SUNDARESAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) 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. 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.) 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.