in a meeting to be ·convened by the
Chief Minister;of1the State for that purpose· or by.way of E
circulation; ·The Chie~ Minister,' if. proposes :,to :suggest. or
advise-any; name from:the;s_ource~ear-marked1 in :the
srtatute 1that must (·alsotbe::made .available ito.<the·
consultees soJhat·they,can also express theirviews:on' ·
the.name or names suggested by the Chief Minister;·Aijer, F
due ,deliberations :and 'making' meaningful:consultation,>
ttie Chief. Minister of the·State is free to advise:a:name
whic!J· has :come up~foriconsideration:amongrthe,
consultees to tJ'le: Governor of. tl'Je ·State; The. advicei
te,1_1der~.~ ~Y ..t!J.~ ~h,i~f,~!ni.s.ter ~ill ~av~ prim~C?Y. and. not G
that of the, consultees including the Chief'Justice of the
Higllcoi.irt.i [Para's31'c1041~..\-EJ'·'' ,...,,L·l: ,,,:·:• v .• ," -~··~'"
•,,J1!~_:11i... . . -'':" · ~-;i~,n_,.-f; 1~-...tr;J'. . ';~i "!~~:;,_;;; ·~~fl~ -1,

:'' ..1.5;tlt can riot be.said that .since •the ·source (from>
which ta candidate.1has: to be :advised·.for :the :post·of:
Lokayukta:hUpa' Lokayukta) consists~of1persons·who, H
992 SUPREME COURT REPORTS [2013] 3 S.C.R.

A have held the office of the Judge of the Supreme Court
or the High Court, the Chief Justice of the High Court
would be in a better position to compare the merits and
demerits of those candidates. Apart from a person's
competence, integrity and character as a Judge, various
s other information have also to be gathered since the
persons who fall in that source are retired judges.
Government has its own machinery and system to gather
various information about retired Judges. The Chief
Minister cannot advise a name from that source without
c making a meaningful and effective consultation after
disclosing the relevant materials. This is a sufficient
safeguard against arbitrary selection and advice. Further
the duties and functions of the Lokayukta or Upa
Lokayukta are investigative in nature and their orders as
such cannot be executed. In such situation, the
0
legislature, in its wisdom, felt that no primacy need be
attached to views of the consultees including the Chief
Justice but on the advice of the Chief Minister; [Para 64)
[1047-G-H; 1048-A-C].
E 1.6. Nothing spells out from the language used in
Section 3(2)(a) and (b) to hold that primacy be attached
to the opinion expressed by the Chief Justice of the High
Court of Karnataka. The various directions given by the
High Court holding that the views of the Chief Justice has
· F got primacy, is beyond the scope of the Act and the High
Court has indulged in a legislative exercise which is
impermissible in law. Therefore, all the directions issued
by the High Court, are set aside since they are beyond
the scope of the Act. [Para 65) [1048-0-F]
G 1.7. The Chief Minister has however committed an
error in not consulting the Chief Justice of the High Court
in the matter ·of appointment of Justice
Chandrashekaraiah as Upa Lokayukta. Records indicate
that there was no meaningful and effective consultation
H or discussion of the names suggested among the
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 993
JANEKERE C. KRISHNA

consultees before advising the Governor for appointment A
to the post of Upa Lokayukta. The appointment of Justice
Chandrashekaraiah as Upa Lokayukta, therefore, is in
violation of Section 3(2)(b) of the Act since the Chief
Justice of the High Court was not consulted nor was the
cname deliberated upon before advising or appointing him B
as Upa Lokayukta, consequently, the appointment of ·
Justice Chandrasekharaiah as Upa Lokayukta cannot
stand in the eye of law and he has no authority to
continue or hold the post of Upa Lokayukta of the State.
[Para 66) [1048-F-H; 1049-A-B] C

1.8. The Chief Minister of the State is directed to take
appropriate steps for app~intment of Upa Lokayukta in
the State of Karnataka, in accordance with law. Since
nothing adverse has been found against Justice
Chandrasekharaiah, his name can still be considered for D
appointment to the post of Upa Lokayukta along with
other names, if any, suggested by the other five
consultees under the Act. However, it is made clear that
there is no primacy in the views expressed by any of the
consultees and after due deliberations of the names E
suggested by the consultees including the name, if any
suggested by the Chief Minister, the Chief Minister can
advise any name from the names discussed to the
Governor of the State for appointment of Upa Lokayukta
under the Act. [Para 67) [1049-B-E] F

Justice K.P. Mahapatra v. Sri Ram Chandra Nayak and
Ors. 2002 (8) SCC 1: 2002 (3) Suppl. SCR 166; Nagendra
Nath Bora and Another v. Commissioner of Hills Division and
Appeals, Assam and Others AIR 1958 SC 398: 1958 SCR G
1240; Indian National Congress (/) v. Institute of social
Welfare and Others (2002) 5 .sec 685: 2002 (3) SCR 1040;
Automotive Tyre Manufactures Association v. Designated
Authority and Others (2011) 2 SCC 258: 2011 (1) SCR 198;
State of Gujarat v. Hon'~le Mr. Justice R.A. Mehta (Retd.)
H
994 SUPREME COURT REPORTS [2013] 3 S.C.R.

A. 2013 (1) SCALE 7; Chandra Mohan v. State of UP. 1967 (1)
SCR 77; Chandramouleshwar Prasad v. Patna High Court
(1969) 3 SCC 56: 1970 (2) SCR 666; Samsher Singh v. State
of Punjab and Another (1974) 2 SCC 831: 1975 (1) SCR 814;
Union of India v. Sankalchand Himatlal Sheth and Another
B (1977) 4 SCC 193: 1978 (1) SCR 423; Supreme Court
Advocates-on-Record Association and Others v. Union of
India (1993) 4 SCC 441: 1993 (2) Suppl. SCR 659; Union
of India and Others v. Kali Dass Balish and Another (2006) 1
SCC 779: 2006 (1) SCR 261; Ashish Handa, Advocate v.
c Hon'b/e the Chief Justice of High Court of Punjab and
Haryana and Others (1996) 3 SCC 145: 1996 (3) SCR 474;
Ashok Tanwar and Another v. State of H.P. and Others (2005)
2 SCC 104: 2004 (6) Suppl. SCR 1065; N. Kannadasan v.
Ajoy Khose and Others (2009) 7 SCC 1: 2009 (7) SCR 668
0 and Kanai/al Sur v. Paramnidhi Sadhu Khan AIR 1957 SC
907: 1958 SCR 360 - referred to.

Empror v. Benoari/a/ Sarma AIR 1945 PC 48- referred
to.

E Per Lokur, J. [Concurring]

HELD: 1.1. The broad spectrum of functions, powers,
duties and responsibilities of the Upa-lokayukta, as
statutorily prescribed, clearly bring out that not only does
he perform quasi-judicial functions, as contrasted with
F purely administrative or executive functions, but that the
Upa-lokayukta is more than an investig~tor or an enquiry
officer. At the same time, notwithstanding his status, he
is not placed on the pedestal of a judicial authority
rendering a binding decision. He is placed somewhere in
G between an investigator and a judicial authority, having
the elements of both. For want of a better expression, the
office of an Upa-lokayukta can only be described as a sui
generis quasi-judicial authority. [Para 27] [1057-E-H]

H 1.2. In the appointment of the Upa-lokayukta, the
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 995
JANEKERE C. KRISHNA

Chief Minister must consult not only the Chief Justice but A
several other constitutional authorities also and given the
fact that the Upa-Lokayukta is not a purely judicial
authority, it hardly matters who initiates the process of
appointment of the Upa-Lokayukta. Ordinarily, it must be
the Chief Minister since he has to tender advice to the B
Governor and, in a sense, the appointment is his primary
responsibility. But this does not preclude any of the other
constitutional authorities who are required to be
consulted from bringing it to the notice of the Chief
Minister that the post of the Upa-Lokayukta needs to be c
filled up and that the appointment process ought to
commence - nothing more than that. None of them ought
to suggest a name since constitutional courtesy would
demand that only the Chief Minister should initiate the
appointment process. There is no reason to hold that
0
merely because the Upa-Lokayukta is a sui generis quasi-
judicial authority, only the Chief Justice must initiate the
process of appointment. The selection of the Upa-
lokayukta is a consultative process involving several
constitutional authorities and in the context of the Act, no E
constitutional authority is subordinate to the other. It
cannot be said that the recommendation for appointing
the Upa-lokayukta under the Act must emanate only from
the Chief Justice and only the name recommended by
him should be considered. [Paras 45, 47] [1064-G-H; 1065-
A-D; 1066-A-B] F

1.3. There is a clear distinction between 'consultation'
in the appointment of a judge of a superior court and ·
'consultation' in the appointment to a statutory judicial •
position. For the former, the Chief Justice must consult G
the collegiums of Judges, while it is not necessary for the
latter. An Upa-lokayukta is not a judicial authority, let
alone a constitutional authority like a judge of a High
Court. Therefore, mandatory consultation in the
appointment process as postulated by Section 3(2)(b) of H
996 SUPREME COURT REPORTS [2013] 3 S.C.R.

A the Act is with the Chief Justice in his individual capacity
and not consultation in a collegial capacity. [Paras 56, 58]
[1070-A-B, E-F]
1.4. There are absolutely no 'consultation' guidelines
laid down in the Act. It is not necessary to circumscribe
8 the manner of consultation. The Chief Minister may
consult the other constitutional authorities collectively or
in groups or even individually - this hardly matters as
long as there is meaningful and effective consultation.
Similarly, it is not necessary to restrict the mode of
C consultation. It may be in a meeting or through
correspondence. Today, with available technology,
consultation may even be through a video link. The form
of consultation or the venue of consultation is not
important - what is important is the substance of the
D consultation. The· matter has to be looked at pragmatically
and not semantically. It is important that no constitutional
authority is kept in the dark about the name of any
candidate under consideration and each constitutional
authority mentioned in Section 3(2)(b) of the Act must
E know the recommendation made by one another for
appointment as an Upa-Lokayukta. In addition, they must
have before them full and identical facts. As long as these
basic requirements are met, 'consultation' could be said
to have taken place. [Paras 59, 60] [1070-G; 1071-A-E]
F 1.5. In the instant case, there was no 'consultation'
between the various constitutional authorities before the
Chief Minister recommended the name of Justice
Chandrashekharaiah. In response to the letter of the Chief
Minister, the Chief Justice recommended the name of
G Justice Rangavittalachar; the Speaker of the Legislative
Assembly recommended Justice Chandrashekharaiah;
the Chairman of the Legislative Council recommended
Justice Chandrashekharaiah; the Leader of the
Opposition in the Legislative Assembly recommended
H Justice Mohammed Anwar and Justice Ramanna; the
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 997
JANEKERE C. KRISHNA

Leader of the Opposition in the Legislative Council A
recommended Justice Mohammed Anwar and Justice
Ramanna. Therefore, as many as four retired judges were
recommended for appointment as Upa-lokayukta. It is not
clear whether the names of all these judges were
disclosed to all the constitutional authorities. The name B
of Justice Chandrashekharaiah was certainly not
disclosed to the Chief Justice, as is evident from his letter
dated 4th February 2012 wherein he stated four times that
he was not consulted on the appointment of Justice
Chandrashekharaiah. The contents of this letter are not . c
denied by the ~tate and are quite obviously admitted.
Significantly, the Chief Minister did not reply to this letter.
Clearly, the Chief Justice was kept in the dark about the
· name of a candidate and there was no full and complete
disclosure of facts. Ergo, the Chief Minister did not 0
. recommend the name of Justice Chandrashekharaiah in
consultation with the Chief Justice. This was contrary to
the mandatory requirement of Section 3(2)(b) of the Act
and so, it must be held that the appointment of Justice
Chandrashekharaiah was void ab initio. [Paras 61, 62)
[1071-F-H; 1072-A-B; 1073-A-B] E
1.6. 'Consultation' for the purposes of Section 3(2)(b)
of the Act does not.and cannot postulate concurrence or ·
consent. There is always a possibility of an absence of
agreement on any one . single person . being F
recommendett for appointment as an Upa-lokayukta, as
has actually happened in the present case. In such a ·
situation, it is ultimately· the decision of the Chief Minister
what advice to tender to the Governor, since he alone has
to take the final call. [Para 67) [1074-G-H; 1075-A] G
1.7. There is· no reason why the Chief Minister cannot
adv.ice the Governor to appoint a person · not
recommended by any of the constitutional authorities, as
long as he consults them - the 'consu:tation' being in the
manner postulated above. The Chief Minister can H
998 SUPREME COURT REPORTS (2013) 3 S.C.R.

A recommend a completely different person, other than any
of those recommended by any of the constitutional
authorities as long as he does not keep them in the dark
about the name of the candidate and there is a full and
complete disclosure of all relevant facts. On the facts of
B this case, there was no consultation between the Chief
Minister and the Chief Justice on the appointment of
Justice Chandrashekharaiah as an Upa•lokayukta. His
appointment was, therefore, void ab initio. [Para 68, 69)
[1075-A-C, F-G]
c 1.8. As far as Section 3(2)(b) of the Act is concerned,
the primary 'responsibility' for the appointment of the Upa-
Lokayukta rests with the Chief Minister who has to advice
the Governor. Since the Chief Justice is only one of the
constitutional authorities required to be consulted by the
D Chief Minister before advice is tendered to the Governor,
it cannot be said that only his view would prevail over the
views of other constitutional authorities. If that were so,
then (to rephrase the High Court) consultation with the
other constitutional authorities including the Chairman of
E the Karnataka Legislative Council, the Speaker of the
Karnataka Legislative Council and the Leader of the
Opposition in the Karnataka Legislative Council and in
the Karnataka Legislative Assembly would be reduced to
a farce. It must be appreciated that these constitutional
F authorities also have an equal say in the executive
governance of the State and there is nothing to suggest
that their opinion should be subordinated to the opinion
of the Chief Justice or that the Chief Justice can veto their
views. On the other hand, since it is ultimately the Chief
G Minister who has to advice the Governor, it is he alone
who has to take the final call and shoulder the
responsibility of correctly advising the Governor in the
matter of appointing the most suitable person as an Upa-
lokayukta. [Para 78) [1079-B-G]
H 1.9. The mechanics of the working of a statute has
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 999
JANEKERE C. KRISHNA
to be decoded from the contents of the statute and the A
words used therein; otherwise there is a possibility of
committing a serious error. A statute must be considered
and understood on its own terms. In so construing the
Act, there is no reason to accord primacy to the views of
the Chief Justice in the appointment of an Upa-lokayukta B
under the Karnataka Lokayukta Act, 1984. [Para 79) [1079-
G-H; 1080-B-C] ~

1.10. The doctrine of 'prospective overruling' has no
application herein since there is no overwhelming reason
to save the appointment of the Upa-lokayukta from attack. C
There was no consultation with the Chief Justice
specifically on the appointment of Justice
Chandrashekharaiah as an Upa-Lokayukta. In absence of
any consultation with the Chief Justice, the appointment
of Justice Chandrashekharaiah as Upa-lokayukta is void D
ab initio. [Paras 4, 81, 83) [1050-A-B; 1080-F; 1081-A-B]
N. Gundappa v. State of Karnataka 1989 (3) KarLJ 425;
State of Karnataka v. N. Gundappa ILR 1990 Kar 4188; Prof.
S.N. Hegde v. The Lokayukta ILR 2004 Kar 3892; The Bharat E
Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi
[1950) SCR 459; Durga Shankar Mehta v. Thakur Raghuraj
Singh and Others [1955) 1 SCR 267; Associated Cement
Companies v. P.N. Sharma 1965 (2) SCR 366; Sarwan
Singh Lamba v. Union of India (1995) 4 SCC 546: 1995 (1) F
Suppl. SCR 427; S.P. Sampath Kumar v. Union of India
(1987) 1 SCC 124: 1987 (1) SCR 435; Ashish Handa v.
Hon'ble the Chief Justice of High Court of Punjab & Haryana
and Others (1996) 3 SCC 145: 1996 (3) SCR 474; Ashok
Tanwar and Another v. State of Himachal Pradesh and Others
(2005) 2 sec 104: 2004 (6) Suppl. SCR 1065; State of G
Haryana v. National Consumer Awareness Group (2005) 5
SCC 284: 2005 (3) SCR 1158; N. Kannadasan v. Ajoy Khose
and Others (2009) 7 SCC 1: 2009 (7) SCR 668; Supreme
Court Advocates on Record Association v. Union of India AIR
1994 SC 268: 1993 (2) Suppl. SCR 659; Aruna Roy v. H
1000 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Union of India (2002) 7 SCC 368: 2002 (2) Suppl. SCR 266;
S.P. Gupta v. Union of India 1981 Supp SCC 87: 1982 SCR
365; Union of India v. Sankalchand Himmatlal Seth (1977)
4 SCC 193: 1978 (1) SCR 423; Indian Administrative Service
(S. C. S.J Association U.P. and Others v. Union of India and
B Others 1993 Supp. (1) SCC 730: 1992 (2) Suppl. SCR 389;
M.M. Gupta v. State of Jammu & Kashmir (1982) 3 SCC 412:
1983 (1) SCR 593; Justice K.P. Mahapatra v. Sri Ram
Chandra Nayak (2002) 8 SCC 1: 2000 (4 ) Suppl. SCR 22
and Maharashtra State Financial Corporation v. Jaycee
c Drugs and Pharmaceuticals (1991) 2 SCC 637: 1991 (1)
SCR 480 - referred to.

Case Law Reference:

Per K.S. Radhakrishnan 1 J.:
D
2002 (3) Suppl. SCR 166 referred to Paras 13,
57, 59

1958 SCR 1240 referred to Para 30

2002 (3) SCR 1040 referred to Para 30
E
2011 (1) SCR 198 referred to Para 32
··-
2013 (1) SCALE 7 referred to Para 48

1967 (1) SCR 77 referred to Para 50
F
1970 (2) SCR 666 referred to Para 50

1975 (1) SCR 814 referred to Para 51
'1978 (1) SCR 423 referred to Para 51
G 1993 (2) Suppl. SCR 659 referred to Para 52,
54, 55
2006 (1) SCR 261 referred to Para 53
1996 (3) SCR 474 referred to Para 54
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1001
JANEKERE C. KRISHNA

2004 (6)' Suppl. SCR 1065 referred to Para 55 A

2009 (7) SCR 668 referred to Para 55
AIR 1945 PC 48 referred to Para 61
1958 SCR 360 referred to Para 61 B
Per Madan B. Lokur, J.:

1989 (3) KarLJ 425 ~ referred to Para 9
1LR 1990 Kar 4188 referred to Para 10
c
ILR 2004 Kar 3892 referred to Para 10
[1950] SCR 459 referred to Para 28
[1955] 1 SCR 267 referred to Para 30
1965 (2) SCR 366 referred to Para 31 D

1995 (1) Suppl. SCR 427 referred to Para 37, 38
1987 (1) SCR 435 referred to Para 37
'
1996 (3) SCR 474 referred to Para 38, 39 E
2004 (6) Suppl. SCR 1065 referred to Para 39
2005 (3) SCR 1158 referred to Para 39
2009 (7) SCR 668 referred to Para 40
F
1993 (2) Suppl. SCR 659 referred to Para 51
2002 (2) Suppl. SCR 266 referred to Para, 53
1982 SCR 365 referred to Para 55
G
1978 (1) SCR 423 referred to Para 55
1992 (2) Suppl. SCR 389 referred to Para 63
1983 (1) SCR 593 referred to Para 68
2000. (4) Suppl. SCR 22 referred to Para 74 H
1002 SUPREME COURT REPORTS [2013] 3 S.C.R.

A 1991 (1) SCR 480 referred to Para 76

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
197-199 of 2013.

From the Judgment & Order dated 03.04.2012 of the High
B Court of Karnataka at Bangalore in Writ Petition Nos. 4852-
53 of 2012 and Writ Petition No. 4962 of 2012.
WITH
C.A. No. 200-202 of 2013
c K.V. Viswanathan, P.V. Shetty, V.N. Ragupathy, Gautam
Bharadwaj, Mahesh Agarwal, Akhil Anand, E.C. Agrawala,
Rishi Agrawala, Ankur Saigal, Abhinav Agrawal for the
Appellant.

D K.N. Bhat, Shailesh Madiyal, Anantha Narayana M.G.,
Navkesh Batra, Sandeep Narain Shalu Lal, S. Narain & Co.
for the Respondents.

The Judgments of the Court were delivered by
E K.S. RADHAKRISHNAN, J. 1. Leave granted.

2. The sentinel issue that has come up for consideration
in these appeals is whether the views expressed by the Chief
Justice of the High Court of Karnataka has got primacy while
F making appointment to the post of Lokayukta or Upa Lokayukta
by the Governor of Karnataka in exercise of powers conferred
on him under Section 3(2)(a) and (b) of the Karnataka
Lokayukta Act, 1984 (for short 'the Act').

3. The Division Bench of the Karnataka High Court took
G the view that under the Act the opinion expressed by the Chief
Justice of the High Court of Karnataka has primacy while
tendering advice by the Chief Minister of the State to the
Governor. The Court held since, the order passed by the
Governor of Karnataka, appointing Justice Chandrashekaraiah
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1003
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

as Upa Lokayukta on 21.1.2012, was without consulting the A
Chief Justice of the High Court, the same was illegal. The High
Court also issued various directions including the direction to
the State and the Principal Secretary to the Governor to take
steps for filling up the post of Upa Lokayukta in accordance with
the directions contained in the judgment. Aggrieved by the B
Judgment of the High Court, these appeals have been preferred
by Justice Chandrashekaraiah and the State of Karnataka.

Facts

4. The notification dated 21.1.2012 issued in the name of C
the Governor was challenged by two practicing lawyers in public
interest contending that the institution of Lokayukta was set up
in the State for improving the standard of public administration
by looking into complaints against administrative actions
including cases of corruption, favouritism and official D
indiscipline in administrative machinery and if the Chief
Minister's opinion has primacy, then it would not be possible
for the institution to work independently and impartially so as
to achieve the object and purpose of the Act.
E
5. The office of the Karnataka Upa Lokayukta fell vacant
on the resignation of Justice R. Gururajan and the Chief
Minister initiated steps for filling up that vacancy. Following that,
the Chief Minister on 18.10.2011 addressed separate letters
to the Chief Justice of the High Court of Karnataka, Ch~irman
of the Karnataka Legislative Council, Speaker of the Karnataka F
Legislative Assembly, Leader of the Opposition in the
Legislative Council and Leader of the Opposition in the
Legislative Assembly requesting them to suggest a panel of
eligible persons for appointment as Upa Lokayukta on or
before 24.10.2011. G

6. The Chief Justice suggested the name of Mr. H.
Rangavittalachar (Retd.), the Leader of the Opposition in the
Karnataka Legislative Council and the Leader of the
Oppqsition in the Karnataka Legislative Assembly suggested H
1004 SUPREME COURT REPORTS [2013] 3 S.C.R.

A the names of Mr. Justice K. Ramanna (Retd.) and Mr. Justice
Mohammed Anwar (Retd.). The Chairman of the Karnataka
Legislative Council and the Speaker of the Karnataka
Legislative Assembly suggested the name of Justice
Chandrashekaraiah (Retd.). The Chief Minister then advised
B the Governor to appoint Justice Chandrashekaraiah as Upa
Lokayukta. The Governor, accepting the advice of the Chief
Minister, passed the order dated 20.1.2012 appointing Justice
Chandrashekaraiah as the Upa Lokayukta.

7. The Chief Justice on 21.01.2012 received an invitation
C for attending the oath taking ceremony of Justice
Chandrashekaraiah as Upa Lokayukta in the morning which,
according to the Chief Justice, was received only in the
evening. The Chief Justice then addressed a letter dated
04.02.2012 to the Chief Minister stating that he was not
D consulted in the matter of appointment of Justice
Chandrashekaraiah as Upa Lokayukta and expressed the
opinion that the appointment was not in conformity with the
constitutional provisions and requested for recalling the
appointment.
E
8. The stand taken by the Chief Justice was widely
published in various newspapers; following that, as already
indicated, two writ petitions were filed in public interest for
quashing the appointment of Justice Chandrashekaraiah as
F Upa Lokayukta. A writ of quo warranto was also preferred
against the functioning of Justice Chandrashekaraiah as Upa
Lokayukta.

Arguments

G 9. Shri K.V. Viswanathan, learned senior counsel
appearing for the State of Karnataka took us extensively to the
objects and reasons and to the various provisions of the Act
and submitted that the nature and functions of the office of
Lokayukta or Upa Lokayukta are to carry out investigation and
H enquiries and the institution of Lokayukta, as .such, does not
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1005
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

form part of the judicial organ of the State. Learned senior A
counsel also submitted that the functions and duties of the
institution of Lokayukta, as such, cannot be compared with the
functions and duties of the Judiciary, Central Administrative
Tribunals, State Administrative Tribunals or Consumer Disputes
Redressal Forums etc. B

10. Learned senior counsel, referring to the various
provisions such as Sections 3, 7, 9 etc. of the Act, submitted
that Lokayukta or Upa Lokayukta are appointed for the purpose
of conducting investigations and enquiries and they are not C
discharging any judicial functions as such and their reports are
only recommendatory in nature. Consequently, the Act never
envisaged vesting any primacy on the views of the Chief
Justice of the High Court in the matter of appointment of
Lokayukta or Upa Lokayukta. In support of his contentions,
reference was made to the various judgments of this Court, D
which we will discuss in the latter part of this judgment. Shri
Viswanathan, however, has fairly submitted that, as per the
Scheme of the Act, especially under Section 3(2)(a) and (b),
before making appointment to the post of Lokayukta and Upa
Lokayukta, it is obligatory on the part of the Chief Minister to E
consult the Chief Justice of the State High Court, even though
the views of the Chief Justice has no primacy. Learned senior
counsel submitted that the Governor has to act on the advice
of the Chief Minister for filling up the post of Lokayukta and Upa
Lokayukta. F
11. Shri P.V. Shetty, learned senior counsel appearing for
Justice Chandrashekaraiah (retd.) submitted that the primacy
in terms of Section 3 of the Act lies with the Chief Minister and
not with the Chief Justice. In support of his contention, reference G
was made to the various judgments of this Court, which we will
discuss in the latter part of the judgment. Learned senior
counsel submitted that the judgment delivered by the High
Court holding that the views of the Chief Justice has primacy
relates to cases pertaining to appointment of the Judges of the H
1006 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Supreme Court and High Courts, appointment of the President
of State Consumer Forum, Central Administrative Tribunal and
so on and the ratio laid down in those judgments is inapplicable
while interpreting Section 3(2)(a) and (b) of the Act. Learned
senior counsel also submitted that the reasoning of the High
s Court that there should be specific consultations with regard to
the names suggested by the Governor with the Chief Justice,
is unsustainable in law. Shri P.V. Shetty also submitted that the
expression 'consultation' cannot be understood to be consent
of the constitutional authorities as contemplated in the section.
c 12. Learned senior counsel submitted that the Chief
Minister advised the name of Justice Chandrashekaraiah,
suggested by some of the Consultees to the Governor who
appointed him as Upa Lokayukta. Learned senior counsel
submitted that assuming that the Chief Justice had not been
D consulted, the views of the Chief Minister had primacy and the
Governor rightly accepted the advice of the Chief Minister and
appointed Justice Chandrashekaraiah as Upa Lokayukta.
Learned senior counsel submitted that in any view the failure
to consult the Chief Justice would not vitiate the decision
E making process, since no primacy could be attached to the
views of the Chief Justice. Learned senior counsel, therefore,
submitted that the High Court has committed a grave error in
quashing the notification appointing Justice Chandrashekaraiah
as Upa Lokayukta. Learned senior counsel submitted that the
F various directions given by the High Court in its judgment is in
the realm of rule making which is impermissible in law.

13. Shri K.N. Bhat, learned senior counsel appearing for
the respondents endorsed the various directions given by the
G High Court which according to him are of paramount
importance considering the nature and functions to be
discharged by Lokayukta or Upa Lokayukta in the State of
Karnataka. Learned senior counsel pointed out that the
institution of Lokayukta has been set up for improving the
H standards of public administration so as to examine the
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1007
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

complaints made against administrative actions, including the A
cases of corruption, favouritism and official indiscipline in
administrative machinery. Shri Bhat compared the various
provisions of the Act with the similar legislations in other States
and submitted that, so far as the Karnataka Act is concerned,
there is a multi-member team of consultees and also there is B
no indication in the Act as to whose opinion should prevail over
others. Considerable reliance was placed on the judgment of
this Court in Justice K.P. Mohapatra v. Sri Ram Chandra
Nayak and Ors. (2002) 8 SCC 1, wherein this Court has taken
the view that the opinion of the Chief Justice has got primacy c
which is binding on the State. Learned senior counsel submitted
that the conduct and functions to be discharged by Lokayukta
or Upa Lokayukta are apparent, utmost importance has to be
given in seeing that unpolluted administration of the State is
maintained and maladministration is exposed. Learned senior
0
counsel submitted that the functions of the Kamataka Lokayukta
are identical to that of Lokpal of Orissa and that the principle
laid down in that judgment would also apply while interpreting
Sections 3(2)(a) and (b) of the Act.

14. Learned senior counsel submitted that the primacy has E
to be given to the views expressed by the Chief Justice, not
because the persons appointed are discharging judicial or
quasi-judicial functions but the source from which the persons
are advised for appointment consists of former judges of the
Supreme Court and Chief Justices of High Courts and judges F
of the High Courts in the matter of appointment of Upa
Lokayukta. Learned senior counsel submitted that the Chief
Justice of the High Court, therefore, would be in a better
position to know about suitability of the persons to be
appointed to the posts since they were either former judges of G
the Supreme Court or Chief Justices of the High Courts or
judges of the High Courts.

15. Let us examine the various contentions raised at the
bar after delving into the historical setting of the Act.
H
1008 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Historical Setting

16. The President of India vide notification No. 40/3/65-
AR(P) dated 05.01.1966 appointed the Administrative
Reforms Commission for addressing "Problems of Redress of
Citizens' Grievances" inter alia with the object for ensuring the
8
highest standards of efficiency and integrity in the public
services, for making public administration a fit instrument for
carrying out the social and economic policies of the
Government and achieving social and economic goals of
development as also one responsive to people. The
C Commission was asked to examine the various issues including
the Problems of Redress of Citizens' Grievances. One of the
terms of reference specifically assigned to the Commission
required it to deal with the Problems of Redress of Citizens'
Grievances, namely:
D
(1) the adequacy of existing arrangements for redress of
grievances; and

(2) the need for introduction of any new machinery for
E special institution for redress of grievances. ·

The Commission after elaborate discussion submitted its
report on 14.10.1966 to the Prime Minister vide letter dated
20.10.1966.

F 17. The Commission suggested that there should be one
authority dealing with complaints against the administrative acts
of Ministers or Secretaries to Government at the Centre and
in the States and another authority in each State and at the
Centre for dealing with complaints against administrative acts
G of other officials and all these authorities should be independent
of the executive, the legislative and the judiciary.

The Committee, in its report, has stated as follows:

"21. We have carefully considered the political
H aspect mentioned above and while we recognize that
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1009
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

there is some force in it, we feel that the Prime Minister's A
hands would be strengthened rather than weakened by the
institution. In the .first place, the recommendations of such
an authority will save him from the unpleasant duty of
investigation against his.own colleagues. Secondly, it will
be possible for him to degl.with the matter without the glare B
of publicity which often vitiates the atmosphere and affects
the judgment of the general public. Thirdly, it would enable
him to avoid internal pressures which often help to shield
the delinquent. What we have said about the Prime Minister
applies mutatis mutandis to Chief Minister. ' c
Cases of corruption:

23. Public opinion has been agitated for a long time over
the prevalence of corruption in the administration and it is
likely that cases coming up before the independent D
authorities mentioned above might involve allegations or
actual evidence of corrupt motive and favourtism. We think
that this institution should deal with such cases as well, but .
where the cases are such as might :nvolve crimina.1 charge
or misconduct cognizable by a Court, the case should be E
brought to the notice of the Prime Minister or the Chief
Minister, as the case may be. The latter would then set the
machinery of law in motion after following appropriate
procedures and observing necessary formalities. The
present system of Vigilance Commissions wherever F
operative will then become redundant and would have to
be abolished on the setting up of the institution.

Designation of the authorities of the institution:
24. We suggest that the authority dealing with G
complaints against Ministers and Secretaries to
Government may be designated "Lokpal" and the other
authorities at the Centre and in the States empowered to
deal with complaints against other officials may be
designated "Lokayukta''. A word may be said about our H
1010 SUPREME COURT REPORTS [2013) 3 S.C.R.

A decision to include Secretaries actions along with those
of Ministers in the jurisdiction of the Lokpal. We have
taken this decision because we feel that at the level at
which Ministers and Secretaries function, it might often be
difficult to decide where the role of one functionary ends
B and that of the other begins. The line of demarcation
between the responsibilities and influence of the Minister
and Secretary is thin; in any case much depends on their
personal equation and personality and it is most likely that
in many a case the determination of responsibilities of
c both of them would be involved.

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

(a) They should be demonstrably independent and
D impartial.

(b) Their investigations and proceedings should be
conducted in private and should be informal in
character.
E (c) Their appointment should, as far as possible, be
non-political.

(d) Their status should compare with the highest
judicial functionaries in the country.
F
(e) They should deal with matters in the discretionary
field involving acts of injustice, corruption or
favourtism.

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

(g) They should not look forward to any benefit or
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1011
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

pecuniary advantage from the executive A
Government.

Bearing in mind these essential features of the
institutions, the Commission recommend that the Lokpal
be appointed at the Centre and Lokayaukta at the State
8
level.

The Lokayukta

36. So far as the Lokayukta is concerned, we
envisage that he would be concerned with problems similar c
to those which would face the Lokpal in respect of
Ministers and Secretaries though, in respect of action
taken at subordinate levels of official hierarchy, he would
in many cases have to refer complainants to competent
higher levels. We, therefore, consider that his powers, 0
functions and procedures may be prescribed mutatis
mutandis with those which we have laid down for the
Lokpal. His status, position, emoluments, etc. should,
however, be analogous to those of a Chief Justice of a
High Court and he should be entitled to have free access E
to the Secretary to the Government concerned or to the
Head of the Department with whom he will mostly have to
deal to secure justice for a deserving citizen. Where he is
dissatisfied with the action taken by the department
concerned, he should be in a position to seek a quick
corrective action from the Minister or the Secretary F
concerned, failing which he should be able to draw the
personal attention of the Prime Minister or the Chief Minster
as the case may be. It does not seem necessary for us to
spell out here in more detail the functions and powers of
the Lokayukta and the procedures to be followed by him. G

Constitutional amendment-whether necessary?

37. We have carefully considered whether the
institution of Lokpal will require any Constitutional H
1012 SUPREME COURT REPORTS [2013] 3 S.C.R.

A amendment and whether it is possible for the office of the
Lokpal to be set up by Central Legislation so as to cover
both the Central and State functionaries concerned. We
agree that for the Lokpal to be fully effective and for him
to acquire power, without conflict with other functionaries
8 under the Constitution, it would be necessary to give a
constitutional status to his office, his powers, functions, etc.
We feel, however, that it is not necessary for Government
to wait for this to materialize before setting up the office.
The Lokpal, we are confident, would be able to function in
c .
a large number of cases without the definition of his
position under the ConstittJtion. The Constitutional
.
amendment and any consequential modification of the
relevant statute can follow. In the meantime, Government
~

can ensure that the Lokpal or Lokayukta is appointed and
takes preparatory action to set up his office, to lay down
D
his procedures, etc., and commence his work to such
extent as he can without the constitutional 'provisions. We
are confident that the necessary support will be for!.ticoming
from the Parliament.
E Conclusion.

38. We should like to emphasise the fact t.hat we attach,
the highest importance to the implementation, at an early
date, of the recommendations contained in this our Interim
F Report. That we are not alone in recognizing the urgency
of such a measure is clear from the British example we
have quoted above. We have no doubt that the working of
the institution of Lokpal or Lokayukta that we have
suggested for India will be watched with keen expectation
and interest by other countries. We hope that this aspect
G
would also be fully borne in mind by Government in
considering the urgency and importance of our
recommendation. Though1 its timing is very close to the next
Election, we need hardly to assure the Government that
this has had nothing to do with the necessity of making this
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1013
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.)

interim report. We have felt the need of such a A
recommendation on merits alone and ere convinced that
we are making it not a day too soon."

18. Based on the above report, the following Bill was
presented before the Karnataka Legislature which reads as B
follows:-

"The Administrative Reforms Commission had
recommended the setting up of the institution of Lokayukta
for the purpose of appointment of Lokayukta at the state's
level, to improve the standards of public administration, by C
looking into complaints against the administrative actions,
including cases of corruption, favouritism and official
indiscipline in administrative machinery.

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

The bill provides for the appointment of a Lokayukta
and one or more Upalokayuktas to investigate and report
on allegations or grievances relating to the conduct of E
public servants.

The public servants who are covered by the Act
include:-
F
(1) Chief Minister;

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

(3) all officers of the State Government; G
(4) Chairman, Vice Chairman of local authorities,
Statutory Bodies or Corporations established by or
under any law of the State Legislature, including Cc.-
operative Societies;
.1-l'
1014 SUPREME COURT REPORTS [2013] 3 S.C.R.

A (5) Persons in the service of Local Authorities,
Corporations owned or controlled by the State
Governm~nt, a company in which not less than fifty-
one per cent of the shares are held by the State
Government, Societies registered under the
B Societies Registration Act, Co-operative Societies
and Universities established by or under any law of
the Legislature.

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

E If, after investigation, the Lokayukta is satisfied that
the public servant has committed any criminal offence, he
may initiate prosecution without reference to any other
authority. Any prior sanction required under any law for
such prosecution shall be deemed to have been granted.
F The Vigilance Commission is abolished. But all
inquiries and investigations and other disciplinary
proceedings pending before the Vigilance Commission
will be transferred to the Lokayukta."

G The Bill became an Act with some modifications as the
Karnataka Lokayukta Act, 1984.

Relevant Provisions

19. The matters which have to be investigated are
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1015
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

provided in Section 7 of the Act which is extracted hereunder A
for easy reference:

"7. Matters which may be investigated by the
Lokayukta and an Upalokayukta.- (1) Subject to the
provisions of this Act. the Lokayukta may investigate any 8
action which is taken by or with the general or specific
approval of.-

(i) the Chief Minister;

(ii) a Minister
, or a Secretary; c
(iii) a member of the State Legislature; or

(iv) any other public servant being a public servant of a
class notified by the State Government in
consultation with the Lokayukta in this behalf; D

in any case where a complaint involving a grievance or an
allegation is made in respect of such action.

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

(2-A) Notwithstanding anything contained in sub- G
sections (1) and (2), the Lokayukta or an Upa-lokayukta
may investigate any action taken by or with the general or
specific approval of a public servant, if it is referred to him
by the State Government.
H
1016 SUPREME COURT REPORTS [2013] 3 S.C.R.

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

Provided that no investigation made by an Upa-
B
lokayukta under this Act, and no action taken or things
done by him in respect of such investigation shall be open
to question on the ground only that such investigation
relates to a matter which is not assigned to him by such
order.
c
(4) Notwithstanding anything contained in sub-
sections (1) to (3), when an Upa-lokayukta is unable to
discharge his functions owing to absence, illness or any
other cause, his function may be discharged by the other
o Upa-lokayukta, if any, and if there is no other Upa-
lokayukta by the Lokayukta."

20. Few matters are not subjected to the investigation of
Lokayukta or Upa Lokayukta which is provided in Section 8 of
E the Act, which is also extracted hereunder for easy reference:

"8. Matters not subject to investigation.- (1)
Except as hereinafter provided, the Lokayukta or an Upa-
lokayukta shall not conduct any investigation under this Act
in the case of a complaint involving a grievance in respect
F of any action, -

(a) if such action relates to any matter specified in the
Second Schedule; or

(b) if the complainant has or had, any remedy by way of
G appeal, revision, review or other proceedings
before any Tribunal, Court Officer or other authority
and has not availed of the same.

(2) The Lokayukta or an Upa-lokayukta shall not
H investigate, -
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1017
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

(a) any action in respect of which a formal and public A
eiquiry has been ordered with the prior concurrence
of the Lokayukta or an Upalokayukta, as the case
may be;

(b) any action in respect of a matter which has been 8
referred for inquiry, under the Commission of Inquiry
Act, 1952 with the prior concurrence of the
Lokayukta or an Upalokayukta, as the case may
be;

(c) any complaint involving a grievance made after the C
expiry of a period of six months from the date on
which the action complained against becomes
known to the complainant; or

(d) any complaint involving an allegation made after the D
expiry of five years from the date on which the
action complained against is alleged to have taken
place:

Provided that he may entertain a complaint referred
to in clauses (c) and (d) if the complainant satisfies that E
he had sufficient cause for not making the complaint within
the period specified in those clauses.

(3) In the case of any complaint involving a
grievance, nothing in this Act shall be construed as F
empowering the Lokayukta or an Upa-lokayukta to
question any administrative action involving the exercise
of discretion except where he is satisfied that the elements
involved in the exercise of the discretion are absent to such
an extent that the discretion can prima facie be regarded G
as having been improperly exercised."

21. Section 9 of the Act pertains to provisions relating to
complaints' and 'investigations' which is extracted hereunder:

H
1018 SUPREME COURT REPORTS [2013] 3 S.C.R.

A "9. Provisions relating to complaints and
investigations.- (1) Subject to the provisions of this Act,
any person may make a complaint under this Act to the
Lokayukta or an Upa-lokayukta.

(2) Every complaint shall be made in the form of a
B
statement supported by an affidavit and in such forms and
in such manner as may be prescribed.

(3) Where the Lokayukta or an Upa-lokayukta
proposes, after making such preliminary inquiry as he
c deemed fit, to conduct any investigation under this Act, he.-

(a) shall forward a copy of the complaint to the public
servant and the Competent Authority concerned;

(b) shall afford to such public servant an opportunity to
D offer his comments on such complaint;

(c) may make such order as to the safe custody of
documents relevant to the investigation, as he
deems fit.
E
(4) Save as aforesaid, the procedure for conducting
any such investigation shall be such, and may be held either
in public or in camera, as the Lokayukta or the Upa-
lokayukta, as the case may be, considers appropriate in
the circumstances of the case.
F
(5) The Lokayukta or the Upa-lokayukta may, in his
discretion, refuse to investigate or cease to investigate any
complaint involving a grievance or an allegation, if in his
opinion.-
G
(a) the complaint is frivolous or vexatious or is not
made in good faith;

(b) there are no sufficient grounds for investigating or,
as the case may be, for continuing the investigation;
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1019
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

or A
(c) other remedies are available to the complainant
and in the circumstances of the case it would be
more proper for the complainant to avail such
remedies.
B
(6) In any case where the Lokayukta or an Upa-
lokayukta decides not to entertain a complaint or to
discontinue any investigation in respect of a complaint he
shall record his reasons therefor and communicate the
same to the complainant and the public servant c
concerned.

(7) The conduct of an investigation under this Act
against a Public servant in respect of any action shall not
affect such action, or any power or duty of any other public
0
servant to take further action with respect to any matter
subject to the investigation."

22. Section 10 empowers Lokayukta or Upa Lokayukta to
exercise certain powers in relation to search and seizure. It says
that the provisions of the Code ofCriminal Procedure, relating E
to search and seizure, would apply only for the limited purpose
of investigation carried out by the incumbent, in consequence
of information in his possession, while investigating into any
grievance, allegation against any administrative action.
F
23. Section 11 deals with the producing, recording, etc.
of evidence for the purpose ofinvestigation under the Act. Sub-
sections (1) and (2) of Section 11 read as follows:

"11. Evidence.- (1) Subject to the provisions of this
section, for the purpose of any investigation (including the G
preliminary inquiry if any, before such investigation) under
this Act, the Lokayukta or an Upa-lokahukta may require
any public servant or any other person who, in his opinion,
is able to furnish information or produce documents
relevant to the investigation to furnish any such information H
1020 SUPREME COURT REPORTS [2013] 3 S.C.R.

A or produce any such document.

(2) For the purpose of any investigation (including the·
preliminary inquiry) the Lokayukta or Upa-lokayukta shall
have all the powers of a Civil Court while trying a suit under
that the Code of Civil Procedure Code, 1908, in respect
B of the following matters only:-

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

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

(c) receiving evidence on affidavits;

{d) requisitioning any public record or copy thereof from
D any Court or office;

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

(f) such other matters as may be prescribed."
E
Sub-section (3) of Section 11 provides for applicability of
Section 193 of the Indian Penal Code (Punishment for false
evidence), for proceedings before the Lokayukta or Upa
Lokayukta, while exercising its powers conferred under sub-
F section (2) of Section 11, and only for that limited extent is
considered a judicial proceeding.

24. Section 12 deals with the reports of Lokayukta which
essentially deals with the following aspects:

G (i) The Lokayukta or Upa Lokayukta can sent a report
with certain recommendations and findings as
envisaged in sub section (1) and (3) of Section 12.

(ii) Under sub section (2) of Section 12, the competent
H authority is required to intimate or cause to intimate
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1021
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

the Lokayukta or the Upa Lokayukta on the action A
taken on the report as provided under sub section
(1) of Section 12, within 1 month.

(iii) Failure to intimate the action taken on the report
submitted under section (1) has not been dealt with
B
specifically, however if in the opinion of Lokayukta
I Upa Lokayukta satisfactory action is not taken by
the competent authority under Section 12(2), he is
at liberty to send a 'Special report' to the governor
as provided for under sub section (5) of Section 12.
c
(iv) Findings and recommendations to be given by the
Lokayukta or Upa-lokayukta under sub section 3 of
Section 12, include those as contemplated under
Section 13 of the Act.
D
(v) Sub-section (4) of Section 12 requires the
competent authority to examine the report
forwarded under sub-section (3), within three
months and intimate the Lokayukta or the Upa
Lokayukta on the action taken or proposed to be
E
taken on the basis of the report.

(vi) Failure to intimate the action taken on the report
submitted under section (3) has not been dealt with
specifically, however if in the opinion of Lokayukta
I Upa Lokayukta, satisfactory action taken is not F
taken by the competent authority under Section
12(4), he is at liberty to send a 'Special report' to
the governor as provided for under sub section (5)
of Section 12.
G
(vii) If any Special Report as contemplated under sub-
section (5) is received and the annual report of the
Lokayukta under sub section (6), would have to be
laid before each house of the State legislature
along with an explanatory note of the Governor. H
1022 SUPREME COURT REPORTS (2013) 3 S.C.R.

A (viii) It is important to note that the act neither binds the
Governor nor the State Legislature to accept the
recommendations or findings of the incumbent,
thereby ensuring no civil consequences follow from
the direct action of the Lokayukta or Upa
B Lokayukta.

Section 13 prescribes when a public servant would have
to vacate office, which reads as follows:

"13. Public servant to vacate office if directed by
c Lokayukta etc. (1) Where after investigation into a
complaint the Lokayukta or an Upalokayukta is satisfied
that the complaint involving an allegation against the public
servant is substantiated and that the public servant
concerned should not continue to hold the post held by him,
D the Lokayukta or the Upalokayukta shall make a
declaration to that effect in his report under sub-section (3)
of section 12. Where the competent authority is the
Governor, State Government or the Chief Minister, it may
either accept or reject the declaration. In other cases, the
E competent authority shall send a copy of such report to the
State Government, which may either accept or reject the
declaration. If it is not rejected within a period of three
months from the date of receipt of the report, or the copy
of the report, as the case may be, it shall be deemed to
F have been accepted on the expiry of the said period of
three months.

(2) If the declaration so made is accepted or is deemed
to have been accepted, the fact of such acceptance or the
deemed acceptance shall immediately be intimated by
G Registered post by the Governor, the State Government
or the Chief Minister if any of them is the competent
authority and the State Government in other cases then,
notwithstanding anything contained in any law, order,
notification, rule or contract of appointment, the public
H servant concerned shall, with effect from the date of
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1023
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

tntimation of such acceptance or of .the deemed A
acceptance of the.declaration,

(i) if the Chief Minister or a Ministenesign his office of the
Chief Minister, or Minister, as the case may be.

(ii) If a public servant falling under items (e) and (f), but not B
falling under items (d) and (g) of clause (12) of section 2,
be deemed to have vacated his office: and ·

(iii) If a public servant falling under items (d) and (g) of
clause (12) of section 2, be deemed to have been placed c
under suspension by an order of the appointing authority.

Provided that if the public servant is a member of an All
India Service as defined in section 2 of the All India
Services Act, 1951 (Central Act 61 to 1951) the State D
Government shall take action to keep him under
suspension in accordance with the rules or regulations
applicable to his service."

Section 14 deals with the initiation of prosecution which E
reads as follows:

"14. Initiation of prosecution.- If after investigation
into any complaint the Lokayukta or an Upa-lokayukta is
satisfied that the public servant has committed any criminal
offence and should be prosecuted in a court of law for such F
offence, then, he may pass an order to that effect and
initiate prosecution of the public servant concerned and if
prior sanction of any authority is required for such
prosecution, then, notwithstanding anything contained in
any law, such sanction shall be deemed to have been G
granted by the appropriate authority on the date of such
order."

H
1024 SUPREME COURT REPORTS (2013] 3 S.C.R.

A Investigative in nature

25. The provisions discussed above clearly indicate that
the functions to be discharged by Lokayukta or Upa Lokayukta
are investigative in nature and the report of Lokayukta or Upa
Lokayukta under sub-sections (1) and (3) of Section 12 and the
8 Special Report submitted under sub-section (5) of Section 12
are only recommendatory. No civil consequence as such follows
from the action of Lokayukta and Upa Lokayukta, though they
can initiate prosecution before a competent court. I have
extensively referred to the object and purpose of the Act and
C explained the various provisions of the Act only to indicate the
nature and functions to be discharged by Lokayukta or Upa
Lokayukta under the Act.

26. The Act has, therefore, clearly delineated which are the
o matters to be investigated by the Lokayukta and Upa
Lokayukta. They have no autpority to investigate on a complaint
involving a grievance in respect of any action specified in the
Second Schedule of the Act, which are as follows:

(a) Action taken for the purpose of powers investigating
E crimes relating to the security of the State.

(b) Action taken in the exercise of powers in relation
to determining whether a matter shall go to a Court
or not.
F
(c) Action taken in matters which arise out of the terms
.of a contract governing purely commercial relations
of the administration with customers or suppliers,
except where the complaint alleges harassment or
gross delay in meeting contractual obligations.
G
(d) Action taken in respect of appointments, removals,
pay, discipline, superannuation or other matters
relating to conditions of service of public servants
but not including action relating to claims for
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1025
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

pension, gratuity, provident fund or to any claims A
which arise on retirement, removal or termination
of service.

(e) Grant of honours and awards.

27. Further if the complainant has or had any remedy by 8
way of appeal, revision, review or other proceedings before any
tribunal, court officer or other authority and has not availed of
the same, the Lokayukta and Upa Lokayukta shall not conduct
any investigation under the Act, in other words, they have to act
within the four corners of the Act. C

28. The Act has also been enacted to make provision for
making enquiries by the Lokayukta and Upa Lokayukta into the
administrative action relatable to matters specified in List II or
List Ill of the Seventh Schedule to the Constitution, taken by or D
on behalf of the Government of Karnataka or certain public
authorities in the State of Karnataka, including any omission
or commission in connection with or arising out of such action
etc.

29. Lokayukta or Upa Lokayukta under the Act are E
established to investigate and report on allegations or
grievances relating to the conduct of public servants which
includes the Chief Minister; all other Minister and members of
the State Legislature; all officers of the State Government;
Chairman, Vice Chairman of Local Authorities, Corporations, F
owned or controlled by the State Government, a company in
which not less than fifty one per cent of the shares are held by
the State Government, Societies registered under the Societies
Registration Act, Co-operative Societies and Universities
established by or under any law of ttie Legislature. G

30. Lokayukta and Upa Lokayukta while exercising powers
under the Act, of course, is acting as a quasi judicial authority
but it functions are investigative in nature. The Constitution
Bench of this Court in Nagendra Nath Bora and Another v.
H
1026 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Commissioner of Hills Division and Appeals. Assam and
Others AIR 1958 SC 398 held whether or not an administrative
body or authority functions as purely administrative one or in a
quasi-judicial capacity, must be determined in each case, on
an examination of the relevant statute and rules framed
B thereunder. This Court in Indian National Congress (I) v.
Institute of social Welfare and Others (2002) 5 SCC 685, while
dealing with the powers of the Election Commission of India
under the Representation of the People Act, 1951 held that while
exercising power under Section 29-A, the Commission acts
c quasi-judicially and passes quasi judicial orders.

31. The Court held that what distinguishes an administrative
act from a quasi-judicial act is, in the case of quasi-judicial
functions, under the relevant law, the statutory authority is
required to act judicially. In other words, where law requires that
D an authority before arriving at a decision must make an enquiry,
such a requirement of law makes the authority a quasi-judicial
authority. Noticing the above legal principles this Court held in
view of the requirement of law that the Commission is to give
decision only after making an enquiry, wherein an opportunity
E of hearing is to be given to the representative of the political
party, the Election Commission is is required to act judicially.

32. Recently, in Automotive Tyre Manufactures
Association v. Designated Authority and Others (2011) 2 SCC
F 258, this Court examined the question whether the Designated
Authority appointed by the Central Government under Rule 3
of the Customs Tariff (Identification, Assessment and Collection
of Anti-Dumping Duty on dumped Articles and for Determination
of Injury) Rules, 1995 (1995 Rules) for conducting investigation,
G for the purpose of levy of anti dumping duty in terms of Section
9-A of the Customs Act, 1962, is functioning as an
administrative or quasi judicial authority. The Court after
examining the scheme of the Tariff Act read with 1995 Rules
and the nature of functions to be discharged by the Designated
H Authority took the view that the authority exercising quasi-judicial
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1027
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

functions is bound to act judicially. Court noticed that the A
Designated Authority determines the rights and obligations of
the "interested parties" by applying objective standards based
on the material/information/evidence presented by the
exporters, foreign producers and other "interested parties" by
applying the procedure and principles laid down in the 1995 B
Rules. · ·

33. Provisions of Sections 9, 10 and 11 clearly indicate
that Lokayukta and Upa Lokayukta are discharging quasi-
judicial functions while conducting the investigation under the C
Act. Sub-section (2) of Section 11 of the Act also states that
for the purpose any such investigation, including the preliminary
inquiry Lokayukta and Upa Lokayukta shall have all the powers
of a Civil Court while trying a suit under the Code of Civil
Procedure, 1908, in the matter of summoning and enforcing the
attendance of any person and examining him on oath. Further D
they have also the power for requiring the discovery and
production of any document, receiving evidence on affidavits,
requisitioning any public record or copy thereof from any court
or office, issuing commissions for examination of witnesses of
documents etc. Further, sub-section (3) of Section 11 stipulates E
that any proceedings before the Lokayukta and Upa Lokayukta
shall be deemed to be a judicial proceeding within the meaning
of Section 193 of the Indian Penal Code. Therefore, Lokayukta
, and Upa Lokayukta, while investigating the matters are
discharging quasi-judicial functions, though the nature of F
functions is investigative.

Consegyence of the report

34. the Governor of the State, acting in his discretion, if
accepts the report of the Lokayukta against the Chief Minister, G
then he has to resign from the post. So also, if the Chief Minister
accepts such a report against a Minister, then he has to resign
from the ,post. Lokayukta or Upa Lokayukta, however, has no
jurisdiction or power to direct the Governor or the Chief Minister
to implement its report or direct resignation from the Office they H
1028 SUPREME COURT REPORTS [2013] 3 S.C.R.

A hold, which depends upon the question whether the Governor
or the Chief Minister, as ttie case may be, accepts the report
or not. But when the Lokayukta or Upa Lokayukta, if after the
investigation, is satisfied that the public servant has committed
any criminal offence, prosecution can be initiated, for which
B prior sanction of any authority required under any law for such
prosecution, shall also be deemed to have been granted.

Nature of Appointment

35. We are, in this case, as already indicated, called upon
C to decide the nature and the procedure to be followed in the
matter of appointment of Lokayukta or Upa Lokayukta under
the Act for which I have elaborately discussed the intention of
the legislature, objects and purpose of the Act and the nature
and functions to be discharged by Lokayukta or Upa Lokayukta,
D its investigative nature, the consequence of its report etc.
Section 3 of the Act deals with the appointment of Lokayukta
and Upa Lokayukta, which reads as follows:

3. Appointment of Lokayukta and Upa-lokayukta-
E (1) For the purpose of conducting investigations and
enquiries in accordance with the provisions of this Act, the
Governor shall appoint a person to be known as the
Lokayukta and one or more persons to be known as the
Upa-lokayukta or Upa-lokayuktas.
F
(2)(a) A person to be appointed as the Lokayukta
shall be a person who has held the office of a Judge of
the Supreme Court or that of the Chief Justice of a High
Court and shall be appointed on the advice tendered by
G the Chief Minister in consultation with the Chief Justice of
the High Court of Karnataka, the Chairman, Karnataka
Legislative Council, the Speaker, Karnataka Legislative
Assembly, the Leader of the Opposition in the Karnataka
Legislative Council and the Leader of the Opposition in the
Karnataka Legislative Assembly.
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1029
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

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

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

36. The purpose of appointment of Lokayukta or Upa D
Lokayukta is clearly spelt out in Section 3(1) of the Act which
indicates that it is for the purpose of conducting investigation
and enquiries in accordance with the provisions of the Act. The
procedure to conduct investigation has been elaborately dealt
with in the Act. The scope of enquiry is however limited, E
compared to the investigation that is only to the ascertainment
of the truth or falsehood of the allegations. The power has been
entrusted by the Act on the Governor to appoint a person to
be known as Lokayukta and one or more persons to be known
as Upa Lokayukta and Upa Lokayuktas. The person to be F
appointed as Lokayukta shall be a person who has held the
office of a Judge of the Supreme Court of India or that of the
Chief Justice of the High Court. The Governor, as per Section
3(2)(a), is empowered to appoint Lokayukta on the advice
tendered by the Chief Minister, in consultation with the Chief G
Justice of the High Court of Karnataka, the Chairman,
Karnataka Legislative Council, the Speaker, Karnataka
Legislative Assembly, the Leader of the Opposition in the
Karnataka Legislative Council and the Leader of the
Opposition in the Karnataka Legislative Assembly. It is, . H
1030 SUPREME COURT REPORTS [2013] 3 S.C.R.

A therefore, clear that all the above five dignitaries have to be
consulted before tendering advice by the Chief Minister to the
Governor of the State.

37. Section 3(2)(b) of the Act stipulates that, so far as the
Upa Lokayukta is concerned, he shall be a person who has held
8
the office of a Judge of the High Court and shall be appointed
on the advice tendered by the Chief Minister. The Chief Minister
has to consult the five dignitaries, the Chief Justice of the High
Court of Karnataka, the Chairman, Karnataka Legislative
Council, the Speaker, Karnataka Legislative Assembly, the
C Leader of the Opposition in the Legislative Council and the
Leader of Opposition in the Karnataka Legislative Assembly.
Therefore, for the purpose of appointment of Lokayukta or Upa
Lokayukta all the five consultees are common. The appointment
has to be made by the Governor on the advice tendered by the
D Chief Minister in consultation with those five dignitaries.

Legislations in few other States.·

38. Legislatures in various States have laid down different
E methods of appointment and eligibility criterias for filling up the
post of Lokayukta and Upa-Lokayuktas, a comparison of which
would help us to understand the intention of the legislature and
the method of appointment envisaged.

39. ANDHRA PRADESH LOKAYUKTA ACT, 1983
F
Section 3 - Appointment of Lokayukta and· Upa-
Lokayukta: (1) For the purpose of conducting
investigation in accordance with the provisions of this Act,
the Governor shall, by warrant under his hand and seal,
G appoint a person to be known as the Lokayukta and one
or more persons to be known as the Upa-Lokayukta or
Upa-Lokayuktas:

Provided that,-

H (a) the person to be appointed as the Lokayukta
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1031
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

shall be a Judge or a retired Chief Justice of a High A
Court;

(b) the Lokayukta shall be appointed after
consultation with the Chief Justice of the High Court
concerned;
B
(c) the Upa-Lokayukta shall be appointed from
among the District Judges of Grade I, out of a panel
of five names forwarded by the Chief Justice of the
High Court of Andhra Pradesh.
c
(2) In the Andhra Pradesh Lokayukta and Upa -Lokayukta
Act, 1983 (hereinafter referred to as the principal Act) for
su,b-section (2) of Section 3, the following shall be
substituted, namely:- ·

(i) Every person appointed to be the Lokayukta D
shall, before entering upon his office, make and
subscribe, before the Governor an oath or
affirmation according to the form set out for the
purpose in the First Schedule.
E
(ii) Every person appointed to be the Upa-
Lokayukta shall, before entering upon his office,
make and subscribe before the Governor or some
person appointed in that behalf by him, an oath or
affirmation ,according to the form setout for the F
purpose in the First Schedule.

(3) The Upa-Lokayukta shall function under the
administrative control of the Lokayukta and in particular,
for the purpose of convenient disposal of investigations G
under this Act, the Lokayukta may issue such general or
special directions, as he may consider necessary, to the
Upa-Lokayukta:

Provided that nothing in this sub-section shall be
construed to authorize the Lokayukta to question any H
1032 SUPREME COURT REPORTS (2013] 3 S.C.R.

A decision, finding, or recommendation of the Upa-
Lokayukta.

40. ASSAM LOKAYUKTA AND UPA-LOKAYUKTAS
ACT, 1985

B Section 3 - Appointment of Lokayukta and Upa-
Lokayuktas.- 1. For the purpose of conducting
· investigations in accordance with the provisions of the Act,
the Governor shall, by warrant under his hand and seal,
appoint a person to be known as Lokayukta and one or
C more persons to be known as Upa-Lokayukta or Upa-
Lokayuktas:

Provided that:-

(a) The Lokayukta shall be appointed after
D consultation with the Chief Justice of the Gauhati
High Court, the Speaker and the leader of the
opposition in the Assam Legislative Assembly and
if there be no such leader a person elected in this
behalf by the members of the opposition in that
E house in such manner as the speaker may direct;

(b) The Upa-Lokayukta or Upa-Lokayuktas shall be
appointed after consultation with the Lokayukta

Provided further that where the Speaker of the Legislative
F
Assembly is satisfied that circumstances exists on account
of which it is not practicable to consult the leader of the
opposition in accordance with Cl(a) of the preceding
proviso he may intimate the Governor the name of any
other member or the opposition in the Legislative
G Assembly who may be consulted under that clause instead
of the leader of the opposition.

(2) Every person appointed as the Lokayukta or Upa-
Lokayukta shall before entering upon his office, make and
H subscribe before the Governor or some person appointed
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1033
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

in that behalf by him, an oath or affirmation in the form set A
out for the purpose in the First Schedule.

(3) The Upa-Lokayuktas shall be subject to the
administrative control of the Lokayukta and, in particular,
for the purpose of convenient disposal of investigations B
under this Act, the Lokayukta may issue such general or
special direction, as he may consider necessary to the
Upa-Lokayukta

Provided that nothing in this sub-section shall be
construed to authorize the Lokayukta to question any C
finding, conclusion or recommendation of an Upa
Lokayukta.

41. THE BIHAR LOKAYUKTA ACT, 1973:
D
3. Appointment of Lokayukta.- (1) For the purpose of
conduction investigations in accordance with the provisions
of this Act the Governor shall by warrant under his hand
and shall appoint a person to be known as the Lokayukta
of Bihar;
E
Provided that the Lokayukta shall be appointed after
consultation with the Chief Justice of the Patna High Court
and the Opposition in the State Legislative Assembly or if
there be no such leader a person elected in this behalf by
the Opposition in the State Legislative Assembly in such F
manner as the Speaker may direct.

(2) The person appointed as the Lokayukta shall,
before entering upon his office, make and subscribe,
before the Governor, or some person appointed in that
behalf by the Governor, an oath or affirmation in the form G
set out for the purposes in the First Schedule.

42. CHHATTISGARH LOK AAYOG ADHYADESH,
2002 '
H
1034 SUPREME COURT REPORTS [2013] 3 S.C.R.

A 3. Constitution of Lok Aayog:- (1) There shall be a Lok
Aayog for the purpose of conducting inquiries in
accordance with the provisions of this Ordinance.

(2) The Lok Aayog shall consist of two members,
one to be known as the Pramukh Lokayukt, and the other
B
as the Lokayukt.

(3) The Pramukh Lokayukt shall be a person who has
been a Judge of a High Court or has held a judicial officer
higher than that of a Judge of a High Court.
c
(4) The Lokayukta shall be a person with experience
in administrative and quasi-judicial matters, and shall have
functioned at the level of a Secretary to the Government
of India or the Chief Secretary to any State Government
0 in India.

Provided that the Pramukh Lokayukta shall have
administrative control over the affairs of the Lok Aayog.

(5) Governor shall, by warrant under his hand and
E seal, appoint the Pramukh Lokayukta and the Lokayukta,
on the advice of the Chief Minister who shall consult the
Chief Justice of the High Court of Chattisgarh and the
Speaker of the Chattisgarh Legislative Assembly.

(6) Every person appointed as a Pramukh Lokayukt
F
or a L Lokayukt shall, before entering upon his office, take
and subscribe before the Governor, or some person
appointed in that behalf by him, an oath of affirmation in
the form set out for the purpose in the First Schedule.

G (7) The Pramukh Lokayukt or the Lokayukt shall not
hold any other office of trust or profit or be connected with
any political party or carry on any business or practice any
profession or hold any post in any society, including any
cooperative society, trust, or any local authority, or
H membership of the Legislative Assembly of any State or
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1035
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

of the Parliament. A

43. DELHI LOKAYUKTA AND UPLOKAYUKTA
ACT, 1995:

Sedion 3 - Appointment of Lokayukta and
Uplokayukta.- (1) For the purpose of conducting B
investigations and inquiries in accordance with the
provisions of this Act, the Lieutenant Governor shall, with
the prior approval of the President, appoint a person to be
known as the Lokayukta and one or more persons to be
known as Upalokayukta; C

Provided that-

(a) the Lokayukta shall be appointed after
consultation with the Chief Justice of the High Court D
of Delhi and the Leader of the Opposition in the
Legislative Assembly and if there be no such
leader, a person selected in this behalf by the
Members of the Opposition in that House in such
manner as the Speaker may direct;
E
(b) the Upalokayukta shall be appointed in
consultation with the Lokayukta.

(2) A person shall not be qualified for appointment as-

(a) the Lokayukta, unless he is or has been Chief F
Justice of any High Court in India, or a Judge of a
High Court for seven years;

(b) an Upalokayukta, unless he is or has been a
Secretary to the Government or a District Judge in G
Delhi for seven years or has held the post of a Joint
Secretary to the Government of India.

3. Every person appointed as Lokayukta or
Upalokayukta shall, before entering upon his office, make H
1036 SUPREME COURT REPORTS

A and subscribe before the Lieutenant Governor or some
person appointed in that behalf by him, an oath or
affirmation in the form set out for the purpose in the First
Schedule.

4. The Upalokayukta shall be subject to the
B
administrative control of the Lokayukta and in particular,
for the purpose of convenient disposal of investigations
under this Act, the Lokayukta may issue such general or
special directions as he may consider necessary to the
Upalokayukta and may withdraw to himself or may, subject
c to the provisions of Section 7, make over any case from
himself to an Upalokayukta or from one Upalokayukta to
another Upalokayukta for disposal

Provided that nothing in this sub-section shall be
D construed to authorize the Lokayukta to question any
finding, conclusion, recommendation of an Upalokayukta.

44. GUJARAT LOKAYUKTA ACT, 1986

Section 3 - Appointment of Lokayukta- 1) For the
E purpose of conducting investigations in accordance with
the provisions of this Act, the Governor shall by warrant
under his hand and seal appoint a person to be known as
the Lokayukta;

F 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
G Constitution is in operation in the State of Gujarat, after
consultation also with the Leader of the Opposition in the
Legislative Assembly or if there be no such Leader a
person elected in this behalf by the members of
Opposition in that house in the manner as the Speaker may
direct.
H
JUSTICE CHANDRASHEKARAIAH {RETD.) v. 1037
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

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

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

45. THE JHARKHAND LOKAYUKTA ACT, 2001
c
3. Appointment of Lokayukta- (1) For the purpose
of conduction investigations in accordance with the
provisions of this Act, the Governor shall by warrant under
his hand and seal appoint a person to be known as the
Lokayukta of Jharkhand; D
Provided that the Lokayukta shall be appointed after
consultation with the Chief Justice of the Jharkhand High
Court, Ranchi and the Leader of the Opposition in the State
Legislative Assembly or if there be no such leader a
person elected in this behalf by the Members of the E
Opposition in the State Legislative Assembly in such
manner as the Speaker may direct.

(2) The person appointed as the Lokayukta shall, before
entering upon his office, make and subscribe, before the F
Governor, or some person appointed in that behalf by the
Governor, an oath or affirmation in the form set out for the
purposes in the First Schedule.

46. HARYANA LOKAYUKTA ACT, 2002:
G
Section 3 - Appointment of Lokayukta- (1) For
the purpose of conducting investigations in accordance
with the provisions of this Act, the Governor, shall, by
warrant, under his hand and seal, appoint a person to be
known as the Lokayukta: H
1038 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Provided that the Lokayukta shall be appointed on
the advice of the Chief Minister who shall consult
the Speaker of Haryana Legislative Assembly,
Leader of Opposition and the Chief Justice of India
in case of appointment of a person who is or has
B been a Judge of the Supreme Court or Chief
Justice of the High Court, and Chief Justice of the
Punjab and Haryana High Court in case of
appointment of a person who is or has been a
Judge of a High Court.
c Provided further that the result of consultation shall
have persuasive value but not binding on the Chief
Minister.

(2) A notification by the State Government about the
D consultation having been held as envisaged in sub-section
(1) shall be conclusive proof thereof.

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

47. KERALA LOK AYUKTA ACT. 1999

F Section 3 - Appointment of Lok Ayukta and
Upa-Lok Ayuktas- 1) For the purpose of conducting
investigations and inquiries in accordance with the
provisions of this Act, the Governor shall appoint a person
to be known as Lok Ayukta and two other persons to be
G known as Upa-Lok Ayuktas.

(2) A person to be appointed as Lok Ayukta shall be
a person who has held the office of a Judge of the
Supreme Court or that of the Chief Justice of a High Court
and shall be appointed on the advice tendered by the Chief
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1039
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

Minister, in consultation with the Speaker of the Legislative A
Assembly of the State and the Leader of Opposition in the
Legislative Assembly of the State.

(3) A person to be appointed as an Upa-Lok Ayukta
shall be a person who holds or has held the office of a 8
Judge of a High Court and shall be appointed on the
advice tendered by the Chief Minister in consultation with
the Speaker of the Legislative Assembly of the state and
the leader of Opposition in the Legislative Assembly of the
state.
c
Provided that the Chief Justice of the High Court
concerned shall be consulted, if a sitting judge is
appointed as an Upa-Lok Ayukta.

(4) A person appointed as Lok Ayukta or Upa-Lok Ayukta D
shall, before entering upon his office, make and subscribe,
before the Governor or a person appointed by him in that
behalf, an oath or affirmation in the form set out for the
purpose in the First Schedule."

48 .. A brief survey of the above statutory provisions would E
show that State Legislatures of various States have adopted
different eligibility criteria, method of selection, consultative
procedures etc. in the matter of appointment of Lokayukta, Upa-
Lokayukta in their respective States. For instance, in Andhra
Pradesh Lokayukta Act the Chief Minister as such has oo role F
and the ooly consultee for the post of Lokayukta is the Chief
Justice. Upa Lokayukta is appointed not from the category of
Judges of the High Court, sitting or former, but from a panel of
five names of District Judges of Grade I forwarded by the Chief
Justice. Further in the States of Assam, Delhi, Gujarat, etc., the G
Chief Ministers have no role as such. However, in the States
of Chattisgarh, Haryana etc., the Governor appoints on the
advice of the Chief Minister. In the State of Chhattisgarh the
Act says, the Pramukh Lokayukta shall be a person who has
been a judge of a High Court or has held a judicial office higher H
1040 SUPREME COURT REPORTS [2013] 3 S.C.R.

A than that of a High Court Judge. Lokayukta shall be a person
who has functioned at the level of a Secretary, both Government
of India or the Chief Secretary to any State Government. The
Chief Justice of the High Court is a consultee, in the Lokayukta
Act of Assam, Bihar, Delhi, Gujarat, Jharkhand and so on.
B However, in the Kerala Lokayukta Act, the Chief Justice is not
a consultee at all. In few States, Upa-lokayuktas are appointed
from a panel of District Judges, not from the High Court Judges
sitting or former. Legislatures of the various States, in their
wisdom, have, therefore, adopted different sources, eligibility
c criteria, methods of appointment etc. in the matter of
appointment of Lokayukta and Upa-Lokayuktas. Recently, this
Court had an occasion to consider the scope of Section 3(1)
of the Gujarat Lokayukta Act, 1986 in State of Gujarat v.
Hon'ble Mr. Justice R.A. Mehta (Retd.) reported in 2013 (1)
D SCALE 7. Interpreting that provision this Court held that the
views of the Chief Justice have primacy in ~he matter of
appointment of Lokayukta in the State of Gujarat. Every Statute
has, therefore, to be construed in the context of the scheme of
the Statute as a whole, consideration of context, it is trite, is to
E give meaning to the legislative intention according to the terms
in which it has been expressed.

49. Constitution of India and its articles, judicial
pronouncements interpreting various articles of the Constitution
confer primacy to the views of Chief Justice of India or to the
F Chief Justice of a High Court in the matter of appointment to
certain posts the incumbents of which have to discharge judicial
or quasi judicial functions.

APPOINTMENT TO THE POSTS OF DISTRICT JUDGE/
G HIGH COURT JUDGES:
50. The views of the High Court has primacy in the matter
of appointment of District Judges. Chandra Mohan v. State of
U.P. 1967 (1) SCR 77 was a case relating to the appointment
of District Judges wherein this Court had occasion to consider
H the scope of Articles 233-236 of the Constitution. Interpreting
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1041
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

the word "consultation" in Article 233, this Court has taken the A
view that the exercise of power of appointment by the Governor
is conditioned by his consultation with the High Court, meaning
thereby the Governor can only appoint a person to the post of
District Judge in consultation with the High Court. The purpose
and object of consultation is that the High Court is expected to B
know better in regard to the suitability or otherwise of a person,
belonging either to the judicial service or to the Bar, to be
appointed as a district Judge. The duties enjoined on the
Governor are, therefore, to make the appointment in
consultation with the body which is the appropriate authority to c
give advice to him. In Chandramouleshwar Prasad v. Patna
High Court (1969) 3 SCC 56, Justice Mitter J. while
interpreting the Article 233 held "that the High Court is the body
which is intimately familiar with the efficiency and quality of
officers who are fit to be promoted as District Judges. It was
0
held that consultation with the High Court under Article 233 is
not an empty formality. Further, it was also stated that
consultation or deliberation is not complete or effective before
the parties thereto make their respective points of view known
to the other others and discuss and examine the relative merits
of their views". E

51. In Samsher Singh v. State of Punjab and Another
(1974) 2 SCC 831, Justice Krishna Iyer, in his concurring
judgment, highlighted the independence of Judiciary and held
"it is a cardinal principle of the Constitution and has been relied F
on to justify the deviation, is guarded by the relevant article
making consultation with the Chief Justice of India obligatory".
In Union of India v. Sankalchand Himatlal Sheth and Another
(1977) 4 SCC 193 this Court high-lighted the rationale behind
consulting the Chief Justice of India on matters pertaining to G
judiciary, in the light of Article 222 of the Constitution of India.
This Court held that "Article 222(1) requires the President to
consult the Chief Justice of India on the premises that in a
matter which concerns the judiciary vitally, no decision ought
to be taken by the executive without obtaining the views of the H
1042 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Chief Justice of India who, by training and experience, is in the
best position to consider the situation fairly, competently and
objectively".

52. In Supreme Court Advocates-on-Record Association
B and Others v. Union of India (1993) 4 SCC 441 while
interpreting the Article 217 of the Constitution, i.e. in the matter
of appointment of Judges to the Higher Judiciary, it was held
that the opinion of the Chief Justice of India has got primacy in
the process of consultation. Primacy of the opinion of the Chief
Justice of India is, in effect, the primacy of the opinion of the
C Chief Justice of India formed collectively, that is, after taking
into account the views of his senior colleagues who are
required to be consulted by him for the formation of the opinion.
The Court has also proceeded on the premises that the
President is constitutionally obliged to consult the Chief Justice
D of India in the case of appointment of Judges of the Supreme
Court of India, as per the proviso to Article 124(2) and in the
case of appointment of the Judges of the High Court the
President is obliged to consult the Chief Justice of India and
the Governor of the State in addition to the Chief Justice of the
E High Court concerned. In the matter of appointment of Judges
of the Supreme Court as well as that the High Courts, the
opinion of the collegium of the Supreme Court of India has
primacy. Judgments referred to above are primarily concerned
with the appointment of District Judges in the subordinate
F judiciary, High Court Judges and the Supreme Court. Primacy
to the executive is negatived, in view of the nature of functions
to be discharged by them and to make the judiciary
independent of the executive.

G APPOINTMENT TO THE CENTRAL AND STATE
ADMINISTRATIVE TRIBUNALS

53. Central Administrative Tribunal as a Tribunal constituted
under Article 323-A of the Constitution and is expected to have
the same jurisdiction as that of the High Court. Such Tribunal
H exercises vast judicial powers and the members must be
. JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1043
JANEKERE C. KRISHNA.[K.S. RADHAKRISHNAN, J.]

ensured absolute judicial independence, free from ariy A
executive or political interference. It is for this reason, sub-
section (7) to' Section 6 of the Administrative-Tribunals Act,
1985 requires that the appointment of a member of the Tribunal
cannot be made "except after consultation with the Chief Justice
of India". Considering the nature of functions to be discharged · B
by the Tribunal which is judicial, the views of the Chief Justice
of India has primacy. In Union of India and Others v. Kali Dass
Balish and .Another (2006) 1 SCC 779 this Court has
interpreted the expression "after consultation with the Chief
Justice· of India" as appearing in Section 6(7) of the , c
Administra.tive Tribunal Act, 1985 and. held that the judicial
powers are being exercised by the Tribunal and· hence the
views of the Chief Justice of India be given primacy in the matter
of appointment in the Central Administrative Tribunal. Similar
is the situation with regard to the State Administrative Tribunals
0
as well, where the views of the Chief Justice of the High Court
. has primacy, since the Tribunal is exercising judicial powers
and pertoi:ming judicial function_s.
APPOINTMENT TO THE NATIONAL AND STATE
CONSUMER REDRESSAL COMMISIONS: E
'.
. 54.This Court in Ashish Handa, Advocate v. Hon'ble the
Chief Justice of High Court of Punjab and Haryana and
Others (1996) 3 SCC 145, held in the matter of appointment
of President of the State Commissions and the National . F
Commissions under the Consumer Protection Act, 1986~ the
consultation with the Chief Justice of the High Court and Chief
Justice of India is in the same manner, as indicated by the
Supreme Court in Supreme Court Advocates-on-Record
Association case (supra) for appointment of High Court and
Supreme Court Judges. This Court noticed that.the functions · G
discharged by the Commission are primarily the adjudication
of consumer disputes and, therefore, a person from the judicial
branch is considered to be suitable for the office of the
President The Court noticed the requirement of consultation
'' . . H
1044 SUPREME COURT REPORTS [2013) 3 S.C.R.

A with the Chief Justice under the proviso to Section 16(1 )(a) and
Section 20(1 )(a) of the Consumer Protection Act, is similar to
that in Article 217. Consequently, it was held that principle
enunciated in the majority opinion in the Supreme Court
Advocates-on-Record Association case (supra) must apply
B even for initiating the proposal for appointment.

55. This Court, however, in Ashok Tanwar and Another v.
State of H.P. and Others (2005) 2 SCC 104, relying on
Supreme Court Advocates-on-Record Association case
(supra) disagreed with Ashish Handa only to the limited extent
C that for the purpose of the Consumer Protection Act, 1986
'consultation' would not be with the collegium, but would rest
only with the Chief Justice. In N. Kannadasan v. Ajoy Khose
and Others (2009) 7 SCC 1, this Court held that primacy must
be with the opinion of the Chief Justice inter alia because the
D appointment is to a judicial post and in view of the peremptory
language employed in the proviso to Section 16(1 )(a) of the
Consumer Protection Act, 1986. This Court held that the word
"consultation" may mean differently in different situations
depending on the nature and purpose of the Statute.
E
56. Judgments discussed above would indicate that the
consultation is held to be mandatory if the incumbent to be
appointed to the post is either a sitting or a retired judge who
has to discharge judicial functions and the orders rendered by
F them are capable of execution. Consultation, it may be noted,
is never meant to be a formality, but meaningful and effective
and primacy of opinion is always vested with the High Court or
the Chief Justice of the State High Court or the collegium of
the Supreme Court or the Chief Justice of India, as the case
may be, when a person has to hold a judicial office and
G discharge functions akin to judicial functions.

57. The High Court, in the instant case has, placed
considerable reliance on the Judgment of this Court in K.P.
Mohapatra (supra) and took the view that consultation with the
H Chief Justice is mandatory and his opinion will have primacy.
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1045
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

Above Judgment has been rendered in the context of the A
appointment of Orissa Lokpal under Section 3 of the Orissa
Lokpal and Lokayuktas Act. The proviso to Section 3(1) of the
Act says that the Lokpal shall be appointed on the advice of
the Chief Justice of the High Court of Orissa and the Leader
of the Opposition, if there is any. Consultation with the Chief B
Justice assumes importance in view of the proviso. The Leader
of the Opposition need be consulted, if there is one. In the
absence of the Leader of the Opposition, only the Chief Justice
remains as the sole consultee. In that context and in view of the
specific statutory provision, it has been held that the consultation c
with the Chief Justice assumes importance and his views has
primacy.

58. In that case, the Chief Justice approved the
candidature of Justice K.P. Mahapatra, but the Leader of the
Opposition later recommended another person, but the State D
Government appointed the former but the High Court interfered
with that appointment. Reversing the judgment of the High
Court, this Court held that the opinion rendered by the Leader
of the Opposition is not binding on the State Government.
E
59. I am of the view that the judgment of this Court in K. P.
Mahapatra (supra) is inapplicable while construing the
provisions of the Karnataka Lokayukta Act, 1984, since the
language employed in that Act and Section 3 of the Orissa
Lokpal and Lokayukta Act, 1985 are not pari materia. F

60. We have, therefore, to interpret the provisions of
Section 3(2)(a) and (b) as it stands in the Karnataka Lokayukta
Act, where the language employed, in my view, is clear and
unambiguous and we have to apply the golden rule of
interpretation i.e. the literal interpretation which clearly G
expresses the intention of the legislature which I have already
indicated, supports the objects and reasons, the preamble, as
well as various other related provisions of the Act.

61. Tindal, C.J., as early as 1844, has said that "If the H
1046 SUPREME COURT REPORTS [2013] 3 S.C.R.

A words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound
those words in their natural and ordinary sense. The words
themselves do alone in such case best declare the intent of the
lawgiver". In other words, when the language is plain and
B unambiguous and admits of only one meaning no question of
construction of a statute arises, for the Act speaks for itself.
Viscount Simonds, L.C. in Empror v. Benoari/a/ Sarma AIR
1945 PC 48 has said "in construing enacted words we are not
concerned with the policy involved or with the results, injurious
c or otherwise, which may follow from giving effect to the
language used". Blackstone, in Commentaries on the Laws of
England, Vol.1 page 59 has said "the most fair and rational
method for interpreting a statute is by exploring the intention of
the Legislature through the most natural and probable signs
which are either the words, the context, the subject-matter, the
0
effects and consequence, or the spirit and reasons of the law.
In Kanai/al Sur v. Paramnidhi Sadhu Khan AIR 1957 SC 907,
Justice Gajendragadkar stated that, "if the words used are
capable of one construction only then it would not be open to
E the courts to adopt any other hypothetical construction on the
ground that such construction is more consistent with the
alleged object and policy of the Act". It is unnecessary to multiply
that principle with decided cases, as the first and primary rule
of construction is that the intention of the Legislature must be
found in the words used by the Legislature itself.
F
62. Section 3(2)(a) and (b) when read literally and
contextually admits of not doubt that the Governor of the State
can appoint Lokayukta or Upa Lokayukta only on the advice
tendered by the Chief Minister and that the Chief Justice of the
G High Court is only one of the consultees and his views have no
primacy. The Governor, as per the statute, can appoint only on
the advice tendered by the Chief Minister and not on the
opinion expressed by the Chief Justice or any of the consultees.

H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1047
JANEKERE C. KRISHNA [K.S. RADHAKRISHNAN, J.]

Consultation A
63. The Chief Minister is legally obliged to consult the Chief
Justice of the High Court and other four consultees, which is a
mandatory requirement. The consultation must be meaningful
and effective and mere eliciting the views or calling for
8
recommendations would not suffice. Consultees can suggest
various names from the source stipulated in the statute and
those names have to be discussed either in a meeting to be
convened by the Chief Minister of the State for that purpose or
by way of circulation. The Chief Minister, if proposes to suggest C
or advise any name from the source ear-marked in the statute
that must also be made available to the consultees so that they
can also express their views on the name or names suggested
by the Chief Minister. Consultees can express their honest and
free opinion about the names suggested by the other
consultees including the Chief Justice or the Chief Minister. D
After due deliberations and making meaningful consultation, the
Chief Minister of the State is free to advise a name which has
come up for consideration among the consultees to the
Governor of the State. The advice tendered by the Chief
Minister will have primacy and not that of the consultees E
including the Chief Justice of the High Court.

64. I may point out that the source from which a candidate
has to be advised consists of former judges of the Supreme
Court or Chief Justices of the State High Courts for the post of F
Lokayukta and former judges of the High Courts for the post of
Upa Lokayukta. Persons, who fall in that source, have earlier
held constitutional posts and are presun:ied to be persons of
high integrity, honesty and ability and choosing a candidate from
that source itself is sometimes difficult. The Governor cannot G
appoint a person who does not fall in that source and satisfies
the other eligibility criteria. Contention was raised that since the
source consists of persons who have held the office of the
Judge of the Supreme Court or the Chief Justice of the High
Court, the Chief Justice of the High Court would be in a better H
1048 SUPREME COURT REPORTS [2013] 3 S.C.R.

A position to compare the merits and demerits of those
candidates. I find it difficult to accept that contention. Apart from
a person's competence, integrity and character as a judge,
various other information have also to be gathered since the
persons who fall in that source are retired judges. Government
B has its own machinery and system to gather various information
about retired judges. The Chief Minister, it may be noted, cannot
advise a name from that source without making a meaningful
and effective consultation after disclosing the relevant materials.
This, in my view, is a sufficient safeguard against arbitrary
C selection and advice. Further, as already noticed, the duties and
functions of the Lokayukta or Upa Lokayukta are investigative
in nature and their orders as such cannot be executed. In such
situation, the legislature, in its wisdom, felt that no primacy need
be attached to views of the consultees including the Chief
Justice but on the advice of the Chief Minister.
0
65. In my view that this is the scheme of Section 3(2)(a)
and (b) of the Act and however, much we strain, nothing spells
out from the language used in Section 3(2)(a) and (b) to hold
that primacy be attached to the opinion expressed by the Chief
E Justice of the High Court of Karnataka. I am, therefore, of the
view that the various directions given by the High Court holding
that the views of the Chief Justice has got primacy, is beyond
the scope of the Act and the High Court has indulged in a
legislative exercise which is impermissible in law. I, therefore,
F set aside all the directions issued by the High Court, since they
are beyond the scope of the Act.

66. The Chief Minister, in my view, has however committed
an error in not consulting the Chief Justice of the High Court in
G the matter of appointment of Justice Chandrashekaraiah as
Upa Lokayukta. Records indicate that there was no meaningful
and effective consultation or discussion of the names suggested
among the consultees before advising the Governor for
appointment to the post of Upa Lokayukta. The appointment
of Justice Chandrashekaraiah as Upa Lokayukta, therefore, is
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1049
JANEKERE C. KRISHNA

in violation of Section 3(2)(b) of the Act since the Chief Justice A
of the High Court was not consulted nor was the name
deliberated upon before advising or appointing him as Upa
Lokayukta, consequently, the appointment of Justice
Chandrasekharaiah as Upa Lokayukta cannot stand in the eye
of law and he has no authority to continue or hold the post of B
Upa Lokayukta of the Sfate.

67. Judgment of the High Court is accordingly set aside,
with a direction to the Chief Minister of the State to take
appropriate steps for appointment of Upa Lokayukta in the C
State of Karnataka, in accordance with law. Since nothing
adverse has been found against Justice Chandrasekharaiah,
his name can still be considered for appointment to the post
of Upa Lokayukta along with other names, if any, suggested
by the other five consultees under the Act. I, however, make it
clear that there is no primacy in the views expressed by any of D
the consultees and after due deliberations of the names
suggested by the consultees including the name, if any
suggested by the Chief Minister, the Chief Minister can advise
any name from the names discussed to the Governor of the_
State for appointment of Upa Lokayukta under the Act. Appeals E
are allowed as above, with no order as to costs.

MADAN B. LOKUR, J. 1. Leave granted.

2. Brother Radhakrishnan has elaborately dealt with the
F
issues raised - and I agree with his conclusions. Nevertheless,
I think it necessary to express my views on the various issues
raised.

The issues raised:
G
3. My learned Brother has stated the material facts of the
case and it is not necessary to repeat them.

4. The principal question for consideration is whether the
appointment of Justice Chandrashekaraiah as an Upa-
H
1050 SUPREME COURT REPORTS [2013] 3 S.C.R.

A lokayukta was in accordance with the provisions of Section
3(2)(b) of the Karnataka Lokayukta Act, 1984 which requires
consultation, inter alia, with the Chief Justice of the Karnataka
High Court. In my opinion, the Karnataka High Court was right
in holding that there was no consultation with the Chief Justice
B specifically on the appointment of Justice Chandrashekaraiah
as an Upa-lokayukta. His appointment, therefore, is void ab
initio.

5. Several related questions require consideration,
C including whether the Upa-lokayukta is a quasi-judicial authority
or is only (without meaning any disrespect) an investigator; who
should initiate the process of appointment of an Upa-lokayukta;
what is meant by 'consµltation' in the context of Section 3(2)(b)
of the Karnataka Lokayukta Act, 1984 (for short the Act);
whether consultation is at all mandatory under Section 3(2)(b)
D of the Act; how is the process of consultation required to be
carried out; whether the view of the Chief Justice of the
Karnataka High Court regarding the suitability of a person for
appointment as Upa-lokayukta has primacy over the views of
others involved in the consultation and finally, whether the
E Karnataka High Court was right in directing a particular
procedure to be followed for the appointment of an Upa-
lokayukta.

6. The interpretation of Section 3 of the Karnataka
F Lokayukta Act, 1984 arises for consideration. This Section
reads as follows:

"Section 3: Appointment of Lokayukta and Upa-
lokayukta

G (1) For the purpose of conducting investigations and
enquiries in accordance with the provisions of this Act, the
Governor shall appoint a person to be known as the
Lokayukta and one or more persons to be known as the
Upa-lokayukta or Upa-lokayuktas.
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1051
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

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

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

Whether the Upa-lokayukta a quasi-judicial authority:

7. Without intending to belittle the office of the Upa- G
lokayukta, it was submitted by learned counsel for the State of
Karnataka (hereafter "the State") that the Upa-lokayukta is
essentially required to investigate complaints and inquire into
grievances brought before him. In this process, he may be
exercising some quasi-judicial functions, but that does not make H
1052 SUPREME COURT REPORTS [2013] 3 S.C.R.

A him a quasi-judicial authority. The significance of this
submission lies in the further submission that if the Upa-
lokayukta is not a quasi-judicial authority then the opinion of the
Chief Justice of the Karnataka High Court would not have
primacy in the appointment and consultation process, otherwise
B it would have primacy.

(i) View of the High Court:

8. After discussing the provisions of the Act and the case
law on the subject, the High Court was of the opinion that the
C Upa-Lokayukta performs functions that are in the nature of
judicial, quasi-judicial and investigative. The High Court
expressed the view that if the functions of an Upa-Lokayukta
were purely investigative, the legislature would not have insisted
on a person who has held the office of a judge of a High Court
D as the qualification for appointment and consultation with the
Chief Justice as mandatory.

9. In coming to this conclusion, the High Court drew
attention to N. Gundappa v. State of Kamataka, 1989 (3) KarLJ
E 425 wherein it was held that "the Upa-lokayukta .... while
conducting investigation into a complaint and making a report
on the basis of such investigation, exercises quasi judicial
power. It determines the complaint made against a public
servant involving a 'grievance' or an 'allegation' and the report
F becomes the basis for taking action against the public servant
by the Competent Authority." The Division Bench of the
Karnataka High Court upheld this conclusion by a very cryptic
order in State of Kamataka v. N. Gundappa, ILR 1990 Kar
4188.

G 10. The High Court also drew attention to Prof. S.N. Hegde
v. The Lokayukta, ILR 2004 Kar 3892 wherein the scope of
Sections 9, 11 and 12 of the Act were considered and it was
held that proceedings under Section 9 of the Act are judicial
proceedings, or in any event, they are quasi-judicial
H proceedings. It was said:
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1053
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

"Therefore, the investigation to be conducted under A
Section 9 would be in the nature of a judicial proceeding
and it would be in the nature of a suit and oral evidence is
recorded on oath and documentary evidence is also
entertained. Therefore, it is clear that the investigation
under Section 9 of the Act would be in the nature of judicial B
proceedings or at any rate it is a quasi-judicial
proceedings where the principles of natural justice had to
be followed and if any evidence is recorded the public
servant has the right to cross-examine those witnesses."

(ii) Functions, powers, duties and responsibilities of the C
µpa-lokayukta

11. The appointment of an Upa-lokayukta is dealt with in
Section 3 of the Act. This Section requires that the Upa-
lokayukta must be with a person who has held the office of a D
judge of a High Court. The Upa-lokayukta is, therefore,
expected to be impartial and having some (if not considerable)
judicial experience and abilities. The reason for this, quite
obviously, is that he would possibly be required to deal with
complaints and grievances against public servants in the State. E

12. Given the importance of the office of the Upa-lokayukta,
he is appointed by the Governor of the State on the advice of
the Chief Minister, in consultation with the Chief Justice of the
High Court, the Chairman of the Karnataka Legislative Council,
F
the Speaker of the Karnataka Legislative Assembly, the Leader
of the Opposition in the Karnataka Legislative Council and the
Leader of the Opposition in the Karnataka Legislative
Assembly. In other words, the appointment of the Upa-lokayukta
is the concern of constitutional authorities of the State.
G
13. The oath of office taken by the Upa-lokayukta in terms
of Section 3(3) of the Act is similar to the oath of office taken
by a judge of a High Court under Schedule Ill to the Constitution.
The only substantial difference between the two is that, in
addition, a judge of the High Court takes an oath to uphold the H
1054 SUPREME COURT REPORTS [2013] 3 S.C.R.

A sovereignty and integrity of India and uphold the Constitution
of India and the laws.

14. The term of office and other conditions of service of
an Upa-lokayukta are dealt with in Section 5 of the Act. This
Section, read with Section 6 of the Act (which deals with the
8
removal of an Upa-lokayukta), provides security of tenure to the
Upa-lokayukta. He has a fixed term of five years and cannot
be removed "except by an order of the Governor passed after
an address by each House of the State Legislature supported
by a majority of the total membership of the House and by a
C majority of not less than two-thirds of the members of that House
present and voting". The removal of an Upa-lokayukta can only
be on the ground of proved misbehavior or incapacity and the
procedure for investigation and proof of misbehavior or
incapacity is as provided in the Judges (Inquiry) Act, 1968 which
D applies mutatis mutandis to an Upa-lokayukta.

15. On ceasing to hold office, an Upa-lokayukta is
ineligible for further employment to any office of profit under the
State or any other authority, corporation, company, society or
E university referred to in the Act. The salary of an Upa-lokayukta
is equal to that of a judge of the High Court and the conditions
of service cannot be varied to his disadvantage after his
appointment. All the administrative expenses of the Upa-
lokayukta are charged on the Consolidated Fund of the State.
F 16. In a sense, therefore, the Upa-lokayukta is a high
dignitary in the State of Karnataka.

17. Section 7 of the Act provides for matters that may be
investigated by the Upa-lokayukta while Section 8 of the Act
G provides for matters that may not be investigated by the Upa-
lokayukta. For the purposes of this judgment, it is not necessary
to refer to Section 8 of the Act. In terms of Section 7(2) of the
Act, the Upa-lokayukta is entitled to investigate (upon a
complaint involving a grievance or an allegation) any action
H taken by or with the general or special approval of a public
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1055
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

servant other than one mentioned in Section 7(1) of the Act. A
Only the Lokayukta can investigate action taken by or with the
general or special approval of a public servant mentioned in
Section 7(1) of the Act. The power vested in an Upa-lokayukta
is, therefore, quite wide though hierarchically circumscribed.
B
18. Section 9 of the Act relates to complaints and
investigations thereon by an Upa-lokayukta. A complaint may
be made to him in the form of a statement supported by an
affidavit. If the Upa-lokayukta, after making a preliminary enquiry
proposes to conduct an investigation in respect of the
complaint, he shall follow the procedure provided in Section C
9(3) of the Act which broadly conforms to the principles of
natural justice by giving an opportunity to the public servant
against whom the complaint is being investigated to offer
comments on the complaint.
D
19. For the purposes of any enquiry or other proceedings
to be conducted by him, an Upa-lokayukta is empowered by
Section 10 of the Act to issue a warrant for search and seizure
against any person or property. The warrant can be executed
by a police officer not below. the rank of Inspector of Police E
authorized by the Upa-lokayukta to carry out the search and
seizure. The provisions of Section 10 of the Act also make it
clear that the provisions of the Code of Criminal Procedure,
1973 relating to search and seizure shall apply.

20. By virtue of Section 11 of the Act, an Upa-lokayukta F
has all the powers of a Civil Court for the purpose of carrying
out an investigation. These powers include summoning and
enforcing the attendance of any person and examining him on
oath; requiring the discovery and production of any document;
receiving evidence on affidavits and other related powers. G
Proceedings before the Upa-lokayukta are deemed to be
judicial proceedings within the meaning of Section 193 of the
Indian Penal Code: In this context, Section 17-A of the Act is
important and this Section enables the Upa-lokayukta to
H
1056 SUPREME COURT REPORTS (2013] 3 S.C.R.

A exercise the same powers of contempt of itself as a High Court
and for this purpose, the provisions of the Contempt of Courts
Act, 1971 shall have effect mutatis mutandis.

21. The Upa-lokayukta is protected by virtue of Section 15
of the Act in respect of any suit, prosecution or other legal
8
proceedings in respect of anything that is done in good faith
while acting or purporting to act in the discharge of his official
duties under the Act.

22. The Upa-lokayukta is statutorily obliged under Section
C 12(1) of the Act to submit a report in writing if, after investigation
of any grievance, he is satisfied that the complainant has
suffered some injustice or undue hardship. In his report to the
Competent Authority, as defined in Section 2(4) of the Act, the
Upa-lokayukta shall recommend that the injustice or hardship
D be remedied or redressed in a particular manner and within a
specified time frame. Sub-section (2) of Section 12 of the Act
requires the Competent Authority to submit an 'action taken
report' to the Upa-lokayukta within one month on the report
given by him. Sub-section (3) and sub-section (4) of Section
E 12 of the Act are similar to sub-section (1) and (2) thereof
except that they deal with an 'action taken report' in respect of
an investigation resulting in the substantiation of an allegation.
In such a case, the Competent Authority is obliged to furnish
an 'action taken report' within three months of receipt of the
F report of the Upa-lokayukta. Sub-section (5) and sub-section
(7) of Section 12 of the Act"provide that in the event the Upa-
lokayukta is not satisfied with the action taken report, he may
make a special report upon the case to the Governor of the
State who shall cause a copy thereof to be laid before each
G House of the State Legislature together with an explanatory
memorandum.

23. In short, Section 12 of the Act confers a decision-
making obligation on the Upa-lokayukta in respect of
grievances and complaints received by him.
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1057
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

24. Section 13 of the Act requires a public servant to A
vacate his office if so directed by the Upa-lokayukta if a
declaration is made to that effect in a report under Section
12(3) of the Act. Even though the declaration may not be
accepted, it does not whittle down the authority of the Upa-
lokayukta. B

25. Section 14 of the Act enables the Upa-lokayukta to
prosecute a public servant and if such an action is taken,
sanction to prosecute the public servant shall be deemed to
have been granted by the appropriate authority.
c
26. The conditions of service of the staff of the Upa-
lokayukta are referred to in Section 15 of the Act. They may
be prescribed in consultation with the Lokayukta in such a
manner that the staff may act without fear in the discharge of
their functions. Section 15 of the Act also enables the Upa- D
lokayukta to utilize the services of any officer or investigating
agency of the State or even of the Central Government, though
with the prior concurrence of the Central Government or the
State Government. Section 15(4) of the Act makes it clear that
the officers and other employees of the Upa-lokayukta are E
under the administrative and disciplinary control of the
Lokayukta.

27. The broad spectrum of functions, powers, duties and
responsibilities of the Upa-lokayukta, as statutorily prescribed,
F
clearly bring out that not only does he perform quasi-judicial
functions, as contrasted with purely administrative or executive
functions, but that the Upa-lokayukta is more than an
investigator or an enquiry officer. At the same time,
notwithstanding his status, he is not placed on the pedestal of
a judicial authority rendering a binding decision. He is placed G
somewhere in between an investigator and a judicial authority,
having the elements of both. For want of a better expression,
the office of an Upa-lokayukta can only be described as a sui
generis quasi-judicial authority.
H
1058 SUPREME COURT REPORTS [2013] 3 S.C.R.

A (iii) Decisions on the subject:

28. Learned couns.el for the State referred to The Bharat
Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi,
[1950] SCR 459 to highlight the difference between a court and
a tribunal. It is not necessary to go into this issue because the
8
question is not whether the Upa-lokayukta is a court or a tribunal
- the question is whether he is a quasi-judicial authority or an
administrative authority. To this extent, the decision of the
Constitution Bench does not add to an understanding of the
issue under consideration.
c
29. However, the decision does indicate that an Upa-
lokayukta is certainly not a court. He does not adjudicate a /is
nor does he render a "judicial decision" derived from the judicial
powers of the State. An Upa-lokayukta is also not a tribunal,
D although he may have the procedural trappings (as it were) of
a tribunal. The final decision rendered by the Upa-lokayukta,
called a report, may not bear the stamp of a judicial decision,
as would that of a court or, to a lesser extent, a tribunal, but in
formulating the report, he is required to consider the point of
E view of the person complained against and ensure that the
investigation reaches its logical conclusion, one way or the
other, without any interference and without any fear.
Noty.iithstanding this, the report of the Upa-lokayukta does not
determine the rights of the complainant or the person
F complained against. Consequently, the Upa-lokayukta is neither
a court nor a tribunal. Therefore, in my opinion, the Upa-
lokayukta can best be described as a sui generis quasi-judicial
authority.

30. Reference by learned counsel for the State to Durga
G Shankar Mehta v. Thakur Raghuraj Singh and Others, [1955)
1 SCR 267 also does not take us much further in determining
whether an Upa-lokayukta is a quasi-judicial authority or not.
That case concerned, inter alia, the competency of an appeal
on special leave under Article 136 of the Constitution from a
H decision of the Election Tribunal. In that case, it was clearly laid
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1059
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

down that courts and tribunals are "constituted by the· State and A
are invested with judicial as distinguished from purely
administrative or executive functions".

31. However, the issue is more specifically dealt with in
Associated Cement Companies v. P.N. Sharma, 1965 (2)
8
SCR 366. In that case, Kania, C.J. held:

"It seems to me that the true position is that When the law
under which the authority is making a decision, itself
requires a judicial approach, the decision will be quasi-
judicial. Prescribed forms of procedure are not necessary C
to make an inquiry judicial, provided in coming to the
decision the well-recognised principles of approach are
required to be followed."

32. Similarly, Das, J held, after reviewing a large number D
of cases where there were two disputing parties and an
authority to adjudicate their dispute and where there were no
two disputing parties but there was an authority to sit in
judgment. I am presently concerned with the second line of
cases. The learned Judge held:
E
"What are the principles to be deduced from the two lines
of cases I have referred to? The principles, as I apprehend
them, are: (i) that if a statute empowers an authority, not
being a Court in the ordinary sense, to decide disputes
arising out of a claim made by one party under the statute F
which claim is opposed by another party and to determine
the respective rights of the contesting parties who are
opposed to each other, there is a lis and prima facie and
in the absence of anything in the statute to the contrary it
is the duty of the authority to act judicially and the decision G
of the authority is a quasi-judicial act; and (ii) that if a
statutory authority has power to do any act which will
prejudicially affect the subject, then, although there are not
two parties apart from the authority and the contest is
between the authority proposing to do the act and the H
1060 SUPREME COURT REPORTS [2013] 3 S.C.R.

A subject opposing it, the final determination of the authority
will yet be a quasi-judicial act provided the authority is
required by the statute to act judicially."

33. As mentioned above, an Upa-lokayukta does function
as an adjudicating authority but the Act places him short of a
8
judicial authority. He is much more "judicial" than an investigator
or an inquisitorial authority largely exercising administrative or
executive functions and powers. Under the circumstances,
taking an overall view of the provisions of the Act and the law
laid down, my conclusion is that the Upa-lokayukta is a quasi-
C judicial authority or in any event an authority exercising functions,
powers, duties and responsibilities conferred by the Act as a
sui generis quasi-judicial authority.

34. However, this is really of not much consequence in
D view of my conclusion on the issue of primacy of the opinion of
the Chief Justice.

Initiating the process of appointment of an Upa-
lokayukta:

E 35. Having held that the Upa-lokayukta is a sui generis
quasi-judicial authority, the question for consideration is who
should initiate the process for the appointment of an Upa-
lokayukta. The significance of this is that it is tied up with the
primacy of the views of the Chief Justice of the High Court. That
F in turn is tied up with not only maintaining the independence of
the office but also of the Upa-lokayukta not being dependent
on the Executive for the appointment.
(i) View of the High Court:
G 36. The High Court was of the opinion that to maintain the
independence of the office of the Lokayukta and the Upa-
lokayukta under the Act, the recommendation for appointment
to these offices must emanate only from the Chief Justice and
only the name recommended by him should be considered. The
H High Court opined:
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1061
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

"[T]he name of the Lokayukta and Upa-Lokayukta to be A
appointed has to necessarily emanate from a person who
is not within their jurisdiction. The only person who is
outside the ambit of Lokayukta is the Chief Justice and all
other Constitutional authorities mentioned in the provision
come within his jurisdiction. They will not have the right to B
suggest the name. Only the Chief Justice would have the
right to suggest the name which, of course the other
Constitutional authorities can consider. Though all of them
are constitutional authorities, all of them cannot be placed
on the same pedestal. The Chief Justice is the head of the c
Judiciary in the State, and he cannot be compared with
others. That is why the legislature has consciously enacted
the provision in such a manner that the first person to be
consulted is the Chief Justice. The intention of the
legislature is clear. The name has to emanate from the
0
Chief Justice alone. Therefore, the law laid down by the
Constitution Bench of the Apex Couf1 squarely applies to
the appointment of Lokayukta and Upa-Lokayukta.
Therefore, we have no hesitation in holding that under
Section 3 of the Act, it is only the Chief Justice who shall E
suggest the name of the Judge for being appointed as
Lokayukta or Upa-Lokayukta. Other constitutional
functionaries have no such right to suggest the name. It is
only "one" name and not panel of names as there is no
indication to that effect in the provision."
F
(ii) Submissions and decisions on the subject:

37. Learned counsel first made a reference to Sarwan
Singh Lamba v. Union of India, (1995) 4 SCC 546 in which
the Chief Minister of the State initiated the process for the G
appointment of the Vice-Chairman and members of the State
Administrative Tribunal. It was contended that their
appointments were, inter alia, contrary to the procedure lai9
down in the decision of this Court in S.P. Sampath Kumar v.
Union of India, (1987) 1 SCC 124. The Constitution Bench H
1062 SUPREME COURT REPORTS (2013) 3 S.C.R.

A noted that the State Government had initiated the process of
appointment and that the Chief Minister of the State had
mooted the name of one of the candidates selected by a
Selection Committee headed by the Chief Justice of the High
Court. However, since the appointees were duly qualified and
B eligible to hold the post to which they were appointed; there was
no allegation regarding their suitability or otherwise; and the
appointments having been made after consultation with the then
Chief Justice of India, this Court concluded that no law was
violated in the appointment process. Accordingly, the
c Constitution Bench declined to interfere with their appointments.
The issue whether the appointment process could or could not
have been initiated by the Executive was not specifically
discussed.

38. Ashish Handa v. Hon'ble the Chief Justice of High
D Court of Punjab & Haryana and Others, (1996) 3 SCC 145
related to the appointment of the President of the State
Consumer Disputes Redressal Commission, being a person
who is or has been a judge of the High Court. This Court held
that for the purposes of initiating the proposal for appointment
E of the President of the State Commission, the Executive is
expected to approach the Chief Justice of the High Court for
suggesting a candidate for appointment. In other words, the
Chief Justice should initiate the appointment process. Sarwan
Singh Lamba was distinguished by observing that "(l]n the facts
F of that case, substantial compliance of the requirement of
approval by the Chief Justic~ of India was found proved and,
therefore, the appointments were valid."

39. The appointment of the President of the State
G Commission again came up for deliberation in Ashok Tanwar
and Another v. State of Himachal Pradesh and Others, (2005)
2 SCC 104. However, in that case, the Constitution Bench did
not comment on the view expressed in Ashish Handa that the
Chief Justice of the High Court must initiate the process for
H appointment of the President of the State Commission and not
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1063
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

the Executive of the State. The law laid down in Ashish Handa A
to this extent remained unchanged. However, Ashish Handa
was overruled on the modality of the consultation process, which
I will consider in another section of this judgment. That Ashish
Handa was overruled on the modality of the consultation
process for the appointment of the President of the State B
Commission under Section 16 of the Consumer Protection Act
was confirmed in State of Haryana v. National Consumer
Awareness Group, (2005) 5 SCC 284.

40. In N. Kannadasan v. Ajoy Khose and Others, (2009) C
7 SCC 1 the appointment of the President of the State
Commission under Section 16 of the Consumer Protection Act
once again came up for consideration. After referring to Ashish
Handa, Ashok Tanwar and National Consumer Awareness
Group it was held in paragraph 153 of the Report that the
process of selection must be initiated by the High Court. It was D
observed that the Chief Justice should recommend only one
name and not a panel, for if the choice of selection from a panel
is left to the Executive, it would erode the independence of the
Judiciary.
E
41. One significant fact may be noticed from a reading of
the cases cited above, namely, that for the appointment of the
Vice Chairman or Member of the State Administrative Tribunal
or the President of the State Consumer Disputes Redressal
Commission, only the Chief Justice of India or the Chief Justice F
of the High Court is required to be consulted, and not several
persons. It is this context that it was held that the Chief Justice
of the High Court must initiate the process of appointment.
Sarwan Singh Lamba is perhaps the only exception to this rule
and was, therefore, confined to its own facts. A situation where G
more than one person is required to be consulted was not dealt
with in any of the decisions referred to above. That question
arises in this case.

42. A reading of the cited decisions also suggests that the
Chief Justice must recommend only one name and not a panel H
1064 SUPREME COURT REPORTS [2013] 3 S.C.R.

A of names. The purpose of this is to ensure the independence
of the persons appointed and to obviate any possibility of
executive influence. The acceptance or non-acceptance of the
candidate recommended by the Chief Justice is a different
matter concerning the consultation process.
B
43. What are the mechanics of initiating the process of
appointment? Is the Chief Justice expected to inform the State
Government that a statutory judicial position is lying vacant and
that someone is being recommended to fill up that position?
Or does it imply that the State Government should bring it to
C the notice of the Chief Justice that there is a statutory judicial
position lying vacant and that it needs to be filled up and to then
request the Chief Justice to make a recommendation? No clear
answer is available from the cited cases, but it does appear
that the responsibility is of the Executive to inform the Chief
D Justice of the existence of a vacancy and to request him to
recommend a suitable person for filling it up. However, this
would not preclude the Chief Justice from initiating the
appointment process, particularly in the event of the failure of
the Executive to take necessary steps.
E
44. What would happen if the Executive, while initiating the
process of appointment were to recommend the name of a
person? Would it vitiate the process or would the process be
only irregular? Again, no clear-cut answer is available. Sarwan
F Singh Lamba seems to suggest that the procedure would not
be vitiated but would, at best. only be irregular. But, Ashok
Tanwar seems to suggest. sub si/entio, that the appointment
procedure would be vitiated.

45. Would these principles laid down by this Court apply
G to initiating the process of appointment of the Upa-lokayukta
under the Act? I think not. In the appointment of the Upa-
lokayukta. the Chief Minister must consult not only the Chief
Justice but several other constitutional authorities also and
given the fact that the Upa-Lokayukta is not a purely judicial
H authority, it hardly matters who initiates the process of
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1065
JANEKERE C. KRISHNA [MADAN B..LOKUR, J.]

appointment of the Upa-Lokayukta. Ordinarily, it must be the A
Chief Minister since he has to tender advice to the Governor
and, in a sense, the appointment is his primary responsibility.
But this does not preclude any of the other constitutional
authorities who are required to be consulted from bringing it to
the notice of the Chief Minister that the post of the Upa- B
Lokayukta needs to be filled up and that the appointment
process ought to commence - nothing more than that. None
of them ought to suggest a name since constitutional courtesy
would demand that only the Chief Minister should initiate the
appointment process. There is no reason to hold that merely c
because the Upa-Lokayukta is a sui generis quasi-judicial
authority, only the Chief Justice must initiate the process of
appointment. It must not be forgotten that the selection of the
Upa-lokayukta is a consultative process involving several
constitutional authorities and in the context of the Act, no
0
constitutional authority is subordinate to the other.

46. In the present case, the process of appointment of the
Upa-lokayukta commenced with a letter written by the Chief
Minister to the Chief Justice of the Karnataka High Court on
18th October 2011 for suggesting "a panel of eligible persons E
for appointment as Karnataka Upa Lokayukta on or before 24th
October, 2011 so as to fill up the post of Upa Lokayukta". I
cannot fault the Chief Minister for this. He did not initiate the
appointment process as understood in the decisions referred
to above by recommending any candidate for appointment - F
he merely invited recommendations. He also did not err in law
in inviting a panel of names since the consultation process
involved more than one person. It was for the persons concerned
to recommend a panel of names or make one
recommendation or make no recommendation at all. As far as G
the Chief Justice was concerned, in keeping with the general
view expressed by this Court in Kannadasan it was proper
and appropriate for him to have recommended only one name
to the Chief Minister and, as required by propriety, he correctly
H
1066 SU PREM!; COURT REPORTS [2013] 3 S.C.R.

A did so by recommending only one person for appointment as
the Upa-lokayukta.

47. I am, therefore, not in agreement with the High Court
that the recommendation for appointing the Upa-lokayukta
under the Act must emanate only from the Chief Justice and
8
only the name recommended by him should be considered. To
this extent, the decision of the High Court is set aside. It is
made clear that this view does not apply to judicial
appointments.

C Consultation in the appointment of an Upa-lokayukta:
48. What does 'consultation' occurring in Section 3(2)(b)
of the Act postulate? Learned counsel for the State, as well as
learned counsel for Justice Chandrashekaraiah and the writ
0 petitioner in the High Court firstly referred to the above
decisions of this Court to explain the meaning of 'consultation'
in the context of the appointment process and secondly in the
context of the issue whether the view of the Chief Justice of the
Karnataka High Court would have primacy in the process of
E consultation.

(i) View of the High Court:

49. The High Court gave a realistic meaning to
'consultation' generally and, in my opinion, specifically to the
F meaning of the word as occurring in Section 3(2)(b) of the Act.
This is what the High Court had to say:

"The word 'consult' implies a conference of two or more
persons or impact of two or more minds in respect of a
topic/subject. A person consults another to be elucidated
G on the subject matter of the consultation. Consultation is a
process which requires meeting of minds between the
parties involved in the process of consultation on the
material facts and points involved to evolve a correct or
atleast satisfactory solutions. There should be meeting of
H minds between the proposer and the persons to be
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1067
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

consulted on the subject of consultation. A consultation A
may be between an uninformed person and an expert or
between two experts. In either case, the final decision is
with the consultor, but he will not be generally ignoring the
advice except for good reasons. The consultation is not
complete or effective before the parties thereto making B
their respective points of view known to the other or others
and discuss and examine the relative merits of their views.
In order for two minds to be able to confer and produce a
mutual impact, it is essential that each must have for its
consideration fully and identical facts, which can at once c
constitute both the source and foundation of the final
decision. Such a consultation may take. place at a
conference table or through correspondence. The form is
not material but the substance is important. If there are
more than one person to be consulted, all the persons to
0
be consulted should know the subject with reference to·
which they are consulted. Each one should know the views
of the other on the subject. There should be meeting of
minds between the parties involved in the process of
consultation on the material facts and points involved. The E
consultor cannot keep one consultee in dark about the
views of the other consultee. When consultation is
prescribed with more than one person, there cannot be
bilateral consultations or parallel consultations, behind the
back of others, who are to be consulted in the process.
Consultation is not complete or effective before the parties F
thereto make their respective points of view known to the
other and discuss and examine the relative.merit of their
views. They may discuss, but may disagree.· They may
confer but may not concur. However, consultation is
different from consentaneity." G

(ii) Consultation in the appointment process:

50. Sarwan Singh Lamba did not deal with the issue of
consultation, but Ashish Handa, Ashok Tanwar and
H
1068 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Kannadasan did. That being so, reference may be made to
the relevant portion of Section 16( 1) of the Consumer Protection
Act which relates to the President of the State Commission.
This extract reads as follows:-

"16. Composition of the State Commission.- (1) Each
B
State Commission shall consist of-

(a) a person who is or has been a Judge of a High
Court, appointed by the State Government, who
shall be its President:
c
Provided that no appointment under this clause shall
be made except after consultation with the Chief
Justice of the High Court;

(b) XXX:.'
D
51. It was observed in Ashish Handa that the function of
the State Commission is primarily to adjudicate consumer
disputes and therefore a person from the judicial branch is
considered suitable for the office of the President of the State
E Commission under Section 16 of the Consumer Protection Act.
Given this context, prior consultation with the Chief Justice of
the High Court is obvious since the Chief Justice is the most
appropriate person to know the suitability of the person to be
appointed as the President of the State Commission. Further
F elaborating on this, it was held that the procedure of
consultation should be the same as laid down in Article 217 of
the Constitution as interpreted in Supreme Court Advocates
on Record Association v. Union of India, AIR 1994 SC 268.

52. In Ashok Tanwar the Constitution Bench considered
G the dictum laid down in Ashish Handa and categorically
distinguished the process of the appointment of a judge of a
superior court under Article 217 of the Constitution from that of
the President of the State Commission. It was observed in
paragraph 16 of the Report as follows:-
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1069
JANEK~RE C. KRISHNA [MADAN B. LOKUR, J.]

"The process of consultation envisaged under Section 16 A
of the Act can neither be equated to the constitutional
requirement of consultation under Article 217 of the
Constitution in relation to appointment of a Judge of a High
Court nor can it be placed on the same pedestal.
Consultation by the Chief Justice of the High Court with two B
senior most Judges in selecting a suitable candidate for
appointment as a Judge is for the purpose of selecting the
best person to the high office of a Judge of the High Court
as a constitutional functionary. Consultation with the Chief
Justice of the High Court in terms of Section 16 of the Act c
is a statutory requirement."

53. Further, while referring to Aruna Roy v, Union of India,
(2002) 7 sec 368 it was observed that:

" ... the words and expressions used in the Constitution, D
.... have no fixed meaning and must receive interpretation
based on the experience of the people in the course of
working of the Constitution. The same thing cannot be said
in relation to interpreting the words and expressions in a
statute." E

54. This Court categorically rejected the view that
'consultation' postulated in Article 217 of the Constitution in
relation to the appointment of a High Court judge be read in
the same way as 'consultation' as contemplated under Section
F
16 of the Consumer Protection Act.

55. In Kannadasan it was noted that the collegium of
judges of the Supreme Court had found N. Kannadasan unfit
to continue as a judge of the High Court. In this context, it was
observed that the expression "retired judge" would mean a G
person who has retired without blemish and not merely a person
who has been a judge and, therefore, attention was drawn to
the conclusion of Fazal Ali, J in S.P. Gupta v. Union of India,
1981 Supp SCC 87 (after referring to Union of India v.
Sankalchand Himmatlal Se1h, (1977) 4 SCC 193) that both H
1070 SUPREME COURT REPORTS [2013) 3 S.C.R.

A the "consultor" and the "consultee" must have before them full
and identical facts.

56. It follows from the decisions placed before us that there
is a clear distinction between 'consultation' in the appointment
of a judge of a superior court and 'consultation' in the
8
appointment to a statutory judicial position. For the former, the
Chief Justice must consult the collegium of judges, while it is
not necessary for the latter. In both cases, consultation is
mandatory.

C 57. The further question that arises is whether the law laid
down in these decisions would be applicable to the
appointment of an Upa-Lokayukta who is not a judicial or a
constitutional authority but is a sui generis quasi-judicial
authority? In my opinion, the answer to this question must be
D in the affirmative.

58. At this stage, it is necessary to mention that on a plain
reading of Section 3(2)(b) of the Act, there can be no doubt
that consultation with all the constitutional authorities, including
E the Chief Justice of the Karnataka High Court, is mandatory.
There was no dispute on this - the controversy was limited to
the meaning of 'consultation'. I have already held that an Upa-
lokayukta is not a judicial authority, let alone a constitutional
authority like a judge of a High Court. Therefore, on reading of
the above decisions, it is clear that the mandatory consultation
F in the appointment process as postulated by Sectlon 3(2)(b)
of the Act is with the Chief Justice in his individual capacity and
not consultation in a collegial capacity.

(iii) The process of consultation:
G
59. How is this 'consultation' to take place? There are
absolutely no 'consultation' guidelines laid down in the Act. But
the High Court seems to endorse the view that consultation
ought take place across a table or through correspondence. It
H was also suggested by learned counsel for the State that it
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1071
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

would be more appropriate that all constitutional authorities A
have a meeting where the suitability of the person
recommended for appointment may be discussed.

60. I do not think it necessary to circumscribe the manner
of consultation. The Chief Minister may consult the other
8
constitutional aut~orities collectively or in groups or even
individually - this hardly matters as long as there is meaningful
and effective consultation. Similarly, I do not think it necessary
to restrict the mode of consultation. It may be in a meeting or
through correspondence. Today, with available technology, C
consultation may even be through a video link. The form of
consultation or the venue of consultation is not important - what
is important is the substance of the consultation. The matter has
to be looked at pragmatically and not semantically. It is
important, as .held by the High Court, that no constitutional
authority is kept in the dark about the name of any candidate D
under consideration and each constitutional authority mentioned
in Section 3(2)(b) of the Act must know the recommendation
made by one another for appointment as an Upa-Lokayukta.
In addition, they must have before them (as Fazal Ali, J
concluded in S.P. Gupta) full and identical facts. As long as E
these basic requirements are met, 'consultation' could be said
to have taken place.

(iv) Consultation in this case:

61. Was there 'consultation' (as I have understood it)
F
between the various constitutional authorities before the Chief
Minister recommended the name of Justice
Chandrashekharaiah? I think not. In response to the letter of the
Chief Minister, the Chief Justice recommended the name of
Justice Rangavittalachar; the Speaker of the Legislative G
Assembly recommended Justice Chandrashekharaiah; the
Chairman of the Legislative Council recommended Justice
Chandrashekharaiah; the Leader of the Opposition in the
Legislative Assembly recommended Justice Mohammed
Anwar and Justice Ramanna; the Leader of the Opposition in H
1072 SUPREME COURT REPORTS [2013] 3 S.C.R.

A the Legislative Council recommended Justice Mohammed
Anwar and Justice Ramanna. Therefore, as many as four
retired judges were recommended for appointment as Upa-
lokayukta. It is not clear whether the names of all these judges
were disclosed to all the constitutional authorities. The name
B of Justice Chandrashekharaiah was certainly not disclosed to
the Chief Justice, as is evident from his letter dated 4th February
2012 wherein he stated four times that he was not consulted
on the appointment of Justice Chandrashekharaiah. This is
what he stated:
c "I was not consulted on the said name (Shri Justice
Chandrashekaraiah) for the position of Karnataka Upa
Lokayukta.

D
"I had not recommended the name of Shri. Justice
Chandrashekaraiah for consideration for appointment as
Karnataka Upa Lokayukta. Thereafter, I have not heard
anything from you. I emphasise that the appointment of Shri.
Justice Chandrashekaraiah has been made without
E
consultation with the Chief Justice. Therefore, it is in
violation of mandatory requirements of law.

F "To put the matter plainly, there is no gainsaying the fact
that there never ever was any consultation on the name of
Shri Justice Chandrashekaraiah for appointment to the
position of Upa Lokayukta between you and myself.

G
"I reiterate that in this particular case, not even the name
was shared by you (the Chief Minister) with me (the Chief
Justice), leave alone eliciting my views on the suitability
of the person for holding the post of Upa Lokayukta."
H
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1073
JANEKERE C. KRISHNA [MADAN 8. LOKUR, J.]

62. The contents of this letter are not denied by the State A
and are quite obviously admitted. Significantly, the Chief Minister
did not reply to this letter. Clearly, the Chief Justice was kept
in the dark about the name of a candidate and there was no
full and complete disclosure of facts. Ergo, the Chief Minister
did not recommend the name of Justice Chandrashekharaiah B
in consultation with the Chief Justice. This was contrary to the
mandatory requirement of Section 3(2)(b) of the Act and so, it
must be held that ttte appointment of Justice
Chandrashekharaiah was void ab initio.

63. In this context, reference was made to Indian C
Administrative Service (S. C. S.) Association U. P. and Others
v. Union of India and Others, 1993 Supp. (1) SCC 730 to
contend that since the views of the constitutional authorities are
not binding on the Chief Minister, the process of consultation
is not mandatory. In that case, this Court was considering D
Section 3(1) of the All India Service Act, 1951 which reads as
follows:

"Regulation of recruitment and conditions of
services.- (1) The Central Govt. may, after consultation E
with the Governments of the States concerned (including
the State of Jammu and Kashmir), (and by notification in
the Official Gazette) make rules for the regulation of
recruitment, and the conditions of service of persons
appointed to an All India Service." F

64. The fifth conclusion mentioned iri /AS Association was
relied on in support of this contention. This conclusion reads
as follows:

"When the object of the consultation is only to apprise of G
the proposed action and when the opinion or advice is not
binding on the authorities or person and is not bound to
be accepted, the prior consultation is only directory. The
authority proposing to take action should make known the
general scheme or outlines of the actions proposed to be H
1074 SUPREME COURT REPORTS (2013] 3 S.C.R.

A taken be put to notice of the authority or the persons to be
consulted; have the views or objections, take them into
consideration, and thereafter, the authority or person would
be entitled or has/have authority to pass appropriate orders
or take decision thereon. In such circumstances it amounts
B to an action 'after consultation'."

65. This conclusion must not be read in isolation but along
with the other conclusions arrived at in /AS Association. This
Court referred to 'prior consultation' in the context of the "subject
C of consultation" as mentioned in the first conclusion. This 'prior
consultation' is not always mandatory. Then there is
'consultation' as a part of "fair procedure" as mentioned in the
second conclusion. This is mandatory. Finally, there is the
conclusion arrived at which is 'after consultation'. In some
cases the 'consultor' may be bound to accept the conclusion
D arrived at and in some cases he may not. That is a matter of
interpretation of the statute and the purpose of the consultation
process. But to say that since the 'consultor' is not bound by
the conclusion arrived at, he need not go through the
consultation process would be stretching the law laid down in
E /AS Association to the vanishing point.

66. This Court held in /AS Association, with reference to
the above provision, that 'prior consultation' was not mandatory
as long as the relevant rules were made 'after consultation'. The
F present case is not concerned with the issue of 'prior
consultation'. All that is of concern in the present case is
whether the Chief Minister acted in consultation with the
constitutional authorities referred to Section 3(3)(b) of the Act
and the answer to this is in the negative.

G 67. 'Consultation' for the purposes of Section 3(2)(b) of the
Act does not and cannot postulate concurrence or consent. This
is quite obvious given the large number of constitutional
authorities involved in the consultation process. There is always
a possibility of an absence of agreement on any one single
H person being recommended for appointment as an Upa-
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1075
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

lokayukta, as has actually happened in the present case. In such A
a situation, it is ultimately the decision of the Chief Minister what
advice to tender to the Governor, since he alone has to take
the final call.

68. Can the Chief Minister advice the Governo.r to appoint
8
a person not recommended by any of the constitutional
authorities? I see no reason why he cannot, as long as he
consults them - the 'consultation' being in the manner
postulated above. The Chief Minister can recommend a
completely different person, other than any of those
recommended by any of the constitutional authorities as long C
as he does not keep them in the dark about the name of the
candidate and there is a full and complete disclosure of all
relevant facts. In M.M. Gupta v. State of Jammu & Kashmir,
(1982) 3 SCC 412 this Court explained 'consultation' in the
matter of judicial appointments in the following words (which D
apply equally to the present case):

"It is well settled that consultation or deliberation is not
complete or effective before the parties thereto make their
respective points of view known to the other or others and E
discuss and examine the relative merits of their views. If
one party makes a proposal to the other who has a counter
proposal in his minds which is not communicated to the
proposer, the direction to give effect to the counter proposal
without anything more, cannot be said to·have been done
F
after consultation."

69. On the facts of this case, I hold that there was no
consultation between the Chief Minister and the Chief Justice
on the appointment of Justice Chandrashekharaiah as an Upa-
lokayukta. His appointment was, therefore, void ab initio. G

(v) Primacy of the view of the Chief Justice:

70. The High Court was of the opinion that primacy is
required to be given to the view of the Chief Justice of the H
1076 SUPREME COURT REPORTS [2013] 3 S.C.R.

A Karnataka High Court in the matter of the appointment of the
Upa-lokayukta. In fact, it was said that since the Chief Justice
is the best person to know the suitability or otherwise of a
retired judge of a High Court. It was also said that, "Requesting
the Chief Justice to suggest a name and on receipt of the same,
B ignoring the said name and tendering advice to the Governor
to appoint somebody else, would make the consultation a
farce."

71. In Ashok Tanwar the Constitution Bench did make a
reference to the primacy of the Chief Justice of India in the
C context of the appointment of a judge of the superior court and
noted that the Chief Justice is best equipped to know and
assess the work of the candidate and his suitability for
appointment. However, the Constitution Bench did not express
any opinion on the question of primacy of the opinion of the
D Chief Justice in regard to the appointment of the President of
the State Commission under Section 16 of the Consumer
Protection Act, although I think it would naturally follow.

72. In any event, in Kannadasan it was held that for the
E appointment of the President of the State Commission, the view
of the Chief Justice was final and for all intents and purposes
decisive, and except for very cogent reasons, his
recommendation must be accepted. It was held in paragraph
156 of the Report that:

F "For the appointment as President of the State
Commission, the Chief Justice of the High Court shall have
the primacy and thus the term "consultation" even for the
said purpose shall mean "concurrence" only."

G 73. As noted above, the Chief Justice of India or the Chief
Justice of the High Court is the only constitutional authority
required to be consulted in the appointment of a Vice Chairman
or Member of the State Administrative Tribunal or the President
of the State Consumer Disputes Redressal Commission. In
H that context, it is quite understandable that the recommendation
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1077
JANEKERE C. KRISHNA [MADAN 8. LOKUR, J.]

of the Chief Justice must be accepted, unless there are strong A
and cogent reasons for not doing so. The reasons would,
naturally, have to be disclosed to the Chief Justice as a part of
the process of consultation. It is also quite understandable that
the Chief Justice would be the best person to assess the
suitability of a person for appointment to such a position. But, B
the situation is rather different in the appointment of an Upa-
lokayukta where the constitutional authorities to be consulted
include not only the Chief Justice of the Karnataka High Court
but several other constitutional authorities as mentioned in
Section 3(2)(b) of the Act. Can their views be subordinated to c
the views of the Chief Justice, and if so, why?

74. In this regard, reliance was placed on Justice K.P.
Mohapatra v. Sri Ram Chandra Nayak, (2002) 8 SCC 1. In
that case, the provisions of Section 3 of the Orissa Lokpal and
Lokayuktas Act, 1999 were under consideration. That Section D
reads as follows:

"3. Appointment of Lokpal and Lokyktas.-(1) For the
purpose of conducting investigations in accordance with
the provisions of this Act, the Governor shall appoint a E
person to be known as the Lokpal and one or more
persons to be known as the Lokayukta or Lokayuktas:

Provided that-

(a) the Lokpal shall be appointed after consultation with the F
Chief Justice of the High Court of Orissa and the Leader
of the Opposition, if there is any;

(b) the Lokayukta or Lokayuktas shall be appointed after
consultation with the Lokpal. G

(2) A person shall not be qualified for appointment as-

(a) (sic) unless he is or has been a Judge of the Supreme
Court or of a High Court;
H
1078 SUPREME COURT REPORTS [2013] 3 S.C.R.

A (b) A Lokayukta unless he is qualified to be a Judge of a
High Court."

75. This Court took the view that primacy is to be accorded
to the opinion of the Chief Justice in the matter of appointment
8 of the Lokpal since his opinion would be totally independent and
he would be in a position to find out who is the most or more
suitable for that office. It was also held that consultation with him
is a sine qua non, and if there is a Leader of the Opposition
then he "is also required to be consulted". But if there is no
C Leader of the Opposition, obviously consultation with him is not
possible. This Court then said, "This would indicate nature of
such consultation and which is to apprise him [the Leader of
the Opposition] of the proposed action but his opinion is not
binding to the Government." With respect, this does not follow.
If the law requires consultation then it must take place; whether
D the opinion expressed during the consultation process is
binding or not is a different matter altogether. This Court went
a bit further in Justice Mahapatra and held that though the
Leader of the Opposition is entitled to express his views but
he cannot suggest any other name for consideration.
E
76. I am afraid, however uncomfortable one may feel about
it. Section 3 of the Orissa Lokpal and Lokayuktas Act, 1999
as I read it, simply does not prohibit the Leader of the
Opposition from suggesting some other name for consideration
F for appointment as a Lokpal. This restriction is not warranted
by the words of the statute and would, even otherwise, give that
Section far too restricted a meaning. As concluded in /AS
Association "The object of the consultation is to render
consultation meaningful to serve the intended purpose." Giving
G 'consultation' a constricted meaning in Section 3 of the Orissa
Lokpal and Lokayuktas Act, 1999 would defeat this. It was
observed in Maharashtra State Financial Corporation v.
Jaycee Drugs and Pharmaceuticals, (1991) 2 SCC 637:

"It is a settled rule of interpretation of statutes that if the
H language and words used are plain and unambiguous, full
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1079
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]

effect must be given to them as they stand and in the garb A
of finding out the intention of the Legislature no words
should be added thereto or subtracted therefrom."

77. I would, therefore, confine the law laid down in Justice
Mohapatra to the facts of that case only. In any event, the view
8
expressed in Justice Mahapatra is not helpful in interpreting
Section 3(2)(b) of the Karnataka Lokayukta Act, 1984 and I
leave the matter at that.

78. As far as Section 3(2)(b) of the Act is concerned, the
primary 'responsibility' for the appointment of the Upa- C
Lokayukta rests with the Chief Minister who has to advice the
Governor. Since the Chief Justice is only one of the
constitutional authorities required to be consulted by the Chief
Minister before advice is tendered to the Governor, it cannot
be said that only his view would prevail over the views of other D
constitutional authorities. If that were so, then (to rephrase the
High Court) consultation with the other constitutional authorities
including the Chairman of the Karnataka Legislative Council,
the Speaker of the Karnataka Legislative Council and the
Leader of the Opposition in the Karnataka Legislative Council E
and in the Karnataka Legislative Assembly would be reduced
to a farce. It must be appreciated that these constitutional
authorities also have an equal say in the executive governance
of the State and there is nothing to suggest that their opinion
should be subordinated to the opinion of the Chief Justice or F
that the Chief Justice can veto their views. On the other hand,
since it is ultimately the Chief Minister who has to advice the
Governor, it is he alone who has to take the final call and
shoulder the responsibility of correctly advising the Governor
in the matter of appointing the most suitable person as an Upa- G
lokayukta.

79. The mechanics of the working of a statute has to be
decoded from the contents of the statute and the words used
therein; otherwise there is a possibility of committing a serious
error. If, as a general principle, it is held (as has been argued H
1080 SUPREME COURT REPORTS [2013] 3 S.C.R.

A before us) that the view of the Chief Justice must have primacy
over the views of everybody else, how would one explain the
omission of the Chief Justice in the consultation process in the
Kerala Lokayukta Act, 1999? Similarly, if as a general principle,
it is held that the view of the Chief Minister must have primacy
B over the views of everybody else, how would one explain the
omission of the Chief Minister in the consultation process in the
Orissa Lokpal and Lokayuktas Act, 1995? It is for this reason
that I would hold that a statute must be considered and
understood on its own terms. In so construing the Act, I see no
c reason to accord primacy to the views of the Chief Justice in
the appointment of an Upa-lokayukta under the Karnataka
Lokayukta Act, 1984. The judgment of the High Court, to this
extent, is set aside.

Other contentions:
D
80. It was submitted that the practice followed for the
appointment of the Upa-lokayukta in the present case is the
same or similar to the practice followed in the past and,
therefore, this Court should not interfere with the appointment
E already made. If at all interference is called for, the doctrine of
'prospective overruling' should be applied.

81. I am not inclined to accept either contention. Merely
because a wrong has been committed several times in the past
does not mean that it should be allowed to persist, otherwise
F it will never be corrected. The doctrine of 'prospective
overruling' has no application since there is no overwhelming
reason to save the appointment of the Upa-lokayukta from
attack. As already held, in the absence of any consultation with
the Chief Justice, the appointment of Justice
G Chandrashekharaiah as an Upa-lokayukta is void ab initio.
However, this will not affect any other appointment already made
since no such appointment is under challenge before us.

82. It was also contended that the High Court ought not to
H have laid down any procedure for the appointment of the Upa-
JUSTICE CHANDRASHEKARAIAH (RETD.) v. 1081
JANEKERE C. KRISHNA [MADAN B. LOKUR, J.]
lokayukta. In the view that I have taken, it is not necessary to A
comment on the procedure proposed by the High Court.

Conclusion:

83. The appointment of Justice Chandrashekharaiah as
the Upa-lokayukta is held void ab initio. Since some of the 8
contentions urged by the appellants are accepted, the appeals
are partly allowed to that extent only.

B.B.B. Appeals disposed of.