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

"With respect to the first of these arguments, I do not think Section 100 imposes on Parliament the duty to continue to provide judges with precisely the same type of pension they received in 1867. The H

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A Canadian Constitution is not locked forever in a 119-year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the · Constitution can accommodate, as it has, many subjects unknown in 1867 - airplanes, nuclear energy, hydroelectric power - it is surely not straining section 100 much to say that the word 'pension' B admittedly understood in one sense in 1867, can today support federal legislation based on a different understanding of 'pensions."

There is a remarkable development in this area in recent times due to the dynamic judicial activism. Reference may be made to (1) The Bengal C Immunity Company Limited v. The State of Bihar and others, [1955] 2 SCR 603, (2) Samsher Singh and Another v. State of Punjab, [1975] 1 SCR 814, (3) Union of India v. Sankal Chand Himatlal Sheth and Anr., f1978] 1 SCR 423 at 483, (4) Delhi Transport Corporation v. D. T.C. Mazdoor Congress and Others, [1991] Supp. 1 SCC 600, (:i) Subhash Shanna and Others v. Union of India, [1990] Supp. 2 SCR 433, (6) Kihoto Hollohan v. Zachillhu & Ors., D [1992] Supp. 2 SCC 651, (7) Indra Sawhney and Others v. Union of India, [1992] Supp. SCC 210 and (8) Union of India v. Tulsi Ram Patel, [1985] Supp. 2 SCR 131, at pages 273 and 274.

In addition to the above, there are "some outstanding decisions of this E Court which found certain constitutional amendments being yiolative of the basic structure of the Constitution and consequently declared those amendments void. Vide His Holiness Kesavananda Bharti Sripadagalavaru v. State of Kera/a, [1973] Supp. SCR 1 decided by a Bench of 13-Judges which over-ruled the proposition of law propounded in J.C. Golak Nath & Ors. v. State o Punjab & Anr., [1967] 2 SCR 762. F See also (i) Waman Rao & Ors. etc etc. v. Union of India and Ors., [1981] 2 SCR 1, (2) Minerva Mills Ltd. & Ors. v. Union of India, [1981] 1 SCR 206, (3)Synthetics & Chemical Ltd. etc v. State of U.P. and Ors., [1989] Supp. 1 SCR 623, (4) Secretary, Inigation Department, Government of Orissa G and Others v. G.C. Roy and Anr., [1992] 1 SCC 508, (5) Raghunathrao > .• Ganpatrao v. Union of India, AIR (1993) SC 1267=1993 (1) JT 374, (6) R.C. Poudyal v. Union of India, (1993) 1 Scale 489 ..

In Poudyal's case (supra) the majority view is thus:

H "In the interpretation of a constitutional document, "words are but

ADVOCATES ASSN. v. U.O.L [PA:-<DIAN, J.] 787

the framework of concepts and concepts may change more than words themselves". The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth."

It is on account of our earnest inquisitiveness for healthy judiciary and love for justice, we shall probe the physiology of the judicial system and strive to answer tliese two structural questions, posed for examination purely on an objective test with utmost detachment and fairness, and free from every from a interest, loyally, obligation or prior commitment since the decision to be pronounced on the interpretation of the relevant con- C stitutional provisions is intended to ensure a fortress to protect the inde- pendence of judiciary.

We shall presently narrate the chronology of events and the mass of enthralling historical material including the opinion of some learned out- D standing Judges here and elsewhere, eminent jurists and the Law Commis- sions that necessitated the reconsideration of the decision in S.P. Gupta's case.

(1) In the order of reference dated 26.10.1990 made in Writ Petition No. 1303 of 1987 (along with Writ Petition Nos. 13003 of 1985 and 302 of E 1987) vide Subhash·Sharma's case (supra) it has been pellucidly observed that the correctness of the majority view in Gupta's case require recon- sideration by a larger nine-Judges Bench.

(2) Be it noted that even the majority in S.P. Gupta's case appears p to have been not satisfied with what they perceived to be the constitutional scheme of appointment of Judges, viz., that the ultimate power of selection and appointment of Judges in the Supreme Court and High Courts rest with the Central Government.

In fact, Bhagwati, J. (as the learned Chief Justice then was) who G delivered the main judgment, while responding to the strident criticism that the process of selection and methodology of appointment of Judges to the superior judiciary by the Central Government has eroded the inde- pendence of judiciary, has himself made some suggestions in the following words: · H

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A "We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Cpurt or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for B appointment on the Bench and of qualities required for appoint- ment and this last requirement is absolutely essential - it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and mean- c ing for the deprived and exploited sections of humanity. We may point out that even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commis- sion for appointment of the high judiciary."

The _exposition of the above reform suggested an recommended in D S.P. G_upta's case indicates that the learned Judges in that case were not happy to hand over the authority exclusively to the executive - namely "the right of choice" in the selection of candidates to the superior judiciary.

(3) Y.V. Chandrachud, J who presided over the Indian Judiciary for nearly 8 years as Chief Justice of India while inaugurating a seminar at Patna on February 26, 1983 i.e. long after the decision in S.P. Gupta's case ·was handed down on December 30, 1981 admitted that the present proce- dure for selection and appointment of Judges to the superior judiciary is "outmoded" and should be "given a decent burial". In his view, the recom- mendation by the suggested collegium would be far more credible and acceptable than of a single individual in the narrow confines and secrecy of his chamber. Vide R.K Hegde, the Judiciary Today: A plea for Collegium 38.

(4) The Law Commission chaired by Justice D.A. Desai in its 121st G Report on "A new forum for Judicial appointments" while recommending the establishment of a National Judicial Commission to serve as a consult- ative body in the matter of appointment of Judges to the Supreme Court and High Courts, has made its conclusion in Chapter IX under the caption "Corollary" as follows :

H "If the structure recommended herein is acceptable, it would

ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.] 789

necessitate amendment to the Constitution. The power to appoint A a Judge of the Supreme Court and a Judge of the High court, which today vests in the President of India would continue to vest in the President of India. The power has to be exercised under the new dispensation in consultation with the National Judicial Servise Commission. To that extent, article 124 and article 217 will have to be amended. Similarly article 233 and 234 will have to be B amended."

(5) It is quite appropriate, in this context, to recall what Dr. B.R. Ambedkar said during the discussion about the problems, relating to superior judiciary in the draft Constitution. It reads thus : C

"It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown in the same extent which we find in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely'on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which executive wishes to made subject to the coucur- rence of Legislature is also not a very suitable provision."

A number of alternative modes that are in existence in different parts of the globe were also suggested in this regard during the discussio1_1 of the draft Constitution by various members for selecting the candidates to man the superior judiciary.

(6) Even in several countries where the power of appointing Judges exclusively and unquestionably vests with the executive, the introduction of was drastic reforms are felt necessary.

(i) In United Kingdom, recently opinions were expressed that there must be an advisory body to assist the Lord Chancellor in the matter of selection of personnel for appointment to higher judiciary.

(ii) In 1972, the Justice Sub-committee on the judiciary recom- mended that while the Lord Chancellor should retain control of the appointment machinery, he should be helped in his task by a small Advisory Appointment Committee. H

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A (iii) The President of United States of America has established 'a circut Judges Nominating Commission' to. recommend names of the best qualified persons for appointment to the United States Court of Appeal.

(iv) The nominee of the President of USA for appointment of a B Judge of the Federal Court of USA has to appear before the Senate Judiciary Committee for 'confirmation hearing' which usually takes place for a few days ,and during which the nominee's legal philosophy a"d his/her merit is exposed to the public. Then the Senate Judiciar: ( ~ Jmmittee makes its recommendations for or c against to Senate which tn turn approves or disapproves the can- didates.

ADVOCATES ASSN. v. U.0.1. (PANDIAN, J.] 791

Judge from one High Court to any other High Court and the said Com- A mission was i.o consist of the Chief Justice of India who was to be the chairperson of the Commission and two other Judges of the Supreme Court next to the Chief Justice in seniority and for making recommendation as to the appointment of a Judge of any High Court, the Commission was to consist of the CJI, as chairperson of the Commission, the Chief Minister B of the concerned State or if a proclamation under Article 356 is in opera- tion in that State, the Governor of the state, one more senio~ most Judge of the Supreme Court, the Chief Justice of the High Court and one other senior most Judge of that High Court.

The 'Statement of objects and Reason' declared that the Commission C to be set up was "to obviate the ::riticisms of arbitrariness on the part of the Executive in such appointments and transfers and also to make such . appointments without any delay." The proposed amendment to the Con- stitution by inserting a new Part XIII A evidently was in view of the recommendations made by the Law Commission of India in its 121st Report, emphasising the need for a change in the system. By the Amend- D ment Bill, certain amendments were to be brought to Articles 124 (2), 217 (1), 222 (1) and 231 (2) (a) to implement the recommendations of the National Judicial Commjssion.

The texture and tone of the amendment and the Statement of Objects E and Reasons are in tune with the recommendations of the eminent Judges of this Court, jurists, Bar Associations, outstanding lawyers, Law Commis- sions and various Committees for improving the situation in the matter of the appointment of Judges on the diagnosis made by them.

When the referral order was passed on 26.10.1990 by this Court, F hoping that the proposed amendment to the Constitution will relieve the grievance long felt by the judiciary in the matter of selection of proper and fit personnel and their appointment to the superior judiciary, the Constitu- tion Amendment Bill pending before the Parliament. It was only having regard to the said Bill, this Court stated in para 50 of its judgment in G Subhash Shanna's case (supra) thus :

"In the event of the Amendment being carried and a National Judicial Commission being set up, the correctness of the ratio in S.P. Gupta's case of the status of the Chief Justice of India may not be necessary to be examined in the view of the fact that by the H

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A Amendment the Chief Justice of India would become the Chainnan of the Commission. In case the Commission is not constituted, the two que~tions indicated above which are of vital importance to the efficient functioning of the judicial system in the country require consideration and there is an element of immediacy in matter. we, therefore, suggest that the writ petition on the two issue indicated B above may be taken up for hearing at an early date and preferably before the ending of this year."

(emphasis supplied)

C Though the passing of the amendment and its implementation had been watched with bated breath and awaited with a great deal of anxiety, nothing tangible in this regard had come out but no the other hand, the Bill unfortunately lapsed consequent upon the dissolution of the 9th Lok Sabha and there does not seem to be any ray of hope for the revival of the D Bill.

It was only in the above brief historical recapitulation including the opinion of the experienced Judges and jurists etc. etc. and the compelling necessity, we now in the eleventh hour, boldly set ourselves with renewed energy to the task of reconsidering the decision in Gupta's case on a proper and just interpretation of the relevant constitutional provisions and definitely not on an imaginative re-interpretation and to explore the situa- tion as to whether the needed change could be made by ourselves rather than by legislative process by entering into the realm of the original intention of the Constitution thereby undoubtedly ensuring a palladium to protect the independence of judiciary from being violated or impaired or damage. Otherwise we apprehend that strikingly disastrous and calamitous results would follow in the proper functioning of the judiciary and that the system itself would become dysfunctional.

A battery of eminent senior counsel, M/s D.S. Nariman, Ram Jeth- G malani, Kapil Sibal, P.P. Rao and Shanti Bhushan consistently articulated demanding reconsideration of the decision in Gupta's case and expanded their argument by enlightening the various constitutional provisions with their extensive·scholarly knowledge. According to them beneath the surface of the ruling in Gupta, lie more fundamental questions concerning the role of the CJI in the area of selection and appointment of Judges to the

ADVOCATES ASSN. v. U.O.I. [P AND IAN, J.] 793

superior judiciary as well as transfer of judges from the High Court to another and fixation of strength of Judges. After making an extensive analysis of the present procedure followed, it has been seriously contended that the absolute 'right of primacy' and 'freedom of choice' in the field of selection and appointment of Judges now exclusively vested with one of the major constitutional functionaries, namely the Executive - that too with the judicial stamp of approval of this Court in Gupta, normally ends up with the excessive politicalization of the constitutional process which resul- tantly cause great harm to the institution and erodes the very foundation of constitutionalism and the 'Rule of Law'. In continuation of their submis- sion, it has been contended that on account of the methodology in vogue, the very precious constitutional rights are at stake and need breathing space to survive' and that a prophylactic prohibition on all intrusions of this sort is, therefore, essential.

All the counsel eloquently raise a debatable question as to how any coarctation be imposed on the authority of judiciary and the independence of judiciary being kept in pensileness, when the Constitution itself recog- nises a clear demarcation separating the judiciary from the executive under Article 50 which injects the enduring principle of constitutional policy and which is the underlying strength for a sound judicial system. E Notwithstanding the above chorus of protest in general against the decision of the majority in Gupta, there was a small cleavage of opinion, in that while some learned Judges held the view that the opinion of the CJI in all matters of judicial administration should receive 'primacy', others were of the view that in exceptional circumstances the executive may veto the proposal of the CJI for sufficient and strong reasons to be recorded and communicated to the CJI. Likewise, there was some difference of opinion with regard to the extent of justiciability in the matter of fixation of Judge-strength.

Mr. Parasaran the learned senior counsel appearing for the opinion of India and the learned Attorney General offering his valuable assistance to the Court on notice, with their sound knowledge of constitutional law and intellectual capabilities denounced the submissions made on behalf of th petitioners, stating that in utter disregard of the intent of the framers of the Constitution, all the counsel seeking reconsideration of Gupta's case H

794 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A are making a futile attempt to undo and unsettle the well reasoned prin- ciples enunciated in Gupta's case by imposing their personal values and reading their personal philosophy into the Constitution under the guise o( 'original intent' of the Constitution and that the tenor of their argument was tainted with visible hostility indicating their predetermination to B recochet the views in Gupta by assigning an invented legalistic nod by wrongly construing the constitutional provisions and drawing strained in- ,.. ferences.

Illuminating every aspect of the vital issue involved. Mr. Parasaran furthers his argument saying that the plea of primacy to the opinion of the C OI had oeen discussed threadbare and ultimately discarded by the Con- stituent Assembly and despite this, the Court in Gupta indeed tended to emphasise the primacy of OI, even if not express language and that, therefore, the principles laid down in Gupta which are holding the field till date and successfully and satisfactorily working in the area of making appointment of judges in no way call for any interference or radical change. According to him, the present constitutional scheme which was evolved by the framers of the Constitution after taking into consideration the legisla- tive history, Constituent Assembly debates and various modes of appoint- ments in different countries - particularly U.K and U.S.A. wherein the executive alone enjoys the authority in making appointments is basically sound.

Drawing our attention to various relevant constitutional provisions, it has been contended that the independence of judiciary is well protected. F According to him, the submission made by the other side on the basis of Article 50 is not well found and that the Constitution does not even remotely suggest the exclusion of the role of executive, in the matter of appointment of Judges to the superior Courts.

The learned Attorney General in addition to his general submission G urged that the opinion of the OI had received the utmost acceptance in the actual working of the system except on one occasion during the last decade, and undue delay, if any, in making the appointment of Judges, can be rectified and remedied by issue of mandamus to the appointing con- stitutional functionary and ultimately requested acceptance of the view of H Pathak, J (as the learned Chief Justice then was) in Gupta's case.

ADVOCATES ASSN. v. U.0.1.(PANDIAN,J.] 795

Among the various States which made their appearance on notice A represented by their respective learned Advocates General, the State of Karnataka has urged for reconsideration of the majority opinion in Gupta's case whereas the other states'namely Gujarat, Assam, Sikkim and Orissa have fully supported the decision in Gupta. The State of Meghalaya does not express any positive opinion either way. The plea of the State of Nagaland is for the primacy to the opinion of CTI and also appointment of B a National Judicial Commission.

The learned Advocate General of Sikkim by his oral submission affirmed the stand taken by his State and added that according primacy exclusively to the executive in the decision in question does not suffer from C any infirmity.

Mr. R.K. Garg, the learned senior counsel forcefully advanced his submission with his usual eloquence using his formidable legal knowledge in constitutional law and his vast and rich practical experience and analys- ing various provisions under separate heads in the light of the well recog- D nised concept of jurisprudence that the appointment must not be a manifestation of an absolute power in the executive but of the power to appoint with due consideration of the expert opinions, sought through effective consultation with CTI and CT of the concerned High Court, that the opinion of the CTI must have primacy in the event of any unfortunate, piquant and undesirable, situation leading to difference of opinion among · E three constitutional functionaries and that the decision in Gupta is bad law so far as it gives the appointing power to the executive ignoring the recommendation of CTI and Chief Justice of High Courts. The learned counsel also supports the view of Pathak, J in Gupta as being a balanced view and more acceptable. F Apart from the above arguments, some more written submissions were filed, i.e. by the Sub Committee of judicial Accountability, by Mr. Prashant Bhushan, and the Delhi High Court Bar Associatipn.

At the outset, we make it clear that we are no called upon to deal with any specific case, but to broadly lay down only the important prin- ciples and the general controversial problems involved.

We shall now unbiasedly proceed to judiciously examine the above highly sensitive issue involving constitutional importance without being influenced either by emotional and sentimental aspects or hostility or by H

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

A the dazzling eloquence of the counsel putting forth their rival arguments in support of their conflicting views and without any passion or prejudice.

Since the entire arguments were advanced mainly on the principle of independence of judiciary, we shall disposed that question at the foremost.

B Mr. Parasaran, elaborated his argument; submitting that the presi- dent, being the Constitutional head of the three major Constitutional functionaries makes the appointment of Judges to the Supreme Court and the High Courts on the aid and advice of the Council of Ministers with the Prime Minister at the head as contemplated under Article 124(2) read with C 74 {1) and 217 (1) read with 74 (1) of the Constitution of India as the case may be; that in that process it is only the executive which plays an important role but the CJI is only a consultee and that the independence of judiciary is in no way impaired by executive action but on the other hand it is firmly secured by various specific provisions, expressly articulated in the Constitu- tion along with the extraordinary power of Judicial review. They are : D (a) Every person appointed to be a Judge of the Supreme Court or of a High Court before he enters upon his office, makes and subscribes an oath or affirmation according to form Nos. IV and VIII as the case may be, as set out in the Third Schedule to the Constitution; before the authority prescribed under Articles 124(6) E and 129 respectively whereby the Judge concerned bears true faith and allegiance only to the Constitution of India and not to the appointing authority (vide Special Reference No. 1 of 1964=1965 (1) SCR 413 at 447 F-H and 448 A-B).

F {b) The tenure of office that the appointee holds, is fixed by the Constitution itself stating that the Judge appointed shall hold office until he attains the age of sixty five years in the case of the Supreme Court as per Article 124 (2) and of sixty two in the case of High Court as per Article 219, but not at the pleasure of the appointing authority. G (c) Every Judge of the Supreme Court or a High Court is entitled to such privileges, allowances, and to such rights in respect of leave of absence and pension as determined by and under law, made by the Parliament and they shall not be varied to his disadvantage after his appointment as guaranteed by Articles 125 (2) and 221

ADVOCATES ASSN. v. U.0.L [PANDIAN,J.] 797

(2). A (d) The salaries, allowances and pensions payable to the Judges of the Supreme Court are charged on the Consolidated Fund of India as mandated by Article 112 (3) (d) (i). In the case of a High Court Judge the expenditure in respect of the salaries and allowan- ces are charged on the Consolidated Fund on each State as B mandated by Article 202 (3) (d) but the pensions payable to the High Court Judges are charged on the Consolidated Fund of India according to Article 112 (3) (d) (iii) of the Constitution.

The expenditure so charged on the Consolidated Fund of India C shall not be submitted to the vote of Parliament though nothing prevents the discussion in either House of Parliament of any those estimates (vide Article 113 (1)). Similarly_ the expenditure charged on the Consolidated Fund of a State shall not be submitted to the vote of Legislative Assembly, but nothing prevents the discussion in the Legislature of any of those estimates (vide Article 203 (1)). D

(e) A Judge of the Supreme Court or a High Court cannot be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority E of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the· ground of proved misbehaviour or in- capacity.

The above procedure for removal of a Judge is embodied in F Article 124 (4) as regards the Supreme Court Judges and in proviso (b) to Article 217 (1) read with Article 124 (4) as regards the High Court Judgf?s. In other words, the same procedure mutatis mutan- dis apply to the High Court Judges.

(f) No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme court or High Court in the discharge of his duties except upon a motion before the Parliament but not in the legislature of a State for presenting an address to the President praying for the removal of the Judge as provided in the Constitution (vide Articles 121 and 211). H

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A (g) Both the Supreme Court and every High Court are Courts of record, having all power of such a Court including the inherent power to punish for contempt of themselves as empowered by Article 129 and 215 respectively (See Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, (1993) Supp. 1 SCC 529).

B (h) The entire judicial proceedings are in open Court, unless the Courts in rare and exceptional circumstances decide otherwise. The Judges are ensured total freedom, of course, after entering the office, from any overt or covert pressure of interference in the process of adjudicating causes brought before them. In this con- c nection Mr. Parasaran drew our attention to a sentence from the book on "Constitutional Law" (8th Edn. Page 32) by E.C.S. Wade and A.W. Bradly, which reads thus:

".................. judicial independence is secured by law and public opinion and the standard of conduct maintained by both Bench D and Bar."

(i) Both Supreme Court and High Courts have jurisdiction of judicial review of all actions of "the State" as defined in Article 12 and all other statutory authorities. Recently it has been ruled in Sub-Committee on Judicial Accountability v. Union of India and E Others, (1991) 4 SCC 699 That even in relation to proceedings for impeachment of a Judge, there is an area of judicial review.

After listing out the Constitutional rights and privileges of the Judges vis-a-vis the other Constitutional appointments namely the Comptroller F and Auditor General of India and the Chief Election Commissioner (vide Article 148 and proviso to Article 324 (5) as regards the security of tenure of office, irremovability from the office and ensuring of the conditions of service Mr. Parasaran reaffirms his earlier submissions that the elimination of executive action in the process of appointment is not all necessary to secure judicial independence. Relying on the rule in Re the Special Courts .G Bill, (1979) 2 SCR 476 he has urged that the 'pleasure doctrine' which is subversive of judicial independence is neither attracted nor applicable in the matter of removal of Judges of Supreme Court except as provided for under Article 124(4) and High Court Judges except as provided for under proviso (b) to Article 217 (2) read with Article 124(4) and added that this safeguard vouchsafes the judicial independence.

ADVOCATES ASSN. v. U.O.I.[PANDIAN,J.) 799

By way of supplementing the argument of Mr. Parasaran, it has been urged on behalf of some State Governments on a few tautological reason- ings that when the pronouncement of this Court is to be accepted as the final verdict binding all including the other primary Constitutional functionaries, unless it is so plainly erroneous in the light of subsequent consideration, the decision in Gupta's case in which the principle of B .. independence of judiciary is exhaustively considered and correctly decided, does not require to be taken to the legal smithy for either mending or tinkering with the view, already, already declared. According to them, the existing Constitutional protective conditions attached to the judicial office are more than sufficient to preserve the independence of the judiciary. c During the supplementary submission, much reliance was placed on the views of Desai, J in his separate judgment in Gupta's case holding :

"Independence of judiciary under the Constitution has to be inter- preted which in the framework and the parameters of the Con- stitution. There are various provisions in the Constitution which indicate that the Constitution has not provided something like a 'hands off attitude' to the judiciary."

Quoting the various procedure in vogue in different parts of the globe - particularly in U.S.A. and U.K. - wherein the executive is exclusively vested with the power of making judicial appointments to higher judiciary, it has been said that when the judicial independence has never been injured in those countries by the existing process, the contention that the mode of appointment of judges from the starting point goes a long way in securing the independence of judiciary cannot be countenanced. Th~y were pas- sionate in quoting some supporting passages of their view from various text books on the formation of judicial system in those countries.

The above arguments, that the independence· of judiciary is satisfac- torily secured by the Constitutional safeguard of the office that a Judge holds and guarantees of the service conditions alone and not beyond that, are in our considered opinion, unable. In fact we are unable even to conceive such an argument for the reason to be presently stated.

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 H

800 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A the people are greatly influenced by adjudicative dispensation of justice by the presiding impartial Judges" without fear or favour, affection or ill-will", can it be rightly said that the assurance of the immutable rights 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 ? Our answer to this nagging question would be in the negative.

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 in our view they are not the be all and end all. More than the above, 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 appointing a proper and fit candidate to the (Supreme Court or High Court) higher judiciary. The holistic condition is a major com- ponent goes along with other constitutionally guaranteed service conditions in securing a complete independence of judiciary. To say differently, a healthy independent jndiciary can be said to have been firstly secured by accomplishment of the increasingly important condition in regard to the method of appointment of Judges and, secondly, protected by the fullfil- ment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totalty 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 functioning of democracy and the philosophy of this cherished concept will be only a myth rather than reality.

The essence of the above deliberation and discussion is that the independence of judiciary is the livewire of our judicial system and if that wire is snapped, the 'dooms day' of judiciary will not be far off. G Concept of Independence of the Judiciary

Faced with the unpleasant reality of the present system in vogue, we shall examine what the concept of independence of judiciary means in the background of the breathtaking and cascading argument, advanced by both the parties, of course with the motive of invigorating the judicial system

ADVOCATESASSN. v. U.0.1.[PAND!AN,J.j 801

and emphasizing the importance of its various aspects which is absolutely indispensable for ensuring the 'Rule of Law', as adumberated by the Constitution.

Our Constitution is a radiant 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: B Justice, Social Economic and Political.

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 C 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' which in the words of Bhagwati, J (as the learned Chief Justice then was) "runs through the entire fabric of the Constitution." To say differently, it is the cardinal principle of the D Constitution that an independent judiciary is the most essential charac- teristic of a free society like ours.

Having regard to the importance of this concept the framers of our Constitution having before them the views of the Federal Court and of the E High Court have said in a memorandum:

"We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek F redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive .............. in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independence and efficient judiciary has been ste&dily kept in view. Vide The G Framing of India's Constitution Volume IB Page 196 by B. Shiva Rao.

In this context, we may make it clear by borrowing the inimitable words of Justice Krishna Iyer, "Independence of the Judiciary is not genuflexion, nor is it opposition of Government". Vide Mainstream - H

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A November 22, 1980 and at one point of time Justice Krishna Iyer charac- terised this concept as a "Constitutional Religion".

Indisputably, this 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 our constitutional consult- B ation 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 se,cure and strengthen the imperative confidence of the people in the administration of justice. It is only with the object of successfully achieving this principle and salvaging much of the problems concerning the present judicial system, it is inter-alia, contended that in the matter of-appointment of Judges to the High Courts and Supreme Court 'primacy' to the opinion of the CJ! which is only a facet of this concept, should be accorded so that the independence of judiciary is firmly secured and protected and the hyperbolic executive intrusion to impose its own selectee on the superior judiciary is effectively controlled and curbed.

Regarding the significance of this principle, Chandrachud, J. (as the learned Chief Justice then was) in Union of India v. Sankal Chand Himatlal -- Sheth & Anr., [1978] 1 SCR 423, said that the independence of judiciary is the 'cardinal feature' and observed that the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitu- tional guarantees to safeguard the independence of judiciary.

Bhagwati, J (as the learned Chief Justice then was) who led on behalf of the minority observed in the same judgment i.e. Union of India v. Sankal F Chand Himatlal Sheth & Anr., (supra) observed:

"................ the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document .......................... . G Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab, (1975] 1 SCR 814, can become "fearless and free only if institutional immunity and autonomy are guaranteed."

Again Bhagwati, J in Gupta's case has said in paras 223- 224 as follows:

ADVOCATES ASSN. v. U.0.1. [P ANDIAN, J.] 803

"The concept of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law and thereby making the rule of law meaningful and effective.

But it is necessary to remind ourselves that the concept of inde- C pendence of the judiciary is not limited only to independence from executive pressure or influence that it is a much wider concept which takes within its weep, independence from many other pres- sures and prejudices.

···················································································································· D Judges should be of stern stuff and tough fibre, unbending before power economic or political, and they must uphold the core principle of the rule of law which says, "Be you ever so high, the law is above you". This is the principle of independence of the judiciary which is vital for the establishment of real participatory E democracy, maintenance of the rule of law as dynamic concept and delivery of social justice to the vulnerable sections of the com- munity. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution." F Fazal Ali, J in his judgment in Gupta's case in para 320 has held :

"....... that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot G be beyond the Constitution."

Tulzapurkar, J in para 634 of his judgment in Gupta's case has pointed out :

"Such a literal construction is difficult to accept because no H

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A provision of the Constitution can be interpreted in a manner which will be in conflict with any of the basic features of the Constitution and the cardinal principle of independence of judiciary is one such basic feature; therefore, the construction to be put on the phrase in the article must be consistent with the said principle."

B Venkataramih, J (as the learned Chief Justice then was) in the same case did not go so far but observed that it is "one of the central values on which our Constitution is based." Vide para 1051.

See also (1) Union of India v. J.P. Mitter, (1971) 3 SCR 483; (2) C Sub-Committee on Judicial Accountability v. Union of India, (supra) and (3) Shri Kumar Padmapra sad v. Union of India, (1992) 2 SCC 428.

There is plethora of judicial pronouncements on this concept, but we think that it is not necessary to recapitulate all those decisions and swell this judgment, except saying that to have an independent judiciary to meet D all challenges, unbending before all authorities and to uphold the impera- tives Gf the Constitution at all times, thereby preserving the judicial in- tegrity, the person to the elevated to the judiciary must be possessed with the highest reputation for independence, uncommitted to any prior inter- est, loyalty and obligation and prepared under all circumstances or even- E tuality to pay price, bear any burden and to meet any hardship and always weded only to the principles of the Constitution and 'Rule of Law'. If the selectee bears a particular stamp for the purpose of changing the cause of decisions bowing to the diktat of his appointing authority, then the inde- pendence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges, safeguards, conditions of service and immunity. Though it is illogical to spin out a new principle that. the key note is not the Judge but the judiciary especially when it is accepted in the same breath that an erroneous appointment of an unsuitable persons 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 concept is injured or maimed even from inside by self-infliction, the invaluable judicial independence will be devalued and debased.

The above fallacious principle receives a fitting reply from the 14th H Report of the Law Commission 73 in which the follo\ving opinion of a High

ADVOCATES ASSN. 1•. U.0.1. [PANDIAN, J.] 805

Court Judge is quoted : A "If the State Ministry (Minister in the State Government) continues to have a powerful voice in the matter, in my opinion, in ten years' time, or so, when the last of Judges appointed under the old system will have disappeared, the independence of the judiciary will have disappeared and the High Courts will be filled with Judges who owe their appointments to politicians.".

Shri M.C. Setalvad, who was a most distinguished jurist and Attorney General and known for his impeccable integrity and sturdy independence antl who presided over the 14th Law Commission had painfully stated in his Report that the Commission, during its visits to all the High Court Centres, heard 'bitter and revealing criticism about the appointment of Judges' and that 'the almost universal chorus of comment is that the selections are unsatisfactory and that they have been inducted by executive influence. D Mr. Ram J ethamalani, senior counsel after pointing out certain infir- mities in Gupta's case to demonstrate the baneful effects on public welfare of a practice of appointment, sanctified by it forcibly stated that the creed of judicial independence in our constitutional religion and the executive continue to imperil this basic tenet and quoted the word of Krishna Iyer, E J. form the judgment in Sankal Chand (supra) reading "This Court must 'do or die'".

In Bradly v. Fisher, 80 US 335 (1871) it was said :

"Our judicial system is guided by the principle that a judicial officer, in exercising the authority vested in him must be free to act upon his own connections, without apprehension of personal consequences to him self."

As Dr. Robert Mac Gregor Dawason has pointed out that "the Judge must be· independent of most of the restraints, checks and punishments which are usually called into play against other public officers .......... " and he should be "devoted to the conscientious performance of his duties."

In Subhash Shanna (supra), it has been rightly observed "for Rule of Law to prevail, judicial independence is of prime necessity." H

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A As we are going to deal with this aspect in detail, while examining the most important question, concerning the primacy of the opinion of CJI under a separate heading, this aspect need not detain us any more in disposing of the rival contentions of the parties with regard to the principle of independence of judiciary. B Separation of Judiciary from executive

By way of meeting the arguments advanced on behalf of petitioners with reference to Article 50, it has been submitted by Mr. Parasaran that Article 50 cannot be availed of with regard to the appointment of Judges C to the Supreme Court and High Courts especially in the context of inde- pendence of judiciary. We shall now consider the independence of judiciary vis-a-vis separation of power.

According to Mr. Jethamalani Gupta's case paid no attention or certainly not adequate attention to the mandate of Article 50 and its implications and effect on the interpretation of Article 124 and 217 and also over-looked the impact of Article 51 (A) and that Article 50 is the culmination of a long drawn out movement and struggle for judicial inde- pendence. In support of this contention, our attention was drawn to the report of a Commission appointed in 1946 in Bombay consisting of eleven members, headed by a Judge of the Bombay High Court in which the unanimous conclusion, recorded was that the separation of judi..:ial and executive functions was a feasible and practical proposition.

By way of meeting the above contention, Mr. Parasaran has stated that .the reference to Article 50 in the context of the independence of the judiciary relating to appointment of Judges to Supreme Court and High Courts is not appropriate; but it is only in the context of District and Subordinate Magistrates exercising both executive and judicial functions; to say in other words, the principle is that the same person should not be G a member of both executive and judiciary. In support of his contention, he draws inspiration from (1) a passage found in 'Constitutional Law', Eighth Edition by E.C.S. Wade and A.W. Bradley, under the heading "Meaning of Separation of Powers" reading that "one organ of Government should not control or interfere with the exercise of its function by another organ"; H (2) the Constituent Assembly Debates relating to Draft Article 39-A; (3)

ADVOCATESASSN. v. U.0.1.[PANDIAN,J.) 807

"The Framing of Indian Constitution - A Study" by B. Shiva Rao (page 507) A and; (4) a passage in "Encyclopedia of American Constitution, 1986 Edi- tion Vol. IV - Union of India Compilation Page 185 (B) under the heading "Separation of powers" reading thus:

"The doctrine of the separation of powers consists of a number of elements; the idea of three separate branches of government, the B legislature, the executive and the judiciary; the belief that. there are unique functions appropriate to each branch of the government should be kept distinct, no one person being able to be a member of more than one branch of government at the same time." c For properly appreciating the above rival contentions and under- standing the implication of Article 50, we shall first of all go to its historical · background.

Article 50 appears in para IV dealing with "Directive Principles of State policy'' under the heading 'separation of Judiciary from Executive' D and it reads as follows :

"Article 50 - The State shall take steps to separate the judiciary from the executive in the public services of the State" E In the draft Constitution, there was no reference to this Directive Principle, but no being reminded of the important plank of the freedom movement, Article 39-A was introduced which read thus :

"39A, The State shall take steps to secure that, within a period of three years from the commencement of this- Constitution, there is F separation of the judiciary from the executive in the public services of the State."

The Drafting Committee in the amendment purposely had used the expression 'complete separation of the judiciary etc.'; the Special Commit- G tee, however, considered that the word 'complete' was unnecessary, and this word has accordingly been omitted.

Thereafter, the time limit of three years within which this directive was to be implemented was omitted at the final stage and Article 39-A became Article 50 in the present from. H

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A During the Constituent Assembly Debates on Article 39-A, one of the members, Shri R.K. Sidwa on 25th November 1948 made the following pertinent observation :

"As Dr. Ambedkar stated yesterday, ever since its inception the Congress has been stating that these two functions must be B separated if you really want impartial justice to be done to the accused persons.

The arguments advanced yesterday were that in Free India the conditions have changed and that therefore, it is not desirable that c these two functions should be separated. The real secret, so far as I know, of those who advocate retaining the same position is that they want to retain their power. If the Honourable Ministers of the provincial Governments feel that these two should not be separated, it is because they feel the power of appointments which is in their patronage, would go away from them to the High Court D Judges."

The above speech of Shri Sidwa makes it clear that implementation of Article 50 involves as a necessary consequence the power of appoint- ment being taken away from the Executive and its transference to the . E Judiciary. Article 50 being one of the fundamental principles of governance of the country and constitutionally binding on the government, the latter is obviously obliged voluntarily to refrain from any 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. F Prime Minister Jawaharlal Nehru reacted to this on behalf of the Government and declared :

"I may say straight off that so far as the Government is concerned, it is entirely in favour of the separation of the judicial and executive G functions. I may further say that the sooner it is brought about the better."

Realising the significance of the independence of judiciary and in order to give a full life to that concept, the founding fathers of our H Constitution, felt the need of separation of judiciary from executive and

ADVOCATES ASSN. v. U.O.I.[PANDIAN,J.] 809

designedly inserted Article 50 in the Constitution after a heated debate; because the judiciary under our constitutional scheme has to take up a positive and creative function in securing socio-economic justice to the people.

Bhagwati, J (as the. learned Chief Justice then was) in Sankal Chand (supra) after quoting various constitutional provisions, speaking about the privileges, rights and tenure of office of Judges of the higher judiciary while dealing with the concept of independence of judiciary described the role of Article 50 as follows :

"And hovering over all these proV1s1ons like a brooding om- C nipresence is Article 50 which lays down, as a Directive Principle of State Policy, that the State shall take steps to separate the judiciary from the executive in the public services of the State. This provision, occurring in a chapter which has been described by Granvile Austin as "the conscience of the Constitution" and which embodies the social philosophy· of the Constitution and its basic underpinnings and values, plainly reveals without any scope for doubt or debate, the intent of the constitution-makers to immunise the judiciary from any form of executive control or interference."

Chandrachud, J (as the learned Chief Justice then was) speaking for the majority did not by any means dissent from or dilute this basic tenet and he while making reference to various provisions of the Constitution to secure and safeguard the independence of the judiciary, referred to Article . 50 stating, "Article 50 of the Constitution which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. F

In M.M. Gupta and Others v. State of Jammu and Kashmir, [1982] 3 SCC 412, A.N. Sen, Jin his separate judgment speaking for himself and on behalf of Bhagwati, J observed thus:

"Various Articles in our Constitution contain the relevant G provisions for safeguarding the independence of the judiciary. Article 50 of the Constitution which lays down that "the State shall take steps to separate the judiciary from the executive in the public services of the State," postulates separation of the judiciary from the executive." H

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A In Gupta's case, Bhagwati, J who spoke for the majority has not made reference to Article 50 though he did refer to that Article in Sankal Chand.

From the above deliberation, it is clear that Article 50 was referred to in various decisions by the eminent Judges of this Court while discussing the principle of independence of the judiciary. We may cite Article 36 B which falls under Chapter IV (Directive principles of State Policy) and whkh read thus :

"Art. 36 - In this Part, unless the context otherwise requires, "the State" has the same meaning as in Part III." c According to this Article, 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 State D and all local or other authorities within the 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 syllogistic approach is made E and a constricted construction is given, it would lead to an analamous position that the Constitution does not emphasise the separation of higher judiciary from the executive. Indeed, the distinguished Judges of this Court, as pointed out earlier, in various decisions have referred to Article 50 while discussing the concept of independence of higher or superior judiciary and thereby highlighted and laid stress on the basic principle and values under- F lying Article 50 in safeguarding the independence of the judiciary.

The Power of appointment of Judges and the primacy to the opinion of the CJ! thereof

The key and substantial questions that spring up for deep considera- G tion among the various topical issues and that were hotly debated before us are, firstly, as to where the power of appointment of Judges of the ·Supreme Court and the High Courts is located; secondly, who is the final authority to make the appointments of those Judges; thirdly, whether there are any canalised guidelines in making the appointments; fourthly, whether the power of appointment of Judges vested in the constitutional

ADVOCATESASSN. v. U.O.I.[PANDIAN,J.] 811

fanctionaries is unfettered and uncircurnscribed; .and fifthly, whether the opinion expressed by the CJI who is one of the three principal constitu- tional functionaries during the mandatory consultation required by the Constitution has primacy over the opinion of the other constitutional functionaries ?

In a democr~tic polity, the supreme power of the State is shared among the three principle 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. As pointed out in Subhash Shanna (supra), justice has to be administered through the Courts and such administration would relate to c 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 constit.utional system for fulfilling the mand~te of the Constitution. D 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 functioning of democracy in accordance with the dictates, directives and imperative commands of the Constitution by checking excessive authority of other constitutional E functionaries beyond the ken of the Constitution. In that sense, the judiciary has to act as a sentinel on the qui vive.

Regrettably, there are some intractable problems concerned with judicial administration starting from the initial stage of selection of Can- F didates to man the Supreme Court and the High Courts leading to the present malaise. Therefore, it has become inevitable that effective steps have to be taken to improve or retrieve the situation. After taking note of these problems and realising the devastating consequences that may flow, one cannot be a silent spectator or an old inveterate optimist, looking upon the other constitutional functionaries, particularly the executive, in fond G hope of getting invigorative solutions to make the justice delivery system more effective and resilient to meet the contemporary needs of the society, which hopes, as experience shows, has never been successful. Therefore, faced with such a piquant situation, it has become imperative for us to solve there problems within the constitutional fabric by interpreting the various H

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A provisions of the Constitution relating to the functioning of the judiciary in the light of the letter and spirit of the Constitution.

We, before• starting with these onerous task, would like to make it 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 CTI in the matter of appointment of Judges to the justice delivery system. Incontrovertibly, the CJI being at the helm of the judicial system is the principle protector of judiciary showing his keen insight into the practical problems of the judicial system from beginning to end. In fact, the CTI has pride of place in the Constitution.

In the backdrop of the above important role given to the judiciary and the obligation of the CTI as required under Articles 124(2) and 217(1) of the Constitution we shall examine the various questions which are posed for deep consideration.

The Indian judicial system being pyramidic in character is an in- tegrated one in contradistinction to the dual system of USA and Australia. E Our judicial system is vertically structured with this Court (Supreme Court) at the apex with the intervening layers consisting of subordinate judiciary at the grassroots lever, district Judge at the middle level and the High Court at the State level.

p We shall presently give a brief note of the appointment of Judges in the pre and post Constitution era with reference to the concerned provisions of the then existing Act and the present Constitution which throw considerable light on the discussion that we proposed to undertake.

Appointment of Judges under the Government of India Act, 1919 G There is a long evolution of the method of appointment of Judges of the superior judiciary in India. The process of Indianisation of Judiciary was in the offing and ground norms were laid for the same in the Govern- ment of India Act of 1919. Section 101 of that Act conferred the authority H to appoint a Judge of a High Court on His Majesty. Sub-section (3) of

ADVOCATESASSN. v. U.O.L[PANDIAN,J.) 813

Section 101 set out the qualifications of a person for being appointed as a A Judge of the High Court. Some of the qualification clauses of that Section opened up a possibility of Indians being appointed as High Court Judges with concept of quota reservation.

Appointment of Judges under the Government of India Act, 1935 B Under the Government of India Act, 1935, sub-section (2) of Section 200 which dealt with appointment of Federal Court Judges provided that "every Judge of the Federal Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty-five year". The High court Judges were also appointed in the same manner under sub-section (2) of Section 220 of the Act of 1935 but the tenure of office was upto the age of sixty years.

It was only after considerable discussion and debate in the Con- stituent Assembly and in the various Committees which were appointed in connection with the appointment of Judges and other allied matters, the present provisions - viz. Article 124 (regarding appointment of Judges to Supreme Court) and 217 (regarding appointment of Judges to the High Courts) were incorporated in the Constitution. (It may be pointed out in this context that one of the suggestions made in the course of discussion in the Constituent Assembly was that the appointment of Judges of the E Supreme Court should be with the concurrence of the Chief Justice of India, but this suggestion was accepted.)

Appointment of Judges of the Supreme Court a11d High Courts under the Constitution of India p The fasciculus of Articles 124 to 147 in Chapter IV of Part V under the caption "The Union Judiciary'' deals with the establishment and con- stitution of Supreme Courts, the appointment of Judges and their powers, rights, jurisdiction and service conditions etc. etc., whilst Articles 214 to 231 in Chapter V of Part VI under the caption "The High Courts in the G State" deal with the constitution of High Courts, the appointment and conditions of the office of a Judge of a High Court, their powers, rights, jurisdiction, service conditions including the transfer from one High Court to another etc. etc. The power to appoint a Judge to the Supreme Court or to a High Court vests in the President under Articles 124 (2) and 217 H

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A (1) respectively. It is obligatory upon the President before making an .appointment of a Judge to the Supreme Court other than the Chief Justice of India to consult the CJI. If the President, in his discretion, deems it necessary for that purpose to have "consultation with such of the Judges of the Supreme Court and of the High Courts in the States" he can do so as contemplated under Article 124(2). For appointment of CJI, there is no specific provision. Similarly, it is obligatory upon the President before making an appointment of a Judge to a High Court to consult the CJI, the Government of the State and the Chiet Justice of the High Court (in the case of appointment of Judge other than the Chief Justice) to which the selectee is to be appointed as required under Article 217(1).

The Constitution except stating that "there shall be a Supreme Court of India consisting of a Chief Justice ......." (vide Article 124(1)) and that "there shall be a High Court for each State (vide Article 124) and the "every High Court shall consist of a Chief Justice ......" does not prescribe D a separate and distinct procedure for appointment of Chief Justice. As the word 'Judge' includes the Chief Justice also, the procedure prescribed for appointment of a Judge to the Supreme Court or to a High Court has to be followed in compliance with Articles 124(2) and 217(1) as the case may be. E Till date, the proposal and procedure followed in the appointment of Chief Justices and Judges to the Supreme Court and High Courts during the pre-S.P.Gupta period is more or less the same. No ostensible material change is brought to our notice in the present existing procedure. Two F memoranda dated nil have been furnished along with the written submis- sions made in behalf of Union of India, showing the procedure prior to the decision in Gupta's case. We shall now reproduce those two memoranda as well as the present procedure as found in the 121st Report of the Law Commission so as to have a clear idea of the procedure hitherto followed in the selection as well as appointment of Judges to the superior judiciary. G Those two memoranda are said to have been issued earlier to the decision in Gupta's case.

This first memorandum dealing with the appointment of a Eermanent Chief Justice of India and Judges of the Supreme Court under Article H 124(2) prescribes the following procedure :

ADVOCATES ASSN. v. U.0.I. [PANDIAN,J.] 815

"Whenever a permanent vacancy is expected to arise in the office of the Chief Justice, the necessary action will be taken by the Minister of Law and Justice through the private and personal channel. ·

Whenever a permanent vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief Justice of India will intimate the fact to the Minister of Law and Justice ·and at the same time forward his recommendations as to the manner in which the vacancy should be filled. Unless the Minister of Law and Justice considers that the recommendation of the Chief Justice of India should be accepted straight-away, he may consult such C Judges of the Supreme Court and High Courts as he may deem necessary and, if after such consultation, the Minister· of Law and Justice considers it desirable to bring any point to the notice of the Chief Justice of India or to suggest the consideration of the claims of any other person not recommended by the Chief of India, D he may by personal correspondence convey his suggestions to the Chief Justice of India. On obtaining the views of the Chief Justice of India finally, the Minister of Law and Justice will, with the concurrence of. the Prime Minister, advise the President of the selection." E In the case of appointment of Chief Justice and Judges of High Court under Article 217(1), the following procedure is made mention of in the second memorandum :

"When permanent vacancy is expected to arise in the office of p Judge, the Chief Justice will as early as possible communicate to the Chief Minister of the State his views as to the person to be selected for permanent appointment. The Chief Minister will, in consultation with the Governor, forward his recommendation to the Minister of Law and Justice in the Central Government. Full details of the persons recommended particularly those mentioned G in the Annexure I, should invariably be sent. When the Chief Minister or the Governor proposes to recommend the name of a person different to the one put forward by the Chief Justice, the Chief Justice should be informed accordingly and his comments invited. These comments should invariably be forwarded along with H

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A the communication from the Chief Minister to the Minister of Law and Justice in the Central Government. The Minister of Law and Justice in consultation with the Chief Justice in consultation with the Chief Justice of India and the Prime Minister, will then advice • the President as to the selection. The same procedure will be observed with regard to the appointment of Chief Justices, except B that the recommendation for appointment of Chief Justice will originate from the Chief Minister."

We would like to extract the present existing procedure adopted as found in the One Hundred and Twenty First Repo11 of the Law Commission C of India (July 1987) page JO: "The present situation is that ordinarily a formal proposal for filling up of a vacancy in the Supreme Court is initiated by the Chief Justice of India by recommending the name of the person con- sidered suitable by him to the Minister of Law and Justice. If the D Minister accepts the recommendation, the proposal is forwarded to the Prime Minister of India who, if he approves, advises the President to issue a formal warrant of appointment under his own signature. Similarly, in the case of a Judge of the High Court, the formal proposal emanates from the Chief Justice of the High Court and if that is accepted by the Chief Minister of the State, the E Governor of the State, the Chief Justice of India and the Minister of Law and Justice, Government of India, the same is processed and submitted to the Prime Minister of India, who, if he approves, the recommendation, advises the President to issue a formal war- rant of appointment." F Ever since the advent of our Constitution, the President in appointing a Judge "by warran~ under his hand and seal" acts on the aid and advice of the Council of Ministers under Article 74 in the case of Supreme Court and High Courts. In the matter of appointment of a High Court Judge, the opinion of the Council of Ministers of the State on whose aid and advice the Governor expresses his opinion is also taken into consideration in addition to the aid and advice of the Council of Ministers of the Central Government under Article 74.

A mounting dissatisfaction has been and is voiced against this existing method and strategy of selection through the process of which selectees

ADVOCATES ASSN. v. U.O.L [PANDIAN,J.] 817

have to man the superior judiciary. It is stated in the One Hundred A Twenty-first Report of the Law Commission of India that " This dissatis- faction stems from what is the idolised view of the members of the superior judiciary and what is available. In order to appreciate the fairness and reasonableness of this strident criticism, it is first necessary to determine what is expected of the superior judiciary individually and institutionally." B While the procedure for appointment of Chief Justices and Judges stood thus, a number of writ petitions were filed before this Court, one of which was S.P. Gupta, a Senior Advocate practicing in the Allahabad High Court. All the writ petitions had challenged the constitutional validity of a circular/letter dated March 18, 1981 addressed by the then Law Minister C of Government of India to the Governor of Punjab and Chief Ministers of the other States. In addition to the above prayer, in a writ petition filed by Mr. V.M Tarkunde, a senior advocate practicing in this Court, the proce- dure and practice followed by the Central Government in appointing Judges of various High Courts were assailed. A seven-Judges Bench D presided over by P.N. Bhagwati, J (as the learned Chief Justice then was) heard all the writ petitions together. All the seven Judges delivered separate judgments. Bhagwati, J who gave the leading judgment has spelt out his opinion as under :

E "It would, therefore, be open to the Central Government to over- ride the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant consideration and is not otherwise malafide. Even if the opinion given by all the con- stitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may prim a f acie be vulnerable to attack on the ground that it is malafide or based on irrelevant ground. The same position would obtain if an appointment is made by the Central Govern- ment Contrary to t'.1e uJ;.animous opinion of Chief Justice of the High Court and the CJI ........... " H

818 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A The above view expressed in Gupta's case which affixed the judicial stamp of approval on the present existing mode of selection and appoint- ment of Judges to the superior judiciary at the exclusive discretion of the Central Government, even disregarding the opinions of the constitutional functionaries including the CJI and the long felt need for a change in the present mode and method of appointments appear to be the immediate provocation for filing these present writ petitions.

The grievance articulated by the petitioners is that under the present scheme the executive which is given the 'right of primacy' and the 'freedom of choice' in the matter of selection and appointment of Judges to the superior judiciary, assumes the role of "Lord of Lords" and indeed acts as an "overlord" with the result that the right of making appointments even in defiance of the unanimous opinion of all the three constitutional functionaries including the CJI; that during the entire process, wholly concerning the judicial system, the CJI is reduced to passive by-stander and mute spectators instead of being an an active participant in process except being a consultee at an early initial stage and that the superior judiciary headed by the CJI who is the final arbiter of all constitutional questions is regrettably placed in that process under the 'despotism of an oligarchy'. According to them, the cherished principle of independence of the judicatory is being strangulated by this kind of recognition of the executive's superiority by keeping it on a high pedestal in preference to the judiciary and reducing the judiciary to an ignoble position. This ignominy, it is said, makes the judicial system suffer convulsions and struggle for its normal breathing in its own field, in the matter of appointment of Judges F to man the judiciary itself.

Justifying the initiation of these proceedings, it has been said that as the Judges particularly the Chief Justice who are/is sidelined in this juris- dictional struggle could not even temporarily put aside their judicial robes and enter into political debate on this burning and sensitive problem, the petitioners who are more interested in and wedded to the principle of independence of judiciary have approached this Court entertaining a genuine apprehension that if the 'primacy' is not accorded to the opinion of the CJI in the matter of appointment of Judges, the majesty of the entire judicial system would be completely devalued and eroded.

ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 819

Mr. Parasaran appearing on behalf of UOI countervails the above arguments contending that the emotional submissions and verbal gynmas- tics are nothing more than mere verbiage. According to him, there is no grey area in the present existing procedure of appointment of Judges to be · annulled or altered. It is further contended that the arguments, advanced on behalf of the petitioners are barren of force, muchless expose hollow- B ness because the present existing procedure which has stood and is stand- ing the test of the day, is the only acceptable procedure which is strictly in conformity with the constitutional mandate. He states that there is ab- solutely no riddle wrapped in a mystery inside an enigma in the present mode and strategy of selection and appointment of Judges as magnified C and projected by the learned counsel for the petitioners requiring any change or modification. He further continues to state that any change or modification in the system will offend the Constitution. But at the same time, he has said that he is second to none in upholding the dignity and independence of the judiciary. D Before undertaking a painstaking voyage on an obsessive mission to find out as to whether there are any defects in the present mode and strategy to the selection and appointment of Judges for the higher judiciary contrary to the constitutional scheme; if so what those defects are and what would be the remedy that would cure that disease, we would even at the E threshold make it ·clear that it is not for us to enter and investigate or to make a research, 'what the law was, what the law is and what the law ought to be', but only to interpret the relevant constitutional provisions as they stand in their spirit and true objectives without subjecting them to any hard construction or drawing any strained inferences. F To put it differently, we are constrained to undertake this process of disposing these hotly debatable issues with an avowed object re-designing and re-juvenating the structure and the system of judiciary, if so warranted, so that the stability of the system for ages to come may have firm footrest an lumber support because if the system is weak-kneed or crippled or G becomes impotent of sterile, it will lose its strength and authority. Resul- tantly, the other constitutim1al functionaries will try to prevail upon the justice delivery system as the saying goes, "When the eagle of empire falls, each sparrow takes a feather". The judiciary is neither subservient to nor a 'cheer- leader' of the executive or any other authority, however, powerful H

820 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A it maybe. It is worthwhile to recall the speech of Elmira in 1907 as a prelude for the discussion' to be made in the ensuring part of this judgment. He stated, "we are under the Constitution, but the Constitution is what the B Judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution."

Marshal, CJ with reference to judicial activism in interpreting has observed thus :

c "We must never forget that it is a constitution which we are expounding, a constitution intended to endure for ages, and con- sequently to be adapted to the various crises of human affairs. Nor did they imagine that it was to be so strictly interpreted that amendments and radical revisions would be constantly required to k.eep Government functioning smoothly." D ·Keeping the above view, let _us examine the relevant constitutional provisions in their true spirit and without stretching them too far.

Clauses (1) and (2) with its first proviso of Article 124 reads thus : E "124. Establishment and constitution of Supreme Court. - (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and until Parliament by law prescribes a larger number, of not more than seven* other judges.

F (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the State as the president may deem necessary for the purpose and shall hold office until he attains the age of sixty-five G years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always he .con- sulted."

H *Now "twenty-five" vide Act. 22 of 1966

ADVOCATESASSN. v. U.0.1.(PANDIAN,J.) 821

Article 217 (1) with regard to the appointment of Judges to the High A Courts read thus :

"Appointment and conditions of the office of a Judge of a High Court - (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of india, the Governor of the State, and, in B ·the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and judge other than the Chief Justice, the Chief Justice of the High Court, and ..................".

Under the above provisions, it is the President who is vested with the C authority of appointment by warrant and under his hand and seal "after consultation" with specified constitutional functionaries. The consultees whom the President may in his discretion consult in case of appointment of a Judge of the Supreme Court are,

(1) Such of the Judges of the Supreme Court, and D (2) Such of the Judges of the High Courts in the States

as the President may deem necessary for this purpose. But the proviso to clause (2) of Article 124 makes it obligatory on the part of the President to consult the Chief Justice of India in case of an appointment of a Judge E other than the Chief Justice. Thus, Article 124 (2) envisages two kinds of consultation, one being discretionary on the part of the President and the other being mandatory. In case of appointment of a Judge of the High Court other than the Chief Justice, the constitutional functionaries are,

(1) Chief Justice of India F

(2) The Governor of the State

(3) Chief Justice of the High Court concerned

It is clear that under Article 217 (1), the process of 'consultation' by G the President is mandatory and this clause does not speak of any discre- tionary 'consultation' with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in clause (2) of Article 124. The word 'consultation' is powerful and eloquent with meaning, loaded with undefmed intonation and it answers all the questions and all the H

822 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A various tests including the test of primacy to the opinion of the 01. This test poses many tough questions, one of them being, what is the meaning of the expression 'consultation' in the context in which it is used under the Constitution. As in the case of appointment of a Judge of the Supreme Court and the High Court, there are some more constitutional provisions ·B in which the expression 'consultation' is used. Those provisions are :

Clause (5) of Article 148 states that subject to the provisions of this constitution and of any law made by Par~ament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be C such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.

In Clause (1) of Article 222, it is stated that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. D Clause (3) of Article 320 states that the Union Public Service Com- mission or the State Public Service Commission, as the case may be, shall be consulted on matters enumerated under sub-clauses (a) to (e) of that clause. E Clause (9) of Article 338 reads, "The Union and every State Govern~ ment shall consult the Commission on all major policy matters affecting Schedule Castes and Scheduled Tribes".

The consultation in all the above Articles is mandatory in character. F Vide Manpodhan Lal Srivastava v. State of U.P., [1958] SCR 533. However, the question of consultation by the President as in the case of appointment of a Judge is not constitutionally warranted in respect of the appointment of some other constitutional appointees by the President, namely, (1) the Chairman and Members of Finance Commission under G Article 280 (1), (2) the Chairman and Members of Public Service Commis- sion in the case of Union Commission or a Joint Commission under Article 316(1); (3) the Chief Election Commissioner and other Election Commis- sioners under Article 324(2); and (4) the Chairman and other members of the Commission representing the different languages specified in the H Eighth Schedule under Article 344(1); (5) the Special Officer for linguistic'

' ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.) 823 minorities under Article 350-B. A The word 'consultation' is a noun whilst the word 'consult' is a verb and 'consultative' is an adjective. The meaning of the expression 'consult- ation' is given in Shorter Oxford English Dictionary as :

"Consultation: 1. The action of consulting or taking counsel B together; deliberation, conference; 2. A conference in ~hich the parties, e.g. lawyers or medical practitioners· consult and deliberate. 3. The Action of consulting............"

In Webster's Encyclopedic Unabridged Dictionary of the English Lan- C guage, the meaning of consultation is given thus :

"Consultation: 1. The act of consulting; conference. 2. a meeting for dehberation, discussion, or decision......... "

Black's Law Dictionary defines the expression as under : D "Consultation: Act of consulting of conferring; e.g. patient with doctor; client with lawyer. Dehberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it." E Stroud's Law Lexicon gives the following definition:

"Consultation: (New Towns Act, 196 (9 & 1) (Geo. 6.c.68), s 1(1), 'consultation with any local authorities 'Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the F other hand, a sufficient opportunity must be given to the local authority to tender advice" per Blucknil, L.J. in Rollo v. Minister of Town and Country Planning, (1988) 1 All E.R. 13 C.A.; see also Fletcher v. Minister of Town and Country Planning, (1947) 2 All E.R. 99. G Word and Phrases - Permanent Edition gives the meaning of 'consult' thus:

"Consult means to seek opinion or advice of another, to take . counsel; to deliberate together; to confer; to deliberate on; to H

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

A discuss; to take counsel to bring about; devise; contrive; to ask advice of; to seek the information of; to apply to for information or instruction; to refer to. Teplisky v. City of New York 133 N. Y.S. 2d 260, 261.

In common parlance, whenever the expression 'consultation' is used B in connection with lawyers, or with the physician of with the engineer etc. it would mean as seeking opinion or advice or aid or information or instruction. In Corpus Jusris Secundum Vol. 16A at page 1243, the meaning of the word 'consultation' is given thus:

c ·Consultation: The word 'consultation' is defined general as mean- ing the act of consulting; deliberation with a view to decision; and judicially as meaning the deliberation of two or more persons on some matter; also council or conference to consider a special case. In particular connections, the word has been defined as meaning a conference between the counsel engaged in a case, to discuss its D question or to arrange the method of conducting it, the accepting of the services of a physician, advising him of one's symptoms, and receiving aid from him."

In Law Lexicon by P. Ramanath Aiyar, it is stated as follows : E "Consultations always require two persons at least, deliberations may be carried on either with a man's self or with numbers; an individual may consult with one or many; assemblies commonly deliberate; advice and information are given and received in con- sultation; doubts, difficulties, and objection are stated and removed F in deliberations. Those who have to co-operate must frequently consult together; those who have serious measures to decide upon must cooly deliberate."

The expression used in clause (2) of Article 124 is 'after consultation' G whereas in the proviso to · that clause the expression 'shall always be consulted, is used. In Article 217 (1), the expression used is 'after consult- ation.

This word 'consultation' when used in legal sense has come up for judicial scrutiny before this Court as well as High Courts and foreign H Courts on many occasions. We shall now recall a few of the decisions,

ADVOCATES ASSN. v. U.0.1. [PANDIAN,J.] 825

interpreting that words. A

The word 'consult' was subject of judicial scrutiny in Fletcher v. Minister of Town Planning, (1947)-2-All E.R. 496 in which the learned Judge observed thus :

B "The word 'consultation' is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consult- ation. If a complaint is made of failure to consult, it will be for the c Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one." D In Madras District Municipalities Act, 1920, Section 3 read that "for the purpose of election of Councillors to a Municipal Council, the Local Government 'after consulting the Municipal Council' may by notification decide the Municipality into wards ........." K. Subba Rao, J (as the learned Chief Justice of this Court then was) who then adorned the Bench of the Madras High Court interpreted E the word 'consult' in R. Pushpam & Anr. v. State of Madras, AIR (1953) Mad. 392, as under:

"The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order p to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject G involved in the discussions. The consultation must enable the consultor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uniformed person and an expert or between two experts. A patient consults a doctor, a client consults his lawyer; H

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

A two lawyers or two doctors may hold consultations between them- selves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So- too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is B qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not c made in compliance with the provisions of the Act.

A five-Judges Bench of this Court in Chandramouleshwar Prasad v. Patna High Court & Ors., [1970] 2 SCR 666, while interpreting the word 'consultation' as appearing in Article 233 of the Constitution has observed D as follows :

"Consultation with the High Court under Art. 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The E Government cannot discharge his function under Art. 233 if he makes an appointment of a person without ascertaining the High Court's views in regard thereto. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High F Court before the issue of the notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Art. 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or other and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not com- municated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation."

ADVOCATES ASSN. v. U.0.1. [PANDIAN, J.] 827

In Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814, A Krishna Iyer, J speaking for himself and on behalf of Bhagwati, J has articulated the evaluation of the opinion of the ChiefJustice of India in the matter concerning judiciary and expressed his views thus :

"In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of B India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice, the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this vie~, it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue."

Thereafter, in Sankal Chand (supra), Krishna Iyer, J speaking for himself and Fazal Ali, J. in his concurring but separate judgment has ruled thus:

"It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving. cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not a~cepting the advice of the Chief Justice of India. It seems to us that the word 'consultation' has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly."

In the same case, Krishna Iyer, J after giving lexicon meaning of G 'consultation' has stated :

We consult a physician or a lawyer, an engineer or an architect, and thereby we mean not casual but seri«;ms, deliberate seeking of informed advice, competent gnidance and considered opinion. Necessarily, all the materials in the possession of one who consults H

828 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A must be unreservedly placed before the consultee. Further, a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective ad. meaningful advice must be given to him. The consultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous B judgment can be calamitous. Therefore, it follows that the Presi- dent must communicate to the Chief Justice all the materials he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the c information he possess and proceed in the interests of the ad- ministration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system. However, consultation is different from consen- taneity. They may discuss but may disagree, they may confer but may no concur. And in case, the consent of the Judge involved is not a factor specifically within the range of Article 222".

Chandrachud, J. (as the learned Chief Justice then was) in his separate judgment gave a homely analogy and stated that "it may not be a happy analogy, but it is common sense that who wants to 'consult' a doctor cannot keep facts up his sleeve. He does so at his peril of he can receive no true advice unless he discloses facts necessary for diagnosis of his malady." Thereafter, making reference to Pushpam's case (supra), the learned Judge stated. "In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision."