SUPREME COURT OF INDIA
(K. S. Radhakrishnan And Madan B. Lokur, JJ.)
Mr. Justice Chandrashekaraiah
(Retd.) — Appellant
versus
Janekere C. Krishna & Ors. Etc. — Respondents
Civil Appeal NOS.197-199 of 2013
Arising out of SLP (Civil) Nos.15658-15660 of 2012] with Civil Appeal Nos. 200-202 of 2013 Arising out of SLP (Civil) Nos.16512-16514 of 2012
Decided on 11.1.2013

IMPORTANT POINTS
(1) Consultation – should be meaningful.
(2) Chief Minister has primacy in appointment of Upa-Lokayukta.

Headnote:Per Radhakrishnan, J.

        (a) Karnataka Lokayukta Act, 1984 – Section 3(2)(a) and (b) – Section 12(1), (3) and (5) – Functions discharged by Lokayukta – Investigative in nature – He also discharges quasi-judicial function – Special Report of Lokayukta – Recommendatory. (Paras 25 and 33)

        (b) Administration of Justice – Administrative and quasi-judicial functions – Distinction discussed. (Para 31)

        AIR 1958 SC 398; (2002) 5 SCC 685; (2011) 2 SCC 258 – Relied upon

        (c) Karnataka Lokayukta Act, 1984 – Section 3(2)(a) and (b) – All the five enumerated dignitaries have to be consulted before tendering advice by the Chief Minister to the Governor of the State. (Paras 36 and 37)

        (d) Constitution of India – Articles 124(2), 217, 222(1) – Appointment to judiciary – Nature of functions – Independence of judiciary – Primacy of Supreme Court and High Court established. (Para 52)

        2013 (1) SCALE 7; 1967 (1) SCR 77; (1969) 3 SCC 56; (1974) 2 SCC 831; (1977) 4 SCC 193; (1993) 4 SCC 441 – Relied upon

        (2002) 8 SCC 1 – Distinguished

        (e) Karnataka Lokayukta Act, 1984 – Section 3(2) – Judicial functions – Incumbents either a sitting or retired judge – Consultation with Chief Justice – Not only a formality but meaningful – Mandatory. (Para 56)

        (2006) 1 SCC 779; (1996) 3 SCC 145; (2005) 2 SCC 104; (2009) 7 SCC 1 – Relied upon

        (f) Karnataka Lokayukta Act, 1984 – Section 3(2)(a) and (b) – Governor 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 – Chief Minister has to consult all the five consultees – Meaningful consultation is mandatory – Advice tendered by the Chief Minister will have primacy and not that of the consultees including the Chief Justice of the High Court. (Paras 63 and 64)

        AIR 1945 PC 48; AIR 1957 SC 907 – Relied upon

        (g) Karnataka Lokayukta Act, 1984 – Section 3(2)(b) – Chief Minister advising Governor a name for appointment to the post of Upa Lokayukta without meaningful consultation with Chief Justice of High Court – Such appointment violative of section 3(2)(b). (Para 67)

        Per Madan B. Lokur, J.

        (a) Karnataka Lokayukta Act, 1984 – Section 3(2)(b) – Appointment of Upa- lokayukta – Without consultation with Chief Justice of High Court – Void ab initio. (Paras 4, 63 and 83)

        1993 Supp. (1) SCC 730 – Referred

        (b) Karnataka Lokayukta Act, 1984 – Section 3 – Upa-lokayukta must be impartial and having at least some judicial experience – Therefore incumbent required to be a person who has held the office of a judge of a High Court – Appointment of Upa-lokayukta is the concern of constitutional authorities of the State. (Para 12)

        1989 (3) KarLJ 425; ILR 1990 Kar 4188; ILR 2004 Kar 3892 – Referred

        (c) Karnataka Lokayukta Act, 1984 – Section 3 – Upa-lokayukta – Status – Considering broad spectrum of functions, powers, duties and responsibilities of Upa-lokayukta he is somewhere in between an investigator and a judicial authority, having the elements of both – Office of an Upa-lokayukta can be described as a sui generis quasi-judicial authority. (Para 27)

        [1950] SCR 459; [1955] 1 SCR 267; [1965] 2 SCR 366 – Relied upon

        (d) Karnataka Lokayukta Act, 1984 – Section 3 – The process of appointment of Upa Lokayukta should be initiated by the Chief Minister – Selection is by a consultative process and no constitutional authority is subordinate to the other. (Para 45)

        (1995) 4 SCC 546; (1987) 1 SCC 124; (1996) 3 SCC 145; (2005) 2 SCC 104; (2005) 5 SCC 284; (2009) 7 SCC 1 – Referred

        (e) Words and Phrases – Consultation – Appointment to superior court and statutory judicial position – Distinction – However, mandatory. (Para 56)

        AIR 1994 SC 268; (2002) 7 SCC 368; 1981 Supp SCC 87; (1977) 4 SCC 193 – Referred

        (f) Karnataka Lokayukta Act, 1984 – Section 3(2)(b) – Consultation with Chief Justice is in his individual capacity and not consultation in a collegial capacity. (Para 58)

        (g) Karnataka Lokayukta Act, 1984 – Section 3(2)(b) – No reason to accord primacy to the views of the Chief Justice in the appointment of an Upa-lokayukta. (Para 79)

        (1991) 2 SCC 637 – Relied upon

        (2002) 8 SCC 1 – Distinguished

        (h) Administration of Justice – Judicial Review – Merely because a wrong has been committed several times in the past does not mean that it should be allowed to persist. (Para 81)

        (i) Administration of Justice – Prospective overruling – No overwhelming reason to save the appointment of the Upa-lokayukta – Doctrine of ‘prospective overruling’ not applicable. (Para 81)

       Facts of the case:

        The sentinel issue for consideration in these appeals is whether the views expressed by the Chief Justice of the High Court of Karnataka has got primacy while making appointment to the post of Lokayukta or Upa Lokayukta by the Governor of Karnataka.

       Finding of the Court:

        Impugned judgment cannot be sustained.