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

B From the foregoing discussion it becomes evident that in India judiciary plays a more active role in selecting judges at all levels than in other countries. The appointments to the subordinate judiciary must be made by the Governor in consultation with or on the recommendation of the High Court as provided by Article 233 of the Constitution. Article 233 is a self-contained provision for appointment as district judge and is in two parts; the first clause provides for the appointment of a person who is already in the service of the Union or the State in consultation with the High Court while the second clause provides for the appointment of a persons who has been for not less than seven years an advocate or a pleader on the recommendation of the High Court. The requirement of consultation with or recommendation by the High Court is a must and the decision has to be taken by the entire body of judges constituting the High Court. In the case of appointment of persons to the judicial service other than as district judges, Article 234 requires that their appointments shall be made in accordance with rules made by the Governor in that behalf in consultation with the State Public Service Commission and with the High E Court. Therefore, even though the ultimate appointment of a person to be a district judge rests with the Governor, he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has, as the case may be, recommended the appointment. Consultation would not be complete, meaningful and effec- F tive unless there has been an exchange of views and in the event of disagreement the executive has indicated the reasons for its disagreement to the High Court and has disclosed the material on which the disagree- ment is based. Therefore, the obligation to consult the High Court is so integrated with the exercise of power by the Governor that the power must be exercised in the manner provided by Article 233(1) or not at all. In order G that the requirement of consultation does no end up as an empty formality or is not reduced to a mere mockery it is essential that in the difference of opinion there is an effective interchange of view-points between the two functionaries so that is able to appreciate the views of the other and there is a genuine attempt to iron out the creases before a final decision is taken. H In cases governed by Article 233(2), normally as a .matter of rule, the High

ADVOCATES ASSN. v. U.O.l. [AHMADI, J.] 911

. Court's recommendation must be accepted unless there exist 'good and A weightly reason' in which case the executive should communicate its views to the High Court and give the latter an opportunity to react to the same. See State of Kera/a v. A. Lakshmikutty, [1986] 4 SCC 632. Once the Governor makes the appointment and the appointee becomes a part of the judicial family, he is under the protective umberalla of the High Court B under Article 235 and none except the High Court can taken disciplinary action against him. See State of West Bengal v. Nripendra Nath Bagchi, [1966] 1 SCR 771 at 789-790. The ultimate order of dismissal or removal may be passed by the Governor on the recommendation made by the High Court based on the outcome of the domestic enquiry. A lesser punishment, that is, a punishment other than dismissal, removal or reduction in rank, C can be imposed by the High Court itself but if the punishment recom- mended is the one falling under Article 311, the order must be made by the Governor. This position is made clear in the case of Tej Pal Singh v. State of U.P., [1986] 3 SCC 604 at 610-611. It is, therefore, obvious that in the matter of selection of district judges, it is the High Court which plays D a dominant rule for the reason that lot of weight is attached to the views of the entire body of judges constituting the High Court. It is, therefore, natural that departure from the opinion of this informed body, which the Constitution requires to be consulted, can be a rare event and that too for very strong, cogent and compelling reasons. Even such an eventuality there must be an effective, purposive and meaningful dialogue with the High E Court before a final decision is taken by the executive. It is necessary to realise that the framer of the Constitution have deliberately provided for consultation with the entire body of judges constituting the High Court and it is their collective wisdom which adds weight to the opinion transmitted to the executive and hence it is not surprising that except in rare cases where they may have gone wrong for want of some material that the executive may take a different approach and invite the High Court to revise its opinion in the light of that material, e.g. I.B. Report or the like. It is significant to note that consultation is not limited to the Chief Justice of the High Court presumably because it was not though wise to limit the consultation with one single individual. The Constitution makers have chosen to rely on the collective wisdom of the High Courts as a body and not any single individual, howsoever high he may be placed.

Insofar as appointment to the High Court is concerned, the same is governed by Article 217(1). We have reproduced the text of this Article H

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

A eatlier. The appointment has to made by the President by warrant under his hand and seal. But it must be preceded by 'consultation' with the Chief Justice of India, the Chief Justice of the State and the Governor of the State. Consultation with these three functionaries is a condition precedent and a sine qua non to appointment. It is common knowledge that the proposal ordinarily emanates from the Chief Justice of the High Court who B forwards it to the Chief Minister. The Chief Minister scrutinises the proposal and if he needs any clarification he must interact with the Chief Justice. If he or the Governor has any suggestion to make or names to propose they may do so and forward the same to the Chief Justice who may examine the suggestions and send his response. The Chief Minister C must then forward the proposal, with the comments of the Chief Justice, if any, in consultation with the Governor to the Minister of Law & Justice in the Central Government. The Minister of Law and justice would then consult the Chief Justice of India and Prime Minister and then forward the papers with the advice to the President who will thereupon issue the warrant of appointment. On a plain reading of Article 217(1) it becomes clear that the President is empowered to make the appointment 'after' consultation with the three constitutional functionaries. The Article does no give any indication of any hierarchy among the three consultees. These three functionaries are those who are consulted, they have a consultative role to play in the appointment of a High Court judge but the ultimate power of appointment rests in the President who must act in accordance with Article 74(1) of the Constitution. The power conferred on the Presi- dent is not an absolute or arbitrary power but the same is checked, circumscribed and conditioned by the requirement of prior consultation with the three Constitutional functionaries. The consultation must be com- F plete, purposive and meaningful and cannot be treated as a mere idle formality. If the consultation is found to be a mere empty formality without effective exchange of views, the appointment would be vitiated and the whole exercise may ultimately turn out to be loves labour lost. Each of the three constitutional functionaries holds a high constitutional position and it is difficult to see how, in the absence of express word, it can be said that G there is a hierarchy envisaged by the said provision. It must be remembered that the Chief Justice of the High Court must be attributed intimate knowledge regarding the quality of legal acumen of the members of the Bar chosen by him for appointment. Since he has the opportunity to watch the performance of members of the Bar at close quarters, he is best suited H

ADVOCATES ASSN. v. U.0.1.[AHMADI,J.) 913

to assess the worth of the candidate relating to his legal knowledge, acumen A and similar other qualities, including his willingness to work hard his ... temperament to discharge judicial functions. From that point of view great weight must be attached to the opinion of the Chief Justice of the High Court. On other matters, such as, the antecedents of the individual, his political affiliations, if any, his other interests in life, his associations, etc., B the executive alone may provide the information. Similarly, the executive would be able to collect information regarding the honesty and integrity of individual and certain other relating matters which may have a bearing on his appointment. Thus the opinion of the executive in this area would be equally important. From both these opinions would emerge the personality of the candidate proposed for appointment. The Chief Justice of India C being 'pater familias' as the judiciary in India would have the advantage of the views of both these consultees and, where necessary, he may also be able to interact with the Chief Justice of the High Court as well as colleagues on the Supreme Court Bench from that court, if any, before formulating his view finally in the matter. His view, thus formulated would D certainly be entitled to greater weight since he had the benefit of filtering the views of the other two consultees on the question of suitability on the proposed candidate, but can it mean that his view totally eclipse the view of the others forbidding the executive to evaluate it before formulating its advice to be tendered to the President? We will leave this as a poser for the present and proceed to consider the process of appointment under E Article 124(2) of the Constitution.

We have extracted Article 124(2) earlier. Clause (1) of that Article provides for the constitution of a Supreme Court of India consisting of a Chief Justice of India and no more than twenty-five other judge;,. Clause F (2) provides that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal. The mode of appoint- ment is the same as in the case of a High Court judge i.e. by warrant under his hand and seal. But here again the exercise. of power is controlled, checked and chcumscribed by the need for prior consultation with such of the judges of the Supreme Court and of the High Courts in the States as G the President may deem necessary. Reference to the expression 'such of the judges' must include the Chief Justice of India in the case of the former and the Chief Justices of the High Courts in the case of the latter. If such a construction is not placed it would lead to the absurd situation of the Chief Justices of various High Courts being excluded from the zone of H

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

A consultation. The Chief Justice of India would, in any case, have to be consulted by virtue of the proviso to that clause because it mandates that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India 'shall always' be consulted. It is, therefore, obvious .- that while the proviso obligates consultation with the Chief Justice of India, the text of clause (2) stretches out the zone of consultees and leaves it to B the President to consult one or more from amongst that broad band of consultees. But consult he must before he makes the appointment. In actual practice whenever a permanent vacancy is expected or arises in the Supreme Court, the Chief Justice of India will intimate that fact to the Minister of Law and Justice and simultaneously forward his recornrnenda- c tion to fill up the vacancy likely to arise or which has already arisen. On receipt of the recommendation the same may be immediately accepted in which case the President may be requested to make the appointment or there may be consultation with one or more of the judges from among those falling within the zone of consultation under Article 124(2) of the Constitu- D tion. If after such consultation, the Minister considers it desirable to bring any matter emerging from consultation to the notice of the Chief Justice of India or to suggest the claim of any other person recommended by the latter, he may convey his views/ suggestions to the Chief Justice of India. On obtaining the view of the Chief Justice of India finally, the Minister is expected to apprise the Prime Minister and with his concurrence advice E the President of the selection. The Presideut will act on that advice and issue the warrant of appointment. This practice which is hitherto followed reveals that the Central Government's understanding o( Article 124(2) is that it is not incumbent on the Government to consult any Judge of the Supreme Court or the High Court including any Chief Justice of the High F Court if consultation with the Chief Justice of India is considered sufficient and no further consultation is deemed necessary. If primacy is to be accorded to the views of the Chief Justice of India, the views of the other consultees would become redundant and will at best serve the purpose of persuading the Chief Justice of India to change his views but if he does not v the views of the other consultees will be rendered nugatory. Is this the ' G constitutional intendment?

Before we proceed to deal with the question of primacy, we may first refer to an attendant circumstance which was used by the learned counsel for the petitioners and allies to buttress their submission that even the H Government of India has construed the provision as conferring primacy on

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 915

the Chief Justice of India. This circumstance is the fact that in the last over A a decade, out of a total of 547 appointments made from 1st January, 1983 to 10th April, 1993 to different Courts, only 7 appointment s (5 in 1983, 1 in 1985 and 1in1991) were made contrary to the views of the Chief Justice of India which, contend counsel, is speaking evidence of the executive having conceded primacy to the opinion of the Chief Justice of India. It B was submitted that frequent utterances of the Union Ministers, both within and outside the Parliament, have given the impression that the Central Government had been following the policy of not making appointments to the superior courts without the concurrence of the Chief Justice of India. Counsel submitted that notwithstanding the majority decision on the ques- tion on primacy in S.P. Gupta's case, in actual practice the Central Govern- C ment always thought that the concurrence of the Chief Justice of India was essential for making the appointment. Therefore, if the practice followed throughout is borne in mind, there is no difficulty in holding that the majority views in S.P. Gupta's case calls for reconsideration. In our view this line of reasoning is wholly unsustainable. It must be remembered that in the process of selection of candidates for appointment to the superior judiciary of the country every effort must be made both by the executive wing as well as the judicial wing to arrive at a consensus i.e. a common understanding and in the majority of cases there is no reason why it should not be possible. The executive and the judiciary do not work at cross purposes, in fact their objective is common and, therefore, it would really be surprising if th~re is lack of understanding in a wide range of cases between them. The executive and the judiciary are not adversaries, they ar~ not supposed to work at cross purposes, then what is so surprising if in a vast majority of cases barring seven they have reacheq an agreement on the selection of the candidates for appointment! And what is the justifica- F tion in believing in the absence of statistical information, that in all these cases it was the executive which yielded to the view of the Chief Justice of India? Could it not be that in some cases the executive was able to convince the Chief Justice of India to its point of view and in some others the Chief Justice of India was able to persuade of the executive to his ·point of view? If the attitude of the executive has been to arrive at a consensus to minimise G differences of opinion, it is in fact a healthy attitude which need not be read as yielding to the primacy concept. In fact, if the differences were too many one would be led to believe that there was a break-down of the constitutional mechanism of selecting judges for the superior judiciary. In H

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

A fact the difference in seven cases, a negligible percentage no doubt, is speaking evidence of the denial of the primacy concept. On the contrary it shows that the executive acts with restraint and due deference to the views of the Chief Justice of India. It would be unfair to read the attitude of accommodation as one of total submission. In fact the seven instances of departure from the views of the Chief Justice of India are cases of assertion which negate the inference of submission to the theory of primacy. And mind you these all are post-S.P. Gupta instances which individually and collectively provide evidence of assertion of executive's right to make an appointment departing from the views expressed by the Chief Justice of India and denial of the concept of primacy to be attached to the views of the latter. That being so it is difficult to appreciate the submission that the executive had conceded primacy to the views of the Chief Justice of India by making 540 :if the 547 appointments with the concurrence of the Chief Justice of India. Even otherwise to rely on such a tenuous circumstance for interpreting and understanding con;titutional questions great significance would seem to be a desperate attempt like clutching at a straw.

From the relevant provisions of the Constitution concerning the judiciary which we have referred to and reproduced hereinbefore, it is evident that the Constitution has used different expressions to meet with different situations. The word 'consultation' is used in Articles 124(2), E 217(1) and (3) and 233(1), the expression 'previous consent' is used in Articles 127, 128 and 224-A, the word 'recommended' is used in Article 233(2), and the word 'approval' is used in Article 145 and proviso to 229(2) of the Constitution. Reference to theses provisions is illustrative and not exhaustive. It would, therefore, seem from the above that in the matter of appointment to the superior judiciary, the President can exercised his power of appointment only after he has completed the process of consult- ing certain constitutional functionaries, in the process of appointment of ad hoc judges or retired judges to sit on the Bench, the power can be exercised with the 'previous consent' of the President, in the case of making of rules the 'approval' of the President/Governor is necessary and in the case of appointment to the· post of district judge recommendation of the High Court is envisaged. So also in the case of transfer of determination of age, consultation with the Chief Justice of India is a must. It will thus be seen that different expressions are used to convey different meanings. We have already pointed out earlier that the plain language of Articles H 124(2) and 217(1) do not convey that the process of consultation means

ADVOCATES ASSN. v. U.O.L [AHMADI, J.] 917

concurrence with the views of the Chief Justice of India. However, counsel A for the petitioners and their allies submitted that the said expression must be given a meaning which is consistent with the constitutional philosophy of independence of the judiciary as enshrined in Article 50 and the dis- charge of the fundamental duty of abiding by the Constitution and respect for its ideals and institutions (Article 51A(a)). According to them consult- B ation, in the context of safeguarding judicial independence, with the head of the Indian judiciary cannot merely seeing his views but must be under- stood to mean that his word in the matter of appointment to the superior judiciary will be final and the advise which the Prime Minister must give m'.lst be in accordance with the opinion of the Chief Justice of India so that the President may act on that advice as required by Article 74(1) of the Constitution. The view of the Chief Justice of India of India cannot be wished away at the sweet will of the executive. It is, therefore, necessary that the expression should not be given a narrow or literal meaning but must in the context be understood to mean 'consent' or 'concurrence'. Counsel emphasised that both Articles 124(2) and 217(1) contemplate plurality of consultation and this can be achieved by the Chief Justice of India consulting two or more of his senior colleagues before expressing his view which view would reflect the collective view of the judiciary. The choice of the candidate for appointment would thus be based on the collective wisdom of the Chief Justice of India and his colleagues and the opinion expressed would be participatory in character and would in the final analysis subserve the object of the Independence of the judiciary and selecting a person of the right stamp. Thus the opinion of the judiciary would be symbolised in the opinion of the Chief Justice of India and it is, therefore, essential that such a view should have primacy. Lastly it was said that in any event the executive cannot be allowed to appoint a person whose selection is considered 'unsuitable' by the Chief Justice of India. Counsel, therefore, submitted that between the two views canvassed before this Court, the view which safeguards judidal independence and enables choice of persons of the right stamp for the superior judiciary should commend itself to the Court. G We have pointed out earlier that in the United Kingdom and other common law jurisdictions, say Australia, Canada and the New Zealand as well as the United States, the appointments to the superior judiciary are exclusively by the executive with varying degree of control. In the United Kingdom the appointments are made on the recommendations of the Lord H

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

A Chancellor or the Prime Minister depending on the level at which the appointment is made. In Australia, the appointments are made by the executive in the name of the Governor-General or Governor, in council depending on whether the appointments are to the High Courts or other federal courts or at the State-levels. In Canada the appointments are B essentially by the executive whereas in New Zealand the judiciary plays an active role but the appointment is made on the recommendation of the Cabinet by the Governor-General. In the United States the appointment to the Sup1eme Court is made on the nomination by the President subject to confirmation by the Senate. It will thus be seen that in these developed countries whose people are no less jealous of preserving judicial inde- C pendence, the initial appointment at the entry stage is by the executive.

In British India, under the Government of India Act, 1915, Sections 101 and 102, appointment of the Chief Justice and Judges of the High Court was in the absolute discretion of the Crown and their tenure was D governed by the pleasure doctrine. Under the Government of India Act, 1935, sections 200 and 220, the appointments to the Federal Court and the High Court continued to be an executive privilege but their removal was dependent on a report from the Judicial Committee of the Privy council to the Crown. We have pointed out _the development of the concept of judicial independence in British India earlier and see no reason to repeat the same. E Since our Constitution makers were alive to the need to insulate the judiciary from external pressures they introduced the concept of consult- ation with the Judiciary Wing to limit and check the absolute discretion of the executive in the matter of appointments to the superior judiciary. They achieved this by introducing the concept of compulsory consultation with F the judiciary before the appointments are made to the superior judiciary. That is why Articles 124(2) and 217(1) provide that the appointments under the said provisions shall be made 'after consultation' with the Chief Justice of India and others. But it is difficult to say that the Constitution- makers intended to denude the executive of all its power of appointment by providing for consultation with the Chief Justice of India and other. We G do not think, as we will presently show, that such a view is permissible on the plain language of the Constitution even if the word 'consultation' is understood in the backdrop of the need to strengthen the concept of judicial independence.

H Before we proceed to deal with the relevant Articles we may state

ADVOCATES ASSN. v. U.0.1. [AHMADI,J.] 919

that of the two questions formulated in Subhash Shanna's case extracted A earlier, it i;nay be mentioned that the concept of primacy referred to therein his three elements, namely (i) primacy of the Chief Justice of India as 'pater familias' of the Indian Judiciary (ii) primacy to be accorded to his views amongst the consultees referred to in Articles 124(2) and 217(1) and (iii) primacy in the sense of Chief Justice of India's view being binding on the B President i.e. the executive. We may at the outset deal with the first aspect of primacy.

Article 124(1) speaks of the Constitution of the Supreme Court of India consisting of the Chief Justice of India and such number of judges as may be prescribed from to time. The position of the Chief Justice of C India under the Constitution is unique; on the judicial side he is primus inter pares, on the administrative side the responsibility of managing the business of the Court is exclusively his, it is privilege to constitute benches and allocate judicial work to them. He also decides on who will work as vacation judges. Apart from the fact that the draws a salary slightly higher than his colleagues, he is empowered by Articles 127 and 128 to appoint adhoc judges or retired judges with the previous consent of the president to discharge judicial functions whereas Article 130 empowers him with the approval of the President to hold sittings of the Supreme Court at any place outside Delhi. He is e~powered by Article 146(1) to make appointments of officers and servants of the Supreme Court. He also chairs the meetings of the judges of his court and presides over the Chief Justices' Conference and leads delegations when required. His position is like that of 'patria protestas' under the Roman Law. These responsibilities are symbolised in the official title, 'Chief Justice of India', and to that limited extent he is accorded primacy. See Lawrance Baum on 'The Supreme Court' (4th Ed.) F at page 16.

Undoubtedly the office of the Chief Justice of India is given a special recognition under Articles 124(2), 217(1), 217(3) and 222(1), in that, consultation with him is a must before any decision contemplated under those provisions is finalised. Since the expression of opinion in regard to G appointments to be made to the superior judiciary is a non-judicial func- tion, in fact it is a function in aid of the executive function of the President i.e. the executive, to select candidates for appointment. to the superior judiciary, the Constitution mandates consultation with him and others mentioned in Article 217(1) of the Constitution. This is matter which H

920 SUPREME COURT REll()RTS [1993) SUPP. 2 S.C.R.

A touches the other two aspects of primacy on which we will elaborate at once.

The scheme of 'consultation' under the Constitution varies. Under Article 233, consultation with the High Court, i.e., the entire body of Judges of the High Court. Then under Article 217(1) consultation is with three B constitutional functionaries, namely, the Chief Justice of India, the Gover- nor and the Chief Justice of the Concerned High Court. Under Article 124(2), the Judges of the Supreme Court and the High Court besides the Chief Justice of India fall within the zone of consultation. Then there are provisions which contemplate consultation with the Chief Justice of India [ C alone, e.g. Articles 217(3), 222(1) etc. Provisions are also found where the Chief Justice of India can act with the 'previous consent' of the President, Articles 127-128 - and Article 224-A for the High Courts. The word 'consult' as understood in ordinary parlance means to ask or seek advice or the views of a person on any given subject i.e. to take counsel from another, but it does not convey that the consultant is bound by the advice. In certain situations an expert in the field may be consulted but it is only to help the consultant to take a final decision. By consulting even an e'qlert the consultant does not mortgage his decision, the advice given is only in-put among the various factors which enter decision making. He may consult one or more experts and he may accept the advise he considers most acceptable or rational but he is always free to reach his own con- clusion. It is ultimately his responsibility to reach a sound decision and he is accountable for the same. Consultation would require at least two persons, they consult each there by correspondence or by sitting across the table. A may consult B on a given subject, obtain the opinion of B and act F on it or he may, if not satisfied, discuss then issue with him or convey his doubts in writing, seek his clarification and if satisfied .accept the advise or depart therefrom. In Fletcher v. Minister of Town Planning, [1947] 2 All England Reporter 496, the Minister's order designating an area of land as the site for the proposed new township was questioned on the ground that the requirements of the law were infringed inasmuch as there was no G 'consultation' within the meaning of section 1(1) of the New Towns Act,

1946. The learned Judge observed :

"The word 'consultation' is one that is in general use and that is well understood. No useful purpose would, in my view, be served H by formulating words of definition. Nor would it be appropriate to

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 921

seek to lay down the manner in which consultation must take place. A The Act does not prescribe any particular from of consultation. If a complaint if made of failure to consult it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a somewhat continuous process and the happenings at B one meeting may form the background of a later one. In deciding whether consultation has taken place, regard must, in my judgment, be paid to the substance of the events ...... "

This passage was relied upon by Subba Rao, J. (as he then was) in R. P1,shpam v. The State of Madras, AIR (1953) Madras 392 at 393. The C learned judge after reproducing the passage proceeded to observe :

''It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place having regard to the substance q_f the events. The word D 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussi.ons. The consultation must enable the consultor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultation between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not and cannot be a performance of duty if no consultation is H

922 SUPREME COURT REPORTS (1993) SUPP. 25.C.R.

A made and even if made, is only is formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act."

The view expressed in Fletcher's case on the content of consultation was affirmed in Rollo and Another v. Minister of Town & Country Planning, B [1948) All England Reporter 13. In Port Louis Corporation v. Attorney General, Mauritius, (1965) Appeal Cases 1111 the Judicial Committee of the Privy Council observed; "consultation" connotes an exchange of ideas, information and views, in which each side has a full opportunity of con- tributing to such an exchange; it is not a one way process but a two way C process. According to their Lordships it is essential for the executive to advise with an open mind, that is, open to persuasion and open to ap- preciate the advice tendered and if one may add eschew his own point of view if satisfied about its weakness. The requirement of consultation is never to be taken perfunctorily of as a mere formality. Again in R. v. D Secretary of State for Social Services, exparte Association of Metropolitan Authorities, (1986) 1 All England Reporter 164, Webster, J. observed at page 167 as follows :

"There is no general principle to be extracted from the case law as to what kind or amount of consultation is required before delegated legislation, of which consultation is a precondition, can validly be made. But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that ad\jce. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice.......... By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State G might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer." ''

It is well settled that a Constitution is an ever evolving organic document which cannot be read in a narrow, pedantic or syllogistic way but must receive a broad interpretation. Constitution being a growing ,

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.) 923

clr;c-.i:nent its provisions can never remain static and the Court's endeavour should be. to interpret its phraseology broadly so that it may be able to meet the requirements of an ever-changing society. But while it may be • permissible to give an enlarged or expanded meaning to the phraseology used by the Constitution makers, while it may be permissible to mould the provisions to serve the needs of the society, while it may even be permis- B sible in certain extreme situations to stretch the meaning and, if necessary, bend it forward, it would certainly be impermissible to break it or in the guise of interpretation to replace the provisions or re-write them. Giving the widest connotation to the word 'consultation', stretching it almost to the breaking point, it is not possible, in the constitutional context and having regard to the constitutional scheme and in the light of what we have c discussed hereinbefore, to attribute to it the meaning of 'concurrence' or 'consent'. If any indication is needed reference may be made to Article 320(3) read with Article 323; by the former provision is made for consulting the Public Service Commission on the matters enumerated at items (a) to (e) thereof and the latter provision envisages what procedure will be followed in the event the advice of the Commission is not accepted. Thus the Constitution itself recognises the possibility of the consultant not following the advice of the consultee i.e., the Commission. In that event all that Article 323 requires' is that the annual report of the Commission shall be placed before the Parliament together with a memorandum explaining why the advice of he Commission was not accepted. In fact in the case of State of U.P. v. Mandodhan Lal Srivastava, [1958] SCR 533, a Constitution Bench of this Court held that 'the req.iirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government'. It was, therefore, held that while consultation with the Commission is with a view to getting proper assistance and is not a mere formality, nonetheless it is not of a binding character. It is, therefore, difficult to hold that the advice tendered by the Chief Justice of India was intended to be of a binding character and the executive had no choice but to follow it; to so hold would be to bestow a right of veto on the Chief Justice of India which does not fit in with the constitutional scheme. It was said that the object of providing for consult- ation was clearly to control and limit the discretion vested in the President, that is , in effect the executive, in the matter of appointments to the superior judiciary but· that cannot mean that the Constitution-makers H

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

A desired to transfer the power of appointment to the Chief Justice of India. If it was so nothing would have been simpler than using the expression · 'concurrence' or 'consent', which expressions have been deliberately not employed because the Constitution-makers did not intend to vest the final say in the Chief Justice of India. This view gets reinforced if we recall to B mind the fact that Mr. B. Pocker Sahib had moved amendments to intro- duce the requirement of the 'concurrence' of Chief Justice of India in the matter of appointments to the Supreme Court and the High Courts which c were rejected by the Constituent Assembly. This factual history also lends support to the view that the Constitution-makers had debated and con- C sciously negatived the amendments.

It may also be mentioned that while deciding the question regarding the scope and ambit of Article 222(1) of the Constitution in Union of India v. Sankal Chand Himatlal Sheth & Anr., [1978] 1 SCR 423 the learned Judges comprising the Constitution Bench were divided in their view on the question whether a High Court Judge could or could not be transferred without his consent, but there was no difference of opinion in regard to the nature of consultation with the Chief Justice of India. All the learned Judges were in agreement that the consultation must be substantial and effective based on full and proper disclosure of material but none of the learned Judges went so far as to say that the concurrence of the Chief Justice of India was a must for effecting the transfer. All that their Lordships said was that the transfer must be in public interest. While Bhagwati & Untwalia, JJ. were of the view that the consent of the Judge proposed to be transferred was essential for maintaining judicial inde- pendence, the other three learned Judges were of the view that considera- F tions of public interest would be a sufficient safeguard against any abuse of power. It would thus be seen that learned Judges who were quite conscious of preserving the independence of the judiciary were not prepared to go to the length of construing 'consultation' to mean 'concurrence' of the Chief Justice of India. In fact Justice Krishna Iyer G sounded a note of caution when he said at page 501 :

"His consent in such situation can never be a guide to control the clear intendment of the article reflected in its unambiguous terms. To re-write the Constitution by the art of construction, passionately impelled by contemporary events, is unwittingly to distort the

ADVOCATES ASSN. v. V.O.I. [AHMADI,J.] 925

judicature scheme our founders planned with thoughtful care and to wish into words that plain English and plainer context cannot sustain. Ample as judicial powers are, they must be exercised with the sobering thoughtlus die ere et non jus dare (to declare the law, not to make it).

B In In Re the Special Courts Bill, 1978 (1979) 2 SCR 476 a Seven-judge Constitution Bench of this Court pointed out that the process of consult- ation has its own limitations which are well known and observed that as a matter of convention, it is the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But it is significant to note that their Lordships did not favour the introduction of the concept of concurrence of the Chief Justice of India. Even in the subsequent decision in S.P. Sarnpath Kumar etc. v. Union of India & Ors., (1987] 1 SCR 435 the suggestion made was to provide for 'consultation' with the Chief Justice of India or his nominee and not concurrence. It is, therefore, manifest that this Court has shown restrajnt in interfering with the judicature mosaic so carefully designed in our Constitution. Bill No. 93 of 1990 was introduced in the Lok Sabha on 18th May, 1990 as the Constitution 67th Amendment Act to provide for the Constitution of the National Judicial Commission for appointments to be made to the superior judiciary. The statement of objects and reason of the Bill would show that the change was proposed to obviate the criticism of arbitrariness on the part of the executive in the appointment of Judges of the Supreme Court and the High Courts and transfer of Judges of the High Courts and also to make such appointments without delay. The Bill envisaged the constitu- tion of the National Judicial Commission for recommending appointments to the Supreme Court and the High Courts. The constitution of Commis- F sion for the former was to comprise of the Chief Justice of India as its Chairman plus two of his seniormost colleagues. For recommending ap- pointments to the High Court the Commission was to consist of Chief Justice of India as its Chairman, the State Chief Justice Minister, one other seniormost Supreme Court Judge, the Chief Justice of the High Court and one other seniormost Judges of the High Court. It will thus be seen that G even under this Bill last word in the matter of choice for appointment to the Supreme Court or the High Court was not left with the Chief Justice of India. On the contrary the proposed proviso to Article 124(2) of the Constitution contemplated non-acceptance of the recommendation of the National Judicial Commission. Even under this Bill, therefore, the last H

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

A word in the matter of appointment to the High Court was not left with the Judicial Wing. Even the appointment of a Judge of the Supreme Court chosen by the Chief Justice of India and his two seniormost colleagues may not be accepted under the proposed proviso to Article 124(2) and hence to that extent the executive retained control. Therefore, even these sub- B sequent developments do not support the proposition that the Chief Justice of India should have primacy in the matter of appointments to the superior judiciary of the country.

Judges being the central figures where administration of justice is concerned there can be no doubt that great care must be taken in the choice of personnel for judgeship. The method of judicial appointments would have a great deal of bearing on the quality of the judiciary and its composition. The method of appointment must ensure that the most qualified candidate secures appointment. We have indicated earlier the models of judicial selection employed by different countries. In all these models the executive has a pre-eminent role to play. We have adopted a mixed method whereunder both the executive and the judiciary play their respective roles. Our Constitution being of checks and balances, the ab- solute power of the executive in the choice of members of the superior judiciary is controlled by the need for prior consultation with the judicial wing. But as pointed out earlier the plain language of the relevant Articles of the Constitution does not support the theory of a veto in the Chief Justice of India, i.e., there are no indications to support the argument that the Chief Justice of India should have the last word in the matter of selection of a candidate for appointment or rejection of a candidate suggested by the other constitutional functionaries-consultees. It must be realised that the concept of 'primacy' so vigorously canvassed before us has, in the context, two aspects, namely (i) primacy in the sense of the opinion of the Chief Justice of India being the last word binding on the consultation and (ii) primacy in the sense that the opinion of the Chief Justice of India would prevail over the views of the other consultees if they are conflicting. We have already considered the first element in detail and have rejected it. So far as the second element is concerned we have set out the different facets thereof in detail hereinbefore and have pointed out the various situations which may confront us. In the first place the plain language of Articles 124(2) and 217(1) does not support the contention. H There is no warrant in the constitutional scheme to hold that any hierarchy

ADVOCATES ASSN. v. U.0.1. [AHMADI, J.] 927

was intended amongst the consultees. For example, as pointed out earlier, in the operation of the process under Article 124(2), four situations arise. -~ Take situation (ii) where the President has consulted the Chief Justice of India and two or more judges of the Supreme Court and their views do not tally. Can it be said that the collective weight of the opinion of other judges would be set at naught merely because the Chief Justice of India does not agree? The Chief Justice of India is undoubtedly 'pater familias' of the Indian judiciary but the Constitution nowhere confers on him the power to eclipse the views of his co-equals. If such a views is taken the provision of consultation with others mentioned in Article 124(2) will be rendered nugatory since under the proviso the Chief Justice of India has always to be consulted. Take again situation (iii) where the President consults three Chief Justices of the States and their collective opinion differs from that of the Chief Justice of India. If the opinion of the three Chief Justice is to be shelved why consult them at all? In relation to the High Courts also, Article 217(1) provides for consultation with the three functionaries. As pointed out earlier the Chief Justice of the State, being in intimate touch with the members of the profession, would be better suited to opine on the quality of the candidate chosen by him. But a distinction exists between the legal acumen of a lawyer and qualities which go to make a good judge. In relation to the first the Chief Justice of the State would be better suited to opine but in relation to the second the executive will certainly have a role to play. It is the. blending of these two roles which brings out the full personality of the candidate. It is true that in both cases the Chief Justice of India has an opportunity to filter the material before expressing an opinion and, therefore, his view is indeed entitled to greater weight but that is altogether different from saying that his view will render the views of the other consultees non-est. There being no hierarchy contemplated by Ar- ticle 217(1) each consultee has a definite contribution to make which need not be ignored. The opinions of the consultees both under Article 124(2) and 217(1) are intended to act as checks on the exercise of discretion by the executive which will be accountable to the people. It would be in exceptional cases that the executive would depart from the collective uniform advice of all the consultees. Take even a case where the Chief Justice of India expresses an opinion after consulting two of his colleagues. What if the opinion of his colleagues differs? Still his opinion will prevail! Then the President consults a few judges of the Supreme Court and the · H

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

A High Courts and their uniform opinion conflicts with that of the Chief Justice of India. It would be unfair if the opinion of the other consultees is rendered redundant because it does not concur with the opinion of the Chief Justice of India. It is one thing to say that great weight should be attached to the opinion of the Chief Justice of India and another thing to say that amongst the consultee his word will be final. We, therefore, find it difficult to hold that the opinion of the entire judiciary is symbolised in the view of the Chief Justice of India and the President is bound to act in accordance therewith under Article 74(1) of the Constitution. Such a view may tend to make the Chief Justice of India insensitive to the views of the other consultees and may embroil him in avoidable litigation. If the Presi- dent has to act on the aid and advice of the Council of Ministers it is difficult to hold that he is bound by the opinion of the Chief Justice of India unless we hold that the Council of Ministers including the Prime Minister would be bound by the opinion of the Chief Justice of India, a construction which to our mind is too artificial and strained <o command acceptance. We think, such an interpretation of the constitutional provisions would tantamount to re-writing the Constitution under the guise of interpretation which distort the judicature fabric found woven into the Constitution. Therefore, however convincing it may sound to the ideal of judicial independence that the views of the Chief Justice of India must have primacy as his views expressed after consulting his two seniormost col- leagues would be symbolic of the views of the entire judiciary, the submis- sion cannot be accepted unless the Constitution is amended. As the constitutional provisions presently stand, the submission based on this line of reasoning is unacceptable. For the foregoing reasons, but subject to the qualifications in the concluding paragraph, we do not think the majority view in S.P. Gupta's case articulated in the judgments of Bhagwati, Fazal Ali, Desai and Venkataramiah, JJ. requires reconsideration on this aspect of the matter.

In the view we take on an interpretation of Articles 124(2) and G 217(1), the submission of Mr. Shanti Bhushan and Mr. Jethmalini loses significance. Even otherwise, we do not see any merit in the submission. The governmental powers are ordinarily divided into (i) executive (ii) legislative and (iii) judicial. The power to appoint judges to the superior courts is an executive function. By virtue of Article 53 the executive power is undoubtedly vested in the President which he must exercise 'in accord-

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 929

ance with this Constitution. Similarly under Article 154 the executive power of the State vests in the Governor which his must exercise in accordance with the Constitution. Articles 73/162 provide that subject to the provisions of the Constitution, the executive power of the Union/State shall extend to .~ matters with respect to which Parliament/State Legislature has power to make laws, Counsel submitted that since neither List I nor List III in the B Seventh Schedule empowers the making of any law regarding appointments to the superior judiciary it must be presumed that the power exercised by the President i..~ not one which would attract Article 74(1) of the Constitu- tion. But here counsel overlooks Article 248 and the residuary entry 97 in List I by which exclusive power is conferred on Parliament to make laws even in respect of subjects not specifically covered. Under the Constitu- C tional scheme the States can make laws in respect of the subjects enumerated in List II in the Seventh Schedule. But that does not mean that the executive power is confined to matters falling within the legislative entries only. It must be remembered that both the President and Governor are formal heads and the executive power of the Union/State has to be exercised in the name of the respective heads. The President as well the Governor exercise power conferred by the Constitution on the aid and advice from the respective Council of Ministers, except where the Gover- nor is required by or under the Constitution to exercise his functions in his discretion. The precise language of Article 163(1) uses the words "except in so far as he is 'by or under' this Constitution required to exercise his functions or any of them in his discretion". It may be noticed that the words carving out the exception are not to be found in Article 74(1). That is way in Shamsher Singh v. State of Punjab, [1975] 1 SCR 814 it was held at page 835 that only those executive functions which by or under the Constitution are required to be performed by the Governor in his discretion can be performed without the aid and advice of the Council of Ministers and none else. This Court enumerated instances of constitutional requirements where the Governor must act in his discretion. Since Article 217(1) does not say that the said function the Governor must perform in his discretion it is obvious that in the matter or appointments to the superior judiciary the Governor must act according to the aid and advice received from his Council of Ministers. Similarly by virtue of Article 74(1) the President is obliged to act on the advise of the Council of Ministers. It must also be realised that under Articles 75(3) and 164(2) the Council of Ministers are collectively responsible to the House of the People in the case of the Union H

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

A and the Legislative Assembly in the case of the State. If the President or Governor refuse to act on the advice of their Council of Ministers, it would result in a constitutional crisis. We have, therefore, no doubt in our minds that in the form of parliamentary democracy which we have adopted, the President and the Governors are symbolic heads and so long as their Council of Ministers exist they must abide by their advice except where the B Governor is required by or under the Constitution to act in his discretion. We, therefore, reject this contention.

Before we proceed to the next topic two offshoots which surfaced during the hearing may be meptioned. The first concerned the transfer of judges and the second related to the mode of selection of personnel for appointment. By the referring judgment in Subhash Shanna's case these aspects have not been referred for consideration by the largest bench and, therefore, the contesting parties have not entered their pleadings on the points and perhaps even the learned counsel were not fully prepared to deal with them. The various aspects of the transfer policy have been disc.ussed at length in two decisions of this Court, viz, in Sankal Chand Sheth's case and S.P. Gupta's case. It had been clearly held that the transfer must be in public interest to subserve the needs of administration of justice. E Article 222(1) enjoins prior consultation with the Chief Justice of India alone and hence his view would not reflect the views of the judiciary as the plurality concept is absent. The learned Attorney General rightly pointed out that after a candidate is chosen as a judge, greater care must be shown in dealing with him, a member of the judiciary, to ensure that the power of transfer is no viewed as an instrument to subvert the judiciary. Since F here the only person to be consulted is the Chief Justice of India, a heavy responsibility lies on his shoulders to ensure that the transfer is in public interest and in the interest of judicial administration. The language of Article 222( 1) does not convey that once a judge is transferred from one High Court to another, qua him the power of transfer gets exhausted and G a second transfer is not permissible without his consent. It goes without saying that unless there are very pressing reasons, the Chief Justice of India will not consent to a second transfer. And since this is a post- appointment - stage, the view of the Chief Justice of India will have a greater say in the matter because exercise of the power to transfer a member of the judiciary by the executive is likely to be misunderstood as executive's effort to

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 931

undeimine the independence of the judiciary. The weight to be attached of the views of the Chief Justice of India in this field would be much more than what his opinion would carry at the pre-entry stage. Since the transfer can be effected in public interest only that requirement or limitation would safeguard judicial independence. A transfer effected in public interest cannot be punitive but care must at all times be taken to ensure that in the ls guise of public interest a High Court judges is not being actually penalised. When a puisne judge is transferred to take over as a Chief Ju~tice else- where such a transfer would never be construed as penal because of the elevation involved in it but where the transfer is a second one qua the individual it is likely to be so interpreted and hence a far greater C responsibility is cast on the Chief Justice of India during the. consultation process to take every precaution to see that it is not so. Once this care is taken there is nothing in Article 222(1) to limit the power to only one transfer without the concerned judge's consent and thereafter only with his consent. D On the second point, namely, the mode of selection for appointment to the Supreme Court, there was hardly any discussion at the Bar and except for general platitudinous exchanges there was hardly any concrete suggestion emerging frbm the discussion. In the points formulated by learned counsel in the course of their address no one had made any mention of guidelines to be followed by the Chief Justice of India in the matter of choice of candidates for appointment to the Supreme Court. So also none of the counsel formulated any specific points for laying down any guidelines to be followed by the Chief Justice of High Courts for appoint- ments to be made to the High Court. In these circumstances, we think it would be hazardous to lay down any guideline in this behalf. This bench was constituted to consider the two points specifically mentioned in Sub- hash Shanna's case to which the pleadings are restricted and no question was specifically formulated even at the hearing of the reference on the procedure to be followed in the matter of appointments to the superior judiciary. In the absence of proper assistance from Bar we deem it unwise to express any opinion in this behalf. As Desai, J. would say: 'It is a well recoguised pithet of constitutional wisdom that in constitutional matters the courts do not decide what is not brought before it nor would it proffer advice except in a reference under Article 143, on the wisdom or validity H

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

A of a future action'. We are, therefore, of the opinion that it would be wise not to attempt laying down guidelines on one's own impressions about the working of the selection process. Despite this demurer we feel that since our leaned brothers have chosen to lay down certain guidelines or norms in regard to appointments, which in our view would be obiter dicta only, B and which, we are afraid, may, for want of an intense debate at the Bar, create more problems rather than solve existing ones and may also embroil the Chief Justice of India into avoidable litigation and embarrassment, we must clearly express ourselves lest our silence is construed as consent. It must be remembered that entry into the superior judiciary is by invitation . C and judges constituting the superior judiciary are not stricto-sensu civil servants. The functions to be performed by those constituting the superior judiciary are totally different from those performed by the district judges. Similarly the nature of duties and functions undertaken by judges of the apex court are different from those at the High Court level. Therefore, to D say that in the matter of appointment to the apex court inter-se seniority in the concerned High Court and at the combined seniority at the all-India level should be given due weight unless there be strong cogent reasons to justify a departure would, to say the least, create a host of problems. Take for example, the first four judges in the all- India seniority are from a single E High Court. If you appoint all of them the 'representative' character of the Court will be disturbed. Take for example the senior most judge of High Court X is at serial No. 50 in the all-India seniority and there is no judge in the apex court from that High Court which is one of the major High Courts. The Chief Justice of India will fmd it difficult to nominate him for appointment and if he does there is every possibility of his seniors ques- F tioning the decision of the Chief Justice of India in Court. In order to maintain the representative character of the High Cou!ts and the Supreme Court so that people of all hues have confidence in the institution, the rule of seniority, which may be valid for Civil Services (even in Civil Services .the higher posts arc filled on merit), can have no application to constitu- G tional functionaries. So also the 'legitimate expectation' doctrine can have no relevance in determining the suitability of the appointee. The seniority principle and the legitimate expectation doctrine are incapable of realistic application as they would destroy the representative character of the superior judiciary, which is absolutely essential for every segment of society H to have confidence in the system. The seniority principle and the legitimate

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.) 933

expectation doctrine would only push merit to the second place. Appoint- A ments to the superior judiciary should be solely on merit and other suitability factors and not on' the basis of inter se seniority in the High Court or placement in the combined all-India seniority list. There can be no room for the legitimate expectation doctrine in cases where appoint- ments are on merit and by invitation. We must hasten to add that where B both the candidates under consideration are of equal merit, inter se seniority may have a role to play, subject to other requirements for main- taining the representative character, etc., being satisfied. We cannot help voicing our fear that the application of those help principles in the matter of choice of candidates for the superior judiciary is fraught with dangers. C Nowhere in the world have these two principles been considered valid for appointments to the superior judiciary, except perhaps in france where the judiciary service is a career service, quite different from common law jurisdictions. As the issue does not arise from the referring judgment and was not put into direct focus, and as there was hardly any meaningful D dialogue at the Bar, we too do not desire to go into- the various facets of the matter as it is generally inadvisable to express opinions in the nature of obiter dicta on constitutional issues of great significance but we have said a few word lest our silence may be misunderstood to be concurrence with the observations. made in the judgment of our learned colleagues. E

That takes us to the second question whether the issue regarding the fixation of judge-strength under Article 216 of the Constitution is justici- able. There is no doubt that every High Court with the exception of one or two has swollen dockets. The backlog is substantial in these High Courts. F Justice, social, economic and political is our constitutional goal. When members of a civilised society agree to have their disputes settled through an independent and impartial mechanism offered by the State, with a set of laws and rules governing the same, we think, there is an implied promise that the mechanism so offered will deliver the goods within a reasonable time. Human race has always remained conscious of the sense of justice and, therefore, justice has always been the first virtue of any civilised society. There can, therefore, be no doubt that all those concerned with the judicial system in this country must be alive to the fact that because of diverse reasons, but entirely of the making of the judiciary, the judicial system has not been able to keep its implied promise to dispense jlJ,$tice within a reasonable time. This is essentially on account of the fact that not

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

A sufficient attention has been paid to modernise our judicial system, co- operation from those connected with the system has been grudging and the members of the profession too have contributed by frequent adjournments 1 and strikes. The executive too has not been able to contain its litigation docket and a tendency is clearly discernible that even high ranking officers B are not prepared to take responsibility and find it easy to rest the respon- sibility on the judiciary. Politico-legal issues are also diverted to courts which consume a lot of judicial time. There has been an environmental degradation which has also affected the work culture of the judiciary. The service conditions of judges are no more attractive, they take no notice of the earnings of an average lawyer, with the result that recruitment from the C Bar of persons of the right stamp is difficult which slows dmm the disposal of cases and increases appellate and revisional work. It is, therefore, essential that we realise that judge-strength is only a small contributing factor. Here also we cannot lose sight of the fact that there is always an optimum strength beyond which it would be a mere surplusage because it is common knowledge that in every District Court or the High Court work is concentrated in the hands of a few lawyers and their non-availability on account of they being engaged before another judge may render the other judges idle. It would, therefore, be wrong to think that the increase in the judge-strength alone will solve the problem or arrears; it may, if scientifi- cally worked out, certainly ease the same. What is really necessary is to effectively manage the dockets. Take for example a case where the apex court lays down the law n any subject. Now all cases down the line which depend on this decision must be disposed of in terms of the law laid down by the apex court. But for want of management no one knows how many such case are pending in all courts. As a result they remain dormant on the court registers and are disposed of only after they appear on the daily board in their own turn. It in the meaning complications have occurred even the disposal will be delayed. This is merely to highlight that inc.Tease in the judge-strength by itself will not make a very substantial impact unlf'ss the entire system is modernised with the help of computers etc., and a virtual crusade is undertaken with the help of the members of the profes- .. - G sion, the executive and the judiciary to combat law' delays.

As stated earlier, increase in the judge -strength may somewhat ease the problem of delay in the disposal of cases. Article 216 provides that every High Court shall consist of the Chief Justice of such other judges as H the President may from time to time deem it necessary to appoint. The

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 935

Article clearly casts a duty on the President, i.e. the executive, to decide A · from time to rime on the number of judges necessary to be appointed in every High Court. The words 'deem it necessary to appoint' when read with 'from time to time' leave nothing to doubt that the Article envisages periodical assessment of the judge-strength by the executive in respect of each High Court. This is undoubtedly a constitutional obligation which B must be performed in time arid without delay. It may be noticed that this provision does not provide for consultation with the judicial wing but normally the Chief Justice of the High Court initiates a move for increase in the judge-strength because he is better suited to know his requirements. Since the fixation of judge-strength depends on a variety of factors no uniform rule of general application can be evolved as the situation in each C High Court cannot be identical. Local factors differ and they cannot be wished away. It cannot be so simple as dividing the pending backlog l:y the disposal norm fixed for each judge to arrive at the number of judges required. Take a case where the number of judges is adequate but cases have piled up on account of frequent stoppages - we are not on the justification for the stoppage of work but on the factum. Can a demand for upward revision of judge-strength be justified? Even if additional judges are appointed but the scenario of stoppage of work continues, will the increase in the judge-strength make any significant impact on the dis- posals? Unfortunately, there are very few High Courts and courts subor- dinate thereto which do not face this problem. Similarly take the situation where because of t]le high disparity ratio between average earnings at the Bar and the service conditions offered to judges, candidates of the right stamp are not available, would it make any significant impact on the disposals if less than average ability candidates are appointed to fill the increase posts. The entire problem is a complex one and eludes a workable p solution. That is way in S.P. Gupta's case Bhagwati, J. said that since many ' complex policy considerations are involved, in the absence of 'judicially manageable standards', it is not possible to lay down any guideline of general application. Bhagwati, J., therefore, thought that it .would not be possible for the judiciary, in the absence of judicially manageable stand- ards, to issue any directive to the executive and, therefore, the matter must G essentially remain within the discretion of the executive and if the latter does not appoint sufficient number of judges, the appeal must be to the legislature and not to the court. Tulzapurkar, J. on a consideration of Articles 216 and 224(1) came to the conclusion that thought a mandatory H

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

A obligation is cast on the President to provide adequate strength of per- manent judges in each High Court, it would not be 'proper' of the Supreme Court to give directions or reliefs by way of issuing a mandamus to make additional judges permanent by increasing the perma.'lent strength of the High Court. He further stated that appointing judges is purely an executive function entrusted by the Constitution to the executive and it would not be 'proper' for the Supreme Court to usurp that function to itself or issue a directive in that behalf 'unless forced by glaring circumstances', Desai, J. endorsed the view of Bhagwati, J. and observed : 'Failure to perform duty of appointing adequate number of judges in the High Courts cast on the President by Article 216 would make him answerable to the Parliament and not to the Court'. Pathak, J. while reiterating that Article 216 mandates a periodic review of the judge-strength in every High Court held that it is a purely executive function and 'the court cannot by judicial verdict decide how many permanent judges are required for the High Court. Venkataramiah, J. struck a different note when he observed: D "the power conferred on the President by Article 216 of the Constitution to appoint sufficient number of Judges is a power coupled with a duty and is not merely a political function. In ·the instant case ordinarily the court would have been reluctant to issue any mandamus to the Government to comply with the duty of determination of the strength of Judges of High Courts. But having regard to the undisputed total in adequacy of the strength of Judges in many High Courts, it appears to be inevitable that the Union Government should be directed to determine within a reasonable time the strength of permanent Judges required for the disposal of cases instituted in them and to take steps to fill up the vacancies after making such determination."

He then went on to give a directive to the Union Government to review the strength of permanent judges in very High Court, to fix the number of J ..,. permanent judges that should be appointed on the basis of work-load and to fill up the vacancies. He directed a writ in the above terms to issue.

From the above it is clear that three of the learned judges, namely, Bhagwati, Desai and Pathak, JJ. were clearly of the opinion that the question of fixation of judge-strength under Article 216 was essentially an executive function and not justiciable in court. They held that judiciary

ADVOCATES ASSN. v. U.O.I. [AHMADI, J.] 937

cannot issue a writ or a directive if the executive fails to perform its duty under Article 216 and the remedy lies in the legislature. Tulzapurkar, J., however, felt it would not be 'proper' for the court to give diredions or issue a writ because appointing judges being a purely executive function it would be wrong. to usurp that function 'unless forced by glaring circumstances'. He, therefore, put it on the ground of propriety but qualified it by the words 'unless forced by glaring circumstances' which imply that if glaring circumstances exist the power can be exercised by the Court. It is, therefore, necessary to bear the distinction in mind between absence of power and jurisdiction and refusal to exercise power on the ground of propriety although the court has inherent jurisdiction. Therefore, the first three learned judges have ruled that the court lacked the power and jurisdiction to issue writ or directive while the fourth leaned judge-says it would not be 'proper' to exercise that power unless glaring circumstances exist. Venkataramiah, J., however, held the issue to be justiciable to the limited extent of directing the Union to review the judge-strength peri- odically on the basis of workload. But as pointed out earlier fixation of judge-strength solely on the basis of workload may not be correct because accumulation of workload may be for diverse reasons.

The question of judicial manpower planning engaged the attention of the law Commission of India. Lamenting on the neglect of this important aspect notwithstanding laws' delay, the Commission pointed out the low judge-population ratio, 10.5 judges per million people in India, as com- pared to other countries where. it varied from 41.6 judges per million population in Australia to 107 judges per million population in the USA and realised it was difficult to envisage a five-fold increase in the judge- strength within a short span. But the Commission conceded : · F "The Commission has a feeling that absence of hard technical information and analysis has reinforced, if not generated, a tacit indifference to the situation by all concerned including the judicial administration. The Commission itself is in. no position, given the fact of its present structure, to provide this kind of technical G analysis only on which sound programme of change can be en- visaged, of course, the Commission has done the next best thing and elicited extensive opinion of those knowledgeable in the field and general public. But we must admit that, all said and done, this lv a very poor substitute for sound scientific analysis." H

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

A (emphasis supplied)

The was the first interim report (!20th Report) of the Commission. The Commission recommended increasing the ratio of judges per million of population from 10.5 to 50 i.e. a fivefold increase. This was followed by a B comprehensive report (!21st Report) on "A New Forum Judicial Appoint- ments". The 127th Report dealt with the problems of improvement in the infrastructure for the judiciary. It will be seen from the observation of the Commission extracted from the 120th Report, that even the Law Commis- sion which had the time and opportunity to undertake a technical analysis on which a sound and durable formula could be evolved expressed its inability to do so and fell back on what it considered 'the next best thing' and 'a very poor substitute' for sound scientific analysis. The purpose of mentioning this is to point out that a scientific method on the fixation of judge-strength is no easy task. If it was difficult for a body like the Law Commission which had expert advice and time available to itself it would be virtually impossible for the courts to undertake such an exercise. ,·

In the above background the question must still be answered on legal principle whether the issue is or' is not justiciable i.e. is it beyond the purview of the court or is it merely not proper to give any direction or issue a writ, though justiciable. This in essence raises the question of the ambit of judicial review. Under this doctrine High Courts and the Apex Court exercise supervisory jurisdiction over persons who are charged with the performance of public acts and duties. This jurisdiction was derived by courts though common law and was exercised by the issuance of an appropriate writ. What is generally reviewed is not the merits of the action p but the decision making process itself. The court's duty normally is to confine itself to question of legality i.e. has the authority exceeded its powers or abused them, did it act in violation of the principles of natural justice or has it acted in a irrational, unreasonable, and arbitrary manner or the like. Broadly speaking, administrative action is subject to judicial review on three grounds, namely (i) illegality (ii) irrationality and (iii) processual impropriety. But this may be true of cases where the public authority has performed its public duty and the action is questioned. But where the allegation is that the public authority is guilty of non-perfor- mance of its public duty and it is shown that it has failed to perform its constitutional or statutory duty, can it be said that there is no remedy available through court and a mandamus cannot issue? In order, however,

ADVOCATES ASSN. v. U.0.1. (AHMADI, J.] 939

for a mandamus to issue to compel performance of a duty, it must clearly appear from the language of the statute that a duty is imposed, the . performance or non-performance of which is not a matter of mere discre- tion. But even in cases where the duty is discretionary, as distinct from a statutory obligation, a limited mandamus could issue directing the public authority to exercise its discretion within a reasonable time on sound legal principles and not merely on whim. Therefore, if the executive which is charged with a duty under the Constitution to undertake a periodical review of the Judges-strength fails in the performance of that duty, an order of mandamus can lie to compel performance within a reasonable time. Therefore, in principle, it is not possible to say that the issue is wholly outside the Court's purview and the remedy is merely to knock the doors of the legislature. Albeit, a proper foundation must be laid because the Court will be extremely slow in exercising its extraordinary powers to issue a writ of mandamus compelling performance of a certain duty unless it is fully satisfied that the executive has totally omitted to pay attention to its constitutional obligation and needs to be awakened from its slumber. But D in the guise of exercising the power of judicial review care must be taken to ensure, as pointed out by Tulzapurkar, J., that the judiciary does not usurp this executive function to itself. But as Tulzapurkar, J. warns no directive would be possible unless forced by glaring and compelling cir- cumstances which would be possible only if full, complete and correct assessment of the requisite strength of each High Court is available and E the court feels that t~e executive has been oblivious to the said facts. In the absence of judicially manageable standards this may not be possible, in which case the exercise of power would be in vain and normally a court does not act in vain. We are, therefore, of the opinion that if there is a wilful and deliberate failure on the part of the executive to perform its duty p under Article 216, a writ can issue to the limited extent of merely directing the executive to perform its part but the court cannot usurp the function itself and direct the executive to raise the judge-strength to any particular level.

The need for periodical revision of the judge-strength is essentially G to ensure early disposal of court cases; the entire exercise would be meaningless if the existing vacancies and the new ones created by increase in the judge-strength are not filled in promptly. This has been emphasised time and again and even though a time bound programme for dealing with the proposals has been provided, delays continue on account of the H

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

A functionaries involved in the process not abiding by the same. The process, · particularly in the case of appointments to the High Courts, is time consuming as the proposal has to pass through as many as six consultees but that is all the more reason why each functionary must show a sense of urgency to see that the proposal is not delayed unnecessarily. With the experience of working the system over more than four decades it would not be difficult for the Minister of Law and Justice in the Central Govern- ment to revise the guidelines, fix the maximum time each consultee must take on the proposal having regard to the role he is expected to play and ensure strict compliance at the executive level. This will help expedite the movement of the proposal and if it its found to be unreasonably withheld, the functionary may be compelled through a writ to perform his public duty within the time allowed by the court. We are sure that if the functionaries involved in the decision-making process realise their duty and obligation to society particularly to the consumers of justice, the need to move the court will not arise. We, therefore, hold that the issue is justiciable only to the limited extent indicated above· and as manifested by the limited writ issued by Venkatararniah, J. in S.P. Gupta's case and that too in the rarest of rare cases where glaring and compelling circumstances force the court to act.

We conclude:

(i) The concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50 illuminates it. The degree of independence is near total after a person is appointed and in- ducted in the judicial family.

F (ii) The method of selecting a judge for the Supreme- Court and the High Court is outlined in Articles 124(2) and 217(1) of the Constitution. While in the United States, the United Kingdom, Australis and Canada appointments to the superior judiciary are exclusively by the executive, our Constitution has charted a middle course by providing for 'prior consultation' with the judiciary G before the President; i.e. the executive, makes the appointment to the Supreme Court or the High Courts.

Therefore, however convincing it may sound to the ideal of .judicial independence that the views of the Chief Justice of India H must have primacy as his views expressed after consulting his two

ADVOCATES ASSN. v. U.O.J. [AHMADI, J.] 941

seniormost colleagues would be symbolic of the views of the entire A judiciary, the submission cannot be accepted unless the Constitu- tion is amended. As the constitutional provisions presently stand, the submission based on this line of reasoning is unacceptable.

(iii) Under our constitutional scheme prior consultation with the Chief Justice of India is a must under Articles 124(2), 217(1), B 217(3) and 222(1) but the weight to be attached to the views of the Chief Justice of India would depend on whether it is at the pre-appointment stage or the post-appointment stage and whether he is one of the consultees or the sole consultee. . c (iv) The concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as 'pater familias' of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief D Justice of India would be binding on the President, i.e., the execu- tive.

The position of the Chief Justice of India under the Constitu- tion is unique, in that, on the judicial side he is primus inter pares, i.e., first among equals, while on the administrative side he enjoys limited primacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-a-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-a-vis the views of his colleagues, more so if he has expressed them after assessing the views of his col- leagues but his view will not eclipse the views of his colleagues forbidding the President, i.e. the executive, from relying of them. .. _,,. The weight to be attached to his views would be much greater as compared to the weight to be accorded to the views of the other consultees under Article 217(1) since he has had the advantage of filtering their views and ordinarily his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i.e. executive, from H

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

A noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the constitution, e.g. Article 222(1), more so when ( it concer~s a member of the judicial family and ordinarily his view should be accepted and acted upon by the President, i.e. the executive, unless there are compelling reasons to act otherwise to B be recorded in writing so that the apprehension of the executive having acted in a manner tantamounting to interference with judicial independence is dispelled. Thus graded weight has to be attached to the views of the Chief Justice of India as indicated hereinabove. c (v) There is nothing in the language of Article 222(1) to rule out a second transfer of a once transferred judge without his consent but ordinarily the same must be avoided unless there exist pressing circumstances making it unavoidanble. Ordinarily a transfer ef- fected in public interest may not be punitive but all the same the D Chief Justice of India must take great care to ensure that in the guise of public interest the judge is not being penalised.

(vi) The question of fixation of judge-strength under Article 216 is justiciable, in that, a limited mandamus can issue to the executive to perform its constitutional duty within a reasonable time in the manner and to the extent indicated in the direction given by Venkataramiah, J. S.P. Gupta's case. But this would be in the rarest of rare cases where there exist glaring and compelling cir- cumstance which would force the hands of the Court.

(vii) We respectfully do not agree with the observations made in the judgment of Brother Verma, J. in regard to the application of the principle of seniority and legitimate expectation, etc. for reasons stated hereinbefore.

Before we say adieu we owe debt of gratitude to the learned Attorney G General who appeared in response to our notice and to the leaned counsel who appeared on either side. This styles of presentation of their view points differed but they brought to bear, with telling effect, their knowledge of constitutional law. Forensic art was at its best and we are deeply grateful for their able assistance which has made our task of decision-making relatively easy. With these words we say adieu to this reference. Reference H disposed of accordingly.

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 943

KULDIP SINGH, J. The President of India is the Appointing A Authority for the Judges of the High Courts and of the Supreme Court. He is to make the appointments - unfier Articles 217(1) and 124(2) of the Constitution of India - after consultation with the Chief Justice of India and other functionaries drawn from Judiciary as well Executive. In the exercise of his functions the President of India is bound to act in accord- B ance with the advice tendered by the Council of ministers. The core question for our consideration is whether the Judiciary headed by the Chief Justice of India or the Council of Ministers headed by the Prime Minister has a primal say in the matter of appointment of Judges of the High Courts and of the Supreme Court. The other question before us is whether the judiciary can interfere and force appointments adequate in number to carry on the judicial work of the country.

These questions are not res-integra. A Seven Judge Bench of this Court in S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1982] 2 SCR 365 has held that the Central Government can override the opinion given by the constitutional functionaries and can arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court. In other words the Executive has the primacy in the matter of aopointment of Judges ,and it can ignore the opinion rendered by the Chief Justice of India and other judicial functionaries in the process of consult- ation. The second question was also answered in the negative. We are called upon to pronounce upon the correctness or otherwise of the law laid down by this Court in S.P. Gupta's case on the above two question.

Emment lawyers assisted us at the hearing. Mr. F.S. Nariman, Mr. Kapil Sibal, Mr. Shanti Bhushan, Mr. Ram Jethmalani, Mr. P.P. Rao, Mr. p R.K. Garg and Mr. S.P. Gupta canvassed before us - interpreting the relevant constitutional provisions from different angles - that the judgment of this Court in S.P. Gupta's case needs re-consideration. Mr. K. Parasaran represented the view point of the Union of India. Mr. Milon Banerjee, learned Attorney General rendered valuable assistance. Advocate-General Karnataka, Advocate-General Madhya Pradesh and Advocate-General G Sikkim were also heard by us. The argnments were advanced by the learned counsel on both sides in a non-contentious atmosphere. We place on record our appreciation for the learned counsel. But for. their assistance it' would not have been possible for us appreciate the complicated and delicate issue involved in this case. H

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

A From the arguments of the learned counsel - oral and written - we cull-out the following issues for adjudication :

1. Stare decises Is it a bar to re-consider S.P. ( Gupta's case?

B 2. Interpretation of constitutional - What are the rules? provisions

3. Independence of Judiciary Broader version of the concept.

4. Constitutional conventions Scope and field of operation. c Do we have an established convention giving primacy to the Judiciary in the matter of appointment of Judges to the Superior Courts?

D 5. "After consultation with" Can the expression be read to mean that the Executive is bound by the advice rendered by the Chief Justice of India as head of the judiciary?

E 6. The Chief Justice of India - Whether acts in his individual (Articles 124(2) and 217(1) capacity or as head of the Judiciary?

7. Chief Justice of India The office to be filled by selection on merit or by mere seniority?

8. Other issues · a) Appointments to Supreme Court; b) Transfers (Article 222); G c) Fixation of Judges-strength.

Stare decisis

Mr. K. Parasaran, learned senior advocate, appearing for the union, H of India has contended that the doctrine of stare decisis being the corner:

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 945

·stone of our legal system, we should not interfere with the ratio of this A Court in S.P. Gupta's case which has stood the test of time.

It is no doubt correct that the rule of stare decisis brings about consistency and uniformity but at the same time it is not inflexible. Whether it is to be followed in a given case or not is a question entirely within the discretion of this Court. On a number of occasions this Court has been called upon to reconsider a question already decided. The Court has in appropriate cases over-ruled its earlier decisions. The process of trial and error, lessons of experience and force of better reasoning make this Court wiser in its judicial functioning. In cases involving vital constitutional issues this Court must feel to bring its opinions into agreement with experience and with the facts newly ascertained. Stare decisis has less reievance in constitutional cases where, save for constitutional amendments, this Court is the only body able to make needed changes. Re-examination and recon- sideration are among the normal processes of intelligent living. We have not refrained from reconsideration of a prior construction of the Constitu- tion that has proved "unsound in principle and unworkable in practice." D Interpretation of constitutional provisions

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

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

When the words in the Constitution - defining institutions and their functioning - were drafted, the Framers could not have foreseen as to what H

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

A would be the development in the coming future. In R.C. Poudyal v. Union of India, (1993) 3 Scale 486 at 508, M.N. Venkatachaliah, J. (as the learned Chief Justice then was) observed as under :

"In the interpretation of a constitutional document words are but the framework of concepts and concepts may change more than words themselves. The significance of change of concept themsel- ves is vital solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth"

The case before us must be considered in the light of our entire experience and not merely in that of what was said by the Framers of the Constitution. While deciding the questions posed before us we must con- sider what is the Judiciary today and not what it was fifty years back. The Constitution has not only to be read in the light of contemporary cir- cumstances and values, it has to be read in such a way that the circumstan- ces and values of the present generation are given expression in its provisions. An eminent jurist observed that "Constitutional interpretation is as much a process of creation as one of discovery".

It would be useful to quote hereunder a paragraph from the judg- ment of Supreme Court of Canada in Hunter v. Southam INC, [1984) 2 SCR E 145 at 156:

"It is clear that the meaning of 'unreasonable' cannot be deter- mined by recouse to a dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a constitution is crucially different from that of construing a statute. F A Statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when jointed by a Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its G provisions cannot easily be repealed or amended. It must, there- fore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. H Professor Paul Freund expressed this idea aptly when he ad-

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 947 .<

monished the American Courts 'not to read the provisions of the A Constitution like a last will and testament lest it become one".

The constitutional provisions cannot be cut down by technical con- ;truction rather it has to be given liberal and meaningful interpretation. The ordinary rules and presumptions, brought in aid to interpret the statutes, cannot be made applicable while interpreting the provisions of the B Constitution. In Minister of Home Affairs v. Fisher, [1980] A.C. 3~9 dealing with Bermudian Constitution, Lord Wilberforce reiterated that a Constitu- tion is a document "sui generis, calling for principles of interpretation of its own, suitable to its character".

In S.P. Gupta's case the Court construed the words in Articles 124(2) c and 217(1) of the Constitution by taking the clock back by forty years. The functioning of the Apex-Judiciary during the last four decades, the expand- ing horizon of, 'judicial review', the broader concept of 'independence of judiciary', practice and precedents in the matter of appointment of judges which ripened into conventions and the role of the Executive being the D largest single litigant before the Courts, are some of the vital aspects which were not adverted to by this Court while interpreting the constitutional provisions. The Court did not keep in view the well established rules of constitutional- interpretation. We are, therefore, justified in re-opening and reconsidering the questions already determined by this this Court in S.P. E Gupta's case.

Independence of Judiciary