# Asok Pande and another v. Union of India and others

- **Citation:** (2011) 2 ILRA 685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-06-22
- **Bench:** Pradeep Kant, Vedpal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asok-pande-and-another-v-union-of-india-and-others-41968
- **Pages:** 15

## Text

_Characters 0–39,799 of 49,164. This is a partial read: ask again with offset=39799 for what follows._

2 All Asok Pande and another V. Union of India and others
685

Long Back, a Constitution Bench of
Hon'ble Supreme Court in a case reported
in A.K.Kraipak and others Vs. Union of
India and others, AIR 1970 SC 150 held
that difference between judicial, quasi
judicial and administrative orders has been
obliterated. In a recent case, reported in
(2010)3 SCC 732 Victoria Memorial
Hall
versus
Howrah
Ganatantrik
Nagrik Samity, Hon'ble Supreme Court
held that reasons ensure clarity, objectivity,
transparency and fairness in decisionmaking process. Reasons also show that
there was application of mind. Hence it is
implicit in the process of administrative
order to assign reason, may be in brief or
precise.

44. Before parting, we wish to cite a
couplet of Great Urdu Shaer Firaq
Gorakhpuri which is self speaking and
befitted to present scenario :

"गुजःता अहद की याद
 को िफर करो
ताजा ।

बुझे िचराग जलाओ, बहतु अंधेरा है ।।

O rekindle the memories of past ages

Kindle again the blown out lamps, for
it is very dark.

45. Subject to aforesaid observation
and finding, writ petition is decided finally
and we affirm the interim order dated
16.4.2011 and direct the State of U. P. to
provide time frame for acceptance and
disposal of applications with regard to
religious
procession
with
due
communication of the decision so taken to
the person or body concerned within
specified period, preferably within three
days by Registered Post as well as personal
service. Decision should contain precise
reason, in case prayer for the religious
procession is rejected.

46. Let the Chief Secretary of the
State issue appropriate order /circular
keeping in view the observation made in
the body of judgment forthwith and submit
a compliance report to this Court within a
month.

Registry shall send a copy of the
present judgment to the Chief Secretary,
Government
of
U.P.
forthwith
for
compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.06.2011

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE VEDPAL, J.

Writ Petition No. 3680 of 2011 (M/B)

Asok Pande and another ...Petitioners
Versus
Union of India and others ...Respondents

Constitution of India, Article 13-Joint
Drafting Committee for Jan Lokpal Billconstituted by Govt. of India dated
08.04.2011-proposal of comprising five
members
of
Anna
Hazare-whether
proper?-Held-No
person
seek
participation as a matter of right-but Bill
so Drafted can be assessed by the
government
before
legislationcommittee so constituted in no way
impinges upon sovereign will of the
people-petition dismissed.

Held: Para 40 and 42

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
686 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

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.
Case law discussed:
AIR 1984 SC 484; AIR 1955 SC 25; 1955 (1)
SCR 604; AIR 1959 SC 249, 253; (1964) 5 SCR
294; (2008) 8 SCC 756; AIR 1981 SC 1545;
(2003) 4 SCC 399; (1967) 2 SCR 454; (2006)
7 SCC 1; (2009) 1 SCC 633; (2009) 3 SCC
200; W.P. (c) No. 2671/2011; Writ Petition No.
3556 (M/B) of 2011; (1982) 2 SCC 95; (1986)
4 SCC 361; (1986) 4 SCC 566; (1993) 4 SCC
269; 1989 Supp. (2) SCC 364

(Delivered by Hon'ble Pradeep Kant, J.)

1. 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.

2. 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
2 All Asok Pande and another V. Union of India and others
687

5. that Sri Anna Hazare has been
brought at par with the Government which
is illegal.

3. 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.

4. 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.

5. 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.

6. 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
688 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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 All Asok Pande and another V. Union of India and others
689

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.

7. 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.

8. 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).

9. 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.

10. 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.

11. 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
690 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

12.

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).

13. The argument, therefore, of the
petitioners that the impugned Resolution is
beyond any legal principle and is extraconstitutional 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)).

14. 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 CoChairman 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.

15. 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
2 All Asok Pande and another V. Union of India and others
691
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.

16. 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.

17. 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.

18. 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.

19. 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
692 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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."

20. 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
2 All Asok Pande and another V. Union of India and others
693
some check direct or indirect on the other:
and (3) the rule of law which includes
judicial review of arbitrary executive
actions."
(emphasis supplied)

21. 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.

22. 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.

23. 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
694 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
essentials of a healthy parliamentary
democracy.

24. 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.

25. 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.

26. 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 preenactment 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".

27. 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 publicprivate-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 counteraffidavit 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.

28. 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.
2 All Asok Pande and another V. Union of India and others
695

29. 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.

30. 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?

31. 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.

32. 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)

33. It is thus, the choice of the
Government to select people/persons with
696 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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.

34. 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).

35. 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."

36.