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Report No. 80

6.31. Constitutional aspect.-

A question which might also engage our attention is whether there is any constitutional hurdle to the creation of the consultative panel mentioned above.1 So far as this aspect is concerned, we may mention that according to a decision of the Supreme Court, if the Constitution or law requires consultation with A, B and C and the appointing authority, in addition to consulting A, B and C also consults D, the appointment suffers from an infirmity and, as such, is liable to be struck down. Reference in this connection may be made to the case of Chandra Mohun v. State of Uttar Pradesh, AIR 1966 SC 1987 (1990): (1967)1 SCR 77; see also Baleo Rai v. High Court of Punjab & Haryana, AIR 1976 SC 2490.

As long as the rule laid down in the above case holds the field, it would not be permissible to appoint the consultative panel without amendment of the Constitution. It may, perhaps, be necessary to insert a provision in the Constitution that consultation with someone other than those mentioned in the Constitution would not invalidate an appointment.

1. Para. 6.30, supra.

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