Hon'ble Vedpal, J.
(Delivered by Hon'ble Pradeep Kant, J.) Heard Sri Asok Pande, who is one of the petitioners, Sri G.E.Vahanvati, learned Attorney General for India, Dr. Ashok Nigam, Additional Solicitor General of India, Sri I.H. Farooqui, Assistant Solicitor General of India for the respondents and Sri C.B. Pandey, as Intervenor.
This writ petition in the style of Public Interest Litigation challenges the resolution of the Government of India of April 8, 2011 issued by the Ministry of Law and Justice (for short, MoLJ) by which a Joint Drafting Committee for the purpose of drafting the Lok Pal Bill was constituted comprising five nominees of the Government of India and five nominees of Sri Anna Hazare (including himself). Challenge to the Resolution constituting the Joint Drafting Committee has been principally made on the following grounds:
1.that the impugned resolution is beyond any lawful provision and is completely extra-constitutional;
2.that it is settled that law-making is purely legislative act and, therefore, public inclusion is not valid;
3.that public-private-partnership in law making is not recognized and, therefore, any such attempt is ultra vires the Constitution;
4.that the process through which nominees have been chosen is arbitrary and discriminatory; and
5.that Sri Anna Hazare has been brought at par with the Government which is illegal.
Following three questions were framed by the Division Bench comprising Hon'ble F.I. Rebello, C.J. and D.K. Arora, J. which had heard the petition initially:
1.Whether it is open to the Government of India to constitute a Committee of a section of the society for drafting a bill?
2.Whether a section of the society, which has agitated on an issue, only has the right to be represented in the Committee or all those who have been raising such issues without agitation or hunger strikes, should also have the right to represent such Committee?
3.Further, if such Committees are constituted, what would be the locus of the Bill drafted by such Committees, as the sovereign will of the people of India lies in the Parliament through the Members elected by them to represent them in the Lok Sabha as also the State nominees as the representatives in the Rajya Sabha.
Law, within the meaning of Article 13 of the Constitution means the law made by the Legislature and includes intra vires statutory orders (see Bidi Supply Co. Ltd. v. Union of India, AIR 1956 SC 484; see also Edward Mills v. State of Ajmer, AIR 1955 SC 25) and orders made in exercise of power conferred by statutory rules (see State of M.P. v. Madawar, G.C., 1955 (1) SCR 599, 604) but not executive orders having no statutory sanction (see Dwarkanath Tewari v. State of Bihar, AIR 1959 SC 249, 253). Resolution ordinarily connotes decision in a meeting (see David M. Walker, The Oxford Companion to Law (1980), Claredon Press, 1064). The impugned resolution of the Government of India of April 8, 2011 issued by the MoLJ (Legislative Department), does not find any infirmity in law, as demonstrated, hereinafter.
The Apex Court in Rai Sahab Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 opined that executive power ordinarily connotes the residue that remains after legislative and judicial functions are taken away. The executive performs multifarious functions; it can exercise legislative functions when entrusted by the legislature and even judicial functions in a limited way, when empowered to do so. But the executive power can never transgress constitutional provisions or any law as is clear from what is contemplated by Article 53 of the Constitution.
The following observation of the Apex Court in Ram Jawaya Kapur (supra) lends authoritative guidance:
"14. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of executive are limited merely to the carrying out of these laws.
15. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State."
16. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under article 53(1) of our Constitution, the executive pow3680er of the Union is vested in the President but under article 75 there is to be a Council of Minister with the Prime Minister at the head to aid and advice the President in the exercise of his functions. The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part." The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."
(emphasis supplied) Thus, five points which emerge from the decision in Ram Jawaya Kapur (supra), can be summarized as follows:
1.Executive power is a residue of government functions that remain after legislative and judicial functions.
2.To enable the executive to function, it is not necessary that there must be a law already in existence.
3.The executive is deemed to have the primary responsibility of formulation of governmental policy and its transmission into law subject of course to the retaining of confidence of the Legislature.
4.The executive function comprises both the determination of the policy and also carrying it into execution which includes initiation of the process of legislation.
5.Cabinet concentrates in itself the virtual control of both legislative and executive functions and therefore, the most important questions of policy are all formulated by them.
Learned Attorney General, in furtherance of his submission that the Government has the power to constitute such a Joint Drafting Committee, has also placed reliance on Jayantilal Amritlal Shodhan v. F.N. Rana, (1964) 5 SCR 294 wherein the Apex Court noted the relevance and importance of executive authority and also NDMC v. Tanvi Trading and Credit (P) Ltd., (2008) 8 SCC 756 wherein the Apex Court observed that executive instructions may be issued in the absence of legislation.
The Apex Court also laid down that the power of the Union Executive when not trammelled by any statute or rule, is wide; and pursuant to its power it can make executive policy or even change it (vide Col. A.S. Sangwan v. Union of India, AIR 1981 SC 1545).
The impugned Resolution of April 8, 2011 only constitutes a Joint Drafting Committee comprising of five nominees of Government of India and five nominees of Sri Anna Hazare (including himself) for the purpose of drafting the Lok Pal Bill and does nothing more.
Two points emerge from the impugned Resolution. First, the Government of India has formulated a policy that there will be a Lok Pal and second, that for the implementation of the policy, a bill is to be finalized for transmission of the policy into legislation. A deadline for preparing a draft of the Bill is provided in the impugned Resolution. The impugned Resolution does not go any further. It does not state that the Government would by-pass the constitutional process of law-making. In fact and in law, it is not possible to validly enact a legislation except in accordance with law. The impugned Resolution does not state that the Bill drafted by the Joint Drafting Committee would tantamount to an Act of Parliament. This is not at all the spirit of the Resolution. Therefore, what it implies is only the drafting of a bill for the legislation which will be necessary to give effect to the policy of the Government and the transmission of that policy into law; nothing more, nothing less.
Chapter 9 of the Manual of Parliamentary Procedures in the Government of India, which is a compilation of Rules of Procedure and Conduct of Business in Lok Sabha/Council of States, Government and Parliament Procedure to be followed by the Ministries in connection with Parliamentary work and Directions by the Speaker under the Rules of Procedure and Conduct of Business in Lok Sabha and various other statutory rules and orders, prepared by the Ministry of Parliamentary Affairs, reveals the course by which a proposal for legislation in Parliament is initiated and also the various stages, through which such proposed legislation passes through before it is enacted and takes the shape of law. We need not incorporate the entire procedure, but in sum and substance it can be noticed that it provides for various steps right from the initiation of bill in the form of proposal by the concerned department for cabinet approval, to drafting of bill by the Legislative Department of the MoLJ and introduction thereof in the Parliament including elicitation of public opinion and the passing of the bill into an Act of Parliament which is finally published by MoLJ 3680in the Gazette of India Extraordinary as provided in the Manual.
Thus, a detailed procedure/process is observed before a bill that initially originated in the concerned department as a proposal, finally originates or is introduced in the Legislature in accordance with Article 107 in the case of the Parliament and Article 196 in the case of State Legislature for its consideration. A bill therefore, is nothing but a proposal made to the Legislature for its consideration to enact a law on the subject it appertains to (see David M. Walker, The Oxford Companion to Law (1980), Claredon Press, p.129).
The argument, therefore, of the petitioners that the impugned Resolution is beyond any legal principle and is extra-constitutional does not hold good for the simple reason that there is no constitutional process or any procedure established by law that provides as to how and in what manner government resolutions may be made. Consequently, where the Constitution does not require an action to be taken in a particular manner and where there is no legislation or an existing law to regulate the executive power of the Union, the Government would not only be free to take such action by executive order but also to change the policy itself (see Col. A.S. Sangwan (supra)).
The argument of the petitioners that the Bill so prepared by a committee which consists of five Cabinet rank Ministers, cannot be subjected to various check-ups by the various departments including MoLJ, is itself contradiction in terms and appears to have been raised unmindful of the plea of the learned Attorney General that the five Cabinet rank Ministers have been nominated as members of the committee by their names and not by their designation but as Government nominees, in which Sri Pranab Mukherjee is the Chairman of the committee, Sri Shanti Bhushan is the Co-Chairman and Sri M. Veerappa Moily is the Convenor. They would discharge their functions as members of the Committee like other five nominated members including Sri Anna Hazare and not as Cabinet rank Ministers. Also, the impugned Resolution has been promulgated by the Legislative Department of MoLJ which is the department entrusted under the Government of India (Allocation of Business) Rules, 1961 to drafting of bills.
Corollary to the aforesaid argument is that the proposed bill would be subjected to all norms and constitutional procedure before it receives the shape of an enactment and the essential questions, such as, the legislative competence etc. would be examined by the Department of Legal Affairs of MoLJ and other concerned departments, as clarified in detail by Dr. Ashok Nigam on behalf of the Union of India, who placed reliance on para 8 of the counter affidavit, which has further been clarified by the Union of India in para 3 of its additional counter affidavit, wherein it has been stated that a draft so prepared by the committee would be required to undergo the normal process as per the constitutional provision relating to legislative procedure, the Government of India (Allocation of Business) Rules, 1961, Government of India (Transaction of Business) Rules, 1961 read with Rules of Procedure and Conduct of Business in Lok Sabha/Council of States and the Directions by the Speaker, Lok Sabha/Chairman of the Council of States. The plea, therefore, that such a draft cannot be subjected to procedural safeguards is devoid of any force.
Further, the argument of the petitioners that by constituting the committee and accepting the demand of Sri Anna Hazare; Sri Hazare has been brought at par with the Government is based on misconception of facts and law3680 as Sri Anna Hazare is only a member of the committee, like other members, who are to discharge their functions as members of the committee.
Sri Asok Pande then contended that public-private-partnership in law making is not recognised and therefore, the impugned resolution is ultra vires the Constitution. This plea must also fall to the ground in view of the law laid down by Apex Court in Ram Jawaya Kapur (supra) which says that in order to enable the executive to function it is not necessary that a law must already be in existence.
The petitioners' submission that law-making is purely legislative act and therefore public inclusion is not valid, also has no substance. It is well-settled that law-making is purely a legislative act. However, there lies a distinction between drafting of bill and its transmission into law. The preparation of a bill is not equivalent to its origination in legislature. Before Article 107(1) of the Constitution is triggered, one may learn from the stages of legislation enumerated under Chapter 9 of the Manual of Parliamentary Procedures, the intricate stages of executive scrutiny a bill is subjected to. Though, it is within the domain of the executive to initiate a bill which the Parliament is competent to enact under the Seventh Schedule (see Ram Jawaya Kapur (supra)). But once a bill originates in the Parliament, the executive power ceases to exist, for then the bill comes within the domain of the Legislature for its consideration. What is of concern, therefore, in the present matter is the preparation of the Bill and not its enactment into law.
The learned Attorney General has emphatically stated that it is for the purpose of eliciting the broadest possible views on an important subject, such as, the Lok Pal that the committee has been constituted. Therefore, so far as the contention of the petitioners concerning public inclusion in law-making is concerned; we do not find any illegality in such process. It is conventional that public opinion is elicited before the Legislature enacts a law. Comments from the public are invited and considered by the Legislature as is evident from Chapter 9 of the Manual mentioned above and therefore, it would not be trite to condemn the Joint Drafting Committee merely on the ground that it is unconventional. In G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 81, the Municipal Council entered into an agreement with a private builder for the construction of a commercial complex. The project envisaged a self-financing scheme through which the builder was to construct the complex at his own cost but after completion of construction was to hand over the complex to the Council. However, he was allowed to dispose of certain shops by retaining premium received therefrom by way of reimbursement of costs and profits. The action of the Council was challenged as ''unconventional' and arbitrary. Negating the contention and describing it as a policy decision, the Supreme Court observed as under:
"The criticism of the project being ''unconventional' does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extant practices, but whether there was something in law rendering it impermissible."
In a democratic polity, such as ours, it must be borne in mind that it is the ''will of the people' that has been given paramount importance in the Constitution and is the edifice on which our democratic system stands. In paragraph 99 of the judgment in People's Union for Civil Liberties and Ors. v. Union of India and another, (2003) 4 SCC 399, the Apex Court observed as under:
"99. The trite saying the 'democracy is for the people, of the people and by the people' has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. "Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue", as observed by this Court in Lily Thomas v. Speaker, Lok Sabha (1993) 4 SCC 234 quoting from Black's Law Dictionary. The citizens of the country are enabled to take part in the Government through their chosen representatives. In a Parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government. The peoples' representatives fill the role of law-makes and custodians of Government. People look to them for ventilation and redressal of their grievances. They are the focal point of the will and authority of the people at large."
In State of Madhya Pradesh and Anr. v. Thakur Bharat Singh, (1967) 2 SCR 454, the Supreme Court observed as follows:
"Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i. e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial-each organ having some check direct or indirect on the other: and (3) the rule of law which includes judicial review of arbitrary executive actions."
(emphasis supplied) The supremacy of the will of the people including the principle of public interest has been celebrated by the Courts in our country. See for example, Kuldip Nayar v. Union of India and Ors., (2006) 7 SCC 1, Baldev Singh Mann v. Surjit Singh Dhiman, (2009) 1 SCC 633, People's Union for Civil Liberties and Ors. v. Union of India and Anr., (2009) 3 SCC 200. The position is settled and there is no3680 fallacy in saying that it is the will of the people which is the fulcrum on which our democratic polity stands.
The public opinion therefore is solemn and must not be ignored by the executive. The executive must always be considerate of public opinion and work towards redressing the grievances at large. It is only then that democracy would serve fruitful and meaningful purpose. If a public demand is so made for enacting a law on any subject, it is always open to the Government to consider such a demand and if the Government is satisfied that the demand so raised is genuine and in public interest and not against any constitutional or legal provisions, it may, for giving due weight to the will of the people, proceed to enact the law. If such law is enacted on public demand so raised, it cannot be said that the Government has acted in any way unconstitutionally or against the constitutional provisions.
It will always be a matter of discretion for the Government to consider objectively and take all factors into consideration while considering the question whether the demand so raised would ventilate the public grievance raised and would be in the interest of public. But if the Government finds that the demand so raised if accepted would be against public interest or national interest or in other words, the repercussions of the same would be more harmful than any public good, it is well within its domain not to accept the demand. To elaborate, one can say that so far as weeding out corruption from the society is concerned, it is a cause which no one can oppose nor can there be slightest hitch in taking effective and prompt steps for eradicating corruption by amending the existing laws, if necessary, for their strict enforcement and also by enacting special laws within the constitutionally permissible limits. Although in situations where the demands for enacting a law, does not appear to be genuine in the opinion of the Government, as discussed above, the Government would always be free to take a decision of its own refusing to accede to such a demand. The Government though cannot be pressurized by any section of the people for conceding to their demand unless it is genuine, but at the same time, it has also to be very vigilant, watchful, sensitive, conscious to the will of the majority of the people and its views, must normally and largely be acceptable to public. Agreeing for making a law for a genuine cause is a part of parliamentary democracy. The Government cannot ignore the ills of the society, for example, corruption, which in its epidemic form, is affecting the life of common man, but equal responsibility lies upon the public also to co-operate in uprooting corruption and not to be guided by individual, self, parochial interests, which necessarily means that that 'Rule of Law' must prevail, which is one of the essentials of a healthy parliamentary democracy.
The people's desire that an institution be established (be it in the name and style of Lok Pal) to check the menace of corruption has been given consideration by the Government. If the executive in its wisdom wants to elicit public opinion in finalizing the draft of the Bill, there is no constitutional or statutory provision, in our opinion, that prohibits the executive from doing so.
The petitioners have also challenged the impugned Resolution on the ground that it violates Article 14 of the Constitution, as only certain class of persons who have agitated on the issue by hunger strikes and whom Sri Anna Hazare has nominated are represented in the Committee.
The Delhi High Court in Hemant Baburao Patil v. Union of India and others, W.P. (C) No. 2671/2011, decided on 2.5.2011, after observing that members of the present Drafting Committee do not hold public office and therefore, there cannot be any eligibility criteria, proceeded to hold that the concept of quo warranto is not applicable. The Court further observed that the Drafting Committee which has been constituted, pertains to a pre-enactment stage and therefore, expressed doubt on whether the same could be scrutinized by the Court in exercise of power of judicial review. The Court dismissed the writ petition treating the impugned resolution to be the "internal matter of the Executive and exclusively in the domain of the Executive".
In Asok Pande and another versus Union of India and others, Writ Petition No. 3556 (M/B) of 2011, decided on 16.4.2011, the petitioner sought a writ in the nature of mandamus to direct the State to enact a law recognizing the public-private-partnership in law making. Attention of this Court was invited to the impugned Resolution to buttress the petitioner's contentions. The Union of India, repelling the contentions of the petitioner, took the stand therein that the committee constituted by the impugned resolution is advisory in nature to assist the Government. Similar stand by the Union of India, with regard to the nature of the committee, has been taken before us also in the present writ petition. The Union of India has specifically stated in its counter-affidavit that the committee so constituted is advisory in nature. The learned Attorney General has reiterated that the committee constituted would be open to considering all such suggestions. In this connection, the petitioners questioned the stand taken by the Union of India on the ground that the committee has been restricted to only few persons and that every individual has not been invited to present their point of view and to openly participate in law making.
To appreciate the contention raised, it must be considered that the Constitution vests the power of making law only in the Legislature. The plea of the petitioners that if Sri Anna Hazare and his nominees can be made part of the committee, then all other persons/citizens of the country should be given an opportunity to be in the committee which he terms as 'open law making', is not known to our constitutional process, nor is practically possible. The plea is fallacious as in no committee all citizens can be accommodated.
The Government considering the demand of wiping out corruption appears to have taken a conscious decision to enact a law on the subject and for this purpose has constituted a committee in exercise of its own discretion. In pursuance thereof and in exercise of its discretion it has nominated some persons from the Government itself and invited some persons from amongst those whose demand was acceded to by the Government to assist or advise it in finalizing a Bill on the subject.
So now the question that arises for consideration is that if the Government before initiating a legislation wants to seek advise or make consultations in order to finalize a bill can it not do so? Can such an action of the Government be condemned merely on the basis that it failed to invite every person but only those whom the Government wanted to consult or enter into consultation?
The expression ''consultation' can be distinguished into two parts. The first is where consultation is done by the executive as a matter of constitutional or statutory requirement. In all other cases, the executive can consult or enters into consultation or consults in its own wisdom. Thus, where the executive wants to consult or enters into consultation or consults in its own wisdom, the executive is free to adopt its own procedure in all such cases where there is no procedure established by law; it is within the discretion exercised by the executive to choose whom does it want to consult. Such exercise of discretion by the executive cannot be challenged on the ground that it is discriminatory or arbitrary and thus violative of Article 14 of the Constitution.
In Mithilesh Kumari v. Prem Behari Khare, (1982) 2 SCC 95, the Apex Court opined that right is a legally protected interest. With the removal of the protection by statute, the right ceases to exist. Article 14 safeguards equality before law and equal protection before law by the State. It must be borne in mind that there is no law that vests the right in every person to be consulted by the State. The executive may in its discretion choose whom does it want to consult. ''Discretion' in the words of Lord Halsbury means "when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion...according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself..." [Sharp v. Wakefield, 1981 AC 173, 179; see also Kumaon Mandal v. Girja Shankar, (2001) 1 SCC 182; Union of India v. Kuldeep Singh, (2004) 2 SCC 590; National Insurance Co. v. Keshar Bahadur, AIR 2004 SC 1581.] In Secretary of State for Education & Science v. Tameside Metropolitan Borough Council, (1976) 3 All.E.R. 665, 695, Lord Diplock said, "The very concept of administrative discretion involves a right to choose between more than one possible cause of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred." (See also Brind v. Secretary of State, (1991) 2 A.C. 696; Breen v. Amalgamated Engineering Union, (1971) 2 Q.B. 175) It is thus, the choice of the Government to select people/persons with a view to take advice or consult or make consultation for the purpose. The persons raising their voice against corruption would not get a right much less any enforceable right or claim to be included in the committee by the Government, though the committee could be said to be constituted in a manner so that it reflects all sections of the society, as stated by the learned Attorney General, but it cannot be overlooked that the committee has been constituted not by vote of public but by the Government in exercise of its executive powers which permits the Government to constitute such a committee and not under any constitutional or statutory force. It is not the requirement of law that only public representative should be placed in the committee. With regard to the argument of the petitioner Sri Asok Pande that other sections of the society are to be represented in such a committee, it must be borne in mind that in parliamentary democracy, public representatives are elected and take their seats in the Parliament or the State Legislature, as the case may be. Members of Parliament and Members of Legislative Assemblies represent the will of the people and are there to make laws which are good and for the benefit of the people.
The wisdom of the executive and the exercise of discretion in the present matter cannot be said to transgress or violate Article 14 of the Constitution in any manner and that the argument of the petitioners to that extent fails. The Joint Drafting Committee is a consultative committee of an advisory nature as rightly held by Delhi High Court in Hemant Baburao Patil (supra).
Since the committee, in our opinion, is consultative and advisory in nature, the nomination of the members to the committee is not under any statutory enactment and hence no eligibility criteria can be traced for the committee of such a kind. Evidently, the impugned Resolution was published under Part I - Section 1 of the Gazette wherein non-statutory resolutions are published also supplements the fact that committee does not have any statutory or constitutional force and is merely constituted in the wisdom of the Government. The Delhi High Court has thus rightly held in Hemant Baburao Patil (supra) that the committee constituted is with respect to pre-enactment stage of the Bill and therefore not amenable to judicial review. The wisdom therefore, of the executive constituting such a Joint Drafting Committee for finalisation of the draft of the Lok Pal Bill cannot by tested by this Court under Article 226 of the Constitution, where the exercise of the executive discretion is not referable to any constitutional or statutory provision as regards either compliance or prohibition.
Krishna Iyer, J. in State of Punjab v. Gurdial Singh, AIR 1980 SC 319, observed that: "The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save where the power has been polluted with oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset."
The settled legal position is that it is only the decision-making process and not the decision which is open to challenge in a matter relating to administrative or executive order and action and that the courts would not sit in appeal over the wisdom of the Government in policy decisions. In Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra, (1986) 4 SCC 361, an order directing D.Ed. Colleges not to admit students in the first year during the year 1985-86 was challenged. Holding it a policy decision of the Government the Supreme Court did not interfere with it on the ground that the policy decision was neither arbitrary nor unreasonable. The Apex Court referring to the decision of the United States Supreme Court in Metropolis Theatre Company v. State of Chicago, 57 L. Ed. 730 reiterated the principle in State of M.P. v. Nandlal, (1986) 4 SCC 566 and observed as under:
"The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide."
The cabinet decision of the outgoing government was to reinstate 800 Railway employees dismissed from service which was subsequently not honoured by the succeeding Government. Propriety of such policy decision was challenged in Union of India v. R. Reddappa, (1993) 4 SCC 269 wherein the Court observed that, "in a Parliamentary system of Government the democracy grows and matures by healthy conventions and traditions. Should an outgoing Government take a policy decision one day before quitting the office or should the succeeding Government honour it, cannot be regulated by courts."
So also in Asif Hameed v. State of J&K, 1989 Supp. (2) SCC 364 where selection procedure was challenged under Article 226 of the Constitution, the Apex Court while upholding the order of the High Court dismissing the writ petition observed as under:
"While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
The matters of policy unless violate constitutional or legal limits on power or are clear abuse of power, it would not be appropriate for the Courts to fetter with executive decision. But once the policy is transmitted into law and its validity is under challenge or an executive action otherwise is questioned of being arbitrary, mala fide, illegal or unconstitutional, such an action would be open to judicial review on prescribed legal norms; meaning thereby, that the law which is made, must be within the constitutional framework and it must not contravene, trench or violate any fundamental right of the citizens nor must it infringe, annul, derogate or minish the inviolable basic structure of the constitution. The judiciary though is constitutionally obliged to keep watch upon the functioning of the legislature and the executive and to correct their errors, if any, but such an interference would hardly be required in a matter where the executive exercises its power to constitute the committee, like the present one, entrusted with the job of preparing a draft Bill.
As clarified by the learned Attorney General, the status of the committee is thus only consultative, or to say, in other words, advisory in nature and the Bill so prepared would still be subjected to all constitutional procedures. Once the committee completes the task entrusted and prepares a draft of the Bill, it would be within the discretion of the Government to attach value to the draft so prepared by the committee as it thinks fit in finalizing the Bill which is introduced in the Parliament.
Therefore, on the question of the locus of the bill so prepared by the committee; it can safely be inferred that such a bill once introduced in the Parliament by the Government of India would be considered by the Parliament like any other bill but for the money bill. However, it would be premature for this Court to speculate and assess the mind of the Government as to in what manner the Government would deal with the Bill so prepared by the Drafting Committee.
Thus, the impugned Resolution as it stands, in our opinion, does not suffer from any illegality so as to call for any interference by this Court.
Hence we proceed to conclude as follows:
1.It is within the purview of executive power as contemplated within the meaning of Article 73 of the Constitution to constitute such a committee.
2.It is an exercise of executive power partly for the determination of policy and partly for the implementation of that policy for initiating the process of legislation on the subject.
3.Eliciting public opinion is a conventional practice in the process of legislation and therefore, there is no bar for the executive to elicit public opinion before the draft of a Bill is finalised and then presented to and introduced in the Parliament.
4.It is within the power and discretion of the executive to make consultations before finalising the draft of a bill. The discretion lies in the matter of the persons to be consulted and the value to be attached to their views and opinions. There is no prescribed procedure for consultations, either positive or negative and there is also no provision in law or Constitution restricting the discretion or its exercise in any manner.
5.Where the exercise of the executive discretion is not referable to any constitutional or statutory provision as regards either compliance or prohibition, it cannot be subject to judicial scrutiny under Article 226 of the Constitution unless the executive discretion so exercised is absolutely arbitrary, illegal, unconstitutional or violative of any statutory provision.
6.The settled legal position is that it is only the decision-making process and not the decision which is open to challenge in a matter relating to administrative or executive order and action.
As a result of the discussion made above and the legal position enunciated, we answer the questions framed by the aforementioned Division Bench as follows:
(1)It is within the executive power of the Government to constitute a committee of members comprising such persons from the society as it thinks fit for drafting of the Lok Pal Bill.
(2)There is no vested right in any citizen to be consulted by the Government of India except as provided by law. Where the law does not vest any such right, as is in the present case, no person can seek as a matter of right his representation in the committee.
(3)The committee has been constituted to assist the Government in finalizing the Lok Pal Bill. The value to be attached to the Bill so prepared by the committee can be assessed only by the Government, for before a legislation is validly transmitted into law, it has to go through the constitutional process. Thus, the committee so constituted in no way impinges upon the sovereign will of the people of India, which lies in the Parliament.
In view of the conclusions arrived at by us and the answers given to the three questions framed by the Division Bench, no interference is required in the matter under Article 226 of the Constitution of India. The writ petition is accordingly dismissed.
There would be no order as to costs.
June 22, 2011.
LN/-
Judgment is pronounced under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952.
June 22, 2011