SUSANTA CHATTERJI, J. ( 1 ) CONSTITUTION of India is a living organ. Every day Court is faced with new horizon where the problems are coming for solution. The present case at hand is unique in its character. The Bar is alive to ventilate its grievance and it is for the Court to answer as the situation demands. ( 2 ) SRI Kanhu Charan Mishra, a reputed journalist, has filed the instant writ petition seeking the following reliefs :-". . . . . . . . YOUR Lordships may graciously be pleased to :i) Issue a Rule Nisi in the nature of writ of mandamus and/or certiorari and/or any other appropriate writ/writs, order/orders, direction/directions calling upon the opposite parties to show cause as to why opposite parties 1 and 2 should not be restrained from advising the Governor to appoint any or all of the opposite party Nos. 3 to 11 as Minister or Ministers in the Cabinet headed by opposite party No. 2;andii) If the opposite parties fail to show cause and/or show insufficient and/or false cause make the said Rule Nisi absolute;andiii) Pass any other appropriate order/orders, direction/directions;andiv) Allow the writ application with costs. . . . . . . . . . " ( 3 ) PRECISELY the petitioner has asked for a mandate from this Court to restrain the Chief Minister of the State of Orissa from giving advice to the Governor of the State to appoint any or all of the opposite parties 3 to 11 as Ministers. ( 4 ) MR. Ashok Mohapatra, Learned Lawyer pressing the writ petition, has argued with emotion and erudition. He has highlighted that although in his research within a short time he has not found out a case as precedent where Article 164 of the Constitution has been considered in the proper perspective to deal with the nature of advice or the legality or propriety of the advice of the Chief Minister for formation of Council of Ministers by the Governor concerned. However, he submits with much emphasis that power of this Court under Article 226 of the Constitution is quite wide enough, as also comprehensive, to conceive various problems and to deal with the same as the situation warrants. However, he submits with much emphasis that power of this Court under Article 226 of the Constitution is quite wide enough, as also comprehensive, to conceive various problems and to deal with the same as the situation warrants. He submits, inter alia, that similar situation arose while Shri Morarji Desai, the then Prime Minister resigned and the leader of opposition recommended Shri Charan Singh to be asked to form the Government. There a single Bench of the Calcutta High Court considered the scope of Article 74 of the Constitution and the decision has been reported in AIR 1980 Cal 95 , (Madan Murari Verma v. Choudhuri Charan Singh), Mr. Mohapatra finds much support from the reasons given in the said decision to fortify his argument that this Court may not hesitate to entertain the present case and to interfere judicially when a great responsibility is cast upon the Chief Minister to advise the Governor properly to appoint the Ministers upon whom the trust of the entire State is reposed. If the persons having tainted images and criminal background will be recommended to be Ministers of the State it will be sad day for the Governor to accept such advice and this Court to remain a mute observer. This Court can come forward even as a rarest of the rare cases to interfere in the matter and to set the ball in right motion. This Court is not to generate heat, but to throw light. The ray of wisdom is expected from this Court to guide, indicate and to show the right path at the proper time while considering the problems. It is always said that life always does not follow law. Law has to follow life. Problems are always there. The Court has to consider the problems and decide the matter as the situation may warrant. In the case at hand allegations are very very grave indeed. The Court is quite aware of the consequence thereof. Though the approach is to be pragmatic, yet the Court has to consider with eyes open and not to follow the dictum that Justice is Blind. It is, however, said that Justice is Blind but Judges are not Blind. They are to act with eyes open with constant vigil by which the democracy should be saved and protected. Though the approach is to be pragmatic, yet the Court has to consider with eyes open and not to follow the dictum that Justice is Blind. It is, however, said that Justice is Blind but Judges are not Blind. They are to act with eyes open with constant vigil by which the democracy should be saved and protected. ( 5 ) CONSIDERING all the aspects, we have taken notice of the decision of the Calcutta High Court in AIR 1980 Cal 95 (supra ). We have found the observation made by Shri Sabhasachi Mukherji, J. (as His Lordship then was) that the conventions so far followed and recognised that the President of India were legally and constitutionally justified in calling upon Shri Charan Singh to form the Ministry. Whether he was politically so justified or not was not a matter for the Court to determine. The Court could not sit in judgment on the political assessment of the President. Various case laws have been discussed. The case laws of this Country in various decisions of the High Courts and the case laws arising out of the conventions of the British Parliament system were broadly discussed. There was reference to the judgment of the Supreme court in the case of U. N. Rao v. Indira Gandhi reported in AIR 1971 SC 1002 . ( 6 ) MR. Mohapatra has also drawn attention of the Court to a judgment reported in AIR 1952 Madras 117 in the case of K. Anandan Nambiar. It has been held that once a Member of a Legislative Assembly is arrested and lawfully detained, though without actual trial under any Preventive Detention Act, there can be no doubt that under the law as it stands, he cannot be permitted to attend the sittings of the House. The power of the Writ Court vis-a-vis the problem for solution was discussed. We have no doubt that this Court is not powerless in a proper situation. The power however should be used and utilised as the situation would warrant. Power should not be misutilised or abused. One is expected not only to be learned but also to be wise too. We have considered all these aspects. We have no doubt that this Court is not powerless in a proper situation. The power however should be used and utilised as the situation would warrant. Power should not be misutilised or abused. One is expected not only to be learned but also to be wise too. We have considered all these aspects. The word "advice", as envisaged under Article 164 of the Constitution of India, takes us to the observation that the Chief Minister should be appointed by the Governor and the other Ministers should be appointed by the Governor on the advice of the Chief Minister. Mr. Mohapatra submits that today 3. 30 P. M. is scheduled for administering Oath to the Ministers by the Governor himself. There is nothing in this writ petition to challenge the action of the Governor. His grievance is confined to the advice of the Chief Minister. Although there is no specific knowledge as to the advice of the Chief Minister, which has been kept secret. But there is apprehension or speculation that the persons named as opposite parties 3 to 11 who have tainted background or having image of illegal activities are coming to be inducted as Ministers. The petitioner therefore reacts and he wants to sustain the writ petition under the Constitution. ( 7 ) THE learned Advocate General in his brief submission submits that he has no knowledge about the advice of the Chief Minister. In his usual fairness he submits that time may be there when the Court may rise on the occasion to examine the issue in much broader view and new precedents may be created. He further submits that it is not the proper stage to interfere in the matter. ( 8 ) MR. Mohapatra although argues with enthusiasm and wisdom and so also the learned Advocate General with wisdom and wisdom alone, we have been given larger responsibility to look into the matter in greater depth and details. ( 9 ) WE have considered the facts of the case. We have patiently heard the learned Counsel for the petitioner and the learned Advocate General. We have considered the points diligently. We have tried to scrutinise the points rightly. It has to be found whether we can answer the points justly or not. ( 10 ) WE are very much concerned that Democracy must be upheld by all means. We have patiently heard the learned Counsel for the petitioner and the learned Advocate General. We have considered the points diligently. We have tried to scrutinise the points rightly. It has to be found whether we can answer the points justly or not. ( 10 ) WE are very much concerned that Democracy must be upheld by all means. It is great expectation of not only the Court, the Legislature and the common people at large that the Chief Minister should advise properly and the Governor should appoint such Ministers who will have trust and confidence of the people and can shoulder responsibility. ( 11 ) IT has to be considered whether the stage is right now to interfere with the advice given by the Chief Minister to the Governor. If on the basis of the erroneous advice some are appointed who are not to function, it has to be considered whether those persons really suffer from such infirmity or not. ( 12 ) REGARD being had to the present state of affairs and looking at the decision in AIR 1980 Cal 95 (supra) and the reasons given in paragraphs 6 and 9, we restrain ourselves at this stage holding that it is not the proper stage where the Court can embark upon its journey to interfere with the proposed act of the Governor to accept the advice and to administer Oath to certain persons. Certainly, the petitioner can prefer fresh application if upon a wrong advice of the Chief Minister wrong persons are appointed and if there is any constitutional embargo it is for the Court to consider and to pass necessary orders. It is not the proper stage to restrain those persons from functioning in the posts as law permits. ( 13 ) WITH these observations, we dispose of the writ petition as it is premature for this writ Court to consider the propriety of advice of the Chief Minister which is yet to be known and accepted by the Governor for administering Oath. We make it clear that disposal of this writ petition will not prevent the petitioner or anybody else to file a proper application challenging any erroneous advice either being accepted or being acted upon if situation so demands. No costs. Order accordingly.