SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANR. ETC. v. UNION OF INDIA

OCTOBER 6, 1993 B

Constitution of India,. 1950 : Articles 124 and 217-Appointment of C Judges of Supreme Court and High Courts--<::onsultation with the Chief Jus- tice of India-Expression 'after consultation with'-Meaning of-Opinion of the Chief Justice of India-Whether should have primacy over Executive opinion-Norms to be followed in this regard laid down-Appointment of Judges of Supreme Court-Doctrine of legitimate expectation-Applicability D of

Article 222-Transfer of High Court Judges/Chief Justices-Role and responsibility of the Chief justice of India-Opinion of the Chief Justice of India-Whether prima-Consent of the Judge/Chief Justice to be trans/em~ whether require~Transfer-Nature of-After initial transfer, whether sub- E sequent transfer could be made-Transfer Policy-Justiciability of-Norms to be observed.

Article 21~Strength of Judges-Fixation of-Justiciability of-Extent and scope of judicial review-Periodical review-Need for. F Articles 124(2), 2170) and 222(1}-Appointment ofJudges of Supreme Court and High Courts-Transfer of Judges/Chief Justices of High Courts-President's consultation process with the Chief Justice of India-Position and role of the Chief Justice of India-Whether primacy to be given to opinion of CfI-Nature and relevance of independence of judiciary G and separation of judiciary in this regar~'Consultation'-Meaning and na- ture of-Contextual meaning-Consultation-Whether mandatory-Non- ob- servance--Effect Of-Nature and extent of justiciability of these matters-'President and Governor' in the context of appointment of Judges of Supreme Court and High Courts and transfer of Judges/Chief Justices of High Courts-Whether mean Central and State Governments-Opinion of H 659

p. 660

A CJI-Whether includes Opinion of his colleagues-Expression 'opinion of judiciary as symbolized by the views of the Chief Justice of lndia'-Meaning of

Articles 124(2) and 217(1)-Conventions-When could be read into constitutional provisions-When acquire binding force of constitutional B Law-Conventions regarding primacy to judiciary in the matter of appoint- ment of Judges of superior courts and initiation of proposals for appoint- ment-Existence of and recognition to.

Article 124(2) and 217(1)-Appointment of Chief Justice of India/High Court-Procedure prescribed for appointment of Judges-Whether includes C Chief Justice of India/High Court-'Judge'-Meaning of-·Whether includes Chief Justice of India/High Court-Convention as to senionnost puisne Judge being appointed as Chief Justice of India-Whether exists.

Article 141-Judgment of Supreme Court-Reconsideration of-When D can be done-Necessary conditions for reconsideration-Stare decisi~ele­ vance of, in constitutional cases-Judicial activitism---L,imils of

Articles 32 and 226-Judicial review-Grounds for-Scope and extent of judicial review-Non-observance of public duty-Whether mandamus could be issued even if the duty is discretionary. E Article 5()-{ndependence of judiciary-concept of-Whether secured by constitutional security of tenure of office, immovability from office and guarantees of service conditions, pensions, etc.--{)octrine of separation of powers--relevance of in the context of appointment of Judges of the Supreme Court and High Court Judges-Expression 'State'-Meaning of-Giving ab- F solute supremacy to the Council of Ministers in selection and appointment of Judges of Supreme Court and High Courts-Whether contrary to inde- pendence of judiciary.

Articles 74(1) and 163(1)-0pinion given by the Council of Mini- sters-Nature of-Whether President/Governor bound by the advice rendered on reconsideration.

Article 224-Appointment of additional and acting Judges-Whether could be made without the requirement of consultation.

Article 233(1)-Appointment of District Judges-Whether consultation is with the entire body of Judges constituting the High Court or with a Single

ADVOCATES ASSN. v. U.O.I. 661 individual like the Chief Justice of the High Court-Consultation with and/recommendation of the High Court-Whether a condition precedent to the exercise ofpower by the Governor of the State-Whether such consultation must be complete and meaningful and purposeful.

Article 235-Subordinate Judiciary-Independence of-Whether secured by placing it within High Court's control. B

Interpretation of the Constitution-Principles of-Liberal interpretation to meet requirement of ever-changing society-Limits of-Stretching the mean- ing-Cannot extend to breaking it or re-writing it-Constitutional Assembly Debates-Whether could aid to constructiott-Reliance on the Debates vis-a- C vis the experience gained in working of the Constitution-Ordinary mies of interpretation-Whether could be applied in construing constitutional provisions-Where language is plain and unambiguous-Whether it should be given effect to-Judiciary-Role of-Whether could go into question of what the law ought to be or should it confine itself to interpret the relevant constitutional provisions as they stand in their red spirit and objections D without straining them.

Words and Phrases: Expression 'Consultation'-Meaning of in com- mon parlance.

On a Writ Petition filed in Public Interest seeking issuance of a E mandamus to the Union of India for filling up the vacancies of Judges in th Supreme Court and several High Courts, this Court passed an order on 26th October, 1990 Subhash Sharma & Ors. v.. Union of India, [1990) Supp. SCR 433 directing that the said Writ petition and the matters connected therewith, viz., Writ Petition filed by the Supreme Court Advo- F cates-on-Record Association and another Writ petition filed by a Senior Advocate, be referred to a larger Bench for reconsidering the correctness of the majority view in S.P. Gupta & Ors. etc. etc. v. Union of India and Ors. etc. etc., [1982) 2 SCR 365. Accordingly, these matters were referred to a nine-Judges Bench. G In S.P. Gupta, the majority of the Judges took th_e view that the opinion of the Chief Justice of India did not have primacy in the matter of appointments of Judges of the Supreme Court and the High Courts, that the primacy was with the Central Government, which was to take the decision after consulting all the Constitutional functionaries and the H

p. 662

A Central Government was not bound to act in accordance with the opinion of all the Constitutional functionaries consulted, even if their opinion be identical, that for initiation of the proposal for appointment of a judge of the Supreme Court or a High Court, there could not be a blanket embargo on the executive to initiate the proposal for appointment of a Judge of Court ()r High Court even though it would be appropriate that the B executive's right to initiate an appointment should be limited to suggesting appropriate names to the Chief justice of the High Court or the Chief Justice of India. It was also held that the Mater regarding appointment of adequate number of Judges was non-justiciable and, therefore, could not be enforced by the Court. c On behalf of the Writ Petitioners it was contended that (1) the role of the Chief justice of India in the matter of appointments to the Supreme Court and the High Courts and transfers of the High Court Judges and Chief Justices had primacy, with the executive having the role of merely D n.aking the appointments and transfers in accordance with the opinion of the Chief Justice of India; (2) fixation of the Judge-strength under Article 216 was justiciable; (3) there was primacy of the role of the Chief Justice of India in th~ process of appointment, which was an integrated process.

On behalf of Union of India, it was urged that the majority opinion E in S.P. Gupta, should be affirmed and contended that there was no oc- casion to take a different view, more so when, in spite of that decision, in the actual working, the Government of India gave the greatest weight to the opinion of the chief Justice of India, and except on rare occasions, appointments had been made only in accordance with the opinion of the F Chief Justice of India; that the Constituent Assembly debates showed that the plea for primacy of the Chief justice of India, or the requirement of his concurrence in making the appointments, was considered a.nd express- ly discarded while drafting the Constitution, that the several provisions in the Constitution relating to the oath of office; fixity of tenure; restriction against alteration of conditions of service to the detriment of the Judges after their appointment; salaries and pensions being charged on the Consolidated Fund; restriction on discussion of their conduct in the legislature; power to punish for contempt; and open hearing in courts were sufficie~t safeguards for the independence of the judiciary and, therefore, no further exclusion of the executive's rule in the process of appointment of judges was conten1plated.

ADVOCATES ASSN. v. U.O.L 663

The Union of India also contended that barring a few exceptions, all appointments to the superior judiciary were made only in accordance with the opinion of the Chief Justice oflndia, notwithstanding the majority view in S.P. Gupta. And that in the actual working of this process, even the executive attached primacy to the role of the Chief Justice of India in the matter of appointments to the superior judiciary notwithstanding the decision in S.P. Gupta that the primacy was with the Government of India and not in the Chief Justice of India.

On behalf of States of Sikkim and Madhya Pradesh it was contended that the primacy was in the executive, and the majority opinion in S.P. Gupta was correct, and did not require reconsideration. c The State of Karnataka urged'reconsideration of the majority view in S.P. Gupta on the ground that opinion of Chief justice of India must prevail and it should be given primacy over the executive opinion.

By the Coutt:

1. The process of appointment of Judges to the Supreme Court and E the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the Constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitu- tional purpose, so that the occasion of primacy does not arise. [777-E] F

2. Initiation o,f the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court, and for transfer of a Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for G appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made. [777-F-G]

3. In the event of conflicting op1mons by the Constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the H

p. 664

A Chief Justice of India', and formed in the manner indicated, has primacy. (777-H]

4. No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (778-A] B

5. In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for a:ipointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other judges of the Supreme C Court who have been consulted in the matter, on reiteration of the recom- mendation by the Chief Justice of India, the appointment should be made as a healthy convention. (778-8-C]

6. Appointment to the office of the Chief Justice of India should be D of the seniormost Judge of the Supreme Court considered fit to hold the office. (778-D]

7. The opinion of the Chief justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. (778-D] E

8. Consent of the transferred Judge/Chief Justice is not required for either the first of any subsequent transfer from one High Court to another. (778-E]

9. Any transfer made on the recommendation of the Chief Justice of F India is not to be deemed to be punitive, and such transfer is not justiciable on any ground. [778-E-F]

10. In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in G any one. [778-F]

11. Only limited judicial review on the grounds specified herein is available in matters of appointments and transfers. [778-G]

12. The initial appointment of a Judge can be made to a High Court H other than that for which the proposal was initiated . (778-G-H]

ADVOCATES ASSN. v. U.O.I. 665

13. Fixation of judge-strength in the High Courts is justiciable, but A only to the extent and in the manner indicated. [778-H]

14. The majority opinion in S.P. Gupta v.Union of India, [1982) 2 SCR 365, in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers and the justiciability of these matters as well as in relation to Judge- B strength, does not commend itself to this Court as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein. [779-A-B] c Per Venna J. for himself, Dayal, Ray, Anand and Bhamcha, JJ.

1.1. The question of primacy of the role of the Chief Justice of India in the context of appointment of judges in the Supreme Court and the High Courts must be considered in the backdrop of Rule of Law and the broall scheme of separation of powers, for the proper picture of the constitutional scheme to emerge from the mixture of various hues, to achieve the con- stitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the inde- pendence of the judiciary and, thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts with this constitutional purpose or negates the avowed object has to be eschewed being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept. [741-F-G, 750-A-B]

1.2. The appointment of superior Judges is from amongst persons of mature age with known background and reputation in the legal profes- F sion. By that time the personality is fully developed and the propensities and background of the appointee are well known. The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons G gain entry. [747-H & 748-A-B]

1.3. The hue of the word 'consultation', the consultation is with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word 'consultation' may take in the context of the executive as- H

p. 666

A sociated in that process to assist in the selection of the best available material. [749-A, BJ

1.4 The primacy of one Constitutional functionary qua the others, who together participate in the performance of this function assumes sig· nificance only when they cannot reach an agreed conclusion. The debate is B academic, when a decision is reached by agreement taking into account the opinion of every one participating together in the process, as primarily intended. The situation of a difference at the end, raising the question of primacy is best avoided by each constitutional functionary remembering that all of them are participants in a joint venture, the aim of which is to find out and select the most suitable candidate for appointment, after c assessing the comparative merit of all those available. This exercise must be performed as a pious duty to discharge the constitutional obligation .. imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance of these appointments. [752-E-G] D 1.5. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector. [752-G-H; 753-A]

1.6. The discharge of the assigned role by each Constitutional func· tionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagree- ment even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate. F'or this reason, it must be seen who is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. In other, words, primacy should be in him who qualifies to be treated as the 'expert' in the field. Comparatively greater weight to his opinion may then be attached. [753-B-D]

1.7. This perception in all the constitutional functionaries associated in the integrated participatory consultative process to achieve the avowed common purpose should ordinarily prevent the situation when the question

ADVOCATES ASSN. v. U.O.I. 667 of primacy arises; and in the exceptional cases when it does arises, the functionary having primacy would do well to respect the viewpoint of others and recall that it implies the carrying by him of a greater burden. This will ensure better performance of the role with primacy, in the proper spirit, and will make it easier for the others to accept the primacy. [753-D-F]

1.8. The appointment of Judges to the Supreme Court and the High B Courts is made by the President and is, therefore, ultimately an executive act. Article 74(1) clearly provides, and the proviso inserted therein by the Constitution (Forty forth Amendment) Act,1978 reinforces, that the Presi- dent, in exercise of his function, shall act in accordance with the advice tendered by the Council of Ministers. if Articles 124(2) and 217 (1) provided C for appointments of Judges by the President without obligatory consult- ation with the functionaries specified therein, then, by virtue of the full effect of Article 74, there W!mld be no room for any controversy that the appointments were not to be made by the executive in its absolute discre- tion. [753-F-H; 754-A] D 1.9. It was realised at the time of framing of the Constitution that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considera- tions in making the appointments, if left to the absolute discretion of the E executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act. [756-B-D] F

1.10. The consideration must, therefore, be confined to the compara- tive weight to be attached to the opinion of the Chief Justice of India vis-a-vis the opinion of the other consultees and the Central Government. The majority view in S.P. Gupta's case conflicts with this constitutional G scheme and is not a correct construction of the provisions in Articles 124(2) and 217(1). [756-G-H; 757-A]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 315, partly over-ruled.

1.11. The provision for consultation with the Chief Justice of India H

SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A and, in the case of the High Courts, with the Chief Justice of the High Court was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge, and it was also necessary to eliminate political influence even at the stage of the initial appointment of a Judge, since the provisions for securing his independence after appointment were B alone not sufficient for an independence judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appoint· ments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The c indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight, the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced D to the minimum and any political influence is eliminated. It was for this reason that the word 'consultation' instead of 'concurrence' was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as an individual, much less to the executive, which earlier had absolute discretion under the Govern- E ment of India Acts. [757-E-H; 758-A-B]

1.12. The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who is best suited to know the worth of the appointee. No question of primacy would arise when the decision is F reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. Primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each.·The primacy mu_st, G therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable. [758-C-E]

Commonwealth Law Bulletin, Vol.18 No. 4, October [1992) p. 1257, H referred to.

ADVOCATES ASSN. v. U.O.I. 669

1.13. The reason given by the majority in S.P. Gupta for its view that A the executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, does not withstand scrutiny, and is also not in accord with the existing practice and the perception even of the executive. In actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief justice of India and the B '-. Chief Justice of the High Court, and not of the executive, which has always held out that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India. However, the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his C senior colleagues who are required to be consulted by him for the forma- tion of his opinion. [759-D-E-H; 760-A-D]

S.P. Gupta v. Union of India, [1982) 2 S.C.R. 365, overruled. 1 D 1.14. In view of the provision in Article 74(1), the expression 'President' in Articles 124(2) and 217(1) means the President acting in accordance with the advice of the council of Ministers with the Prime Minister at the head, and the advice given by the Council of Ministers has to accord with the mandate in the Constitution. Thus, in the matter of appointments of Judges of the superior judiciary, the interaction and harmonisation of Article 74(1) with Articles 124(2) and 217(1) has to be borne in mind, to serve the constitutional purposes. In short, in the matter of appointments of Judges of the superior judiciary, the constitutional requirement is, that the President is to act in accordance with the advice of the Council of Ministers as provided in Article 74(1), and the advice of the Council of Ministers is to be given in accordance with Articles 124(2) and 217(1), as construed by this Court. In this sphere, Article 74(1) is circumscribed by the requirement of Articles 124(2) and 217(1), and all of them have to be read together. This view also accords with the provisions in the Constitution pertaining to the removal from office of Judge of the Supreme Court and the High Court. [760-E-H; 761-A-B] G

1.15 Providing for the role of the judiciary as well as the executive in the integrated process of appointment merely indicates, that it is a par- ticipatory consultative process, and the purpose is best served if at the end of an effective consultative process between all the consultees the decision H

p. 670

A is reached by consensus, and no question arises of giving primacy to any consultee. Primarily, it is this indication which is given by the constitution- al provisions, and the constitutional purpose would be best served if the decision is made by consensus without the need of giving primacy to any one of the consultees on account of any difference remaining between them. The question of primacy of the opinion of any one of the constitutional functionaries qua the others would arise only if the resultant of the consultative process is not one opinion reached by consensus. [761·G·H; 762·A]

1.16. Since the constitutional purpose to be served by these provisions is to select the best from amongst those available for appoint· ment as judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection, only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, inde- pendent and fearless Judge. Several attributes together combine to con· D stitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a _person suitable for appointment as a superior Judge. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the E judiciary but also the executive to ensure that every relevant particular. about the candidate is known and duly weighed as a result of effective consultation between all the consultees before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The F answer which best subserves this constitutional purpose would be the correct answer. The judiciary being best suited and having the best oppor· tunity to assess the true worth of the candidates, the constitutional pur· pose of selecting the best available men for appointment as superior Judges is best served by ascribing to the judiciary, as a consultee, a more G significant role in _the process of appointment. The only question is of the extent of such significance and the true meaning of the primacy of the role of the Chief Justice of India in this context. [762-B-H, 763-A·B]

Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., [1985] 4 S.C.C. H 417, relied on.

ADVOCATES ASSN. v. U.O.I. 671

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to. A

2.1 The principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution, as an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrari- B ness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' which is given greater significance or primacy in the matter of C appointments. In other words, the view of the Chief Justice oflndia is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function, so that the final opinion ex- D pressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the view of some other Judges who are traditionally associated with this function. The modality for achieving this purpose, is found from the reference to the office of the Chief Justicf of India, which has been named for achieving this object in a pragmatic manµer. The opinion of the judiciary symbolised by the view of the Chief E Justice oflndia', iii to be obtained byronliu.ltation with the Chief Justice of India, and it is this opinion which has primacy. [764-D-H; 765-A]

2.2. The rule of law envisages the area of discretion to be the mini- mum, requiring only the application of known principles or guidelines· to F ensure non-arbitrariness, but to that limited extent, discretion is a prag- matic need. Conferring discretion upon his functionaries and, whenever feasible, introducing the element of plurality by requirieg a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior G Judges to high constitutional functionaries, the greatest significance at- tached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability, the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the H

p. 672

A executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the con- stitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. [765-A-D] B 3.1. Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Article 222. The provision requiring exercise of this power by the President only after C consultation with the Chief Justice of India, and the absence of the requirement of consultation with any other functionary, is clearly indica- tive of the determinative nature, not mere primacy, of the Chief Justice' of India's opinion in this matter. [765-F-G]

Union of India v. Sankal Chand Himatlal Sheth and Anr., [1978) 1 D S.C.R. 423 and S.P. Gupta and Ors. Etc. Etc. v. Union of India & Ors. etc. etc., [1982) 2 S.C.R. 365, relied on.

3.2. The initiation of the proposal for the transfer of a Judge/Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed. [766-A-B]

3.3. The power of transfer can be exercised only in 'public interest' i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Article 222, any transfer in accordance with the recommenda- tion of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive. [766-C-F]

G 3.4. The power under Article 222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S.P. Gupta has no basis in the Constitution. It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for prompting H better administration of justice throughout the country, or the request of

ADVOCATES ASSN. v. U.O.I. 673 the concerned Judge. A transfer made in accordance with the recommen- A dation of the Chief Justice of India, is not justiciable. [766-G-H; 767-A-B]

S.P. Gupta v. Union of India, [1982] 2 S.C.ll. 365, held inapplicable.

3.5. Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge/Chief Justice from B One High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the Indian Judiciary. Suitable norms, including those indicated herein, must be fol- lowed by the Chief Justice of India, for his guidance, while dealing with individual cases. [767-B-C] . C

4.1. The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decision, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of D Judges in the formation of the opinion of the Chief Justice of India, is another in built check against the likelihood of arbitrariness or bias, even sub-conciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consult- ation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness. [775-B-E]

4.2 The guidelines in the form of norms, are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recom- mendation ~f the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer or their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any ar- bitrariness or bias, as well as any erosion of the independence of the judiciary. [775-E-F]

4.3. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in H

674 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.J:<..

A the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. [775-G]

5. There is a growing tendency of needless intrusion by strangers and busy-bodies in the functioning of the judiciary under the garb of public interest litigation. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in 'any case is excluded by the element of plurality in the process of decision making. [775-G-H; 776-A-B] Raj Kanwar, Advocate v. Union of India andAnr. [1992] 4 S.C.C. 605, referred to.

D 6.l. Article 216 which deals with constitution of High Courts, provides that every High Court shall consist of a Chief Justice and 'such other Judges as the President may from time to time deem it necessary to appoint'. To enable proper exercise of this function of appointment of 'other Judges', it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of E cases, taking into account the backlog and expected future filing. This is essential to ensure speedy disposal of cases. to 'secure that the operation of the legal system promotes justice' • a directive principle 'fundamental in the governance of the country' which, it is the duty of the State to observe in all its action, and to make meaningful the guarantee of fundamental rights in Part Ill of the Constitution. Accordingly, the failure to perform this obligation, resulting in negation of the rule of law by the laws' delay must be justiciable to compel performance of duty. [776-C-F]

6.2. Accordingly, fixation of Judge strength in a High Court is justiciable; and if it is shown that the existing strength is inadequate to provide speedy justice to the people - speedy trial being a requirement of Article 21 - in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strepgth of Judges commensurate with the need to fulfil the State obligation of providing speedy justice and to thereby 'secure that the operation of the legal system promotes justice' • a solemn resolve declared also in the Preamble of the

ADVOCATES ASSN. v. U.O.I. 675

Constitution. In making the review of the Judge strength in a High Court, A the President must attach great weight to the opinion of the Chief Justice of that High Court and the Chief Justice of India, and if the Chief Justice of India so recommends, the exercise must be performed with due despatch. [776-F-H; 777-A]

6.3. Article 216 like all constitutional provisions, is not to be con- B strued in isolation, but as a part of the entire wnstitutional scheme, con- forming to the constitutional purpose and its ethos. So construed, this matter is justiciable to the extent and in the manner iadicated. Of course, the area of justiciability does not extend further, to enable the Court to made the review and fix the actual Judge strength itself, instead of requir- ing the performance of that exercise in accordance with the recommenda- c tion of the Chief Justice of India. [777-B-C]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, partly overruled.

7.1. The questions of primacy of the opinion of the Chief Justice of D India in regard to the appointments of Judges to the Supreme Court and the High Courts and in regard to the transfers of High Courts Judges/ Chief Justice and justiciability of these matters including the matter of Judge-strength in the High Courts have to be considered in the context of independence of the judiciary, as a part of the basic structure of the Con- stitution to s"ecure the 'rule of law' essential for the preservation of the democratic system. [739-E-F; 741-F]

7.2. The broad scheme of separation of powers adopted in the Con- stitution, together with the directive principle of 'separation of judiciary from executive' even at the lowest strata, provide some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of these provisions must accord with these fundamental concepts in the constitutional scheme to preserve the vitality and promote the growth essential for retaining the Constitution as a vibrant organism. [741-F-G] G Sub-Committee on Judicial Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699; Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr., [1975] Supp. S.C.C. 1 and Kesavananda Bharati v. Union of India, [1973] Supp. S.C.R. 1, referred to . . ' 7.3. There has to be room for discretionary authority within the H

p. 676

A operation of the rule of law, even though it .has to be reduced to the minimum extent necessary for proper governance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes and arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, fur- B ther reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of mem, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discre- tionary authority in the highest functionarises is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional pur- pose for which these provisions were enacted. [774-E-H]

The Framing of India's Constitution, Vol. IV - B. Shiva Rao - p. 957-58, referred to. E

8. The absence of specific guidelines in the enacted provisions ap- pears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The norms mentioned herein F emerging from the actual practice and crystalised into conventions - not exhaustive - are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers. [767-F-H]

Per Pandian, J. (Concurring) G 1.1. It is clear that under Article 217(1), the process of 'consultation' by the President is mandatory and this clause does not speak of any discretionary 'ronsultation' with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in clause (2) H of Article 124. The word 'consultation' is powerful and eloquent with

ADVOCATESASSN. v. U.O.L 677 meaning, loaded with undefined intonation and it answers all the questions A and all the various tests including the test of primacy to the opinion of the CJI. [821-G-H, 822-A]

1.2. When a liberal construction is given to a word used in a statute, particularly in the Constitution, the Court must first of all take note of the relevant and significant context in which that work is used and then inter- B pret that word in that context with meaningful purpose. If the construction of the word is made only in a literal or lexical meaning, then there is every possibility of missing the real intent of the provisions. [838-F-G]

U. The relevance and significance of consultation with the CJI in the context of appointment of Judges to the Supreme Court and High Court has to be examined in the background of the constitutional scheme. The derivative meaning of the word would depend not merely on its ordinary lexical definition but greatly upon its contents according to the circumstan- ces and the time in which the word or expression is used. Therefore, in order to ascertain its colour and content, one must examine the context in which that word is used. [839-B-Dl

1.4. The word 'consultation' is used in the context of appointment of Judges to the Supreme Court under Article 124(2) and to the High Courts under Article 217(1), though such a consultation is not constitutionally required in the case of appointment of other constitutional appointees. E [839-D-li'] 1.5. Consultation with the CJI under the first proviso to Article 124(2) as well as under Article 217 is a mandatory condition, the violation of which would be contrary to the constitutional mandate. [841-G-H] F Union of India v. Sankal Chand Himatlal Sheth and Anr., [1978) 1 S.C.R. 423, relied on.

M.M. Gupta & Ors. v. State of Jammu & Kashmir, [1982) 3 S.C.C."412, referred to. G 1.6. The vital role to be played by the CJI in the process of selection of candidates for Judgeship for the superior judiciary is to sponsor and recommend properly fit and competent person by evaluating their merit and efficiency. [842-B]

1.7. It is beyond controversy that merit selection is the dominant H

p. 678

A method for judicial selection and the candidates to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. Besides, the hallmarks of the most important personal qualifications required are moral vigour, ethical firmness and imperviousness to corrupting or venal influences, humility and lack of affiliations, judicial tempei-ament, zeal, capacity to work. [842-G-H, 843-A]

1.8. It cannot be gainsaid that only those who know what criteria they should adopt in assessing merit, can alone evaluate meaningfully a candidate's merit and select the prospective candidate. While weighing and evaluating the qualifications of the prospective candidate, whose names come to attention, the sponsoring authority has to assess their merit hy whatever useful non-bromidic guidelines it could devi5e based on its long- standing experience both on the Bar and the Bench. That authority could be only the Chief Justice of India and the Chief Justice of the High Court D concerned who and who alone can speak of a candidate's professional' attainments, his learning ability and his legal experience though the execu- tive can speak of the other qualities such as affiliation, personal integrity, antecedents and background of the candidate, The recipe regarding the professional qualifications could be evaluated only by the Chief Justice. The Government cannot inexcusably ignore the opinion of the CJI ex- E pressed during the process of consultation as well as of the Chief Justice of the High Court and appoint its selectees on its own evaluation of the merit of the candidate. The CJI being the head of the Indian Judiciary and pater families of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the independence of the judiciary F and he in that capacity evaluates the merit of the can~idate with regard to his/her professional attainments, legal ability etc. and offer his opinion. Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a super-imposition test under the guide of over-guarding the judiciary. [844-D-H; 845-A-C]

G Parliamentary Debates (Hansard) House of Commons Debates, dated 23.3.54 Vol. 525, Col. 1061, referred to.

1.9. Appointment to the judicial office cannot be equated with the appointment to the executive or other ~ervices. No doubt, the power of appointment of Judges i:J. many democratic countries is vested in the

ADVOCA1ESASSN. v. U.0.1. 679 executive. However even in foreign countries there is a demand for change in the selection and appointment of Judges. (845-D-E; 847-B]

1.111. Placing of the opinion of the CJI on par with the opinion of the other constitutional functionaries, on the ground that clause (1) of Article 217 places all the three constitutional functionaries on the same pedastal so far as the process of consultation is concerned, ignores or overlooks the very fact that the judicial service is not the service in the sense to employ- ment, and is distinct from other services and that the members of the other services cannot be placed on par with the members of the judiciary, either constitutionally or functionally. In the background of the factual and legal position, the meaning of the word 'consultation' cannot be confined to its ordinary lexical definition. Its contents greatly vary according to the cir- cumstances and context in which the word is used as in the Constitution. Therefore, the opinion of the Chief Justice of India in the process of con- stitutional consultation in the matter of selection and appointment of Judges to the Supreme Court and the High Courts as well as transfer to Judges from one High Court to another High Court is entitled to have the right of primacy. (850-H, 851-A-B, 852-F-G; 853-A]

1.11. Innumerable impelling factors which motivate, mobilise and impart momentum to the concept that the opinion of the CJI, given in the process of 'consultation' is entitled to have primacy. The CJI being the highest judicial authority, has a right of primacy, if not supremacy to be accorded, to his opinion in the affairs concerning the 'Temple of Justice'. It is a right step in the right direction and that step alone will ensure optimum benefits to the society. (851-C, 853-B]

1.12. The power of the President to appoint a Judge does not prevail over the executive but is purely confined to the executive's discretion. (855-E] 1.13. Even though all the constitutional functionaries have their own constitutional duties in making the appointment of a Judge, to the superior Judiciary, the role of one of the principal constitutional functionaries, namely, the judiciary, is incontrovertibly immeasurable and incalculable. The task assigned to the judiciary is no way less than those of other functionaries • legislative and executive. On the other hand, the respon- sibility of the judiciary is of a higher degree. Judiciary is the watch dog of democracy, checking the excessive authority of other constitutional functionaries beyond the ken of the Constitution. The strength and elTec- H

p. 680

A tiveness of the judicial system and its independence heavily depends upon the calibre of men and women who preside over the judiciary and it is most essential to have a healthy independent judiciary for having a healthy democracy because if the judicial system is crippled, democracy will also be crippled. [855-F-H; 856-A]

B 1.14. In practice, whenever the Council of Ministers both at the Central and State level, as the case may be, plays a major role in its self-acclaimed absolute supremacy in selecting and appointing the Judges, paying no attention to the opinion of the CJI, they may desire to appoint only those who share their policy performances or show affiliatil'n to their political philosophy or exhibit affinity to their ideologies. This motivated selection of men and women to the judiciary certainly undermines public confidence in the rule of law and resultantly the concept of separation of judiciary from the executive as adumbrated under Article 50 and the cherished concept of independence of judiciary untouched by the executive will only be forbidden fruits or a myth rather than a reality. In that situation, the consultation with the CJI will be an informal one for the purpose of satisfying the constitutional requirements. [856-8-D]

S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1982] 2 S.C.R. 365, referred to. E 1.15. In view of the fact that the state is the major litigant, it cannot be justified in enjoying absolute authority in nominating and appointing its arbitrators. If such a process is allowed to continue, the independence of judiciary in the long run will sink without any trace. [857-E-F]

F Law Commission of India, 14th, 18th and 21st report, referred to.

1.16. It is true that while recommending a candidate for the higher State judiciary, the Chief Justice of the High Court has the advantage of proximity in evaluating the calibre and legal ability of the candidate. G However, the CJI before whom the opinion of the Chief Justice of the High Court as well of the State Government is placed with all the relevant materials concerning the proposal is in a better position either to accept the recommendation or reject it for strong and cogent reasons to be recorded. Therefore, in all circumstances, the opinion of the CJI is entitled to have the right of primacy in the matter of selection of Judges to the H Supreme Court as well as the High Courts. [859-C-H]

ADVOCATES ASSN. v. U.O.I. 681

1.17. While proviso to Article 124(2) contemplates the consultation A .with the CJI by the President, Article 217(1) contemplates the consultation of the Chief Justice of the High Court concerned in addition to the opinion of the CJI aud the Governor of the State. But these fy'o Articles do not require the CJI and the Chief Justice of a High Court iJ\ the formation of their opinion to have a consultative process with the entil\e body of Judges B of the Supreme Court and the High Courts. Notwithstanding this legal position, in order to have a pragmatic approach to matters relating to appointments of Judges to the Supreme Court, it would be a healthy practice, as a matter of prudence, that the CJI gives his opinion on a consultative process by taking into account the views of two senior-most Judges of the Supreme Court and the views of any other Judge or Judges c of the High Court whose opinion is likely to be significant in adjudging the suitability of the candidate. Similarly, in matters relating to appointment of Judges to the High Courts, it would be better if the Chief Justice of the High Court concerned forms his opinion on a consultative process by ascertaining the views of at least two of the senior-most Judges of the High D Court and such other Judges, whose opinion is likely to be significant in the formation of his opinion. The CJI, whilst forming his opinion on the recommendation made by the Chief Justice of the High Court concerned for appointment of a Judge to the High Court, may take into account the views of his colleagnes in the Supreme Court who are likely to be conver- sant with the affairs of the concerned High Court. This consultative process is neither opposed to the constitutional provisions nor stands in the way of the President consulting, in his discretion, such of the Judges of the Supreme Court and of the High Courts in the States while consider- ing the recommendation made by the CJI for appointment of a Judge to the Supreme Court. On the other hand, the opinion so expressed by the F CJI through such a consultative process, would be of much assistance to the President in forming his independent opinion. [860-A-H]

1.18. When the CJI disapproves the proposal after the application of his mind on due consideration of all the materials placed before him with G which the other consultees of the Supreme Court also agree, the opinion of the CJI deserves acceptance at the hands of the President of India. If for any other potent reasons, the President forwards all materials available with him which influenced his mind to take a contrary view requesting the CJI to reconsider his opinion and the CJI expresses the same opinion of disapproval, after consulting his colleagnes, then the opinion of the CJI H

p. 682

A should prevail and that candidate is not appointed. In any exceptional case, for weighty and cogent reasons indicating that the recommendee is not suitable for appointment, that appointment recommended by the CJI may not be made. However, if the stated reasons are not acceptable to the CJI and the Other Judges who have been consulted in the matter, and the recommendation by the CJI is reiterated, the appointment shall be made. B [861-B-E]

2.1. By convention and practice, the initiation of proposal for judgeship is to be made only by the CJI whose opinion in this matter, is entitled to primacy or Justice of the High Court concerned and none else and that the procedure in vogue alone is a healthy practice. Therefore, the c Central or State Government shall not have any right of directly initiating the name of any candidate for judgeship bypassing the CJI or Chief Justice of the State and that if such a right of initiation by the Government is recognised and accepted regarding the judicial appointments then it will not only be violative of the well accepted long standing practice but also destructive of the independence of the judiciary. However, there will be no unconstitutionality or illegality in the executive making proposals and such proposals will not be violative of the existing practice or opposed to the public policy. Indeed, the Central Government which is accountable to the people should have the right of suggesting the names of the suitable can- didates with sterling character for consideration to the CJI for judgeship of the Supreme Court and to the Chief Justice ofa State to that High Court. Similarly, the State Government which is also equally accountable to the people should have the right to suggest the names of candidates for con- sideration to the Chief Justice of its State or various reasons. For example, there is a general grievance that suitable candidates for judgeship, who are at the grassroot level of society are inexcusably neglected from being con- sidered for judicial office for one reason or another. Therefore, the Govern- ment will be justified in proposing the names of those candidates to the Chief Justice concerned from the neglected section or depressed classes along with others whom the Government thinks fit and suitable to be considered for appointment of Judges. [861-G-H, 862-A-E; 864-A] G 2.2. Even in well advanced countries in practice, regional, social and racial representations are kept in view in making appointments of Judges to superior judi-:iary, without of course sacrificing merit. This view should not be construed as a plea for reservation or quota system, of any kind, but it is expressed only with the sole object of attracting the best in judicial r

ADVOCATES ASSN. v. U.O.I. 683 talent from all sections of society on equal footing and bringing them within the zone of consideration by the concerned Chief Justice. [864-C-D]

Law Commission: 18th Report, referred to.

23. The Government which is accountable to the people, should have the right of suggesting candidates to the concerned Chief Justice for con- B sideration but the Government has no right to directly send the proposal for appointments bypassing the Chief Justice concerned. The suggestions made by the Government whether Central or State, should be routed only through the Chief Justice of India in the matter of appointment of a Judge to the Supreme Court and Chief Justice of the High Court in the matter of appointment of a Judge to the concerned High Court, whose opinion with regard to the acceptance or disapproval of the said proposed candidates by the Government on the materials placed before him, will be decisive of the matter. Though appointment of Judges to the superior judiciary should be made purely on merit, it must be ensm'ed that all sections of the people are duly represented so that there may not be any grievance of neglect from any section or class of society. [877-C-F]

2.4. The right of entry into superior judicial office is not the exclusive prerogative of any particular cotorie or privileged class or group of people. To say differently it is neither inheritable nor a matter of patronage. The E Indian democratic polity is not only for may self-perpetuating oligarch but it is for all people of our country. If the vulnerable sections of people are completely neglected the State cannot claim to have achieved real par- ticipatory democracy. Therefore, there i~ every justification for the Govern- ment to forward lists of candidates belonging to diverse sections of the people to the Chief Justice concerned who has to ultimately scrutinise the F list and take a decision on the merit of the candidates without giving room for any criticism that the selection was whimsical, fanciful or arbitrary or tainted with any prejudice or bias. It is open to the Chief Justice of the High Court to _get more particulars· from the Government before taking any decision in this regard. Once the decision is taken by the Chief Justice of a G State High Court and the list is forwarded to the Chief Justice of India, then the opinion of the CJI based on the materials placed before him, should have the primacy. [865-G-H; 868-E-H]

3.1. The fixation of Judge strength in each of the High Courts is no doubt an executive function entrusted by Article 216 of the Constitution as H

p. 684

A a mandatory obligation to the President, that is the Government of India. Hitherto the existing procedure is that the Government of India has to decide in exercise of its judgment as to what shall be the strength of Judges in each High Court upon consideration of various factors and as to how many permanent Judges or how many additional judges are necessary to be appointed. But there are no manageable standards for the purpose of B controlling or guiding the discretions of the Union of India in that respect. (869-H, 870-A] 3.2. There cannot be any mathematical formula to fix the Judge strength either on the pendency of cases or on the average rate of disposals per Judge per year. However, there must be periodical review of the Judge c strength of the Supreme Court and every High Court with reference to the felt needs for disposal of cases having regard to the backlog and expected future volume of cases. (870-B-C]

Law Commission of India, 120th Report; referred to. D 3.3. In spite of the fact that the 11ow of litigations is limited to the extent possible by the 'Winnowing process' or 'scanning or screening process', even at the admission stage and by policy of dejudicilization, i.e., keeping issues out of the courts, whereby some disputes are settled through arbitration and mediation, the pendency of cases before courts is mounting and there is a dockat explosion. Unless there is an increase in Judge strength, which alone will deliver long range assistance, the superior courts cannot fulfill their national duties. (871-G-H, 872-A-F]

3.4. One of the important causes, which constitutes delay in disposal of cases and enhancement of arrears, is due to the total indolence to periodical upward revision of Judge strength. Having a realistic approach to the raising crescendo of work-load, this Court has on many prior oc- casions expressed its serious concern and called for remedial measures. [873-B-C] G 3.5. A litigant is not interested in making an analysis of the causes of delay, but he thinks in his own way that courts have caused the delay resulting in criticism galore, occasionally pungent, from different sections of the people not only against the present day justice system, but also against the personnel manning the same. The restructuring of the Court system is an encouraging part of the reform of the justice delivery system. H Any structure to be internally sound and externally long lasting must be

ADVOCATES ASSN. v. U.0.1. 685 constructed from the foundation. Therefore, this problem of tackling ar- A rears of the cases as well as speedy disposal of cases, which is a requirement of Article 21 is a concern of the CJI as well as the Chief Justices of the High Courts. Therefore, in making the periodical review of the Judge strength of the superior courts, particularly the High Courts, the President must at- tach greater weight to the opinion of the CJI and the Chief Justice of the High Courts and that exercise must be performed with due dispatch. B [874-B-E] 3.6. Any proposal made. by a Chief Justice of a High Court for increas- ing the Judge strength of his concerned Court must be routed through the CJI, who on such recommendation has to express his opinion either by giving his consent or modifying the recommendation or otherwise for suf- C ficient and sound reasons and forward the same to the President. Once the CJI has concurred with the same to the President. Once the CJI has concurred with the proposal, then the Government should accept that proposal without putting any spoke in the wheel or disapproving it. The primary right of proposal of any celebrated judicial strnctural reforms as D well as reforms by the Constitution and composition of the Court is to vest only with the judiciary and judiciary alone because those reforms are concerned only with the judiciary. [874-E-G]

Subhash Shamia & Ors. v. Union of India, [1990) Supp. 2 S.C.R. 433; refereed to. E

4. Since the duty cast upon the President under Article 216 is a mandatory obligation, the failure to perform this obligation will certainly result in negation of the role of laws' delay. Accordingly, such failure to perform that mandatory duty is justiciable to compel performance of that duty to the extent and the manner indicated herein. Further, the area of justiciability does not extent further to enable the Court to review and fix the actual Judge strength itself, but it can require the performance of that exercise in accordance with the recommendation of the Chief Justice of India. [876-D-F]

5.1. When it is well-recognised that the Courts are an impenetrable bulwark against every assumption of power in the legislative or executive and that the understanding of the Courts and respect for their authority by the people are greatly influenced by adjudicative dispensation of justice by the presiding impartial Judges 'without fear or favour, affection or ill-will', it cannot be rightly said that the assurance of the immutable rights H

p. 686

A and privileges in respect of service conditions alone are sufficient to achieve the independence of judiciary and to protect it from being impaired and no other condition is required. [799-G-H; 800-A-B)

K.M. Nanakati v. State of Bombay, [1967] 1 S.C.R. 97 and Commis- sioner of Income Tax v. Basi Dhar & Sons., [1985) Suppl. 3 S.C.R. 850; B referred to.

Co/var v. Wheeler et.al., Words & Phrases - Permanent Edition Volume 9; referred to.

Special Cowts Bill, [1979] 2 S.C.R. 476, referred to. c 5.2. No doubt true, that the Constitutional assurances, relating to the basic service conditions are absolutely necessary to protect the inde- pendence of the judiciary but they are not the be all and end all. More than this one other basic and inseparable vital condition is absolutely necessary for timely securing the independence of judiciary; that concerns the methodology, followed in the matter of sponsoring, selecting and appoint- ing a proper and fit candidate to the (Supreme Court or High Court) higher judiciary. The holistic condition is a major component that goes along with other constitutionally guaranteed service conditions in securing a complete independence of judiciary. In other words, a healthy independent judiciary can be said to have been firstly secured by accomplishment of the increas- ingly important condition in regard to the method of appointment of Judges and, secondly, protected by the fullfilment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totality of all the requisite conditions beginning with the method and strategy of selection and appointment of Judges will secure and protect the independence of the judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire judicial system will explode which in turn may cripple the proper function- ing of democracy and the philosophy of this cherished concept will be only a myth rather than a reality. Thus the independence of judiciary is the livewire of the Indian judicial system and ifthat wire is snapped, the 'dooms day' of judiciary Will not be far off. [800-8-G]

5.3. The Indian Constitution is a radiant and vibrant organism and under the banner of Sovereign, Socialist, Secular, Democratic Republic, steadily grows spreading the fragrance of its glorious objectives of securing to all citizens; Justice, Social, Economic and Political. [801-A-B]

ADVOCATES ASSN. v. U.O.I. 687

S.4. For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex, place of birth and the socio-economic chronic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the 'Rule of Law' "runs through the entire fabric of the Constitution." In other words, it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours. Independence of the judiciary is not genuflexion, nor is it opposition of Government. [801-C-H] c S.S. Indisputably, the concept of independence of judiciary which is inextricably linked and connected with the constitutional process related to the functioning of judiciary is a 'fixed-star' in the Indian constitutional consultation and its voice centers round the philosophy of the Constitution. The basic postulate of this concept is to have a more effective judicial system with its full vigour and vitality so as to secure and strengthen the imperative confidence of the people in the administrative of justice. [802-A-B]

S.6. To have an independent judiciary to meet all challenges, unbend- ing before all authorities and to uphold the imperative of the Constitution at all times, thereby preserving the judicial integrity, the person to be elevated to the judiciary must be possessed with the highest reputation for independence, uncommitted to any prior interest, loyalty and obligation and prepared under all circumstances or eventuality to pay any price, bear any burden and to meet any hardship and always wedded only to the principles of the Constitution and 'Rule of Law'. If the selectee bears a F particular stamp for the purpose of changing the cause of decisions bowing to the diktat of his appointing authority, then the independence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges safeguards, conditions of service and im- munity. Though it is illogical to spin out a new principle that the key note G is not the Judge but the judiciary especially when it is accepted in the same breath that an erroneous appointment of an unsuitable person is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest and that the necessity for maintaining independence of judiciary is to ensure a fair and effective administration of justice. Further if this prized H

p. 688

A concept is injured or maimed even from inside by self-infliction, the invaluable judicial independence will be devalued and debased. [804-D-G]

5.7. The Judge must be made independent of most of the restraints, cheeks and punishments which are usually called into play against other p_ublic officers and he should be devoted to the conscitious performance B of his duties. For Rule of Law to prevail, judicial independence is of prima necessity. [805-G-HJ

Subhash Sharma & Ors. v. Union of India, [1990] Supp. 2 S.C.R. 433, relied on. c 5.8. Implementation of Article 50 involves as a necessary conse- quence of the power of appointment being taken away from the Executive and its transference to the Judiciary. Article 50, being one of the fundamen- tal principles of goverance of the country and constitutionally binding on the Government the latter is obviously voluntarily to refrain from any D interference in judicial appointments and reduce its role to one which is purely formal or ceremonial, ensuring that the decisive factor is the wish and will of the judicial family. [808-D-E]

5.9. Realising the significance of the independence of judiciary and in order to give a full life to that concept, the founding fathers of the E Constitution, felt the need of separation of judiciary from executive and designedly inserted Article 50 in the Constitution after a heated debate; because the judiciary under the constitutional scheme has to take up a positive and creative function in securing socio-economic justice to the people. [808-G-H; 809-A] F 5.10. According to Article 36, the definition of the expression 'the State' in Article 12 shall apply throughout Part IV, wherever that word is used. Therefore, it follows that the expression 'the state' used in Article 50 has to be construed in the distributive sense as including the Government and Parliament of India and the Government and the Legislature of each G State and all local or other authorities within t~e territory of India or under the control of the Government .of India. When the concept of separation of the judiciary from the executive is assayed and assessed that concept cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogis- H tic approach is made and a constricted construction is given, it would lead

ADVOCATES ASSN. v. U.0.1. 689 to an analamou~ position that the Constitution does not emphasise the separation of higher judiciary from the executive. (810-C-E]

5.11. In a democratic polity, the supreme power of the State is shared among the three principal organs • constitutional functionaries • namely, the legislature, the executive and the judiciary. Each of the functionaries is independent and supreme within its allotted sphere and none is superior to the other. Justice has to be administered through the Courts and such administration would relate to social, economic and political aspects of justice as stipulated in the preamble of the Constitution and the judiciary, therefore, becomes the most prominent and outstanding wing of the con- stitutional system for fulfilling the mandate of the Constitution. (811-B·D] c 5.12. The constitutional task assigned to the judiciary is in no way less than that of other functionaries - legislature and executive. Indeed, it is the role of the judiciary in carrying out the constitutional message, and it is its responsibility to keep a vigilant watch over the fur.ctioning of democracy in accordance with the dictates, directives and imperative commands of the Constitution by checking excessive authority of other constitutional functionaries· beyond the ken of the Constitution. In that sense, the judiciary has to act as a sentinel on the qui vive. However, it is made clear that it is not an attempt to get the judiciary locked up in a power struggle either for social aristocracy or judicial imperialism of its own or for any vainglory of establishing judicial supremacy over and above all other constitutional functionaries but only to enjoy its legitimate right of demanding recognition of primacy to the opinion of CJI in the matter of appointment of Judges to the justice delivery system. (811-D-E, 812-A·B] F 5.13. Incontrovertibly, the CJI being at the helm of the judicial system is the principal protector of judiciary showing his keen insight into the practical problems of the judicial system from beginning to end. In fact, the CJI has a pride of place in the Constitution. (812-B-C]

5.14. The Indian judicial system being pyramidic in character is an G integrated one in contradistinction to the dual system of some other countries. The Indian judicial system is vertically structured with this Court (Supreme Court) at the apex with the intervening layers consisting of subordinate judiciary at the grassroots level, district Judge at the middle level and the High Court at the State level. [812-D-E] H

p. 690

A 6. This Court is the highest Court of the land and its vitality is a national imperative. Hence the primary institutional task of this Court is, avalanche of various judicial pronouncements necessarily involves con- sideration of the constitutional provisions. To combat and deal with all these controversies, issues and problems which are always open for judi- cial interpretation, the Courts have to undertake an onerous mission in B exploring the 'real intention' and 'original meaning' of the Constitution beyond all obscurities and to expound the principles underlying the philosophy of the Constitution and declare what the Constitution speaks about and mandates. In the above institutional task, the Court does not create any new right not known to the constitutional text or history but c merely discovers and announces only the existing right so far hidden under the surface on a better understanding of the values of the underlining intent and spirit of the Constitution in the light of a new set of conditions. The inevitable truth is that law is not static and immutable but ever increasingly denamic and grows with the ongoing passage of time. D [782-B-H; 783-A-D]

7. It falls upon the superior courts in large measure the responsibility of exploring the ability and potential capacity of the Constitution on a proper diagnostic insight of a new legal concept and making this flexible instrument serve the needs of the people of this great nation without sacrificing its essential features and basic principles which lie at the root of Indian democracy. However, in this process the Court's main objective should be to make the Constitution quite understandable by stripping away the mystique and enigma that permeate and surround it and by clearly focussing on the reality of the working of the constitutional system and scheme so as to make the justice delivery system more effective and resilient. Although frequent over-ruling of decisions will make the law uncertain and later decisions unpredictable and this Court would not normally like to re-open the issues which are concluded, it is well settled that it is emphatically the province and essential duty of the superior Courts to review or reconsider its earlier decisions, if so warranted under compelling circumstances and even to over-rule any questionable decision, either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, principles and perception grown along with the passage of time. This power squarely and directly falls within the

ADVOCATES ASSN. v. U.O.L 691 rubric of judicial review or reconsideration. Therefore, in exceptional and extraordinary compelling circumstances or under new set of conditions, the Court is on a fresh outlook and in the light of the development of innovative ideas, principles and perception grown along with the passage of time, obliged by legal and moral force to reconsider its earlier ruling or decision and if necessitated even to over-rule or reverse the mistaken decision by the application of the 'principle of retroactive invalidity'. Otherwise ever the wrong judicial interpretation that the Constitution or law has received over decades will be holding the field for ages to come without that wrong being corrected. Indeed, no historic precedent and long term practice can supply a rule of unalterable decision. [pp. 783-D-H; 784-A; 785-D-E] c His Holiness Kesavananda Bharati Sripadagalavarn v. State of Kera/a, [1973] Supp. S.C.R. 1; J.C. Golak Nath & Ors., v. State of Punjab & Anr., [1967] 2 S.C.R. 762; Waman Rao & Ors. etc etc. v. Union of India and Ors., [1981] 2 S.C.R. 1; Minerva Mill Ltd. & Ors. v. Union of India, [1961] 1 S.C.R. 206; Synthetics & Chemicals Ltd., etc. v. State of U.P. and Ors., [1989] Supp. D 1 S.C.R. 623; Secretary, lnigation Department, Government of Orissa and Ors.. v. G.C. Roy andAnr., [1992] 1S.C.C.508; Raghunathrao Ganpatrao v. Union of India v. Sankal Chand Himatlal Sheth &Anr., (1978] l S.C.R. 423; Union of India v. J.P. Mitter, [1971] 3 S.C.R. 483 and Sub-Committee on Judicial Accountability v. Union of India, [1991] 4 SCC 699, referred to. E The Bengal Immunity Company Limited v. The State of Bihar and others, [1955] 2 SCR 603; Shamsher Singh and Another v. State of Punjab, [1975] 1 SCR 814; Delhi Transport Corporation v. D. T.C. Mazdoi:Jr Congress and Others, [1991] Supp. 1 SCC 600; Subhash Sharma and Others v. Union of India, [1990] Supp. 2 SCR 433; Kihoto Hollohan v. Zechillhu & Ors., F [1992] Supp. 2 SCC 651; Indra Sawhney and Others v. Union of India, [1992] Supp. 3 SCC 210 and Union of India v. Tutsi Ram Patel, [1985] Supp. 2 SCR 131 at pages 273 and 274, referred to.

M.M. Gupta and Others v. State of Jammu and Kashmir [1982] 3 SCC 412 and Manbodhan Lal Srivastava v. State of U.P., [1958]. SCR 533, G referred to.

Fletcher v. Minister of Town Planning, [1947] 2 All E.R. 496; Chandramouleshwar Prasad v. Patna High Court & Ors., [1970] 2 SCR 666 and Shamsher Singh &Anr. v. State of Punjab, [1975] 1 SCR 814, referred to. H

p. 692

A Shorter Oxford English Dictionary, Webster's Encyclopedic Unabridged Dictionary of the English Language, Black's Law Dictionary, Stroud's Law Lexicon; Corpus Juris Secundum, Vol. 16A at page 1243 and Words and Phrases, • Permanent Edition volume 9, referred to.

Commissioner of Income Tax v. Basi Dhar & Sons, [1985] Suppl. 3 B SCR 850 at 868; State of Tamil Nadu v. Neelai Cotton Mills, [1990] 2 SCR 33 at 38-39; F.S. Gandhi v. Commissioner of Wealth Tax, (1990] 2 SCR 886 at 897 and Keshavji Ravji v. Commissioner of Income Tax, [1990] 1 SCR 243 at 257, referred to.

C Port Louis Corporation v. Attorney General, [1965] AC 1111 at 1112 and P.C. & Chandra Mohan v. State of Uttar Pradesh & Ors., [1967] 1 SCR 77 at 83, referred to.

State of Uttar Pradesh & Ors. v. Radhey Shyam Nigam & Ors. etc. etc., [1989] 1 SCR 92; Shri Dehaganesan Metals v. M.R. Shanmugham Chetty & D Ors., (1987] 2 SCC 707; State of u.P. v. Manbodhan Lal Srivastava, [1958) SCR 533; Ram Gopal v. State of Madhya Pradesh, [1970) 1 SCR 472; A.N. D'Silva v. Union of India, (1962) Supp. 1 SCR 968 and All India Judges' Association & Others v. Union of India & Others, (1993) 4 JT 618, referred to.

E Texas Law Review (Volume 44) 1966; Vide Law Commission of India (One Hundred Twenty-first Report Page 38 para 6, 36 & 14th Report of the Law Commission vide para 82 at page 105, referred to.

Kanubhai Brahmbhatt v. State of Gujarat, [1987) 2 SCR 314 and P.N. Kumar v. Municipal Corporation of Delhi, [1987) 4 SCC 609 at 610, referred F to.

R.K. Hegde, The Judiciary Today : A Plea for Col/egium, 38; The Framing of India's Constitution Volume, 18 Page 196; Justice Krishna Iyer : Mainstream, November 22, 1980 and One Hundred and Twenty First Report G of the Law Commission of India, July 1987 at page IO, referred to.

Carfield Barwick, "The State of Anustralian Judicature'~ 51 Aus. LJ. 480;Harry Gibbs; "The Appointment ofJudges'~ 61 Aus. LJ. 7, 8; videSpecial Reference No. 1 of [1964-1965) 1 SCR 413 at 447 F-H and 448 A· B; Bradly v. Fisher, 80 US 335 [1871]; Words and Phrases - Permanent Edition Volume H 9, Town v. Eisner, 245 U.S. 418; Minister of Home Affairs and Another v.

ADVOCATES ASSN. v. U.O.I. 693

Fisher and Another, [1979] All ER 21; Taxas Law Review (volume 44) 1966 A at page 1068 and 1071 and 'The role of the Trial Judge in the Anglo American System, ABAJ 125, 127 [1964], referred to.

Per Ahmadi, J. [Dissenting but partly agreeing]

1.1. The concept of judicial independence is deeply ingrained in the B Constitutional scheme and Article 50 illuminates it. The degree of inde- pendence is near total after a person is appointed and inducted in the judicial family. [940-E]

1.2. The Judiciary in India plays a more active role in selecting C Judges at all levels than in other countries. [p.910-B]

1.3. On a plain reading of Article 217(1) it becomes abundantly clear that the power to appoint a judge of the High Court is vested in the President and must be exercised by a warrant to be issued in that behalf under his hand and seal. This power, however, must be exercised 'after' D consultation with (i) the Chief Justice of India (ii) the Governor of the State and (iii) in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court. Once the consultation process contemplated under this Article is completed, the power to appoint a judge of a High Court is conferred on the President. [903-8-C] E 1.4. The power of the President to make an appointment to the Union Judiciary is circumscribed or limited by the requirement of prior consult- ation. [912-E]

1.5. Insofar as appointments at the level of district judges are concerned under Article 233, the Governor has to make the appointment. The Governor's power of appointment is conditioned by the obligation to consult the High Court and such consultation must be meaningful and purposive and cannot be reduced to an empty formality. Consultation cannot be complete, purposive and effective unless the High Court which is best suited to adjudge the merits and suitability of the candidate is consulted and its view obtained before the appointment is made. Once the appointment is made by the Governor after consultation with the High Court or on its recommendation and the appointee enters the cadre of district judges he falls within the High Court's control under Article 235 of the Constitution. His independence is then secure because it is settled H

p. 694

A law that the High Court's control under Article 235 extends to transfer as well as disciplinary matters. It is only in cases of dismissal or removal or reduction in rank to a lower cadre that the High Court has to seek the Governor's order, be being the appointing authority, but it is settled law that ordinarily he must act on the recommendation of the High Court. [907-D-H, 908-A] B Chandramouleshwar Prasad v. Patna High Court & Ors., [1970] 2 S.C.R. 666; State of West Bengal v. Nripendra Nath, [1966] 1 S.C.R. 771 and State ofAssam v. Ranga Mahammad & Ors., [1967] 1 S.C.R. 454, referred to.

1.6. The anxiety of the Constitution makers to ensure that justice C promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference is writ large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respec;- tively, manifesting the confidence of the people in the courts' ability to do . D justice. [907-A-B]

2.1. The governmental powers are ordinarily divided into (i) executive (ii) legislative and (iii) judicial. The power to appoint judges to the superior courts is an executive function. By virtue of Article 53 the executive power is undoubtedly vested in the President which he must exercise 'in accordance with this Constitution'. Similarly, under Article 154 the executive power of the State vests in the Governor which he must exercise in accordance with the Constitution. Articles 73/162 provide that subject to the provisions of the Constitution, the executive power of the Union/State shall extend to matters with respect to which Parliament/State Legislature has power to make laws. The argument that since neither List I nor List III in the Seventh Schedule empowered the making of any law regarding appointments to the superior judiciary it must be presumed that the power exercised by the President was not one which would attract Article 74(1) of the Constitution, overlooks the fact that Article 248 and the residuary entry 97 in List I by which exclusive power is conferred on Parliament to make laws even in respect of subject not specifically covered. [928-G-H; 929-A-C]

2.2. Under the constitutional scheme, the States can make laws in respect of the subjects enumerated in List II in the Seventh Schedule. But that does not mean that the executive power is confined to matters falling within the legislative entries only. Both the President and Governor are

ADVOCATES ASSN. v. U.O.I. 695 formal heads and the executive power of the Union/State has to be exer· A cised in the name of the respective heads. The President as well as the Governor exercise power conferred by the Constitution on the aid and advice from the respective Council of Ministers, except where the Governor is required by or under the Constitution to exercise his functions in his discretion. The precise language of Article 163(1~ uses the words "except B in so far as he is 'by or under' this Constitution required to exercise his functions or any of them in his discretion". The words carving out the exception are not to be found in Article 74(1). [929-C-E]

Shamsher Singh v. State of Punjab, [1975] 1 S.C.R. 814, relied on.

2.3. Since Articl~ 217(1) does not say that the said executive func- c tion, the Governor must perform in his discretion it is obvious that in the matter of appointments to the superior judiciary the Governor must act according to the aid and advise received from his Council of Ministers. Similarly by virtue of Article 74(1) the President is obliged to act on the advice of the Council of Ministers. Under Articles 75(3) and 164(2) the D Council of Ministers are collectively responsible to the House of the People in the case of the Union and the Legislative Assembly in the case of the State. If the President or Governor refuse to act on the advise of their Council of Ministers, it would result in a constitutional crisis. Therefore, no doubt that in the form of parliamentary democracy which has been E adopted by India, the President and the Governors are symbolic heads and so Jong as their Council of Ministers exist they must abide by their advice except where the Governor is required by or under the Constitution to act in his discretion. [929-G-H; 930-A-B]

3.1. The method of selecting a Judge for the Supreme Court and the F High Court is outlined in Articles 124(2) and 217(1) of the Constitution. While in some of the foreign countries, appointments to the superior judiciary are exclusively Ly the executive, the Constitution has chartered a middle course by providing for 'prior consultation' with the judiciary before the President, i.e. the executive, makes the appointment to the G Supreme Court or the High Court. [940-F-G]

3.2. Insofar as appointment to the High Court under Article 217 (1) is concerned, the appointment has to be made by the President by warrant under his hand and seal, but it must be preceded by 'consultation' with the Chief Justice of India, the Chief Justice of the State High Court and H

p. 696

A the Governor of the State. Consultation with the.se functionaries is a condition precedent and a sine qua non to appointment. [911-H; 912-A]

33. Article 124(2) provides for the appointment of a Supreme Court Judge. It empowers the President to appoint a Judge to the Supreme Court 'after' consultation with such of the Judges of the Supreme Court and of the B High Courts in the States as he may deem necessary for the purpose. The zone of consultation is very wide, he may consult one or more of the Supreme Court Judges and any number of the numerous High Court judges in the country. The proviso to Article 124(2) says that in the case of appoint· ment of a judge other than the Chief Justice, the Chief Justice of India 'shall C always be consulted'. There is no controversy that the proviso mandates consultation with the Chief Justice of India. (908-H; 909-A-B]

3.4. It is clear from the provisions of the Constitution that the power of appointment is vested in the President and has to be exercised in the manner set out in these provisions. [p.904-G] D 3.5. Throughout, the entire scheme is that the power is to be exer- cised by the President or where the power is conferred on the Chief Justice, he has to exercise it with the President's consent. [904-G-H; 905-A]

4.1. Since the Constitution makers were alive to the need to insulate the judiciary from external pressures, they introduced the concept of consultation with the Judicial Wing to limit and check the absolute discre- tion of the executive in the matter of appointments to the superior judiciary. They achieved this by introducing the concept of compulsory consultation with the judiciary before the appointments are made to the superior judiciary. That is why Articles 124(2) and 217(1) provide that the appointments under the said provisions shall be made 'after consultation' with the Chief Justice of India and others. But it cannot be said that the Constitution-makers intended to denude the executive of all its pow~r of appointment by providing for consultation with the Chief Justice of India G and others. Such a view is not permissible on the plain language of the Constitution even if the word 'consultation' is understood in the backdrop of the need to strengthen the concept of judicial independence. [918-E-G]

4.2. Undoubtedly the office of the Chief Justice of India is given a special recognition under Articles 124(2), 217(1), 217(3) and 222(1), in that, consultation with him is a must before any decision contemplated

ADVOCATES ASSN. v. U.0.1. 697 under those provisions is finalised. Since the expression of opinion in regard to appointments to be made to the superior judiciary is a non- judicial function, in fact it is a function in aid of the executive function of the President i.e. the executive, to select candidates for appointment to the superior judiciary the Constitution mandates consultation with him and others mentioned in Article 217(1) of the Constitution. This is a matter which touches the other two aspects of primacy. (919-F -HJ

4.3. It is evident from the relevant provisions of the Constitution concerning the judiciary that the Constitution has used different expres- sions to meet with different situations. The word 'consultation' is used in Articles 142(2), 217(1) & (3) and 233(1), the expression 'previous consent' c is used in Articles 127, 128 and 224-A, the word 'recommended' is used in Article 233(2), and the word 'approval' is used in Article 145 and proviso to Article 229(2) of the Constitution. Thus, in the matter of appointment to the superior judiciary, the President can exercise his power of appointment only after he has completed the process of consulting certain constitutional D functionaries, in the process of appointment of ad hoc judges or retired judges to sit on the Bench, the power can be exercised with the 'previous consent' of the President, in the case of making of rules the 'approval' of the President/Governor is necessary and in the case of appointment to the post of district judge, recommendation of the High Court is envisaged. So also in the case of transfer or determination of age, consultation with the E Chief Justice of India is a must. It will thus be seen that different expres- sions are used to convey different meanings. The plain language of Articles 124(2) and 217(1) does not convey that the process of consultation means concurrence with the view of the Chief Justice of India. [p. 916-D-H]

F 4.4.The word 'consult' as understood in ordinary sense means to ask or seek advice or the views of a person or any given subject i.e. to take counsel from another, but it does not convey that the consultant is bound by the advice. In certain situations an expert in the field may be consulted but it is (lnly to help the consultant to take a final decision. By consulting even an expert the consultant does not mortgage his decision, the advice G 1 given is only an in-put among the various factors which enter decision making. He may consult one or more experts and he may accept the advice he considers most acceptable or rational but he is always free to reach his own conclusion. It is ultimately his responsibility to reach a sound decision and he is accountable for the same. Consultation would require at least H

p. 698

A two persons, they may consult each other by correspondence or by sitting across the table. A may consult B on a given subject, obtain the opinion of B and act on it or he may, if not satisfied, discuss the issue with him or convey his doubts in writing, seek his clarification and if satisfied accept the advice or depart therefrom. [p. 920-C-F]

B R. Pushpam v. The State of Madras, A.I.R. (1953) Madras 392, referred to.

Fletcher v. Minister of Town Planning, [1947] 2 All England Reports 469; Rollo and Anr. v. Minister of Town & Country Planning, [1948] 1 All C England Reports 13; Port Louis Corporation v.Attomey General, Mauritius, (1965) Appeal Cases 1111 and R. v. Secretary of State for Social Services, exparte Association of Metropolitan Authorities, [1986] 1 All England Reporter 164, referred to.

4.5. Constitution is an ever evolving organic document, which cannot be read in a narrow, pedantic or syllogistic was but must receive a broad interpretation. The Constitution being a growing document its provisions can never remain stated and the Court's endeavour should be to interpret its phraselogy broadly so that it may be able to meet the requirements of an eve-changing society. But while it may be permissible to give an enlarged or expanded meaning to the phraseology used by the Constitution makers, and it may be permissible mould the provisions to serve the needs of the society, and it may even be permissible in certain extreme situations to stretch the meaning and, if necessary, bend it forwards, it would certainly be impermissible to break it or in the guise of interpretation to replace the provisions or re-write them. [922-G-H; 923-A-B] F 4.6. Giving the widest connotation to the word 'consultation', stretch- ing it almost to the breaking point, it is not possible·, in the constitutional context and having regard to the constitutional scheme to attribute to it the meaning of 'concurrence' or 'consent'. [923-8-C] G State of U.P. v. Manbodhan Lal Srivastava, [1958] S.C.R. 533, relied on.

4.7. It is, therefore, difficult to hold that the advice tendered by the Chief Justice of India was intended to be of a binding character and the executive had no choice but to follow it; to so hold would be to bestow a

ADVOCATES ASSN. v. U.O.I. 699 right of veto on the Chief Justice of India which does not fit in with the constitutional scheme. It was said that the object of providing for consult- ation was clearly to control and limit the discretion vested in the President, that is, in effect the executive, in the matter of appointments to the superior judiciary, but that cannot mean that the Constitution-makers decided to transfer the power of appointment to the Chief Justice ·of India. In that case nothing would have been simpler than using the expression 'concurrence' or 'consent', which expressions have been deliberately not employed because the Constitution-makers did not intent to vest the final say in the Chief Justice of India. (923-F -H; 924-A]

Union of India v. Sankal Chand Himatlal Sheth & Anr., (1978] 1 C S.C.R. 423, relied on.

In Re the Special Courts Bi/4 (1978] (1979] 2 S.C.R. 476 and S.P. Sampath Kumar etc. v. Ul'ion of India & Ors., (1987] 1 S.C.R. 435, referred to. D 5.1. Under the coi::stitutional scheme, prior consultation with the Chief Justice of India is a must under Articles 124(2) 217(1), 217(3) and 222(1) but the weight to be attached to views of the Chief Justice of India would depend on whether it is at the pre-appointment stage or the post- ,,_ appointment stage and whether he is one of the consultees or the sole consultee. (941-8-C]

5.2. The concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as 'paterfamilias' of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2) and 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. (941-C-D]

5.2.1. The position of the Chief Justice of India under the Constitu- tion is unique, in that, on the judicial side he is primus inter pares, i.e. first among equals, while on the administrative side he enjoys limited primacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-a-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the· sense that the President is not bound to act according to his views. However, his_ views would be of higher value vis-a-vis the views of his H

p. 700

A colleagues; more so, if he has expressed them after assessing the views of his colleagues but his views will not eclipse the views of his colleagues forbidding the President, i.e. the executive, from relying on them. The weight to be attached to his views would be much greater as compared to · the weight to be accorded to the view of the other consultees under At:ticle B 217(1) since he has had the advantage of filtering their views and ordinari- ly his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i.e. executive, from noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the Constitution, e.g. Article 222(1), more so when it concerns a member of the judicial family and ordinarily his view should be accepted and acted upon by the President, i.e. the executive, unless there are compelling reasons to act otherwise to be recorded in writing so that the apprehension of the executive having acted in a manner tantamounting to interference with judicial independence is dispelled. Thus graded weight has to be attached to the views of the Chief Justice of India as indicated hereinabove. (941-E-H & 942-A-C]

5.3. On a plain reading of the Article 217(1), it is clear that the President is empowered to make these appointments after consultation with the three constitutional functionaries. The Article doos not give any indication of any hierarchy among the three consultees, although the proposal ordinarily emanates from the Chief Justice of the State and thereafter goes to the executive. It is only after the Governor has cleared it that the Chief Justice of India is consulted. These three functionaries are those who are consulted, they have a consultative role to play in the appointment of a High Court judge but the ultimate power of appointment rests in the President who must act in accordance with Article 74(1) of the Constitution. The power conferred on the President is not an absolute or arbitrary power but the same is chedced, circumscribed and conditioned by the requirement of prior consultation with the three Constitutional G functionaries. The consultation must be complete, purposive and meaning- ful and cannot be treated as a mere idle formality. If the consultation is found to be a mere empty formality without effective exchange of views, the appointment would be vitiated and the whole exercise may ultimately turn out to be loves labour lost. Each of the three constitutional functionaries H holds a high constitutional position and in the absence of express words,

ADVOCATES ASSN. v. U.0.1. 701 it cannot be said there is a hierarchy envisage by the said provision. The A Chief Justice of the High Court must be attributed intimate knowledge regarding the quality of legal acumen of the members of the Bar chosen by him for appointment. Since he has the opportunity to watch the perfor- mance of members of the Bar at close quarters, he is best suited to assess the worth of the candidate relating to his legal knowledge, acumen and similar other qualities, including his willingness to work hard and his B temperament to discharge judicial functions. From that point ofview great weight must be attached to the opinion of the Chief Justice of the High Court. On other matters, such as, the antecedents of the individual, his political affiliations, if any, his other interests in life, his associations, etc., the executive alone may provide the information. Similarly, the executive c would be able to collect information regarding the honesty and integrity of the individual and certain other related matters which may have a bearing on his appointment. Thus, the opinion of the executive in this area would be equally important. From both these opinions would emerge the per- sonality of the candidate proposed for appointment. The Chief Justice of D India being 'pater familias' of the judiciary in India would have the advantage of the views of both these consultees and, where necessary, he may also be able to interact with the Chief Justice of the High Court as well as colleagues on the Supreme Court Bench from that court, if any, before formulating his view finally in the matter. His view, thus formulated would certainly be entitled to greater weight since he had the benefit of E filtering the views of the other two consultees on the question of suitability on the proposed candidate, but it cannot mean that his view will totally eclipse the view of the others forbidding the executive to evaluate it before formulating its advice to be tendered to the President. [912-D-H; 913-A-E] F 5.4. Article 124(2) provides for the appointment of a Supreme Court Judge. The mode of appointment is the same as in the case of a High Court judge i.e. by warrant under his hand and seal. But here again the exercise of power is controlled, checked and circumscribed by the need for prior consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. Reference to G the expression 'such of the judges' must include the Chief Justice of India in the case of the former and the Chief Justice of the High Courts in the case of the latter. If such a construction is not placed it would lead to the absurd situation of the Chief Justices of various High Courts being excluded from the zone of consultation. The Chief Justice of India would, H

p. 702

A in any case, have to be consulted by virtue of the proviso to that clause because it mandates that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India 'shall always' be consulted. Thus, while the proviso obligates consultation with the Chief Justice of India, the text of clause (2) stretches out the zone of consultees and leaves it to the President to consult one or more from amongst that broad band of consultees. But consult he must before he make the appointment. [913-F-H & 914-A-B]

S.S. The practice which is hitherto followed reveals that the Central Government's understanding of Article 124(2) is that it is not incumbent on the Government to consult any Judge of the Supreme Court or the High Court, including any Chief Justice of the High. Court if consultation with the Chief Justice of India is considered sufficient and no further consult- ation is deemed necessary. If primacy is to be accorded to the views of the Chief Justice of India, the views of the other consultees would become redundant and will at best serve the purpose of persuading the Chief D Justice of India to change his views but if he does not, the.views of the other consultees will be rendered nugatory. [914-E-G]

S.6. In the process of selection of candidates for appointment to the superior judiciary of the country every effort must be made both by ~e E executive wing as well as the judicial wing to arrive at a consensus i.e. a common understanding and in the majority of cases there is no reason why it should not be possible. The executive and the judiciary do not work at cross purposes, in fact their objective is common and, therefore, it would really be surprising if there is lack of understanding in a wise range of cases between them. The executive and the judiciary are not adversaries, they are not supposed to work at cross purposes, and therefore, it is not surprising if in a vast majority of S47 appointments made from 1.1. 1983 to 10.4.1993 barring seven they have reached an agreement on the selection of the candidates for appointment. In the absence of statistical information, there is no justification in believing that in all these cases it was the executive which yielded to the views of the Chief Justice of India. If the attitude of the executive has been to arrive at a consensus to minimise differences of opinion, it is in fact a healthy attitude which need not be read as yielding to the primacy concept. That being so, it is difficult to appreciate that the executive had conceded primacy to the views of the Chief Justice of India by making S40 of the S47 appointments with the concurrence of the Chief H Justice of India. Even otherwise to rely on such a tenuous circumstance for

.'\DVOCATESASSN. v. U.0.1. 703 interpreting and understanding constitutional questions of great sig- A nificance would be a desperate attempt like clutching at a straw. [915-D-H; 916-A-D]

5.7. There being no hierarchy contemplated by Article 217(1), each consultee has a definite contribution to make which need not be ignored. It would be unfair if the opinion of the other consultees is rendered B redundant because it does not concur with the opinion of the Chief Justice of India. It is one thing to say that great weight should be attached to the opinion of the Chief Justice of India and another thing to say that amongst the consultees his word will be final. [927-F-H; 928-A] c 5.8. Therefore, however convincing it may sound to the ideal of judicial independence that the views of the Chief Justice of India must have primacy as his views expressed after consulting his two seniormost col- leagues would be symbolic of the views of the entire judiciary, this cannot be accepted unless Constitution is amended. Such a view may tend to make the Chief Justice of India insensitive to the views of the other consultees and may embroil him in avoidable litigation. If the President has to act on the aid and advise of the Council of Ministers, it is difficult to hold tlu:t he is bound by the opiIJion of the Chief Justice of India unless it is held that the Council of Ministers including the Prime Minister would be bound by the opinion of the Chief Justice of India, a construction which is too artificial and strained to commend acceptance. Such an interpretation of the constitutional provisions would tantamount to rewriting the Constitu- tion under the guise of interpretation which would distort the judicature fabric found woven into the Constitution. In the circumstances, the majority view in S.P. Gupta's case does not require reconsideration on this aspect of the matter. [940-G-H; 941-A; 928-C-F] F

S.P. Gupta v. Union of India, [1982] 2 SCR 365, partly followed.

6.1. There is nothing in the language of Article 222(1) to rule out a second transfer of a once transferred judge without his consent but or- G dinarily the same must be avoided unless there exist pressing circumstan- ces making it unavoidable. Ordinarily a transfer effected in public interest may not be punitive but all the same the Chief Justice of India must take great care to ensure that in the guise of public interest the judge is not being penalised. [942-C-D] H

p. 704

A 6.2. The various aspects of the transfer policy have been discussed at length in two decisions of this Court, viz., in Sakal Chand Sheth's case and S.P. Gupta's case. It has been clearly held that the transfer must be in public interest to subse..Ve the needs of administration of justice. [930-D]

6.3. Article 222(1) enjoins prior consultation with the Chief Justice B of India alone and hence his view would not reflect the views of the judiciary as the plurality concept is absent. It is correct to say that after a candidate is chosen as a judge, greater care must be shown in dealing with him, a member of the judiciary, to ensure that the power of transfer is not viewed as an instrument to subvert the judiciary. Since here the only person to be consulted is the Chief Justice of India, a heavy responsibility lies on his shoulders to ensure that the transfer is in public interest and in the interest of judicial administration. And since this is a post-appoint- ment stage, the view of the Chief Justice of India will have a greater say in the matter because exercise of the power to transfer a member of the judiciary by the executive is likely to be misunderstood as executive's effort to uµdermine the independence of the judiciary. The weight to be attached to the views of the Chief Justice of India in this field would be much more than what his opinion would carry at the pre-entry stage. Since the transfer can be effected in public interest only that requirement or limitation would safeguard judicial independence. When a puisne judge is transferred to take over as a Chief Justice elsewhere such a transfer would never be construed as penal because of the elevation involved in it but where the transfer is a second one qua the individual it is likely to be so interpreted and hence a far greater responsibility is case on the Chief Justice of India during the consultation process to take even precaution to see that it is not so. Once this care is taken there is nothing in Article 222(1) to limit the power to only one transfer without the concerned judge's consent and there after only with his consent. [930-E-H & 931-A-D]

7 .1. On the mode of selection for appointment to the Supreme Court, except for general platitudinous exchanges at the Bar, no concrete sugges- G tion emerged which could be followed by the Chief Justice of India in the matter of choice of candidates for appointment to the Supreme Court. So also no specific points were formulated for laying down any guidelines to be followed by the Chief Justice of High Courts for appointments to be made to the High Court. In such circumstances, it would be hazardous to lay down any guidelines in this behalf. [931-D-F]

ADVOCATES ASSN. v. U.O.I. 705

7.2. This Bench was constituted to consider the two points specifically mentioned in Subhash Shanna's case to which the pleadings are restricted and no question was specifically formulated even at the hearing of the reference on the procedure to be followed in the matter of appointments to the superior judiciary. In the absence of proper assistance from the Bar it is unwise to express any opinion in this behalf. It is a well recognised pithet of constitutional wisdom that in constitutional matters the courts do not decide what is not brought before them nor would it proffer advice except in a reference under Article 143, on the wisdom or validity of a future action. Therefore, it would be wise not to attempt laying down guidelines on one's own impressions about the working of the selection process. Despite this demurer since Judges have chosen to lay down certain guidelines or norms c in regard to appointments which would be obiter dicta only, and which, may, for want of an intense debate at the Bar, create more problems rather than solve existing ones and may also embroil the Chief Justice of India into avoidable litigation and embarrassment, it must be clearly expressed lest silence is construed as consent. [931-F-H & 932-A-B] D 7.3. The entry into the superior judiciary is by invitation and judges constituting the superior judiciary are not stricto-sensu civil servants. The functions to be performed by those constituting the superior judiciary are totally different from those performed by the district judges. Similarly, the nature of duties are functions undertaken by judges of the apex court are E different from those at the High Court level. Therefore, to say that in the matter of appointment to the apex court inter-se seniority in the concerned High Court and at the combined seniority at the all-India level should be given due weight unless there be strong cogent reasons to justify a depar- ture would, to say the least, create a host of problems. For example, if the p first four judges in the all-India seniority are from a single High Court and all of them are appointed, the 'representative' character of the Court will be disturbed. For instance, if the senior most judge of High Court X is at serial No. 50 in the all-India seniority and there is no judge in the apex court from the High Court, which is one of the major High Courts, the Chief Justice of India will find it difficult to nominate him for appoint- G ment and, if he does, there is every possibility of his seniors questioning the decision of the Chief Justice of India in Court. [932-B-F]

7.4. In order to maintain the representative character of the High Courts and the Supreme court so that people of all hues have confidence H

p. 706

A in the institution, the rule of seniority, which may be valid for Civil Services (even in Civil Services the higher posts are filled on merit), can have no application to constitutional functionaries. So also the 'legitimate expectation' doctrine can have no relevance in determining the suitability of the appointee. [922-F-G]

B 7.5. The seniority principle and the legitimate expectation doctrine are incapable of realistic application as they would destroy the repre- sentative character of the superior judiciary which is absolutely essential for every segment of society to have confidence in the system and they would only push merit to the second place. Appointments to the superior judiciary should be solely on merit and other suitability factos and not on the basis of inter se seniority in the High Court or placement in the combined all-India seniority list. There can be no room for the legitimate expectation doctrine in cases where appointments are on merit and by inv~tation. However, where both the candidates under consideration are of equal merit, inter-se seniority may have a role to play, subject to other requirements for maintaining the representative character, etc., being satisfied. Therefore, the application of these two principles in the matter of choice of candidates for the superior judiciary is fraught with dangers. [932-G-H; 933-A-C] 8.1. The question of fixation of judge-strength under Article 216 is justiciable, in that, a limited mandamus can issue to the executive to perform its constitutional duty to determine within a reasonable time the strength of permanent Judges required for the disposal of cases instituted in the various High Courts and to take steps to fill up the vacancies after making such determination as indicated by one of the Judges in S.P. F Gupta's case. But this would be in the rarest of rare cases where there exist glaring and compelling circumstances which would force the hands of the Court. [936-D-E-940-C-D]

S.P. Gupta v. Union of India & Ors., [1982] 2 S.C.R. 365, relied on. G 8.2. There is no doubt that every High Court with the exception of one or two has swollen dockets. The backlog is substantial in these High Courts. Because of diverse reasons, not entirely of the making of the judiciary, the judicial system has not been able to keep its implied promise to dispense justice within a reasonable time. This is essentially on account of the fact H that not sutlicient attention has been paid to modernise the Indian judicial

ADVOCATES ASSN. v. U.O.I. 707 system, co-operation from those connected with the system has been grudg- A ing and the members of the profession too have contributed by frequent adjournments and strikes. The executive too has not been able to contain its litigation docket and a tendency is clearly discernible that even high ranking officers are not prepared to take responsibility and find it easy to rest the responsibility on the judiciary. Politico-legal issues are also diverted to courts which consume a lot of judicial time. There has been an B environmental degradation which has also affected the work culture of the judiciary. The service conditions of judges are no more attractive, they take no notice of the earnings of an average lawyer, with the result that recruit- ment from the Bar of persons of the right stamp is difficult which slows down the disposal of cases and increases appellate and revisional work. c Judge-strength is only a small contributing factor. Here also one cannot lose sight of the fact that there is always an optimum strength beyond which it would be a mere surplusage because it is common knowledge that in every District Court or the High Court work is concentrated in the hands of a few lawyers and their non-availability on account of they l>eing engaged before another judge may render the other judges idle. It would, therefore, be D wrong to think that the increase in the judge-strength alone will solve the problem of arrears; it may, if scientifically worked out, certainly ease the same. [933-E-H; 934-A-D]

8.3. What is really necessary is to effectively manage the dockets. E Judge-strength by itself will not make a very substantial impact unless the entire system is modernised with the help of computers etc., and a virtual crusade is undertaken with the help of the members of the profession, the executive and the judiciary to combat laws delays. [934-D-G]

8.4. Increase in the judge-strength may somewhat ease the problem F of delay in the disposal of cases. Article 216 provides that every High Court shall consist of the Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. The Article clearly casts a duty on the President, i.e. the executive, to decide from time to time on the number of judges necessary to be appointed in every High Court. G The words 'deem it necessary to appoint' when read with 'from time to time' leave nothing to dou_bt that the Article envisages periodical assessment of the judge-strength by the executive in respect of each High Court. This is undoubtedly a constitutional obligation which must be performed in time and without delay. This provision does not provide for consultation with the judicial wing but normally the Chief Justice of the High Court initiates H

p. 708

A a move for increase in the Judge-strength because he is better suited to know his requirements. [934-G-H; 935-A-B]

8.5. Since the fixation of judge-strength depends on a variety of factors no uniform rule of general application can be evolved as the situation in each High Court cannot be identical. Local factors differ and they cannot be wished away. It cannot be so simple as dividing the pending backlog by the disposal norm fixed for each judge to arrive at the number of judges required. [935-8-C]

8.6. In S.P. Gupta's case, there of the Judges were clearly of the opinion that the question of fixation of judge-strength under Article 216 was essentially an executive function and not justiciable in court. They held that judiciary cannot issue a writ or a directive if the executive fails to perform its duty under Article 216 and the remedy lies in the legislature. However, another Judge felt it would not be 'proper' for the court to give directions or issue a writ because appointing judges being a purely execu- D tive function it would be wrong to usurp that function 'unless forced by glaring circumstances'. He, therefore, put it on the ground of propriety but qualified it by the words 'unless forced by glaring circumstances' which imply that if glaring circumstances exist the power can be exercised by the Court. It is, therefore, necessary to bear the distinction in mind between absence of power and jurisdiction and refusal to exercise power on the ground of propriety although the court has inherent jurisdiction. There- fore, while three judges have ruled that the court lacked the power and jurisdiction to issue a writ or directive the fourth judge has stated it would not be 'proper' to exercise that power unless glaring circumstances exist. However, fifth held the issue to be justiciable to the limited extent of directing the Union to review the judge-strength periodically on the basis of workload. But fixation of judge-strength solely on the basis of workload may not be correct because accumulation of workload may be for diverse reason. [936-G-H; 937-A-D]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to. G 8.7. The question of judicial manpower planning engaged the atten- tion of the Law Commission of India. However, even the Law Commission, which had the time and opportunity to undertake a technical analysis on which a sound and durable formula could be evolved expressed its inability to do so and fell back on what it considered 'the next best thing' and 'a very

ADVOCATES ASSN. v. U.O.I. 709 poor substitute' for sound scientific analysis. A scientific method on the fixation of judge-strength is no easy task. If it as difficult for a body like the Law Commission which had expert advice and time available to itself it would be virtually impossible for the courts to undertake such an exercise. Under the doctrine of judicial review High Courts and the Apex Court exercise supervisory jurisdiction over persons who are charged with the performance of public acts and duties. This jurisdiction was derived by courts through common law and was exercised by the issuance of an ap- propriate writ. What is generally reviewed is not the merits of the action but the decision making process itself. Broadly speaking, administrative action is subject to judicial review on three grounds, namely, (i) illegality (ii) irrationality and (iii) processual impropriety. But this may be true of cases where the public authority has performed its public duty and the action is questioned. But where the allegation is that the public authority is guilty of non-performance of its public duty and it is shown that he has failed to perform his constitutional or statutory duty, remedy available is through court and a mandamus can be issued. In order, howev~r for a mandamus to issue to compel performance of a duty, it must clearly appear from the language of the statute that a duty is imposed, the performance or non-per- formance of which is not a matter of mere discretion. But even in cases where the duty is discretionary, as distinct from a statutory obligation, a limited mandamus could issue directing the public authority to exercise his discretion within a reasonable time on sound legal principles and not merely on whim. Therefore, if the executive which is charged with a duty under the Constitution to undertake periodical review of the judge-strength falls in the performance of that duty, an order of mandamus can lie to compel performance within a reasonable time. [937-E; 938-A-H; 939-A-B] F 8.8. Therefore, in principle, it is not possible to say that the issue is wholly outside the Court's purview and the remedy is merely to knock the doors of legislature. Albeit, a proper foundation must be laid because the Court will be extremely slow in exercising its extraordinary powers to issue a writ of mandamus compelling performance of a certain duty unless it is fully satisfied that the executive has totally omitted to pay attention to its G constitutional obligation and needs to be awakened from its slumber. But in the guise of exercising the power of judicial review <:are must be taken to ensure, that the judiciary does not usurp this executive function to itself. But no directive would be possible unless forced by glaring and compelling circumstances which would be possible only if full, complete and correct H

p. 710

A assessment of the requisite strength of each High Court is available and the court feels that the executive has been oblivious to the said facts. In the absence of judicially manageable standards this may not be possible, in which case the exercise of power would be in vain and normally a court does not act in vain. Therefore, if there is a wilful and deliberate failure on the part of the executive to perform its duty under Article 216, a writ B can issue to the limited extent of merely directing the executive to perform its part but the court cannot usurp the function itself and direct the executive to raise the judge-strength to anr particular level. [939-B-F]

8.9. The need for periodical revision of the Judge-strength is essen- C tially to ensure early disposal of court cases; the entire exercise would be meaningless if the existing vacancies and the new ones created by increase in the judge-strength are not filled in promptly. [939-G-H]

8.10. Even though a time bound programme for dealing with the proposals has been provided, delays continue on account of the functionaries involved in the process not abiding by the same. The process, particularly in the case of appointments of the High Courts, it time consuming as the proposal has to pass through as many as six consultees but that is all the more reason why each functionary must show a sense of urgency to see that the proposal is not delayed unnecessarily. With the experience of working the system over more than four decades it would not be difficult for the Minister of Law and Justice in the Central Government to revise the guidelines, fix the maximum time each consultee must take on the proposal having regard to the role he is expected to play and ensure strict compliance at the executive level. This will help expedite the move- ment of the proposal and if it is found to be unreasonably withheld, the functionary may be compelled through a writ to perform his public duty within the time allowed by the court. If the functionaries involved in the decision-making process realise their duty and obligation to society par- ticularly to the consumers justice, the need to move the court will not arise. (939-H, 940-A·C] G 9.1. The Constitution is what the Judges say it is. That is because the power to interpret the Constitution vests in the Judges. A heavy respon- sibility lies on the Judges when they are called upon to interpret the Con- stitution, the responsibility is all the more heavier when the provisions to be construed refate to the powers of the judiciary. It is essential that complete objectivity is maintained while interpreting the constitutional ·

ADVOCATES ASSN. v. U.O.l. 711 provisions relating to the power of the judiciary vis-a-vis executive in the matter of appointments to the superior judiciary to avoid any feeling amongst the other constitutional functionaries that there has been usurpa- tion of power through the process of interpretation. This is not to say that the judiciary should be unduly concerned about such criticism but merely to emphasize that the responsibility is greater in such cases. [895-B-D] B 9.2. Where the language of the Constitution is plain and the words used are not ambiguous, care should be taken to avoid giving an impres- sion that fancied ambignities have been conjured with a view to making it possible to place a convenient construction on the provisions. If the words are plain and unambiguous effect must be given to them, for that is the constituent body's intent, whether one likes it or not, and any seeming attempt to depart therefrom under the guise of interpretation of imaginary ambiguities would cast a serious doubt on the credibility and impartiality of the judiciary. It would seem as if judges have departed from their sworn duty; any such feeling would rudely shock peoples' confidence and shake the very foundation on which the judicial edifice stands. The concern of the judiciary must be to faithfully interpret the Constitutional provisions according to its true scope and intent because that alone can enhance public confidence in judicial system. The one public interest which the courts of law are properly entitled to treat as their concern is the standing of an the degree of respect commanded by the judicial system. [895-E-H] E

Duport Steel Ltd. v. Sirs & Ors., [1980] 1 All England Reports 529, referred to.

10.1. The concept of separation of powers is a well known fundamental political maxim which many modern democracies have adopted. The Indian F Constitution has not strictly adhered to that doctrine but it does provide for distribution of powers to ensure that one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial G system free from external as well as internal pressures. [896-D-E]

10.2. Under the constitutional scheme, the judiciary has been as- signed to onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in H

p. 712

A conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an indeP,endent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will B or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of this great country. There can be no two opinions that an independent and impartial judiciary is the most essential characteristic of a free society. [896-E-H] c Per Ku/dip Singh, J. Partly dissenting,

1. Articles 124(2) and 217(1) of the Constitution of India impose a mandate on the highest functionaries drawn from the Executive and the Judiciary to perform the constitutional obligation-of making appointments of Judges to the Supreme Court and foe High Courts • collectively in D consultation with each other. In the event of disagreement in the process of consultation, the viewpoint of Judiciary being primal, has to be preferred. [982-E]

2. The majority view in S.P. Gupta's case - giving primacy to the E Central Government in the matter of appointment of Judges to the supe- rior courts - does not lay down correct law and is over-ruled to that extent. [982-F] S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, partly over-ruled.

3. The expression 'president' in Articles 124(2) and 217(1) when read F with Article 74(1) makes the President to act on the advice of the Council of Ministers with the Prime Minister as the head. The Prime Minister and the Council of Ministers are bound to tender the advice in accordance with the interpretation given by this Court to Articles 124(2) and 217(1) of the Constitution of India. [982-G-H]

G 4. The process of consultation under Article 124(2) means consult- ation with the Chief Justice oflndia as head of the Judiciary. The opinion of the Chief Justice of India is not his individual but formed collectively by a body of men at the apex level of the Judiciary. Such collectivity shall consist of the Chief Justice of India, two senior-most Judges of the Supreme Court H and the senior Supreme Court Judge who comes from the State. [983-A-B]

ADVOCATES ASSN. v. U.O.I. 713

5. The process of appointment under Article 217(1) is to begin with the recommendation of the Chief Justice of the High Court. He must ascertain the views of the two senior-most Judges of the High Court and incorporate the same in his recommendation. The Chief Justice of India while examining the recommendation must take into account the views of two senior-most Judges of the Supreme Court and also the opinion of the senior Judge conversant with the affairs of the concerned High Court. [983-B-D]

6. The opinion of the Chief Justice of India shall be primal. No appointment can be made by the President under Articles 124(2) and 217(1) of the Constitution unless it is in conformity with the opinion of the C Chief Justice of India. [983-D-E]

7. The Chief Justice of India shall be appointed on the basis of 'selection by merit' and 'seniority alone' rule shall not be applicable.

8. The appointment to the Supreme Court shall be by 'selection on D merit'. Inter-se seniority amongst Judges in their respective High Courts has to be kept in view while considering the Judges for elevation to the Supreme Court. The combined seniority on all India basis shall be relevant in the process of consideration. The outweighing factor of merit would justify the elevation of a junior Judge from the same High Court. [983-E-F] E

9. The Executive may not appoint a recommendee of the judiciary if considered unsuitable for good reasons based on the material available on record and placed before - the Chief Justice of India. However, if after due consideration the recommendation is reiterated by the Chief Justice of India with the unanimous agreement of otlier judicial consultees then the Executive is bound by the recommendation. [983-F-G] F

10. A chief Justice/Judge may be transferred from one High Court to another in public interest. A transferred Chief Justice/Judge can be transferred again and the power is not exhausted after the first transfer. The consent of the Chief Justice/Judge concerned is not required under G the Constitution. [983-H, 984-A]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, partly over-ruled.

11. A proposal for transfer of a Chief Justice/Judge under Article 222 has to be initiated by the Chief Justice of India and the ultimate H

p. 714

A recommendation in that respect is binding on the Executive. (984-B]

12. The transfer of a Chief Justice/Judge is not justiciable in the court of law except on the ground that the transfer was made without the recommendation of the Chief Justice of India. [984-B-C]

B 13. I<'ixation of Judge - strength in the High Courts is justiciable. The proposal made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, is binding on the Executive. (984-C-D]

C S.P. Gupta v. Union of India, (1982) 2 S.C.R. 365, partly over-ruled.

14. Articles 124(~) and 217(1) of the Constitution only identify the constitutional authorities required to be consulted for appointment of Judges to the Supreme Court and the High Courts. These provisions do not provide for the procedure to be followed in finalising the consultative process culminating in the issuance of a warrant of appointment by the President of India. Neither Article 124 (2) nor Article 217 of the Constitu- tion indicates that any of the constitutional authorities named therein has primacy in the process of making appointments to the superior judiciary. These are the types of gaps which are generally found in almost all the constitutions. They are filled by the conventions which develop with the passage of time. (960-G-H; 961-A-B]

15. It is obvious from the facts and figures given by the Executive itself that in actual practice the recommendations of the Chief Justice of India have been invariably accepted. (965-G] F

16. There are two primary reasons in support of the convention that the primacy rests with the judiciary. There is no dispute that independence of judiciary is the basic feature of the Constitution. The exclusion of the final say of the executive in the matter of appointment of Judges is the only way to maintain the independence of judiciary. If that be so, then there cannot be a better reason for reading such a convention while interpreting Articles 124(2) and 217(1) of the Constitution. The second and the more important reason for giving weight to the opinion of the judiciary is that the appointments are made to the 'superior judiciary' and to find out the suitable persons for such appointments the expertise for that purpose is only available with the judiciary. It is difficult, rather impossible, to accept

ADVOCATES ASSN. v. U.O.I. 715 that all the consulting functionaries must be regarded as of coordinating authority because on various aspects like integrity, capacity, character, merit, efficiency and fitness which are relevant for the purpose of judging the suitability of a person, the executive authorities would be the least informed and will have nothing to say. On the other hand, the Chief Justice of the High Court and the Chief Justice of India, being best informed, are well equipped to express their views and tender advice on the suitability of the person. All the constitutional functionaries being very high authorities in their respective spheres there may not ordinarily be any conflict in their assessment of a person regarding his suitability for appointment of a Judge but in the event of any difference the advice tendered by the judiciary being in the nature of an 'expert advice' has to be preferred. [967-F-H, 968-A-C] C

17. The convention, to the effect that the opinio' and the rer.ommen· dation of the Chief Justice of India in, the matter of appointment of Judges is binding on the executive, is firmly established and is to be read in Articles 124(2) and 217(1) of the Constitution of India. [968-C-D] D

18. The expression 'after consultation with', in Articles 124(2) and 217(1) of the Constitution, has three angles to its interpretation. It is well-settled that the requirement of consultation is mandatory and there is no dispute regarding the meaning of the word 'consultation'. [968·E·F] E

19. In the entire range of presidential appointments, it is only in the case of judicial offices - District Judges, High Court Judges and Supreme Court Judges • that the appointments are ma1ie after consultation with the constitutional functionaries named in the relevant provisions. [969-B·C] F

20. No consultation is provided for with regard to the constitutional offices - except judicial offices - yet no appointment to the offices of high constitutional functionaries such as the Comptroller and Auditor General, the Chief Election Commissioner and others, can be made by the executive without going through some sort of consultative process to adjudge the suitability or eligibility of the person concerned. The specific provisions G for consultation with regard to the judicial offices under the Constitution, clearly indicate that the said consultation is different in nature and meaning than the consultation as ordinarily understood. The powers and functioning of the three wings of the Government have been precisely defined and demarcated under the Constitution. [969-E·G] H

p. 716

A 21. Independence of Judiciary is the basic feature of the Constitu- tion. The Judiciary is separate and the Executive has no concern with the day to day functioning of the Judiciary. The person to be selected for appointment to judicial offices are only those who are functioning within the judicial sphere and are known to the Judges of the Superior Courts. The executive can have no knowledge about their legal acumen and suitability for appointment to the high judicial offices. In the process of consultation the expertise, to pick-up the right person for appointment, is only with the Judiciary. The 'consultation', therefore, is between a layman (the Executive) and a specialist (the Judiciary). Thus the advice of the specialist has a binding effect. If the true purpose of consulting the judiciary is to enable the appointments to be made of persons not merely qualified to be Judges, but also those who would be the most appropriate to be appointed, then the said p•1rpose would be defeated if the appointing authority is left free to take its 'own final' decision by ignoring the advice of the judiciary. [969-G-H; 970-A-B] 'D 22. In the process of consultation, under the Constitution, the last word must belong to the Chief Justice of India. [970-A; 971-G]

Shamsher Singh and Anr. v. State of Punjab, [1975) 1 S.C.R. 814; Union of India v. S.C.H. Sheth and Anr., [1978) 1 S.C.R. 423 and R. E Pushpam and Anr. v. The State of Madras, A.I.R. (1953) Madras 392, referred to.

23. The link between consultation, the advice given as a result thereof, and the ultimate appointment of the person about whom there is consultation, is inextricable, making the entire process of appointment of F Judges under the Constitution as an integrated one. The necessary conse- quence is that the executive is not free to make an appointment which has not been recommended by the Judiciary. (971-H; 972-A]

Colyar v. Wheelar, 75 S.W. (1089), referred to.

G 24. The framers of the Constitution placed a limitation on the power of the Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior 'consultation' with the superior judiciary is a logical consequence of having an 'independent judiciary' as a basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of

ADVOCATES ASSN. v. U.O.I. 717 consultation, the very purpose and object of providing consultation with the Judiciary is defeated. There is, therefore, no doubt that the Executive is bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Articles 124(2) and 217(1) of the Constitu- tion. ,[972-F-G]

25. The constitutional-scheme does not give primacy to any in- B dividual. Article 124(2) provides consultation with the Chief Justice of India, Judges of the Supreme Court and Judges of the High Courts. Likewise Article 217(1) talks of Chief Justice of India and the Chief Justice of the High Court. Plurality of consultations has been clearly indicated by the framers of the Constitution. On first reading one gets the impression as if the Judges of the Supreme Court and High Courts have not been included in the process of consultation under Article 217(1) but on a closer scrutiny of the constitutional scheme one finds that this was not the intention of the framers of the Constitution. There is no justification, whatsoever, for excluding the puisne Judges of the ~upreme Court and of the High Court from the 'consultee zone' under Article 217(1) of the Constitution. [973-C-E]

26. A bare reading of Articles 124(2) and 217 (1) makes it clear that the framers of the C_onstitution did not intend to leave the final word, in the matter of appointment of Judges to the superior Courts, in the hands of any individual howsoever high he is placed in the constitutional hierar- chy. Collective wisdom of the consultees is the sine qua non for such appointments. [973-F-G]

27. Once it is held that the primacy lies with the Judiciary then it is the Judiciary as a collectivity which has the primal say and not any individual, not even the Chief Justice of India. If the expression 'the Chief Justice of India' is interpreted as a 'persona designata', then it would amount 'to allow the Chief Justice practically veto upon the appointment of Judges' which the framers of the Constitution never intended to do. Therefore, the expression 'the Chief Justice of India' and 'Chief Justice of the High Court' in Articles G 124(2) and 217(1) of the Constitution mean the said judicial functionaries as representatives of their respective courts. [974-D-F]

28. While making recommendations for appointments to the Supreme Court and the High Courts it is neither possible nor the require· ment under the Constitution for the Chief Justice of India and Chief H

p. 718

A Justices of the High Courts to consult all the puisne Judges. It can legitimately be assumed that there is a practice that the senior colleagues are always consulted by the Chief Justice of India in the matter of appoint- ment of Judges to the superior courts. (974-F-H]

Law Commission' 80th Report, referred to. B

29. There are positive indications to show that the Chief Justice of India has been consulting his senior col!eagues in the matter of appoint- ment of Judges to the superior courts. Therefore, the opinion of the Chief Justice of India in the process of consultation for appointments to the C superior courts must be formed in consultation with two of his seniormost colleagues. Apart from that, the Chief Justice of India must also consult the seniormost Judge who comes from the same State (the State from where the Candidate is being considered). This process of consultation 3hould also be followed while transferring any Judge/Chief Justice from one State to another. (975-G-H; 976-A] D 29.1. On the same parity, the opinion of the Chief Justice of the High Court must be formed after consulting two seniormost Judges of the High Court. [976-B]

E 30. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court must be in writing and from part of the final recommendation. (976-B-C]

31. Senior-most puisne Judges of the Supreme Court • barring on two occasions • has been appointed to fill the office of the Chief Justice of F India. There is, however, no known method of appointment to the said office. No objective criteria has either been laid down or established by convention. The appointment to the highest judicial office in the country has been, more or less, at the discretion of the Executive. (976-C-D]

32. The only consistency in the said process, is the practice that the outgoing Chief Justice of India makes a recommendation, to the Executive, naming his successor-in-office. There are instances where the recommen- dee of the Chief Justice of India was not the seniormost puisne Judge of the Supreme Court. The very fact, that the recommendation of the outgo- ing Chief Justice of India has come to stay as a standing practice, goes to show that there is no existing convention of appointing the seniormosi

ADVOCATES ASSN. v. U.O.!. 719 puisne Judge as the Chief Justice of India. [976-D-F] A

33. The seniority rule stagnates the system due to lack of entt!rprise: merit on the other hand, does justice to the selected and brings vigour to the system. In any case, to follow 'seniority alone' rule, there has to be some objective basis for reckoning seniority. Method of appointment and seniority are inextricably-linked. Often, High Court Judges with lower seniority in the same High Court are selected for appointment to the Supreme Court. Many a time appointment is made of a High Court .Judge, to the Supreme Court, who is much lower in all India seniority. There are many instances where a junior High Court Judge was elevated earlier and some time later the senior from the same High Court was also brought to the Supreme Court. When Judges are appointed to the Supreme Court from two sources, and they take oath the same day, no one knows how the inter-se seniority is fixed. On an earlier occasion appointee from the Bar was placed senior but on a later occasion the process was reversed. These instance are not by way of criticism but only as a pointer with a view to straighten the exercise of discretion in the future. It may be that the High Court Judges, lower in seniority, are preferred on the basis of their merit in the process of selection. Even on that premises there is no justificalioll« to apply 'seniority alone' rule to the Office of the Chief Justice of India. Needless to say that the duties and responsibilities of the office of the Chief Justice of India are much more onerous than that of a Judge of the E Supreme Court. [976-F-H; 977-A-B]

34. The responsibility of toning-up the Judiciary in the country rests on the shoulders of the Chief Justice of India. He is to make the appoint· ments of Judges in the High Courts and in the Supreme Court. He has to select the Chief Justices of the High Courts. He is responsible for the transfer of Chief Justices and Judges of the High Courts. Apart from controlling the judicial and administrative functioning of the Supreme Court, the responsibility for the satisfactory administration of justice all over India lies on him. As the head of the Judiciary, he would lay down the principles and practices to be followed in the administration of justice all over the country. It is thus obvious that with these manifold duties, functions and responsibilities attached to the high and prestigious office of the Chief Justice of India, the appointment to the said office must be by selection based on objective standards and not by mere seniority. If proper emphasis has to be given to initiative, dynamism and speedy action, the H

p. 720

A criterion of seniority which relies only on the quality of the person at the time of his recruitment, will unhesitantingly have to be pushed to the back- ground. [977-C-FJ

Law Commission, 14th Report, referred to.

B Sant Ram Shanna v. State of Rajasthan, [1968) 1 S.C.R. 111, referred to.

35. In the matter of appointment of )udges to the superior courts, primacy vests with the Judiciary. This being the present state oflaw, it is the C Chief Justice of India and his consultees in the superior Judiciary who are to select • in consultation with the executive • the next Chief Justice of India. They have to lay down the standards of objectivity and rules of appraisal. The 'seniority alone' rule can safely be given a good-bye and the selection of the Chief Justice of India be made on the basis of merit alone. [980-A-8]

D '36: The issue regarding the appointment of Judges to the superior courts, the incidental issues thereunder and all the connected questions arising therefrom are wide open before the court. This Court is called upon to upon to interpret the constitutional provisions regarding the function- ing or an institution called judiciary. The work cannot be left half-way. The E intentions of the framers of the Constitution must be found out, a complete functional-scheme should be laid down to enable the institution to operate smoothly. [980-E-F]

37. There can be no doubt that appointment to the Supreme Court is by way of selection on merit and 'seniority alone' has never been and cannot be the basis. Even otherwise appointment to such a high office under the Constitution cannot be on the sole criterion of seniority. Un- doubtedly, the selection has to be on the basis of merit but the limited role played by seniority in the said process cannot be ignored. The length of service in the High Court or in the All India hierarchy is the only basis for bringing the Judges of the High Courts within the pale of considera- tion. [980-G-H; 981-A]

38. The appointments to the Supreme Court are to be made on the basis of'selection on merit', but in the process of selection the senior Judge in the same Court is entitled to be considered in preference to the junior one. The merit shall always be the out-weighing factor in the selection of

ADVOCATES ASSN. v. U.O.I. 721

Judges to the Supreme Court of India. [981-C] A

39. So far as the interpretation of Article 222 of the Constitution regarding transfer of a Judge from one High Court to another, the power vested under Article 222 can only be exercised in 'public interest'. It is only the Chief Justice of India who can examine the circumstances in a given case and reach a conclusion as to whether it is in public interest to transfer B or re-transfer a Judge from one Court to another. Concept of 'public interest' when read in Article 222 makes it obligatory that the views of the Chief Justice of India are accepted by the Executive. A transfer made in public interest on the recommendation of the Chief Justice of India is not justiciable. (981-D-F] c

40. Any proposals made by the Chief Justice of a State for increasing the strength of the High Court, if it has concurrence of the Chief Justice of India, should be accepted without demur or delay. (981-G]

Law Commission, 14th Report, dated September 26, (1958) Chapter D 6, Paper 8, referred to.

41. Apart from justiciability even if a proposal on the administrative side is made by the Chief Justice of a State which has the concurrence of the Chief Justice of India then the Executive is bound to accept the same. E It is not necessary in that situation to get an adjudication from the court. (981-H; 982-A]

42. It is no doubt correct that the rule of stare decisis brings about consistency and uniformity but at the same time it is not inflexible. Whether it is to be followed in a given case or not is a question entirely within the discretion of this· Court. On a number of occasions this Court has been called upon to reconsider a question already decided. The court has in appropriate cases over-ruled its earlier decisions. The process of trial and error, lessons of experience and force of better reasoning making this Court wiser in its judicial functioning. In cases involving vital con· stitutional issues this Court must feel free to bring its opinions into agreement with experience and with the facts newly ascertained. Stare decisis has less relevance in constitutional cases where, save for constitu- tional amendments, this Court is the only body able to make needed changes. Re-examination and reconsideration are among the normal processes of intelligent living. This Court has not refrained from recon- H

p. 722

A sideration of a prior construction of the Constitution that has proved 'unsound in principle and unworkable in practice'. [945A-D]

43. The framers of the Constitution planted in India a living free capable of growth and expansion within its natural limits. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Constitutional law cannot be static if it is to meet the needs of men. New situations continually arise. Changes in conditions may require a new-look at the existing legal concepts. It is not enough merely to interpret the constitutional text. It must be interpreted so as to advance the policy and purpose underlying its provisions. A purposeful meaning, which may have become necessary by passage of time and process of experience, has to be given. The Courts must face the facts and meet the needs and aspirations of the times. [945-E-F]

44. Interpretation of the Constitution is a continual process. The institutions created thereunder, the concepts propounded by the framers and the words, which are beads in the constitutional-rosary, may keep on changing their hue in the process of trial and error, with the passage of time. [945-G]

45. When the words in the Constitution • defining institutions and their functioning • were drafted, the framers could not have foreseen as to r E what would be the development in the coming future. [945-H, 946-A]

R.C. Poudyal v. Union of India, (1933) 3 Scale 486, referred to.

46. The constitutional provisions cannot be cut down by technical construction, rather it has to be given liberal and meaningful interpreta· F tion. The ordi!lary rules and pre-sumptions, brought in aid to interpret the statutes, cannot be made applicable while interpreting the provisions of the Constitution. The functioning of the Apex-Judiciary during the last four decades, the expanding horizon of, 'judicial review', the broader concept of 'independence of judiciary', practice and precedents in the matter of ap- G pointment of judges which ripened into conventions and the role of the Executive being the largest single litigant before the Courts are some of the vital aspects which were not adverted to by this Court while interpreting the constitutional provisions. The Court did not keep in view the well-es- tablished rules of constitutional-interpretation. This Court is, therefore, justified in re-opening and reconsidering the questions already determined H by this Court in S.P. Gupta's case. [947-A-E]

ADVOCATES ASSN. v. U.0.1. 723

47. The Constitution of India is the fundamental law of the land. The A Judiciary, under the Constitution, is designed to be an intermediary body between the people on the one side and the Executive on the other. It belongs to the Judiciary to ascertain the meaning or the constitutional provisions and the laws enacted by the Legislature. In order to keep the Executive/Legislature within the limits assigned to their authority under B the Constitution, the interpretation of Laws is the proper and peculiar province of the Judiciary. Constitution is the 'will' of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature • declared in the statutes - stands in opposition to that of the people -declared in the Constitution - the will of the people must prevail. The Constitution of India C provides for an elected President. House of people is elected. The State Legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power • called judicial review - under which they may nullify unconstitutional acts of the Executive and of the elected representatives of the people assembled in the Parliament and the State Legislatures. This conclusion does not suppose that the Judiciary is superior to the Legislature. It only supposes that the power of the people - embodied in the Constitution ·is superior to both. [947-F-H; 948-A·B]

48. The role of the Judiciary under the Constitution is a piOus trust reposed by the people. The Constitution and the dem~ratic • polity thereunder shall not survive, the day Judiciary fails to justify the said trust. If the Judiciary fails, the Constitution fails and the people might opt for some other alternative. [948-B·C] F

49. In view of the role of the Judiciary in the context of the Constitu- tion it is fallacious to say that the Legislators alone are answerable to the people regarding the functioning of the Judiciary. It is rather the Judiciary which screens the functioning of the Executive and tli.e Legislatures through the process of judicial review. This Court, therefore, was not justified when, in S.P. Gupta's case, it gave primacy to the Executive on the G ground that the Executive through the Legislators was answerable to the peorle regarding the functioning of the Judiciary. [948-D-E]

50. Independence of Judiciary is the since qua non of democracy. So long as the Judiciary remains truly distinct from both the Legislature and H

_i

p. 724

A the Executive, the general power of the people can never be endangered from any quarters. The framers of the Constitution made it known in an emphatic-voice that separation of Judiciary from Executive, which is the life-line of 'independent Judiciary', is a basic feature of the Constitution. [948-E-G]

B 51. To safeguard the 'will of the people • enshrined in the Constitu- tion • it is necessary to keep the Judiciary truly distinct from both the Legislature and Executive. This is what the framers of our Constitution have done. [949-A]

52. The instant case must be considered in the light of the entire C experience, and not merely in that of what was said by the framers of the Constitution. While deciding the questions posed before it, the Court must consider what is the judiciary today and not what it was 50 years back. The Constitution has not only to be read in the light of contemporary cir· cumstances and values, it has to be read in such a way that the circumstan- D ces and values of the present generation are given expression in its provisions. [p. 946-8-D]

53. No doubt, the independence of the Judiciary has been secured by providing security of tenure and other conditions of service of individual Juoges, but in recent times, with the expanded horizon of judicial review, the concept of judicial independence has achieved new heights. [949-A-B]

The Queen v. Beauregard, (1987) L.R.C. 180, referred to.

54. It is not the security of tenure provided to an individual Judge which alone is the source of independence of judiciary but there has to be an independent judiciary as a institution. The Judiciary in India has to act as an impartial umpire to resolve disputes between the Governments and the private individuals as well as between the Government inter se. It has also to protect the fundamental rights of the individuals guaranteed under · Part III of the Constitution. The courts in this country have already expanded the scope of judicial review by bringing in its ambit social, economic and political justice. Keeping in view the expanding horizon of judicial review it is the paramount need of the time that not only the independence of an individual Judge is to be secured but the independence of Judiciary as in institution has also to be achieved. [950-G-H; 951-AJ

H 55. It is illogical to say that there be an independent Judiciary when

ADVOCATES ASSN. v. U.0.1. 725 the power of appointment of Judges vests in the Executive. The inde- A pendence of Judiciary is inextricable linked and connected with the con- stitutional process of appointment of Judges of the higher Judiciary. 'Independence of Judiciary' is the basic feature of our Constitution. The Framers of the Constitution could have never intended to give this power to the Executive. Even otherwise the Governments - Central or the State - are parties before the Courts in large number of cases. The Union Execu- B tive have vital interests in various important matters which come for adjudication before the apex-Court. The Executive • in one from or the other - is the largest single-litigant before the Courts. In this view of the matter, the Judiciary being the mediator -between the people and the Executive - the framers of the Constitution could not have left the final c authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the Executive. [951-B-D]

55.1 This Court in S.P. Gupta's case proceeded on the assumption that the independence of Judiciary is the basic feature of the Constitution D but failed to appreciate that the interpretation, it gave, was not in conform- ity with the broader facets of the two concepts ·'independence of Judiciary' and 'judicial review' - which are inter-linked. [951 -El

56. The Constitution of India is an elaborate document consisting of 395 Articles and ten Schedules. Despite that there are constitutional E provisions - operative in various fields • which are nowhere to be found in the written text of the Constitution. For instance, it is a fundamental requirement of the Constitution that if the opposition obtain the majority at the Polls, the Government must tender its resignation forthwith. Fun- damental as it is, this does not form part of the written law of the F Constitution. [951-F-H]

56.1. It is also a constitutional requirement that the person who is appointed Prime Minister by the President and who is the effective Head of the Government should have the support of the House of People. The other Ministers who are appointed by the President on the advice of the G Prime Minister must continuously have the confidence of the House of People individually and collectively. The powers of the President are exercised by him on the advice of the Prime Minister and the Council of Ministers which means that the said powers are effectively exercised by the Council of Ministers headed by the Prime Minister. None of these and H

p. 726

A many other essential rules of the Constitution are found in the Constitu- tion of India as framed by the Constituent Assembly. [951-H; 952-A-B]

57. Two sets of principles, make up the rules of constitutional law. One set of rules is contained in the written constitution of a country and the other set is referred to as the 'conventions of the Constitution'. Con- B ventions are a means of bringing about constitutional development without formal changes in the law. [952-E]

K.C. Wheare : "The State of Westminster and Dominion States", 4th Edn., referred to. c 58. The conventions grow up, around and upon principles of the written Constitutions. Necessary cunventional rules spring up to regulate the working of the various parts of the Constitution, their relation to one and other and to the subject. (952-G]

Sir W. Ivor Jennings: "Law and the Constitution'~ 5th Edn., referred D to.

59. The conventions enable a rigid legal framework • laws tend to be rigid • to be kept up with changing social needs and changing political ideas. The conventions enable the men, who govern, to work the machines. E (953-EJ Dicey : "Introduction to the Study of the Law of the Constitution", referred to.

60. The written Constitutions cannot provide for every eventuality. p Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conven- tions which grow by the passage of time. Conventions are vital in so far as they fill-up the gaps in the Constitution itself, help solve problems of interpretation, and allow for the future development of the constitutional framework. Whatever the nature of the Constitution, a great deal may be G left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion. A power which, juridically, is conferred upon a person or body of persons may be transferred, guided or canalised by the operation of the conventional rule. (954-A-B] H K.C. Wheare: 'Modem Constitution', 1967 Edition, referred to.

ADVOCATES ASSN. v. U.O.I. 727

61. The primary role of conventions is to regulate the exercise of discretion - presumably to guard against the irresponsible abuse of powers. [954-D)

R. v. H.M. Treasury, exp. Smedley, [1985) Q.B. 657, referred to.

Colin R. Munro : "Studies in Constitutional Law'~ 1987 Edn., referred to.

62. EYery act by a constitutional authority is a 'precedent' in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is very good evidence of a convention. [956-A-B)

Re Amendment of the Constitution of Canada, [1981) 125 D.L.R. (3d) 1, referred to.

Sir W. Ivor Jennings : "The Law and the Constitution'~ 5th Edn. D [1959), Dicey: "Cases and Materials on Constitutional and Administrative Law" 1966. Edn. and Prof J.D.B. Mitchell, Constitutional Law, 2nd Edn. 1968; referred to.

63. A convention while it is a convention is to be distinguished from the law. But this does not mean that what was formerly a convention E cannot later become law. When customary rules are recognised and en- forced by courts as law, there is no reason why a convention cannot be crystallised into a law and become enforceable. Conventions can become law also by judicial recognition. [958-D-E]

K.C. Wheare: 'Modem Constitution', 1966 Edition, referred to. F

64. It is no doubt correct that the existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submission. But once it is established in the court of law that a particular convention exists and the constitutional functionaries are fol· G lowing the same as a binding precedent then there is no justification to deny such a convention the status of law. Courts have recognised the existence of conventions and have relied upon them as an aid to statutory interpretation. [958-E-G)

Ryder v. Foley, [1906) 4 C.L.R. 422, Commercial Cable Company v. H

7'213 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A Government of Newfoundland, [1916) A.C. 610; British Coal Corporation v. The King, [1935) A.C. 500; Robinson v. Minister of Town and Country Planning, (1947) K.I. 702; Liversidge v.Anderson, [1942) A.C. 206; Copyright Owners Reproduction Society Ltd. v. E.M.l. (Australia) Pvt. Ltd., [1958) 100 CL.R. 597; Adegbenro v. Akintola, [1963) A.C. 614; Attorney-General v. B Jonathan Cape Ltd., [1976) Q.B. 752; R. v. Secretary of State for Home Department, Ex. p. Hosenball, [1977) 1 W.L.R. 766 and Re Amendment of the Constitution of Canada, [1981) 123 DL.R. (3rd) 1; referred to.

65. There is no distinction between the 'constitutional law' and an established 'constitutional convention' and both are binding in the field of C their operation. Once it is established to the satisfaction of the court that a particular convention exists and is operating then the convention be- comes a part of the 'constitutional law' of the land can be enforced in the like manner. [959-C-D]

U.N.R. Rao v. Smt. Indira Gandhi, [1971) Supp. S.C.R. 46 and D ShamsherSingh &Anr. v. State of Punjab, [1975) 1S.C.R.814, referred to.

66. The question whether an established constitutional convention can be read in Articles 124(2) and 217(1) of the Constitution of India to the effect that in the matter of appointment of the Judges of the High Courts E and Supreme Court, the opinion of the Judiciary expressed through the Chief Justice of India is primal and binding, is to be considered on the basis of three tests, viz., (a) what are the precedents; (b) did the actors in the precedents believe that they were bound by a rule; and (c) was there reason for the rule, for the existence of a convention. [960-E-G]

F Per Punchhi, J. (Dissenting)

1.1. The Chief Justice of India vis-a-vis other Judges of the Supreme Court has a unique position, primal in rank and status. He is not only paid more than the other Judges of the Supreme Court, but holds, unlike them, the responsibility of fixing rosters, knitting benches, allocation of G work etc. and of doing other administrative functions. Article 146 is also a clear pointer of his administrative role. Thus he stands apart by virtue of his office. There can be no two opinions on that score either in the context or in the spirit of Article 124. In comparison the matter of appoint- ment of Judges of the Supreme Court is his constitutional function. H [995-F-H; 996-A]

ADVOCATES ASSN. v. U.O.I. 729

1.2. The Chief Justice of India on the plain language of Article 124(2) A is always singularly to be consulted by the President of India before making an appointment, whereas, in contrast, his puisne judges are separately referred to be barely falling in the consultation zone and that too at the option of the President. Obtaining of their opinion is not compulsory. The option resting with the President is of course purely discretionary. The President may overlook all the Judges of the Supreme B Court and all the Judges of the High Court and consult instead a High Court Judge junior most in rank from a remote corner of the country. The only limitation set for the purpose is that consultation by the President can only be sought from within the members of the higher judiciary so earmarked. This too demonstrates in contrast the singular position of the c Chief Justice of India. [996-A-C]

1.3. The Chief Justice oflndia is one of the Judges in Supreme Court in the judicial sense. But he is the Chief Justice of India throughout the territory of India which encompasses various High Courts and other courts in the hierarchy. No functioning High Court Judge, and others to be ap- pointed later, could have and can escape the touch gf his approving wand. In every High Court appointment an effective role to play. High court appointments advisedly are not left to be just a local affair. [996-C-D]

1.4. The Constitution has put the Chief Justice of India at a primal position of certification in letting enter by his approval persons to the judicial family of which he is the paterfamilias. Correspondingly to that right is his duty to oversee performance of Judges in the High Courts as otherwise the power in his hand towards transfer of judges from one High Court to another under Article 222 could meaningfully be not employed. F In that sense the Chief Justice of India is administratively knit to the judiciary in the country but this knitting is primarily his and not that of the Supreme Court. The majority opinion, concludes to obliterate this distinction. It follows a path leading to a destination unknown to the Constitution. No doubt Rule of Law is a basic feature of the Constitution permeating the whole constitutional fabric and Independence of the G judiciary is an essential attribute of Rule of Law, and is part of the part of the basic structure of the Constitution. The law whatever be its length or sweep, has some end, wherefrom if human discretion holds the field then that would lead either to justice or injustice, reasonableness or arbitrariness. Now this scepticism, cannot be applicable in all situations; H,

p. 730

A least of all in the case of discretion vested in the Chief Justice of India. His is a unique position of trust reposed in him by the people of India through the Constitution. Entertainment of doubt in this regard is totally impermissible besides being unfounded. Then it is derived that the scope of human discretion (his descretion) should therefore be reduced or wiped out by laying down some guidelines so as to put those guidelines in the realm of law so that they become enforceable as law. As a re~ult the discretion vesting in one individual (the Chief Justice of India) on the suspicion of its being unreasonable and arbitrary need be snatched and handed over fictionally to the country's judiciary of the higher echelons as a body but actually to a body of men introducing a new element of plurality in the final decision under the going name of "collective wisdom". In support of this step it is viewed that since the constitutional scheme frowns on vesting of absolute power in one individual, the Chief Justice of India cannot be left to have a singular role to play under Article 124(2) of the Constitution and reference to him in the said Article be read symbolic of his representing the judiciary as a whole. [996-E-H & 997-A-D]

1.5. It is also suggested that in actual practice he must be one in a body of men, i.e., he with two of his colleagues in order of seniority, and collectively as an oligarchy, recommending appointment of Judges to the Supreme Court, and likewise in a body of more than those two, in the matter of appointment of Chief Justices and other Judges of the High Court. This is the barter which the Chief Justice of India must accept to get back from the Executive his lost primacy. He must forever muzzle his singular voice. The individual voice of the Chief Justice of India shall just be at par with the voices of the afore-referred to men composing that body. F All such voices, termed as collective wisdom, in writing would be sent to the Central Government recommending appointment of judges to the higher judiciary. By this collectivity, concievably not always unanimous, assumption is made that it could have the loudest voic~ reverberating. And suck voice would have "greater weight" as compared to other constitutional functionaries who would have "due weight". [997-D-FJ G 1.6. Further the Executive, time bound, would be required to react and on its failure to do so effectively, it would be obligatory on its part to advise the President on the action proposed by this oligargic group. Lastly it is suggested that since appointments routed through this method would assumptively be with the approval of the judiciary as a class, there shall

ADVOCATES ASSN. v. U.0.I. 731

I.hen be no occasion or scope of judicial review over any appointment except to the limited extent of lack of qualifications of the appointee. And it is by this method, it is said, that the right people would be inducted in the judiciary. Nothing, could be more violating in letter and spirit of the language and scheme of the Constitution, disturbing equilibrium on which it rests, and a hard hit on its basic structure and basic features especially in the denial of judicial review. And on such interpretation the President henceforth cannot solicit consultation with any Judge in the country under Article 124(2) of ti1e Constitution, for the voice of all Judges now is to be found in the symbolized Chief Justice. Therefore, this cannot be agreed to. There would be a storm of conflict brewing in its application. If by this method it is thought to prevent the Executive element likely to enter, encroach or trespass into the judicial portals, then that by itself would not cleanse the quality of judiciary. What is needed is to prevent executive minded persons to get in as Judges. The judiciary need to be saved from men who brew conflict, men who are not historians of the past and prophets of thl future, but believe in short term existences. As rightly said by a Lord Chancellor of England, gentlemen are required in the judiciary and some knowledge of law is an advantage. And gentlemen are found on both sides of the fence. No side can lay claim to gentlemen as their exclusive possession. [997-G-H; 998-A-E]

1.7. The role of the Chief Justice of India in the matter of appoint- E ments to the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the Executive on a level of togetherness and mutuality, and neither he nor the J<:xecutive can push through an appoint- ment in derogation of the wishes of the other. [1003-E-F] F 1.8. The roles of the Chief Justice of India and Chief Justice of the High Court in the matter of appointments of Judges of the High Court, is relative to this extent that should the Chief Justice of India be in disagree- ment with the proposal, the Executive cannot prefer the views of the Chief Justice of the High Court in making the appointment over and above those of the Chief Justice of India. [1003-F-G] G

1.9. In the matters of transfers of Judges from one High Court to another, the role of the Chief Justice of India is primal in nature and the Executive has a minimal, if not, no say in the matter, for consolation envi~aged under Article 222 of the Constitution is used in a shrunk form H

p. 732

A and more as a courtesy, the subject being one relating to the in working of the judiciary (1003-H, 1004-A)

S.P. Gupta v. Union of India, [1982) 2 S.C.R. 365; and explained.

2.1. To assign a role to the Chief Justice of India, in the whole B conspectus of the Constitution, as symbolic in character and to his being a mere spokesman representing the supposed views of entire judiciary would virtually tantamount to re-writing the Constitution, which is not warranted. It would not be correct to create and vest powers in the hands of the oligarchy representing the judiciary as whole by adding words to the C Constitution by interpretative exercise so as to silence the singular voice of the Chief Justice of India for ever. (1004-8-C)

2.2. One need not feel uneasy to put up with the Constitution as it exists. Ours is a constitution, perhaps the longest in the world, a document written profusely. There is no miserliness employed in the use of words. As D an organic whole it has a live model to imagine about; the Westminster model. All problems facing the nation, soluble with the aid of law, must find answers through the language and frameword of the Constitution. All new thoughts and solutions to new problems experienced, not envisaged by the Founding Fathers, must translate themselves through the words of the Constitution. Greatest problems of the time are also not solved merely by interpretations made to suit the occasions. There are other legitimate modes available in passing through the tunnel of words employed by the Constitution. Majorities to byepass the words also to not the answer. [993-C-E] 3.1. Primacy of the Chief Justice of India could have two facets; one, institutional but personal to the Chief Justice of India and the other con- stitutional. Under the Constitution there is a Chief Justice of India as an essential constituent of the Supreme Court under Article 124(1) of the Constitution. In plain words, he is an institution by himself. Besides, he is also a component of the judicial institution known as the Supreme Court G oflndia. Under sub-Article (2) of Article 124, as also under Article 217, the Chief Justice of India has been assigned a compulsive consultative role in the matter of appointment of Judges of the Supreme Court as also the Cbief Justices and judges of the High Courts. [987-G-H; 989-C-D]

3.2. The in-built retention of rank and precedence of the Chief Justice H in the institutional sense before the other Judges of the same court, be it

ADVOCATES ASSN. 1-. U.O.I. 733 a High Court of the State or the Supreme Court of India in the post-Con- A stitution period, is an accepted hierarchical norm and hence the source of his Institutional primacy. [989-F-G]

3.3. Not only is the word 'primacy' inextricably linked up with the words 'rank' and precedence' but conceptually they all are of the same family and breed, block and substance. The Chief Justice of India or the B Chief Justice of a High Court, as the case may be, is known to be primus inter-partes i.e. first among equals while functioning judicially, but in matters other than judicial enjoys a unique position of status, rank and precedence by virtue of his office. This distinction is first borne in mind and then constitutionally kept alive, whenever he is referred to singularly c in the Constitution in contrast to the word 'court' wherever occurring. It is on that basis that his role has an indivisibility of its own having a primal element. [990-B-C]

4.1. Insofar as the President is concerned, the subject of appointment of Judges of the higher lot is left between the Chief Justice of India and the Prime Minister (Law Minister including) and he would go by the advice given. Thus, it is at the Prime Minister's level that the search of the primacy of the Chief Justice needs to be directed, more so when literally the duty to obtain consultation has in judicial channels been viewed to be hardly an effective check, limitation or reservation on the power of the consultor, ordinarily. [992-H & 993-A-B]

4.2. When the Constitution was adopted and from its actual working in the years thereafter, the position which emerges is that the consultee has remained an effective consultee and no one out of the two has the primal power to silence the other. The two high effectual constitutional dignitaries, such as the Prime Minister of India aided by the Law Minister, if any, and the Chief Justice of India are expected to interact in a spirit of mutuality and accommodation, and not act at cross purposes. Plurality thu·s lies in working together, minimising the areas of conflict, ironing out differences, choosing the appropriate time for interaction, shelving con- G troversial proposals and not letting them block other appointments which can by mutual discussion go through to serve the people; the aim being that the Supreme Court and the High Courts shall not remain starved of Judges. The view that the two functionaries must keep distances from each other is counter productive. The relationship between the two needs to be H

p. 734

A maintained with more consideration. [994-A; 995-A, E]

4.3. In the post S.P. Gupta's period, the Central Government i.e. the Law Minister and the Prime Minister were found to be in a dominant position and could even appoint a Judge in the higher judiciary despite his being disapproved or not recommended by the Chief Justice of India B and likewise by the Chief Justice of a State High Court. Exception perhaps could be made only when the Chief Justice was not emphatic of his disapproval and was non-committed. ~is stance could in certain cir· cumstances be then treated, as implied consent. These would of course be rare cases. Now in place of the aforesaid two executive heads come in c dominant position, the first and the second puisne, even when disagreeing with the Chief Justice of India. A similar position would emerge when appointing a Chief Justice or a Judge of the High Court. Thus the position of the institution of the Chief Justice being singular and unique in char· acter under the Constitution is not capable of being disturbed. It escaped S.P. Gupta's case, though in a truncated form, and not to have become D totally extinct, as is being done now, correction was required in that regard in S.P. Gupta's case, but not effacement. [998-F-H, 999-A-B]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, referred to and explained. E

5. The suggestion that our judiciary is traditionally apolitical and it needs to secure a non-political combination on having a larger say in the appointment of members of the higher judiciary is perhaps overly stated. There is nothing to feel shy in stating that the traditional role of the court of remaining apolitical is a thought of the past. The higher judiciary in F this country was never so full with political problems as of today. Their solutions could never to entirely non-political. [999-C, F, 1000-B]

6.1. The plain language employed in Articles 124 and 217 suggests that the proposal for an appointment must emanate from the President of G India. Conventionally, it is just the reverse and for sound practical reasons. The proposal now emanates, and should keep emanating, from the Chief Justice of India, in so far as the Supreme Court appointments are concerned, and from the Chief Justice of the High Court, in so far as the High Court appointments are concerned, to which the Chief Justice of H India is a very important consultee. To have developed such convention is

ADVOCATES ASSN. v. U.O.I. 735 pure and sound logic. [1000-B, DJ A 6.2. In view of the qualifications for appointments of judges to the Supreme Court, as well as to the High Court, as laid in the Constitution, strong common sense leaves the act of proposing a name by the Chief Justice of the Court concerned, he being the longest tenured and having B gained the longest experience in men. Besides knowing about the legal acumen of the person under consideration, the Chief Justice has oppor- tunity to notice his behaviour and court-craft and the fairness with which he deals with the court, client and opposing counsel. The Chief Justice has various means to know about the general reputation of the person under consideration. Yet the search, traditionally is to look for a gentleman, a C man of honesty and integrity for the discovery of which the Chief Justice may not be fully equipped. These attributes are reflected to some extent in the formal atmosphere of the court but most of them outside the court. The proposal cannot, and should not, fructify on the mere asking of the Chief Justice because his recommendation in the very nature is incomplete D and inchoate unless and until the twain of information about the charac- ter, honesty integrity gentlemanliness, and a host of other attributes are supplied by the Executiye. The Executive also is in a position to supply the possible impact of the appointment as to whether it would receive acclaim and approval in the society or not. [1000-D-H, 1001-A-B] E

6.3. The information covering areas cannot be divided in water~tight compartments or by allocation of higher or smaller roles or award of less or more marks as do the Public Service Commissions. There are a lot many overlapping areas coverable by the Executive as are areas in which difference of opinion may surface in assessment. lloth need to entwine to F help emerging appropriate acceptable appointments both to the Chief Justice of India and the Executive. A division, artificial on the face of it, cannot tilt in favour of the Chief Justice by assigning to him more knowledgability of a proposed appointment than other functionaries and on that basis a primacy, leaving the opinion of others for due regard. The G whole personality of the person under considerations is to underg.; the test of acceptability at a joint level. Knowledge of law alone is not a tilting factor. [1001-C-F]

6.4. It is left exclusively to the Chief Justice of the Supreme Court or H

p. 736

A the High Court, as the case may be, to consult any number of Judges on the particular proposal. It is equally within his right not to consult anyone. This is his constitutional primacy and prerogative. (1001-E]

6.5. There is clearly no principle of consideration which would justify reading into the plain and simple words of Articles 124(2) any additional B words to suggest that the Chief Justice of India as described therein is only in a symbolic sense, representing the judiciary. It cannot be said that the Chief Justice heads a monastic order, entry of which is regulated by the Order as a class, and its head merely a spokesman. No one can denude him of the role to which he is constitutionally entitled, Equally, it is c difficult to agree to a construction of the provision that the proposal initiated by him, or related to a High Court appointment, which passes through him, when approved by the executive goes as affirmance of his primacy. It would be better to go by the scriptural thought that when one says and, the other agrees, both be known as wise. [1001-G-H; 1002-A-B] D 7.1. With regard to the role of the Chief Justice of India vis-a-vis the Chief Justice of the High Court in making appointments to the High Court, their views should coalesce, because on that depends discipline in the judicial family. The appointments to the High Court are not a local affair or a State subject. At times local affairs may appear messed up and complicated which cannot be conducive to the emergence of right appoint- ments. The Chief Justice of India has an overall role in the image and upkeep of the judiciary for he has a hand in the appointment of every High Court Judge and also a hand in the matter of transfer of Judges from one High Court to another. Those transfers need to have a basis. Unless he is obliged under the Constitutional scheme to oversee the functioning of the High Courts, he cannot purposively have a participatory role in the subject of transfers. In that limited heirarchical sense, the voice of the Chief Justice of India to the proposal, should there be a difference, unexpected though, be the determining factor. [1002-C-E] G 7.2. The views of the Chief Justice of the High Court regarding an appointment, being virginal and primary in nature, he being the initiator, would normally be entitled to great accommodation, but should there ever be a difference with the views of the Chief Justice of India, the latter's view should be allowed to take the lead. For it cannot be ever said in the

ADVOCATES ASSN. v. U.O.I. 737 constitutional scheme that there are as many judiciaries in the country as of the High Courts; the Supreme Court being just another. As a wing of the political set up, the judiciary is one whole knitted hierarchically under the Constitution. (1002-F-Gl

8.1. Transfer of Judges from one High Court to another is almost the judiciary's internal affair. The role of the Chief Justice of India in that regard is primal in nature because this being a topic within the judicial family. The executive cannot have an equal say in the matter. Here the word 'consultation' would shrink in a mini form. Should the Executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary. For instance, in the case of a recommendation made by a Chief Justice of the High Court where the Chief Justice of India is in dis-agreement, and the Executive preferring the view of the Chief Justice of the High Court makes the appointment and the Judge is recom- mended to be transferred by the Chief Justice of India to another High Court. In the first place, preferring the opinion of the Chief Justice of the D High Court over and above that of the Chief Justice of India erodes the primacy of the Chief Justice of India based on his status, rank and precedence constitutionally noticed, and in the second place recommend~- tion of transfer of that Judge to another High Court, makes the proposal suspect. This obviously is a breeding ground of indiscipline. [1002-H, 1003-A-C] E 8.2. The role of the Chief Justice of India in the matter of appoint- ment of Judges of the High Court and their transferability are connected matters which cannot be divorced on the mere fact Qf the possibility of their separate happening. The role to the Chief Justice of India in the twin F subject has to be viewed from the self same angle, i.e. to subserve the independence of judiciary in the interest of the India people. (1003-D]

9. Judicial review on the subject cannot be said to hi! denied on the supposition that it would be the judiciary's act, as that is against the basic structure of the Constitution. [1004-C] G

10. Since neither b1:fore the referring bench nor in the pleading was any point raised as to the innovation and application of service jurisprudence to the induction into the higher judiciary, or to the concept of reasonable expectations, it is not necessary to even touch these ques- H

p. 738

A tions. Nothing ever was projected on these subjects either. The benefit of a discussion inter-se on which the desirability of going into these aspects may have been gone into was not available. A lot can be said against the views expressed without alerting counsel appearing and others concerned but for the present the comment be kept reserved, and such opinion is B obiter. Consideration on these points was wholly unnecessary on the rigid terms of the reference. [1004-E-G]

ORIGINAL JURISDICTION : Writ Petition No. 1303 of 1987.

WITH c Writ Petition (Civil) No. 156 of 1993.

Under Article 32 of the Constitution of India.

Milan K. Banerjee, Attorney General, S.C. Roy, Attorney General D Kapil Sibal, F.S. Nariman, Ram Jethmalani, P.N. Lekhi, R.K. Garg, K. Parasaran, Shanti Bhushan, P.P. Rao, Ravi Kiran Jain, V.M. Tarkunde, Vinod Bobde, Ms. Indra Jai Singh, B. Dutta, K.N. Bhat, S.P. Gupt~, P.L. Dubey, S.C. Toy, B.V. Acharya, Vepa Sarthi, P.M. Raval, P.H. Parekh, Mukul Mudgal, Raju Ramachandran, Ranjit Kumar, S.C. Sharma, M.S. E Ganesh, S.P. Gupta, Sunil Gupta, K.J. John, Surya Kant, Naresh K. Shar- ma, R. Sasiprabhu, A. Jayaramm P.R. Seetharaman, A.S. Srivastava, R.B. Misra, Mrs. Hemantikawahi, Veerappa, K.H. Nobin Singh, Kailash Vasdev, Ms. Alpana Poddar, Ashok K. Srivastava, Satish K. Agnihotri, A.K. Singh, Aman Lekhi, Lokesh Kumar, Ashok Kashyap, Rakesh Luthra, L.R. Singh, F .Amal Dutta, Dalip Sinha, J.R. Sinha, T.V.S.N. Chari, H.K. Puri, B.D. Sharma G. Prabhakar, Praveen Chaudhari, B.B. Singh, Anip Sachthey, Anip Sachthey, Ms. Meenakshi Arora, B.R. Jad, R. Mohan, S.M. Jadhav, A.S. Bhasme, R.K. Mehta, G.K. Bansal, Aruneshwar Gupta, Ashok Mathur, S.K. Nandi, Ms. Indu Malhotra, Ms. Beena Gupta, Krishna Mur- thy swami, P.K. Manohar, Ms. Kamini Jaiswal, Ms. S. Janani, Gopal Singh, [ G D.N. Mukherjee, M.K. Garg, Ashok Srivastava, Prashant Bhushan, Mrs. M. Karanjawala, J.M. Khanna, Subhash Sharma, A. Subba Rao, Ms. A. Subhashini, P.S. Champaneri, J.M. Sharma, Suman Bhardwaj, Shashi Nigambam, V.B. Misra, Ms. Abha Jain, P.S. Champanan, R. Nariman, A.N. Dawn, Ms. Suchitra Saha, P.L. Dubey, Neeraj Datta, N.K. Sharma and S.K. H Kulkarni for the appearing parties.

ADVOCATES ASSN. v. U.O.I. [VERMA,J.] 739