Sundaresan Nair v. State of Kerala — 1990 DIGILAW 509 (KER)

Judgment :- Petitioner-Secretary of a political party and formerly a Minister, seeks to quashExt.P1 Notification dated 12-3-1990 issued under S.4 of the Kerala Public men's Corruption (Investigations and Inquiries) Act, 1987 (called 'the Act' hereinafter). By the said Notification, a Commission consisting of Shri Justice T. Chandrasekhara Menon, retired judge of this court as Chairman, Shri Justice K.K. Narendran - retired judge of this court, and Shri.R.K. Venu Nair, Advocate as Members who were instituted for the purpose of conducting investigations and inquiries against 'public men'. Appointment to the Commission is governed by provisions of S.4 of the Act. The relevant provisions read: "Section 4(2): The Governor shall, on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Kerala the Leader of the Opposition in the Kerala Legislative Assembly, appoint the members of the Commission, and one of such members who holds or has held office as a judge of the Supreme Court or of the High Court referred to in sub-section 3, to be the Chairman thereof. (3): Two of the persons to be appointed as members of the Commission shall be those who hold or have held office as judges of the Supreme Court or that of High Court, and the other person to be appointed as member of the Commission shall be a person qualified to be appointed as a judge of the High Court." 2. Shri. K.K. Venugopal, senior counsel appearing for petitioner, challenged the appointments on the ground that there was no effective consultation, as contemplated under S.4(2) of the Act. A writ of quo warrant against respondents 4,5 & 6 is also prayed for. A further prayer to declare Ss.4 & 6 of the Act unconstitutional and void, and a prayer to quash the appointment of sixth respondent as violative of Article 319 (d)were also sought. At the time of admission, bias was alleged against the Chairman and members of the Commission. But, at the time of final hearing, learned counsel for petitioner submitted that he was only arguing the first two points, and that prayers (C) & (D), namely to declare Ss.4 & 6 unconstitutional, and to quash the appointment of 6th respondent as violative of Article 319(d) were not pressed, reserving freedom to raise these contentions in future. He wanted this to be recorded. It is accordingly recorded. He wanted this to be recorded. It is accordingly recorded. Counsel also submitted that he was not alleging bias against respondents 4 to 6. Even in the writ petition, there is no specific allegation of bias, except that there was close personal relationship between the Chairman of the Commission and the Minister for Education, against whom a complaint is pending enquiry (paragraph 31). 3. In the argument notes filed by counsel for petitioner (not dated), reference was made to Exts. P3 and P4 letters of 7th respondent alleging bias against the Chairman and members of the Commission. In the Notes dated 10-9-1990 filed by counsel for 5th respondent it is submitted that petitioner should not be permitted to raise bias, after counsel submitted in court that he was not alleging bias. Likewise, in paragraph (11) of the Notes (not dated) submitted by the Attorney General, an objection is raised against considering the case of bias, since counsel for petitioner specifically gave up that plea. 4. Shri. K.K. Venugopal, senior counsel for petitioner submits that consultation, must be defective and meaningful, and that the width and quality of consultation would vary with the context in which consultation is made. In the context of the case, consultation should be full-blooded and meaningful, as vast powers are conferred on the Commission, and there has been no such consultation, states counsel. S.4(2) of the Act postulates consultation with the Chief Justice of the High Court of the State, and the Leader of Opposition in the State Legislative Assembly, Counsel adds that there is possibility of the Chief Minister packing his nominees on the Commission, pretending consultation, for personal reasons. According to counsel, the impact of such a course will be considerable on the democratic process. By reason of S.18 of the Act, the Chief Minister, a Minister, or a Member of the Legislative Assembly will have to demit office, in the wake of an adverse verdict. Counsel referred to instances where Chief Ministers had to lay down office pursuant to judicial pronouncements. The case of Shri Arjun Singh - Former Chief Minister of Madhya Pradesh, Shri sanjeev Reddy - once Chief Minister of Andhra Pradesh, Shri A.R. Andtulay - former Chief Minister of Maharashtra, and the case of seventh respondent who resigned the office of Chief Minister pursuant to a judgment of this court, were cited. The case of Shri Arjun Singh - Former Chief Minister of Madhya Pradesh, Shri sanjeev Reddy - once Chief Minister of Andhra Pradesh, Shri A.R. Andtulay - former Chief Minister of Maharashtra, and the case of seventh respondent who resigned the office of Chief Minister pursuant to a judgment of this court, were cited. A decision by the Commission could bring down a Government with a slender majority, or clip the wings of a powerful opposition, states counsel. Considering the tremendous impact a decision of the Commission could make on the constitutional system of Government, in deciding on the constitution of the Commission, there should be effective and purposeful consultation with the Leader of Opposition, who plays a significant role in a democratic system of Government, as also with the Chief Justice of the High Court, who is best suited by his experience, training and mental equipment to evaluate merit of individuals who may be called upon to discharge such onerous responsibilities. These functionaries could act as a check against arbitrary preferences, and as a balancing or stabilising factor, against the political bias or self-interest which a Chief Minister who advises the Governor regarding appointment, might entertain. While a particular Chief Minister may not have bias in fact, the potential for bias, or political of personal interest, must be reckoned in viewing the requirements of consultation, submits counsel. 5. Counsel submitted further that the Act confers vast powers on the Chief Minister enabling him to choose judges in his own cause, and that it confers equally vast powers on the Commission, the exercise of which could dislodge constitutional functionaries in a manner which even the Constitution did not envision. Otherwise put, the Act gives the trappings of extra-constitutional authority to the Commission. The concept under Article 163 of the Constitution is imported into S.4(2) of the Act, leaving the Governor with no choice. Though the vires of the Act is not challenged, these features are highlighted to illustrate the wide sweep of consequences and the consequent need for balancing requirements, which can be ensured only by effective and meaningful consultation with the Chief Justice and Leader of Opposition. 6. In the instant case, consultation was no more than a pretended exercise, submits counsel. Though the vires of the Act is not challenged, these features are highlighted to illustrate the wide sweep of consequences and the consequent need for balancing requirements, which can be ensured only by effective and meaningful consultation with the Chief Justice and Leader of Opposition. 6. In the instant case, consultation was no more than a pretended exercise, submits counsel. Referring to Ext.P2 letter of the Chief Minister to seventh respondent-Leader of Opposition, it was argued that the tenor of the letter shows that the Chief Minister arrogated all the powers to himself and left no thing to others. Learned counsel referred to the phraseology of the letter, to suggest that the Chief Minister had already made up his mind, and that the communication was merely an apology for consultation. The Chief Minister wrote: "I may also take this opportunity to inform you that I propose to advise the appointment of Shri. T. Chandrasekhara Menon, retired judge or the High Court of Kerala as Chairman of the Commission, and Shri. K.K. Narendran, retired judge of the High Court of Kerala, as Member. I hope that you will agree with me that they are eminently suited for the said appointment". (emphasis supplied) Counsel states that the mind of the Chief Minister was closed, and that he was only taking the opportunity "to inform". The consultative process in its true meaning was not in the contemplation of the Chief Minister, according to counsel. Responding to Ext.P2 seventh respondent by Ext.P3 wrote: "I would like to inform you that consultation is not a mere intimation It must be full and effective consultation .... I therefore earnestly request that you should seriously approach the Supreme Court/High Court to make available the services of two sitting Judges. As an authority to be consulted under the Statute, I am entitled to get a reply from you on these aspects xx I object to their choices because, I do not believe that they are unbiased". (emphasis supplied). Since seventh respondent did not receive a reply to Ext.P3 dated 9-8-1989, he sent a reminder six months later on 6-2-1990 (Ext.P4), stating that: it........ (emphasis supplied). Since seventh respondent did not receive a reply to Ext.P3 dated 9-8-1989, he sent a reminder six months later on 6-2-1990 (Ext.P4), stating that: it........ you are not making any effort to secure the services of two sitting judges, obviously on account of your anxiety to pack the Commission with retired judges chosen on political considerations Please do not make the appointment before the process of consultation with me and the Chief Justice is complete If you still want to consider their names, you will have to discuss with me and tell me why the reasons given by me against them, are not true or not acceptable". This also did not elicit a reply. The intention of the Chief Minister was clear, and the intention was not to go through the consultative process effectively, but only to do lip service to a vital requirement, states counsel. 7. The correspondence with the Chief Justice (produced during the arguments by the State) would also lend the same inference, according to counsel. By letter dated 28-7-1989, the Chief Minister informed The Chief Justice that: "I may also take this opportunity to inform you that I propose to advice the appointment of Shri T. Chandrasekhara Menon, retired judge of the High Court of Kerala as Chairman of the Commission, and Shri K.K. Narendran, retired judge of the High Court of Kerala as Member " (emphasis supplied) The Chief Justice by letter dated 18-8-1989 informed the Chief Minister that in the state of things prevailing, it was important and necessary to appoint persons of the highest calibre, preferably from outside the State, who have no involvement in the affairs of the Kerala State. The Chief Justice stated: "It is, therefore, necessary to ensure that the Commission shall be composed of men of stature, men of high calibre and competence, men known for their integrity and character and men in whom the people can hesitatingly repose full confidence. The consultation contemplated is not formal, but a meaningful consultation to be made with great care and concern to achieve the object of securing for the Commission the best persons possible" 8. The Chief Justice expressed the view that the service of sitting judges of the Supreme Court, former judges of the Supreme Court, sitting judges of High Courts and former judges of High Courts other than the High Court of Kerala, should be secured. The Chief Justice expressed the view that the service of sitting judges of the Supreme Court, former judges of the Supreme Court, sitting judges of High Courts and former judges of High Courts other than the High Court of Kerala, should be secured. The letter of the Chief Minister did not show that he made an attempt in this direction. The Chief Justice added: Such an exercise, in my opinion, should be made in public interest before we embark upon considering suitability of persons suggested by you With the vast resources at your command, it should not be difficult for you to make this exercise. If you so desire, I shall offer my assistance in thisbehalf in view of the suggestions which I have made above, I do not now propose to offer my views in regard to the three names proposed by you. I will reserve my right to offer my view in this behalf after hearing from you." The Chief Minister on 7th October, 1989 wrote to the Chief Justice and stated: "I have bestowed my best thought and consideration on the views expressed by you in your letter dated 18-8-1989 we have considered the names of other retired judges also including their willingness." On 21-10-1989, the Chief Justice wrote again to the Chief Minister: "Smt. Gouri Amma called on me on 18-9-1989 at 6 P.M. at my residence and had a brief discussion when I reiterated my views. She said that she will go and report the matter to you and come back to me thereafter for further discussion.... Even as I was expecting you to meet me for further discussions in the matter, I received your letter under reply i request you to give a serious thought to the aforesaid suggestions of mine and let me have your response at your earliest convenience. Till then I do not propose to offer my views in regard to the names proposed by you." The Chief Minister did not pursue the matter in response to the views of The Chief Justice. By letter dated 25-12-1989, he informed the Chief Justice that: "On an objective assessment, the two Honourable Judges whose names we found suitable have been acclaimed as great men. By letter dated 25-12-1989, he informed the Chief Justice that: "On an objective assessment, the two Honourable Judges whose names we found suitable have been acclaimed as great men. Certain opinions expressed about them were with a particular motive to stall these proceedings, is clear from the reference speakers made when the two judges retired therefore, opinions expressed to stall the proceedings should be ignored". 9. Learned counsel for petitioner submits that the letters of the Chief Minister to The Chief Justice make it clear that the Chief Minister had no intention to discuss the matter further with the Chief Justice. There was only lip service, in place of meaningful consultation, states counsel. The Chief Minister had sent the advice to the Governor on 18-10-1989, when consultation with the Chief Justice was going. He would also say that a principle of great merit stated by the Chief Justice, namely appointment of persons who have no involvement in the affairs of the State of Kerala, was not even considered by the Chief Minister. The Chief Minister pleaded urgency, but the sense of urgency stated was only a pretence to hasten the appointment of the three persons of his choice, states counsel. To support the contention, he referred to the long delay in the Chief Minister answering the Governor's letter. The then Governor of Kerala had requested the Chief Minister for the views of the Chief Justice and Leader of Opposition, by letter dated 2-11-1989. A reminder was sent on 15-1-1990. No reply was sent till the Governor laid down office. Only thereafter by letter dated 16-2-1990, the Chief Minister replied to the "Governor, enclosing the correspondence with the Chief Justice, and the Leader of Opposition. According to counsel, the conduct of the Chief Minister is not answering the Governor is suggestive of his undisguised intentions. The vital requirement of consultation has thus not been satisfied, submits counsel. 10. To indicate the sweep of consultation, learned counsel for petitioner referred to the decision in R.Pushpam and another v. The State of Madras (AIR 1953 Madras 392), where Subba Rao, J. (as His Lordship then was) illustrated the law and highlighted the requirements of consultation. Reliance was also placed on S. P. Gupta and others v. President of India and others (AIR 1982 SC 149) particularly on paragraphs 86,563,759 & 760. Reliance was also placed on S. P. Gupta and others v. President of India and others (AIR 1982 SC 149) particularly on paragraphs 86,563,759 & 760. The decision in Chandramouleshwar v. The Patna High Court and others (AIR 1970 SC 370), Union of India v. Sankal Chand Himatlal Sheth (AIR 1977 SC 2328), and State v. A. Lakshmikutty & Ors. (AIR 1987 SC 331) were also cited. On the basis of these decisions, it is argued that consultation was not real. 11. Counsel for seventh respondent adopted the submissions of Shri K.K. Venugopal; and submitted that he had nothing more to add. When counsel was asked whether he was alleging bias against the Chairman or Members of the Commission, he answered in the negative. 12. Learned Attorney General appearing for third respondent-Chief Minister, led the arguments for respondents 1 to 6 and other counsel adopted his submissions. According to the Attorney General, the Governor is bound by the advice of the Chief Minister, and the Chief Minister advised the Governor, only after completing the consultation process. Consultation does not imply concurrence. The authorities may confer, but differ. According to Shri Soli Sorabjee, the ultimate decision is with the consultor, and the requirement of consultation will be met, if the full facts are placed before the consultees and relevant questions answered. He submits that there is no need to answer every question posed by the consultee, and rejection of a proposal made by the consultee can be gathered by implication. The Attorney General submits that when the Chief Minister made his stand clear regarding the eligibility of retired judges and the suitability of the three persons, there was no further need to invite seventh respondent for discussion. Seventh respondent had suggested a discussion. Consultation is a matter of substance, and is not of form, and there is no requirement on the part of the consultor to convince the consultee, of the correctness of his views, or to state reason for rejection of the views advocated by the consultee. 13. The objection to appointment of retired judges was met by the Attorney General, stating that there is no bar to the appointment of retired judges even to posts in the Higher Judiciary. He referred to Article 224A and Article 127 which permit appointment of retired judges, as adhoc judges in the Supreme Court. 13. The objection to appointment of retired judges was met by the Attorney General, stating that there is no bar to the appointment of retired judges even to posts in the Higher Judiciary. He referred to Article 224A and Article 127 which permit appointment of retired judges, as adhoc judges in the Supreme Court. Particular reference was made to Article 128, which provides for appointment of retired Judges. The Attorney General would say that reference to different classes in S.4 is by way of alternatives, and not priorities. He would also submit that at the most, it is only a matter of perspctive, on which there might be honest difference of opinion. 14. The Attorney General pointed out that no specific or valid objection was raised against the person proposed for appointment. If there were valid objections, perhaps the approach could have been different. The Attorney General reminded that no challenge was made against the character or impartiality of the Chairman or Members of the Commission even in the reply affidavit or in the arguments. He stressed the fact that the Chairman and one Member had functioned as judges of this court. This itself establishes their credentials. He drew attention to Exts.R3(a) and R3(b), speeches made on the eve of retirement of the two judges. 15. While expressing his views on the question of appointing retired judges, the Chief Justice reserved his right to offer views on the personnel proposed. When the Chief Minister made it clear that he did not agree on principle with the view of the Chief Justice that retired judges cannot be appointed, the Chief justice could have expressed his views regarding the personnel, if he had objection to the choice. Consent must therefore be implied, and the process of consultation was complete, quite apart from the fact that the Chief Minister was not obliged to accept the views of the Chief Justice, submits Shri Soli Sorabjee. The suitability of the personnel proposed by the Chief Minister, might have assumed significance, had the Chief Justice objected to their appointment, or had petitioner or seventh respondent objected to the choice. No objection was raised in the arguments, or in the reply affidavit. He also, pointed out that one cannot read preferences into S.4 or find a hierarchy among the different classes. According to the Attorney General, the decision of the Supreme Court in S.P. Gupta & Ors. No objection was raised in the arguments, or in the reply affidavit. He also, pointed out that one cannot read preferences into S.4 or find a hierarchy among the different classes. According to the Attorney General, the decision of the Supreme Court in S.P. Gupta & Ors. v. President of India & Ors. (AIR 1982 SC 149) would clearly limit the requirement of consultation to placing each others view before the other. Concurrence or consensus is not in the contemplation of consultation. Even when the views of the Chief Justice of the Delhi High Court were withheld from the Chief Justice of India, the Supreme Court found sufficient consultation, pointed out the Attorney General. Consultation is a matter of substance, and the approach should not be censorious in character, and if the end product of consultation is not objectionable, the approach should be to uphold the appointment, and not strike it down, since it is made on the advice of a high democratic functionary, submits Attorney General. 16. He argued that a writ of quo warrant will not lie in the circumstances, and replied on the decision in P.L Lakhanpal v. A.N. Ray (AIR 1975 Delhi 66) to contend that a writ of quo warrant should not be issued, if the act objected to, can be repeated reducing the writ to futility. Reference was made to Halsbury's Law of England to support this view. Reliance was also placed on flex v. Speyer (1916 (1) K.B. 596). The King's Bench held that if an existing defect could be cured and reappointment made, it would not be proper to issue a writ of quo warrant. According to the Attorney General, assuming that consultation was incomplete, that defect can be cured by further correspondence with the Chief Justice and 7th respondent, and the same result achieved. Such querries as required answers, have been answered and the entire correspondence had been placed before the Governor, submits the Attorney General. 17. Since challenge to the validity of the Statute and the contention based on Article 319 are not pressed, and since no allegation of bias or unsustainability is alleged, the only question for consideration is whether there had been meaningful consultation. The earliest decision on this question placed before me was the decision in Pushpam & Ann v. The State of Madras (AIR 1953 Mad. 392). The earliest decision on this question placed before me was the decision in Pushpam & Ann v. The State of Madras (AIR 1953 Mad. 392). According to Subba Rao J., the width of consultation would vary from case to case. Though consultation cannot be limited to formal correspondence, it cannot be upgraded to concurrence, either. In Chandra Mouleshwar Prasad v. Patna High Court (AIR 1970 SC 370 - Paragraph 7), the Court pointed out that consultation does not mean that the Governor should accept the views of the consultee. If however an appointment was made without getting the views of the High Court, the process of consultation would not be complete. In that case, the views of the High Court were not obtained with regard to the claims of the petitioner therein (paragraph 7), 'and for that reason, the Supreme Court held that consultation was not complete, before parties made their views known to each other. In the instant case, the parties had made their views known to each other. On the question whether retired judges could be appointed, the consultor and consultee had made their views explicitly known to each other. 18. Shri K.K. Venugopal contended that the Chief Minister was practically foisting his nominees on the Chief Justice and the Leader of Opposition. He would say that the Chief Minister did not take the Chief justice or seventh respondent into confidence. In answer, the Attorney General would submit that the Chief Minister proposed the persons whom he considered acceptable. Maybe, that the Chief Minister was very keen on the choice of these three persons. But, he is entitled to have his preference, submits the Attorney General, and all that the consultee can legitimately expect is to have his views considered and no more. The Attorney General invited my attention to paragraph 29 of the decision in S.P. Gupta's case, and submitted that the consultee "merely holds a consultative role", and that the only requirement was that the material on which the final decision is taken should be conveyed to the consultee. Basing on the same decision, he submitted that the "final voice is with the Government". The only question according to the Attorney General is, whether this power was exercised malafide. Basing on the same decision, he submitted that the "final voice is with the Government". The only question according to the Attorney General is, whether this power was exercised malafide. Once again harping on the statement of counsel for petitioner that no allegations are made against the personnel, and that two of them had filled the bill having been judges of the High Court of Kerala, the Attorney General submitted that the question of malafide does not even arise for consideration. The speeches made on the floor of the House by the Minister piloting the bill, voicing preference for sitting Judges --referred by counsel for petitioner -cannot clip the ambit of the Act, according to the Attorney General. 19. This is so. As for consultation, the consultee and the consultor conferred on the full facts and identical material, though they did not agree. Agreement is not a concomitant of consultation. S.4 of the Act does not indicate preferences among different classes of eligible categories. It only supports alternatives, and not priorities. It is not possible to accept the submission made by petitioner that there is a hierarchy of classes, and that to reject one class, reasons must be stated, or that to prefer another class, reasons must be stated. On the plain language of the Section, it is not possible to read preferences into it. The decision in Union of India v. J.P.Mitter (AIR 1971 SC 1093) also is to the effect that the President must make all the facts available for consideration by the consultee. A discussion across the table or evaluation of the pros and cons of a proposal, is not contemplated by the process of consultation. The next case referred to by both sides is Union of India v. Sankal Chand Himmatlal Sheth (AIR 1977 SC 2328). Paragraphs 37,41,63 and 102 were read in extenso by counsel on both sides. The Supreme Court stressed the need for effective consultation and consideration of the entire material by the consultor and consultee, with reference to each other's view. But, concurrence is not contemplated and it was held that "they may confer, but may not concur". 20. The touchstone decision, relied on by both sides, is the decision in S.P. Gupta v. The President & Ors. (AIR 1982 SC 149). The Supreme Court surveyed the entire law on the subject beginning with Puspam's case (AIR 1953 Mad. But, concurrence is not contemplated and it was held that "they may confer, but may not concur". 20. The touchstone decision, relied on by both sides, is the decision in S.P. Gupta v. The President & Ors. (AIR 1982 SC 149). The Supreme Court surveyed the entire law on the subject beginning with Puspam's case (AIR 1953 Mad. 392) and enumerated the requirements of consultation. The point of view of one authority should be made, known to the other, and after consideration of the full facts, a decision must be taken. The views of the consultee are more in" the nature of recommendations or suggestion, and it has no compelling character. The consultative process will not be vitiated by non-acceptance of the views of the consultee, provided non-acceptance was preceded by full consideration. In paragraphs 28 & 29, the court said: "Who has the final voice in the appointment of judges it is the President, which in effect and substance means the Central Government The Chief justice of India and the Chief Justice of the High Court, and such other judges of the High Court and of the Supreme Court as the Central Government may deem it necessary' to consult, are merely constitutional functionaries having consultative role and the power of appointment resides solely and exclusively in the Central Government. It would therefore be open to the Central Government to over-ride opinion given by the constitutional functionaries required to be consulted and arrive at its own decision in regard to the appointment of a judge of the High Court or Supreme Court, so long as such decision is based on relevant consideration and is not malafide " (emphasis supplied) In paragraph 86 of the same decision, the court stated: "Article 227 does not require that any particular procedure should be followed for full and effective consultation, nor does it insist that the relevant facts on which 'the final decision of the Central Government is based should be conveyed to the other three constitutional functionaries in any particular manner. What is necessary to ensure full and effective consultation within the meaning of Article 217 is, that the Central Government as well as each of the three constitutional functionaries, must have for its consideration, full and identical facts which can at once constitute both the source and foundation of the final decision, and it is immaterial as to how such full and identical facts are conveyed It is sufficient compliance if the self same facts on which the final decision is taken by the Central Government are placed before each of the three constitutional functionaries". In paragraph 626, it was stated: "Scope and ambit of full and effective consultation requires that all material facts must be made available to both these consulting functionaries, by placing the same before each during consultative process, and that each consulting functionary 'must consider the same or identical material and exchange one's views thereon with each other". 21. Shri K.K. Venugopal pointed out that the Chief Minister had not stated any reasons for not accepting the views of the Chief Justice. He also submitted that the Chief Minister did not even respond to the offer made by the Chief Justice to find sitting judges for the Commission. He would also say that even the courtesy of a reply, was not extended by the Chief Minister to seventh respondent. The Attorney General in answer would submit that the power exercised by the Chief Minister is not in the nature of a quasi judicial power, and that there is no requirement of stating reasons. The only duty was to consider the views of the consultee sand this the Chief Minister did, though he did not concur. In the Sight of the decision in SY Gupta's case, no more is needed according to the Attorney General. The argument of Shri. K.K. Venugopal that there was no application of mind cannot be accepted, according to the Attorney General. A high functionary like the Chief Minister, must be credited at least with reading and understanding the views of seventh respondent and the Chief Justice, submits Attorney General. It is true that the Chief Minister did not avail of the good offices of the Chief Justice, which he offered. He turned the Nelson's eye to this. One may legitimately infer that the Chief Minister was not interested in that direction, and that he was keen on following his own inclinations. It is true that the Chief Minister did not avail of the good offices of the Chief Justice, which he offered. He turned the Nelson's eye to this. One may legitimately infer that the Chief Minister was not interested in that direction, and that he was keen on following his own inclinations. As no degree of interaction, except by way of advertence, is postulated, even this attitude of the Chief Minister will not justify a finding that consultation was not complete. In the light of S.P. Gupta's case, wherein it is stated that the final word is with the consultor, and that the role of the other functionaries is only consultative, leaving it open to the consultor 'to over-ride the opinion' of the consultees, it has to be held that there was consultation. There is no need to state reasons or answer the objections. There is no legal litmus test to ascertain the reasons that weighed with the Chief Minister, and it is not necessary either, so long as malafides do not taint the process. Disagreement cannot be understood as non-application of mind. Whether the Chief Minister would have profited by accepting the views of the Chief Justice based on very valid considerations, or whether he should not have extended the courtesy of writing to the Leader of Opposition, are matters of opinion. The further argument of Shri. K.K. Venugopal is that a more meaningful consideration is required in a situation where the Act confers vast powers on the Commission - a power virtually to interfere with the functioning of democratic or political institutions. Attractive though, the argument does not commend acceptance in the light of the specific requirements of consultation enumerated in S.P. Gupta's case. A conference of minds on identical material is all that is contemplated. Nothing more in the nature of a further dialogue, or an interaction of a degree is not envisioned. 22. It is clear from the correspondence that the view of each was available to the other on the question whether retired or sitting judges were to be appointed. There was elaborate exchange of views. It is true that as far as the suitability of the personnel was concerned, the views of the Chief Justice were not expressed. 22. It is clear from the correspondence that the view of each was available to the other on the question whether retired or sitting judges were to be appointed. There was elaborate exchange of views. It is true that as far as the suitability of the personnel was concerned, the views of the Chief Justice were not expressed. But, as the Attorney General submitted, as long as their suitability or integrity is not challenged, there is no need for further deliberation or exchange of views. In this context, the Attorney General again referred to paragraph 656 to 661 in S.P. Gupta's case (judgment of Tulzapurkar, J. disagreeing with the majority), and pointed out that even in a situation where the views of the Chief Justice of the Delhi High Court were held back from the Chief Justice of India, the Supreme Court found the requirements of consultation satisfied. The Supreme Court held that there was no primacy in the case of one of the consultees, and that the last word rested with the executive Government. Hence, the Attorney General submitted that this court cannot go beyond and read the requirement of a more elaborate consultation, or a fuller exchange of views regarding suitability of the personnel. If there were allegations of bias or unsuitability against the personnel, I should have thought that a further probe is required into the question of malafide exercise of power-more so when the specific views of the Chief justice were not ascertained on the question of suitability. There are no such allegations, and the matter must be left at that. 23. Shri. K.K, Venugopal would submit that the sense of urgency pleaded by the Chief Minister in his letter dated 7-10-1989 to the Chief Justice was no more than a pretence, and that if he could wait from 2-11-89 till 16-2-1990 to answer the Governor, the dimension of urgency was not in the Chief Minister's mind. Governor Sinha wrote to the Chief Minister on 2-11-1989 and sent a reminder on 15-1-1990. More than two months had elapsed before there was response from the Chief Minister, and that too after the then Governor laid down office. The Attorney General would say that it was only a matter of lapse on the part of the Chief Minister, or at worst discourteous conduct. Discourteous, indeed it is. More than two months had elapsed before there was response from the Chief Minister, and that too after the then Governor laid down office. The Attorney General would say that it was only a matter of lapse on the part of the Chief Minister, or at worst discourteous conduct. Discourteous, indeed it is. The response of the Chief Minister, if at all was in very low key. The letter of the Chief Minister to the Chief Justice dated 25-12-1989, states: "Certain opinions expressed about.them (probably by seventh respondent in Ext. P3) were with a particular motive to stall these proceedings. Therefore, opinions expressed to stall the proceedings should be ignored". (emphasis supplied) The response did not bear the veneer one should have expected. The sense of urgency was not that real as expressed. Be that as it may, it is not sufficient to sustain a plea of malafides. 24. Consultation is an expression understood, though not defined in the Constitution, or the Act. It implies a meeting of minds, open to persuasion and it envisions a situation where each considers the point of view of the other. Yet, consultation is not concurrence. The authorities may confer, but differ. The only requirement is that a decision must be taken, after all the authorities confer in mind on the total facts, after each of the consultees furnishes relevant facts and answers relevant querries. The idea is to help the deciding authority to reach a wholesome conclusion after considering the views of the different functionaries. The different functionaries bring their knowledge and expertise,-and a shared decision - shared in the sense of full consideration of all the views - is to be reached. The Chief Minister holds an important position in a democratic set up. The Leader of Opposition represents a group which is to act as a check and balance, putting forward healthy criticism and informing the Government of another point of view. The Chief Justice by reason of his eminent position, background and training, apart from his personal endowments, is competent to judge suitability of a person for a judicial post. If the functionaries expressed their views to each other and a decision is taken, such decision is valid in the light of the principles laid down by the Supreme Court. The Chief Justice by reason of his eminent position, background and training, apart from his personal endowments, is competent to judge suitability of a person for a judicial post. If the functionaries expressed their views to each other and a decision is taken, such decision is valid in the light of the principles laid down by the Supreme Court. A decision is to be taken not on the basis of any single point of view, but on a consideration of every single point of view. It is not a matter of form, but of substance. The minds must meet through expression, elucidation and consideration. If not, they meet in form, and not in substance. 25. In the instant case, as far as the question whether sitting or retired judges should be chosen, there was a full and complete exchange of views. As far as the personnel were concerned, the views of the Chief justice were not available, and the Leader of Opposition expressed himself against the choice indicated by the Chief Minister. One might be left with the impression that the views elegantly articulated by the Chief justice and the sound principles put-forward by him, should have received better consideration. Whether the core question relating to the suitability of the personnel had been viewed in the best possible manner, is a matter of doubt. The Chief Minister could have specifically requested the Chief justice for his views on the three persons, notwithstanding the fact that he had reserved his views until the other aspects were clarified. However, the Attorney General would submit that the Chief Justice not having expressed himself against the three persons, the Chief Minister was entitled to think that consultation was complete. He would also say that there is no justification for probing further, when it is the clear case of petitioner and seventh respondent that they have nothing to allege against the Chairman or Members of the Commission, by way of bias or unsuitability. The Supreme Court in S.P. Gupta's case, in no uncertain terms stated that'the final choice' is with the consulter, that the other constitutional authorities hold no place of 'primacy', and that they hold 'merely a consultative role'. The unambiguous expression of view that consultor has the power to override, cannot be missed. Therefore, it has to be held that there was consultation. The unambiguous expression of view that consultor has the power to override, cannot be missed. Therefore, it has to be held that there was consultation. At least, it is not possible to say that consultation was inadequate. 26. I do not consider it necessary to examine the arguments touching upon the issue of a writ of quo warranto. The Attorney General stated that a writ should not be issued, if the same result can be achieved again. If the same result is achieved without proper application of mind, then the subsequent decision will be open to challenge. If it is postulated that the same decision will be reached again, then it would imply that the authority has a closed mind on the issue. However, the question is purely academic, in view of my finding that the requirements of consultation have been satisfied. At least, they do not fall below the minimum level of the requirements. For these reasons, the Original Petition is without merit, and is dismissed. Parties will bear their costs.