Judicial Dictionary
Subba Rao, J. (as he then was) in R. Pushpam v. State of Madras, AIR 1953 Madras 392 at 393. The learned judge after reproducing the passage proceeded to observe:
“It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place having regard to the substance of the events. The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consultor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultation between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not and cannot be a performance of duty if no consultation is made and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.”
The view expressed in Fletcher’s case (supra) on the content of consultation was affirmed in Rollo v. Minister of Town and Country Planning, (1948) 1 All ER 13. In Port Louis Corporation v. Attorney General, Mauritius, (1965) Appeal Cases 1111 the Judicial Committee of the Privy Council observed:”consultation” cannotes an exchange of ideas, information and views, in which each side has a full opportunity of contributing to such an exchange; it is not a one way process but a two way process. According to their Lordships it is essential for the executive to advice with an open mind, that is, open to persuasion and open to appreciate the advice tendered and if one may add eschew his own point of view if satisfied about its weakness. The requirement of consultation is never to be taken perfunctorily or as a mere formality. Again in R. v. Secretary of State for Social Services, Ex parte Association of Metropolitan Authorities, (1986) 1 All ER 164, Webster, J. observed at page 167 as follows:
“there is no general principle to be extracted from the case law as to what kind or amount of consultation is required before delegated legislation, of which consultation is a precondition, can validly be made. But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or adviced and as to which the party consulted might have relevant information or advice to offer.”[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]
