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

The Constitution of India which we have given to ourselves is the fundamental law of the land. The Judiciary, under the Constitution, is p designed to be an intermediary body between the people on the one side and the Executive on the other. It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by the Legislature. In order to keep the Executive/Legislature within the limits assigned to their authority under the Constitution, the interpretation of laws is the proper and peculiar province of the Judiciary. Constitution is G the "will" of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature - declared in the statutes - stands ·in opposition to that of the people - declared in the Constitution - the will of the people must prevail. The Constitution of India provides for an elected President. H

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A House of people is elected. The State Legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power - called judicial review under which they nullify unconstitu- tional acts of the Executive and of the elected representatives of the people assembled in the Parliament and the State Legislatures. This conclusion does not suppose thal the Judiciary is superior to the Legislature. It only supposes that the power of the people - embodied in the Constitution - is superior to both.

The role of the Judiciary under the Constitution is a pious trust reposed by the people. The Constitution al).d the democratic-polity there- under shall not survive, the day Judiciary fails to justify the said trust. If the Judiciary fails, the Constitution fails and the people might opt for some other alternative.

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

Independence of Judiciary is the sine qua non of democracy. So long as the Judiciary remains truly distinct from both the Legislature and the Executive, the general power of th~ people can never be endangered from F any quarters. Montesquieu in his book "Spirit of Laws" observed "there is no liberty, if the power of judging be not separated from the ·legislative and the Executive powers". The framers of the Constitution made it known in an emphatic-voice that separation on Judiciary from Executive, which is the life-line of 'independent Judiciary', is a basic feature of the Constitu- •.r G tion. Dr. B.R. Ambedkar in his speech in the Constitution Assembly on June 7, 1949 observed as under :

"I do not think there is any dispute that there should be separation between the executive and the judiciary and in fact all the articles relating to the High Court as well as the Supreme Court have H prominently kept that object in mind."

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To safeguard the 'will' of the people - enshrined in the Constitution A - it is necessary to keep the Judiciary truly distinct from both the Legisla- ture and Executive. This is what Framers of our Constitution have done. It 'I was, however, contend at the bar that the independence of the Judiciary has been secured by providing security of tenure and other conditions of service of individual Judges. This may be so but in recent times, with the B expanded horizon of judicial review, the concept of judicial independence has achieved new heights. The Supreme Court of Canada in The Queen v. Beauregard, (1987] LRC 180 propounded the broader concept of judicial independence as under :

"Historically, the generally accepted core of the principle of judi- C cial independence has been the complete liberty of individual judges to hear and decide the cases the come before them: no outsider - be it government, pressure group, individual or even another judge - should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues lo be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle.

Of recent years the general understanding of the principle of judicial independence has grown and been transformed to respond to the modern needs and problems of free and democratic societies. The ability of individual judges to make decisions in discrete cases free from external interference or influence con- tinues, of course, to be an important and necessary component of the principle. Today, however, the principle is far broader. In the words of a leading academic authority on judicial independence, F Professor Shimon shetreet : ''The judiciary has developed from a dispute-resolution mechanism, to a significant social institution with an important constitutional along with other institutions in shaping the life of its co=unity ........ " ") G There is, therefore, both an individual and a collective or institu- tional aspect to judicial independence. As stated by Le Dain, J. in Valente v. The Queen, (1985] 2 SCR 673, at pp. 685 and 687 ;'

"(Judicial independence) connotes not merely a State of mind or attitude in the actual exercise of judicial functions, but a H

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A status or relationship to other, particularly to the executive branch of government, that rests on objective conditions or guarantees.

B It is generally agree that judicial independence involves both individual .and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the ex- c ecutive and legislative branches of Government."

The rationale for this two-pronged modern understanding of judi- cial independence is recognition that the courts are not charged solely with the adjudication of individual cases. That is, of course, one role. It is also the context for a second, different and equally important role, namely as protector of the Constitution and the fundamental values embodied in it rule of law, fundamental justice, equality, preservation of the democratic process to name perhaps the most important. In other words, judicial independence is es- sential judicial for fair and just dispute-resolution in individual cases. It is also the life blood of Constitutionalism in democratic societies."

Deckson C.J. who spoke for the Court, further observed as under :

"The role of the Courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be com- pletely separate in authority and function form all other par- ticipants in the justice system."

We respectfully agree with the concept of judicial independence as enunciated by the Supreme Court of Canada in the above quote judgment. G It is not the security of tenure provided to an individual judge which alone is the source of independence of judiciary but there has to be an inde- pendent judiciary as an institution. The judiciary in India has to act as an impartial umpire to resolve disputes between the Government and the private individuals as well as between the Government inter se. It has also to protect the fundamental rights of the individuals guaranteed under Part

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III of the Constitution. The courts in this country have already expanded the scope of judicial review by bringing in its ambit social, economic and political justice. Keeping in view the expending horizon of judicial review it is the paramount need of the time that not only the independence of an individual Judges is to be secured but the independence of Judiciary as an institution has also to be achieved. B Then the question which comes-up for consideration is, can there be an independent Judiciary when the power of appointment of Judges vests in the Executive~ To say yes, would be illogical. The independence of Judiciary is inextricable linked and connected with the constitutional process of appointment of Judges of the higher Judiciary. 'Independence C of Judiciary' is the basic feature of our Constitution and if it means what we have discussed above, then the framers of the Constitution could have never intended to give this power to the Executive. Even otherwise the Governments - Central or the State - are parties before the Courts in large number of cases. The Union Executive have vital interests in various D important matters which come for adjudication before the apex-Court. The Executive - in one from the other - is the largest single-litigant before the Courts. In this view of the matter the Judiciary being the mediator - between the people and the Executive - the framers of the Constitution could not have left the final authority to appoint the Judges of the Supreme Court and of the High Courts in the hands of the Executive. This Court E in S.P. Gupta's case proceeded on the assumption that the independence of Judiciary is the basic feature of the Constitution but failed to appreciate that the interpretation it gave, was not in conformity with the broader facets of the two concepts - 'independence of Judiciary' and 'judicial review' - which are inter-linked. F Constitutional conventions

The Constitution of India is an elaborate document oonsisting of 395 ...., Articles and ten Schedules. Despite that there are Constitutional provisions - operative in various fields - which are nowhere to be found in the written G test of the Constitution. For instance it is a fundamental requirement of the Constitution that if the opposition obtains the majority at the Polls, the Government must tender its resignation forthwith. Fundamental as it is, this does not form part of the written law of the Constitution. It is also a constitutional requirement that the person who is appointed Prime Mini- H

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A ster by the President and who is the effective Head of the Government should have the support of the House of People. The other Ministers who are appointed by the President on the advice of the Prime Minister, must continuously have the confidence of the House of People, individually and collectively. The powers of the President are exercised by him on the advice B of the Prime Minister and the Council of Ministers which means that the said powers are effectively exercised by the the Council of Ministers headed by the Prime Minister. None of these and many other essential rules of the Constitution are found in the Constitution of India as framed by the Constituent Assembly. It was A.V. Decey who for the first time, in the year 1885, identified these unwritten rules and called them "The Con- C ventions of the. Constitution". What Decey described under these terms are the rules of responsible Government which regulate relations between the Crown, the Prime Minister, the Cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of precedents during 19th Century and were inherited by the British colonies as were granted self government and independence. This phenomenon is not limited to Britain and is true of constitutions in general. Conventions are found in all estab- lished constitutions and soon developed even in the newest.

Two sets of principles, thus, make up the rules of constitutional law. One set of rules is contained in the written constitution of a country and the other set is referred to as the "conventions of the constitution". Con- ventions are a means of bringing about constitutional development without formal changes in the law. K.C. Where in his book "The Statute of Westminster and Dominion Status" (Fourth Edition) defines the conven- tions as under : F "The definition of 'conventions' may thus the amplified saying that their purpose is to define the use of constitutional discretion. To put this in slightly different words, it may be said that conventions are non-legal rules regulating the way in which legal rules shall be applied." G The conventions grow up, around and upon principles of the written constitutions. Necessary conventional rules spring up to regulate working of the various parts of the Constitution, their relation to one another to the subject. Sir W. Ivor Jennings, in his book "Law and the Constitution" (Fifth H edition) refers to the constitutional conventions in the following words :

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH,J.) 953

"Thus within the framework of the law there is room for the development of rules of practice, rules which may be followed as consistently as the rules of law, and which determine the procedure ' (• which the men concerned with government must follow.

These rules Mill referred to as "the unwritten maxim;; of the constitution". Twenty years later Decey called them "the conven- tions of the constitution'', while Anson referred to them as "the custom of the constitution". The short explanation of the constitu- tional conventions is that they provide the flesh which clothes the dry bones of the law; they make the legal Constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national cooperative, and the spirit of cooperation is as necessary as the instrument. The constitutional conventions ar the rules elaborated for effecting that cooperation. Also, the effects of the constitution must change with the changing circumstances of na- D tional life. New needs demands a new emphasis and a new orien- tation even when the law remains fixed. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they elaborate."

The conventions enable a rigid legal framework - laws tend to be E rigid - to be kept up with changing social needs and changing political ideas. The conventions enable the men, who govern, to work the machines. Dicey in his book "Introduction to the study of the law of the Constitution" refers to the conventions in the following words : F They are multifarious, differing, as it might at first sight appear, from. each other not only in importance but in general character and scope. They will be found however, on careful examination, to possess one common quality or property; they are all, or at any rate most of them, rules for determining the mode in which the discretionary powers of the Crown (or of the Ministers as servants G of the Crown) ought to be exercised; and this characteristic will be found on examination to be the trait common not only to all the rules already enumerated, but to by far the greater part (though not quite to the whole) of the conventions of the constitutions of the constitution". H

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A The written constitutions cannot provide for every eventuality. Constitu- tional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conventions which grow by the passage of time. C:mventions are vital in so far as they fill-up the gaps in the constitution itself, help solve problems of interpretation, B and allow for the future development of the constitutional frame work. Whatever the nature of the constitution, a great deal may be left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulated the exercise of that discretion. A power which, jurisdically, is conferred upon a person or body of person may be trans- ferred, guided, or canalised by the operation of the conventional rule. K.C. C Wheare in his book 'Modern Constitution' (1967 edition) elaborates such a rule as under :

What often happens is that powers granted in a Constitution are indeed exercised but that, while they are in law exercised by those to whom they are granted, they are in practice exercised by some D other person or body of persons. Convention, in short, transfers powers granted in a Constitution from one person to another."

The primary role of conventions is to regulate the exi::rcise of discre- tion - presumably to guard against the irresponsible abuse of powers. Colin E R. Mumo in his book "Studies in Constitutional Law" (1987 edition) has summed up the field of operation of the conventions in the following words:

"Some of the most important conventions, therefore, are, as Dicey said, concerned with 'the discretionary powers of the Crown' and how they should be exercised. But it is not only in connection with executive government and legislature-executive relations that we find such rules and practices in operation. They may be found in other spheres of constitutional activity too; for example, in relations between the Houses of Parliament and in the workings of each House, in the legislative process, in judicial administration and judicial behaviour, in the Civil Service, in local government, and in the relations with other members of the Commonwealth."

In England exercise of the royal prerogative, the functions of the Cabinet system, the Lords and the Commons, and the judiciary are primari- ly functioning on the basis of established conventions. To illustrate some of the conventions cansidered binding by the Judiciary are as under :

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 955

1. Lay peers ought not to seek to hear appeals before the judicial body of the House of Lords.

2. The Lords of Appeal in Ordinary ought to include at least two ' Scots lawyers.

3. The conduct of the judiciary ought not to be questioned in B Parliament other than on a motion seeking dismissal of a member of the judiciary.

4. A judge must sever political links on appointment to the Bench." .. If we take the last example, a Scottish Judge, Lord Avondale, agreed c in 1968 to serve on a Conservative opposition Committee, but quickly resigned when faced with public criticism and a statement by the Lord Advocate that conventional rules had been breached. Another example was the embarrassment caused by the disclosure in 1984 that the Master of the Rolls had advised the government in respect of its policy on trade unions. In R. v. H.M. Treasury, exp. Smedley, [1985] Q.B. 657 at 666, Sir John D Donaldson M.R. referred to the relationship between Parliament and the • Judiciary in terms of conventions :

"Although the 'united Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legis- E lature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature".

K.C. Wheare in his book "Modern Constitutions" gives at least two source of conventions. A course of conduct may be persisted in over a long period of time and gradually attain first persuasive and then obligatory force. According to him a convention may arise much more quickly than this. There may be an agreement among the people concerned to work in a particular way and to adopt a particular rule of conduct. This rule is . -> immediately binding and it is a convention. Sir Ivor Jennings puts it as under:

· 'The laws provide only a framework; those who put the laws into operation give the framework a meaning and fill in the interstices. Those who take decisions create precedents which others tend to 0

follow and when they have been followed long enough they acquire H

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A the sanctity and the respectability of age. They not only are fol- lowed but they have to be followed."

Every act by a constitutional authority is a "precedent" in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is B very good evidence of convention.

The requirements for establishing the existence of a convention have been succinctly laid down.by Sir W. Ivor Jennings in 'The Law and the Constitution', 5th Edition (1959) as under : c "We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a D reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it."

We may at this stage refer to the judgment of the Supreme Court of Canada in Re Amendment of the Constitution of Canada, 125 DLR (3d) 1. In 1980, the Trudeau Government in Canada proposed a scheme to end the power of Westminster to legislate for Canada, to create a new Charter of Rights binding on both provincial and federal legislatures and to estab- lish complex formula for constitutional amendment. When eight of the ten provinces opposed the Scheme, the crucial question arose whether federal authorities were entitled to request Westminster to enact the scheme, against so much provincial opposition. The matter was taken to the Supreme Court of Canada.

On the issue of constitutional convention, by majority of 6 to 3, the Court held that the proposed request to Westminster infringed the conven- tion that the legislation affecting provincial rights must have provincial support. In deciding that the convention existed, the Court adopted the test laid down by Sir Ivor Jennings (quoted above). The majority concluded that it would be unconstitutional (i.e. in breach of convention) if the Trudeau scheme went forward. The judgment dealt separately with the issues of law and convention. On the second question, the tourt by majority of 7 to 2 held that it was lawful for the Trudeau scheme to be

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 957

submitted to Westminster without provincial agreement. The majority held that there was no legal rule which limited the power of the Canadian • Parliament to adopt resolutions seeking amendment. It was further· held "What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute". There was no process by which constitutional conventions "crystalised law''. B The decision apparently sounds paradoxical. The court following the tests laid down by Sir Ivor Jennings, found as a fact that the convention · existed. It also held that the proposed legislation infringed the convention. • The court even went to the extent of concluding that infringing the estab- lished convention would be unconstitutional. Having gone that far, the C logical conclusion could only be that the convention being part of the constitutional law of the land it had the binding effect and not authority could have infringed the same. While holding that the constitutional con- ventions can never crystallised into law the court was primarily influenced by the concept of a convention as propounded by AV. Dicey. Dicey D provides a simple working test by which laws and conventions may .be distinguished. According to him laws are enforced by the courts whereas the conventions are not. His distinguishing between laws and conventions has been criticised. Unless the distinction is abandoned according to Geoffrey Wilson "it is impossible to present constitutional law as a coherent subject or relate it in a meaningful way to the functions it has to fulfil or the social and political context in which it has to operate". (Cases and Materials on Constitutional and Administrative Law 1966 Edition). Sir Ivor Jennings did not agree with Dicey. According to Jennings (Law and Constitution, Fifth edition) there was "no distinction of substance or na- ture" between the laws and the conventions. He pointed out that there was similarity or inter-action between the two. Both sorts of rule rested upon general acquiescence, he suggested, and the major conventions were as firmly fixed and.might be stated with almost as much accuracy as principles of common law. Professor J.D.B. Mitchell in his work (Constitutional Law) (Second Edition, 1968) built up further argument of this sort : G "Conventions cannot be regarded as less important than rules of law. Often the legal rule is the less important. In relation to subject matter the two types of rule overlap: in form they are often not clearly distinguishable .... very many conventions are capable of being expressed with the precision of a rule of law, or of being H

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A incorporated into law. Precedent is as operative in the formation of convention as it in that of law. It cannot be said that a rule of law is necessarily more certain than is convention. It may therefore • be asked whether it is right to distinguish law from conven- tion ............. "

B Even Dicey acknowledges that there is enough sanction behind the conventions and they are binding. In this book "Introduction to Study of the law of Constitution" he stated as under :

"The ascertain that they have nearly the force of law is not without meaning. Some few of the conventions of the constitution are c rigorously obeyed .......... But the sanction which constrains the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are expressed, is the fact that the breach of these principles and of these conventions will almost immediately bring the offender into conflict with ·the courts and the law of the land."

It is not necessary for us to delve into this subject any more. We agree a convention while it is a convention is to be distinguished from the law. But this does not mean that what was formerly a convention cannot later become law. When customary rules are recognised and enforced by courts as law, there is no reason why a convention cannot be crystallised into a law and become enforceable. "Conventions cab become law also by judicial recognition stated K.C. Wheare "Modern Constitution" (1966 Edition). It is no doubt correct that the existence of a particular convention is to be established by eyidence on the basis of historical events and expert factual submissions. But once it is established in the court of law that a particular c:::

convention exists and the constitutional functionaries are following the same as a binding precedent then there is no justification to deny such as convention the status of law.

G There is abundant authority to show that the Courts have recognised the existence of conventions and have relied upon them as an aid to statutory interpretation. In Ryder v. Foley, (1906) 4 C.L.R. 422, the High Court of Australia held that as a conventional practice it was the minister who was acting on behalf of the government. Similarly in Commercial Cable Company v. Govt. of Newfoundland, (1916) AC. 610, the Judicial Commit- H tee of Privy Council interpreted the word "government" to mean as minister

ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.] 959

inchaFge on the basis of an established convention. In British Coal Corpora- A tion v. The King, (1935) AC. 500, the Judicial Committee of Privy Council noticed the convention that His Majesty in Council was bound to give effect to the report of the judicial Committee. In this respect we may also refer to Robinsor v. Minister of Town and Country Planning, [1947] K.I. 702, Liversidge v. Anderson, [1942] AC. 206, Copyright Owners Reproduction B Society Limited v. E.M.l. (Australia) Pvt. Limited, [1958] 100 C.L.R. 597, Adegbenro v. Akintola, [1963] AC. 614, Attorney-General v. Jonathan Cape Limited, (Crossman Diaries case) (1976] Q.B. 754, R. v. Secretary of State for Home Depa1tment, Ex. P. Hosenball, [1977] 1 W.L.R. 766 and R. Amendment of the Constitution of Canada, 125 D.L.R. (3rd) 1. c We are of the view that there is no distinction between the "constitu- tional law" and an established "constitutional convention" and both are binding in the _field of their operation. Once it is established to the satisfaction of the court that a particular convention exists and is operating then the convention becomes a part of the "constitutional law" of the land and can be enforced in the like manner. D .. The Constitution of India has borrowed the British form of govern- ment, making the Cabinet collectively responsible to the House of People. The machinery of government is essentially on the British pattern and the whole collection of British Constitutional Conventions has either been E incorporated in t_he Constitution or are being followed as unwritten con- stitutional conventions. While framing the Constitution of India, the Con- stituent Assembly debated whether to have a written code based on British practice, but eventually it was decided to leave the_ Cabinet system of government to be governed mainly by the unwritten conventions of the Constitution. Needless to say that the,. conventions necessary to govern the F Cabinet system, based on British pattern, are bemg strictly followed in this country. Dr. Rajendra Prashad in his speech, as President of the Constitu- tion Assembly while moving for adoption of the Constitution of India -"t observed as under : G "Many things which cannot be written in a Contitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions".

In U.N.R. Rao v. Smt. Indira Gandhi, (1971),.Supp. SCR 46, the question before this Court was whether under the Constitution, as soon as H

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A the House of People is dissolved, the Council of Ministers i.e. the Prime Minister and other Ministers, cease to hold office. Recognising the exist- ence of a convention, this court answered the question in the negative. Chief Justice S.M. Sikri speaking for the Court observed as under : -

"We are grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden thi~ judgment with them. But on the whole we receive assurance form the learned authors and the speeches that the view we have taken is the right one, and is in accordance with conventions followed not oD.ly in the United Kingdom but in other countries following a similar system of responsible Government."

In Shamsher Singh & Anr. v. State of Punjab, [1975] 1 S.C.R. 814, the question before this Court was whether the executive power of the Union D vested in the President of India in his personal capacity or he was bound by the advice tendered by the Council of Ministers. This Court went into f detailed consideration of the British Parliamentary form of Government borrowed by our Constitution and came to the conclusion that the well established constitutional convention makes it obligatory for the President E to act on the advice of the Council of Ministers headed by the Prime Minister.

We now proceed to consider whether an established constitutional convention can be read in Articles 124(2) and 217(1) of the Constitution of India to the effect that in the matter of appointment on the Judges of F the High Courts and Supreme Court, the opinion of the Judiciary ex- pressed through the Chief Justice of India is primal and binding. For that purpose we adopt the test for the existence of a convention, laid down by Sir Ivor Jennings, based on three question: (a) What are the precedents? (b) Did the actors in the precedents believe that they were bound by a ...- - G rule? and (c) Is there reason for the rule?

Articles 124(2) and 217(1) of the Constitution oD.ly identify the constitutional authorities required to be consulted for appointment of Judges to the Supreme Court and the High Courts. These provisions do not provide for the procedure to be followed in finalising the consultative H process culminating in the issuance of a warrant of appointment by the

ADVOCATES ASSN. v. U.O.l. [KULDIP SINGH, J.] 961

President of India. Neither Article 124(2) nor Article 217 of the Constitu- A tion indicates that any of the constitutional authorities named therein has primacy in the process of making appointments to the superior judiciary. These are the types of gaps which are generally found in almost all the constitutions. They are filled by the conventions which develop with the passage of time. While examining the scope of Article 124(2) and 217(1) B of the Constitution, the precise question which comes up for our considera- tion, hereafter, is whether a smooth interpretation can be given to these articles with the aid of established conventions operating in this field of constitutional - functioning.

Prior to coming into force of the Constitution of India the appoint- C ments of Federal Court Judges and Judges of the High Courts were made under Sections 200 a!1d 220, respectively, of the Government of India Act,

1935. The appointments were in the absolute discretion of the Crown. In other words, the executive, by itself, with no provision at all for consult- ation with the Chief Justice of India or with the judiciary in the any other D manner, was the authority to make appointments to the superior judiciary. . We have, however, contemporaneous evidence to show that under the Government of India Act, 1935 the said appointments were invariably made with the concurrence of the Chief Justice of India.

Copies of the Draft Constitution of India were circulated to the · E Federal Court and the High Courts for eliciting views of the Judges. Keeping in view the fundamental importance of the document a conference of the Judges of the Federal Court and the Chief Justices of High Courts was convene~ to discuss the provisions in the draft Constitution relating to the judiciary. The conference was accordingly held on March 26 and 27. F

1948. Finally a memorandum representing the views of the superior judiciary was submitted to the Home Minister and to the Constituent Assembly. It was specifically stressed in the memorandum that under the British - Raj the judiciary had, in the main, been independent, but certain tendencies to encroach upon its independence was becoming apparent. It was also highlighted that no appointment was ever made without referring G the matter to the Chief Justice of India and obtaining his concurrence. We refer to the following paragraph from the memorandum :

"We do not think it necessary to make any"provision in the Con- stitution for the possibility of the Chief Justice of India refusing to H

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A concur in an appointment proposed by the President. Both are officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such ap- pointments should be made after referring the matter to the Chief Justice of India and obtaining his concumnce: If per chance such a situation were ever to arise it could of course be met by the B President making a different proposal, and no express provision need, it seems to us, be made in that behalf." (The Framing of ·India's Constitution, Select Documents by Shiva Rao Vol. IV, page 196) (emphasis supplied)

C The apex judiciary thus, mentioned in clear term that "a convention now exists that such appointments should be made after and obtaining his concurrence." The Ministry of Home Affairs in its memorandum relating to the judiciary, the deliberations of the Drafting Committee and the joint meeting of the Union and Provincial Constitution Committees have no where denied the above quoted assertion made by the apex judiciary in its D memorandum dated March 1948.

It is in the above background that the provisions regarding collective consultation was enacted under Articles 124(2) and 217(1) of the Constitu- tion of India relating to the appointment of Judges to the Supreme Court E and the High Courts. After about a decade of the functioning of the Constitution of India the provisions regarding judiciary came before the Parliament in the course of the debates on the 14th Report of the Law Commission.

Shri J.N. Kaushal, who later became Union Law Minister, speaking in the Rajya Sabha on November 23, 1959 stated as under :

People feel that the executive does not work properly. It is the judiciary that works properly. That feeling is still there. We should respect such a feeling. Let the Chief Justice of the State and the Chief Justice of India make the appointment. Why should there be a hand of the executive in the appointment of High Court Judges? What is the meaning of it? If the Chief Justice of a State does not know his subordinate judiciary or the members of the Bar, then it is a misfortune. But we cannot avoid it. I assure you that, if the Chief Justice makes an appointment, people are always happy. They are sure that no other consideration has weighed with

ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.) 963

the High Court - at least no political consideration, no extraneous consideration weighs with judges." t Mr. P.N. Sapru, speaking in Rajya Sabha on November 23, 1959 depicted the correct position as under :

"The correct position in this matter should be that the highest importance and the highest weight should be attached to the recommendation of the Chief Justice of the Court concerned particularly if it is backed by the opinion of the Court and normally except for some reason known to the Ministry and communicated to the Chief Justice, there should be no interference with the recommendation of the Chief Justice."

Mr. D.P. Singh speaking in the Rajya Sabha on November 24, 1959 stated as under :

"I agree entirely with what Dr. Kunzru has said in respect of appointments to the Supreme Court and the High Courts. I believe strongly that in the appointment of High Court Judges and Supreme Court Judges the hand of the executive should not be there at all."

Mr. S.K. Basu, Speaking in the Rajya Sabha on November 24, 1959 E referred to the facts and figures given by the Home Minister in support of the contention that the recommendations of the judiciary have always been accepted, stated as under :

"Sir, that has been the position with regard to the appointments in p the Supreme Court. All the appointments have been made on the recommendations of the Chief Justice of India. So far as the States are concerned, as many as 90 per cent of the appointments have been made in that way. In the remaining 14 or 15 cases the Chief Justice's opinion has been accepted by the Home Ministry except G in one case where, before the present Home Minister came into office the recommendation of the State Chief Justice was accepted in preference to that of the Chief Justice of India. Therefore, Sir, it is a most dignified record en the part of the Home Ministry, namely, the opinion of the Chief Justice of India has prevailed in every case. H

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A The Home Ministry has, after all, got to make a selection on some recommendation or the other, and which is the authority most competent to make the recommendation according to the Home Ministry'! It is the Chief Justice of India. I ask, Sir, where is the room for any complaint on the facts factually on record?

B In this connection I may also point out that the principle of acceptance of the opinion of the Chief Justice of India has been carried to such a length by the Home Ministry that when the Government of Kerala recently -- lhe Communist Government set aside the recommendation of the local Chief Justice -- sent their c own recommendations, the Home Ministry accepted those recom- mendations because the Chief Justice of India had accepted them. Therefore, you will find how consistent has been the position of Home Ministry in accepting and honouring the recommendations of the Chief Justice of India."

D Finally, Mr. Gobind Ballabh Pant, Ministery for Home Affairs (Ap- pointment of Judges was dealt with by the Home Ministry) replying to the debate on the 14th Report of the Law Commission in the Rajya Sabha on November 224, 1959, stated under :

"Sir, so far as appointments to the Supreme Court go , since 1950 E when the Constitution was brought into force, nineteen .Judges have been appointed and everyone of them was so appointed on the recommendation of the Chief Justice of the Supreme Court. I do not know if any other alternative can be devised for this purpose. The Chief Justice of the Supreme Court, is, I think, rightly F deemed and believed to be familiar with the merits of his own colleagues and also of the Judges and advocates who hold leading positions in different States. So we have followed the advice of the most competent, dependable and eminent person who could guide us in this matter. G Similarly, Sir so far as High Courts are concerned, since 1950, 211 appointments have been made and out of these except on, i.e., 210 out of 211 were made on the advice, with the consent and concur- rence of the Chief Justice of India....... .

H I have listened to some of the speeches that were made and also .

ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH,J.] 965

gone though the record of the speeches, which unfortunately I A could not myself personally listen to. It was suggested that the Chief Justice of India might make these appointments. Well, I do not know if that would improve matters because vi1tually they have been made by the Chief Justice of India Only the orders were issued by us, and in any case the orders would have to be issued by the executive authority. B

(emphasis supplied)

The Home Ministry was categorical in his statement that form 1950 onwards all the appointments to the Supreme Court and 210 out of 211 to the High Courts were made with the consent and concurrence of the Chief Justice of India. The Home Minister even to the extent that the appoint- ments of judges were virtually being made by the Chief Justice of India and the executive was only the order-issuing authority. In other words, the Home Minister acknowledged that existence of a convention to the effect that the opinion and the recommendation of the Chief-Justice of India were taken to be final by the executive. Mr. Ashok Sen, the Law Minister speaking in the Rajya Sabha on November 25, 1959 reiterated the stand taken by the Home Minister.

Mr. S.K. Bose, Joint Secretary, Department of Justice, Ministry of E Law and Justice has filed an affidavit dated April 22, 1993 before us. In para 6 of the said affidavit it is stated as under :

"As regards the appointments of Judges made, not in consonance with the views expressed by the Chief Justice of India, it is respect- fully submitted that since 1.1.1983 to 10.4.1993, there have been only seven such cases, five of these were in 1983, (2 January 1983, 2 July, 1983, 1 August 1983) one in September 1985 and one in March 1991, out of a total of 547 appointments made during this period."

It is thus obvious from the facts and figures given by the executive itself that in actual practice the recommendations of the Chief Justice of India have been invariably accepted.

From the above discussion the factual position which emerges is as un~: H

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A (i) The Executive had absolute power to appoint the judges under the Government of India Act 1935. Despite that all the appointments made thereunder were made with the concurrence of the Chief Justice of India.

(ii) A convention had come to be established by the year 1948 that appointment of a Judges could only be made with the concurrence of the B Chief Justice of India.

(iii) All the appointments to the Supreme Court from 1950 to 1959 were made with the concurrence of the Chief Justice of India. 210 out of 211 appointments made to the High Courts during that period were also C with the concurrence of the Chief Justice of India.

(iv) Mr. Gobind Ballabh Pant, Home Minister of India, declared on the floor of the Parliament on November 24, 1959 that appointment of Judges were virtually being made by the Chief Justice of India and the Executive was only an order - issuing authority. D (v) Mr. Ashok Sen, the Law Minister reiterated in the Parliament on November 25, 1959 that almost all the appointments made to the Supreme Court and the High Courts were made with the concurrence of the Chief Justice of India. t E (vi) Out of 547 appointments of Judges made during the period January 1, 1983 to April 10, 1993 only 7 were not in consonance with the views expressed by the Chief Justice of India.

We may now apply the three tests laid down by Sir Ivor Jennings - Adopted by us - to the facts of the present case. F The first test is What are the precedents? Under the Government of India Act 1935, which remained operative till 1950, all appointments of Judges to the Federal Court and the High Courts were made with the concurrence of the Chief Justice of India. The apex Judiciary in its memorandum dated March 1948 recorded in writing that the appointments of Judges were made under the British - Raj with the concurrence of the Chief Justice of India on the basis of an established convention. We have the precedents for the period from 1950 to 1959 and from January 1, 1983 to April 10, 1993. Almost all the appointments during said period )Vere made with the concurrence of the Chief Justice of India. The precedents thus clearly indicate the existence of the convention and, as such, the first

ADVOCATESASSN. v. U.0.1.(Kl:JLDIPSINGH,J.] 967

question, according to us, is complied with. A

We now come to the second test. Did the actors in the precedents believe that they were bound by a rnle? The actors in the precedents are more than vocal on the issue. As back as 1959, the Home Minister of the stature of Gobind Ballabh Pant declared on the floor of the Rajya Sabha B that "the Chief Justice of the Supreme Court is, I think, rightly deemed and believed to be familiar with the merits of his own colleagues and also of the Judges and advocates who hold leading positions in different States .. So we have followed the advice of the most competent, dependable and eminent person who could guide us in this matter" and consequently felt bound to follow the recommendations of the Chief Justice of India in the C matter of appointments of Judges. The Home Minister in clear terms conceded primacy to the Chief Justice of India on justifiable grounds. A day later, the Law Minister also made a similar declaration in the Rajya Sabha. We have quoted the speech of Mr. Jagannath Kaushal made on the floor of Rajya Sabha in November 1959. He held the office of the Union D Law Minister during the period 1980 to 1983 and, as such, was also one of the actors in the precedents who firmly believed that the Executive was bound by the recommendations made by the Judiciary. During the course of arguments before us the stand of the Executive was consistent to the extent that they have almost invariably accepted the recommendations of the Judiciary in the matter of appointment of Judges. We have, therefore, no hesitation in hol_ding that the second test laid down by Sir Ivor Jennings is also satisfied.

"ls There a reason the rnle"? Is the third test? thei::e are two primary reasons in support of the convention that the primacy rests with the judiciary. There is no dispute that independence of judiciary is the basic feature of the Constitution. We have already dealt with in detail the concept of independence of judiciary and we have come to the conclusion that the exclusion of the final say of the executive in the mat!er of appoint- ment of Judges is the only way to maintain the independence of.judiciary. G If that be so then there cannot be a better reason for reading such a convention while interpreting Articles 124(2) and 217(1) of the Constitu- tion. The second and the more important reason for giving weight to the opinion of the judiciary is that the appointments are made to the "superior judiciary" and to find out the suitable persons for such appointments the expertise for that purpose is only available with the judiciary. It is difficult H

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A rather impossible to accept the submission that all the consulting functionaries must be regarded as of coordinating authority because on various aspects like integrity, capacity, character, merit, efficiency and fitness which are relevant for the purpose of judging the suitability of a person, the executive authorities would be the least informed and will have nothing to say. On the other hand the Chief Justice of the High Court and the Chief Justice of India, being best informed, are well equipped to express their views and tender advice on he suitability of the person. All the constitutional functionaries being very high authorities in their respec- tive spheres there may not ordinarily be any conflict in their assessment of a person regarding his suitability for appointment of a judge but in the event of any difference the advice tendered by the judiciary being in the nature of an "expert advice" has to be preferred.

Having answered the three tests laid down by Sir Ivor Jennings in the affirmative we hold that the convention, to the effect that the opinion and the recommendation of the Chief Justice of India in the matter of appointment of judges is binding nn the executive, is firmly established and is to be read in Articles 124(2) and 217(1) of the Constitution of India.

''After consultation with"

E The expression "after consultation with", in Articles 124(2) and 217(1) of the Constitution, has three angles to its interpretation. What does "consultation" mean? Is the process of.consultation mandatory? And, three which of the consultees - Executive or the Judiciary - has a primal say in the matter? This Court has authoritatively settle the first two questions. The requirement of consultation is mandatory and there is no d:spute F regarding the meaning of the word "consultation" as defined by this Court in-various judgments. The crucial and meaningful question to be deter- mined is whether the words "after consultation with" can be interpreted to mean the the Executive is bound by the advice given - in the process of consultation - by the Chief Justice of India as the head of the Judiciary. G Mr. F.S. Nariman has taken us through the articles 0f the constitution wherein presidential appointments to various (non- elective) constitutional offices are provided. The President appoints by warrant under his hand and seal Judges of the Supreme Court and Judges of the High Courts (Articles 124(2) and 217(1)), Comptroller and Auditor General (Article H 148), Governor of a State (Article 155) and Chair-person, National Com-

ADVOCATES ASSN. v. U.O.I. [KULDIP SINGH, J.] 969

mission for Scheduled Castes and Schedule Tribes (Article 338(3)). A

The President appoints by a Presidential order the Chairman and other members of the finance Commission (Article 180(1)), Chairman and other members of the Union Public Service Commission (Article 316(1), Chief Election Commissioner (Article 324(2) ), Chairman of the Official B Languages Commission (Article 344(1)) and Special Officer for Linguistic Minorities (Article 350(b)).

In the entire range of the presidential appointments, mentioned above, it is only in the case of judicial offices - District Judges, High Court Judges and Supreme Court Judges - that the appointments are made after C consultation with the constitutional functionaries named in the relevant provisions. According to Mr. Nariman the obvious purpose for this is that "they know better". Mr. Nariman further c'ontended that the words "after consult with" must be interpreted and conditioned only by the true nature and object of such consultation. Relying upon Sharnsher Singh and Anr. v. D State of Punjab, [1975] 1 S.C.R. 814 and Union of India v. S.C.H. Sheth and Anr.,[1978] l S.C.R. 423, Mr. Nariman contended that the interpretation given by this court to the words "after consultation with" in S.P. Gupta's case is not correct. We see considerable force in the contentions of Mr. Nariman. E As noticed above no consultation is provided for \vith regard to the constitutional offices - except judicial offices - yet no appointment to the offices of high constitutional functio.iaries such as the Comptroller and Auditor General, the Chief Election Commissioner and others, can be made by the executive without going through some sort of consultative F process to adjudge the suitability of eligibility of the person concerned. The specific provisions for consultation with regard to the judicial offices under the Constitution, clearly indicate that the said consultation is different in nature and meaning than the consultation as ordinarily understood. The powers and functioning of the three wings of the Government have been precisely defined and demarcated under the constitution. Independence of G Judiciary is the basic feature of the constitution. The Judiciary is separate and the Executive has no concern with the day to day functioning of the judiciary. The persons to be selected for appointment to judiciary offices are only those who are functioning within the judicial sphere and are known to the Judges of the Superior Courts. The executive can have no knowledge H

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A about their legal acumen and suitability for appointment to the high judicial offices. In the process of consultation the expertise, to pick-out the right person for appointment, is only with the Judiciary. The "consultation", therefore, is between a layman (the Executive) and a specialist (the ; Judiciary). It goes without saying that the advice of the specialist has B binding effect. If the true purpose of consulting the judiciary is to enable the appointments to be made of persons not merely qualified to be Judges, but also those who would be the most appropriate to be appointed, then the said purpose would be defeated if the appointing authority is left free to take its "own final" decision by ignoring the advice of the judiciary.

C Subba Rao, J. (later Chief Justice of India) in R. Pushpam and Another v. The State of Madras, AIR (1953) Madras 392 observed as under:

"A person consults another to be elucidated on the subject matter of consultation. A consultation may be between an unin- formed person and an expert or between two experts. A patient D consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultations between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons."

E While holding that "President means, for all practical purpose, the Minister or the Council of Ministers as the case may be", this Court, in _Shamsher Singh's case (supra), specifically noticed the constitutional provisions regarding consultation with the Judiciary and came to the con- clusion that the Government of India was bound by the counsel given by the Chief Justice of India. The observations of V.R. Krishna Iyer, J. in this F respect are as under :

"In the light of the scheme of the Constitution we have already referred to it is doubtful whether such an interpretation as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister G or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is constitutionally secured when his Mini- sters arrive at such opinion, satisfaction or decision. The inde- pendence of the Judiciary, which is a cardinal principle of the Constitution and has been relied on to justify the de~tion, is ,.ff guarded by the relevant Article making consultation with t~e Chief

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 971

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

The above quoted observations of Krishna Iyer, J. were reaffirmed by this Court in S.C.H. Sheth's case (supra) where Chandrachud, J. (as he then was) observed as under :

But it is necessary to reiterate what Bhagwati and Krishna Iyer, D JJ said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an oppor- tunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India. "In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order." (page 873). It is hoped that these words will not fall on deaf ears and since normalcy had now been restored, the difference, if any between the executive and the judiciary will be resolved by mutual deliberation each, party treating the views of the other· with respect and consideration."

This Court has, therefore, authoritatively laid down that in the process of consultation, under the Constitution, the last word must belong to the Chief Justice of India.

We agree with Mr. Nariman that the link between consultation, the advice given as a result thereof, and the ultimate appointment of the person about whom there is consultation, is inextricable, malcing the entire process H

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

A of appointment of Judges under the Constitution as an integrated one. The necessary consequence is that the executive is not free to make an appoint- ment which has not been recommended by the Judiciary. Mr. Nariman invited our attention to the judgment in Colyar v. Whee/e1; 75 S.W. 1089 (Supreme Court of Tennessee) where in the words "upon consultation and getting advice from ....." were treated as equivalent to "consent". In the said B case a post-nupited settlement was the subject-matter of interpretation before the Court. It would be useful to quote the operative part of the judgment.

"The language is that the trustee may hold the legal title for the c sole and separate use, with the absolute right of disposition as she may choose, upon "Consultation· and getting advice from the trus- tee." We are of opinion there can be no exercise of this power of disposition unless it appears that the conveyance was made upon consultation with and advice of the trustee. In our opinion, these words are equivalent to ''consent of the trustee," and his consent must be attested by his signature to the instrument. These trusts are create for the protection of married women, who are incapable of protecting themselves againstthe domination and improvidence of their husbands. The words of the trust will be strictly construed, and given such meaning as will accomplish the purpose for which it was created. The construction given this instrument by the chancellor and Court of Chancery Appeals destroys its entire efficacy, and renders it nugatory."

The Framers of the Constitution placed a limitation on the power of p·Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior "consultation" with the superior Judiciary is a logical consequence of having an "independent Judiciary" as basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation with G the Judicatory is defeated. We have, therefore, no doubt in our mind that the Executive is bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Articles 124(2) and 217(1) of the Constitution.

H Before going to the next topic we wish to add that the above'

ADVOCATESASSN. v. U.0.I.(.t<ULDIPSINGH,J.j 973

discussion on issues (i) to (v) and the conclusions reached as a result A thereof, are to supplement the reasoning on these an connected issues given by Verma J. in his judgment.

Chief Justice of India - represents the Cowt

Having held that the primacy in the matter of appointment of Judges B to the superior courts vests with the Judiciary, the crucial question "'.hich aries for consideration is whether the Chief Justice of India, under the C0nstitution, acts as a "persona designata" or as the leader -- spokesman for the Judiciary.

The consultation-scheme does not give primacy to any individual. c Article 124(2) provides consultation with the Chi~f Justice of India, Judges of the Supreme Court and Judges of the High Courts. Likewise Article 217(1) talks of Chief Justice of India and the Chief Justice of High Court. Plurality of consultations has been clearly indicated by the Framers of the Constitution. On first reading one gets the impressiC!n as if the Judges of D the Supreme Court and High Courts have not been included in the process of consultation under Article 217(1) but on the closer scrutiny of the constitutional-scheme one finds that this was not the intention of the framers of the Constitution. There is no justification, whatsoever, for excluding the puisne Judges of the Supreme Court and of the High Court E from the "consultee zone" under Article 217(1) of the Constitution.

According to Mr. Nariman it would not be a .strained construction \ to construe the expressions "Chief Justice of India" and "Chief Justice of the High Courts" in the sense of the collectivity of Judges, the Supreme Court as represented by the Chief Justice of India and all the High Courts F (of the concern States) as represented by the Chief Justice of the High Court. A bare reading of Articles 124(2) and 217(1) makes it clear that the Framers of the Constitution did not intend to leave the final word, in the matter of appointment of Judges to the superior Courts, in the hands of any individual howsoever high he is placed in the constitutional hierarchy. G Collective - wisdom of the consultees is the sine qua non for such appointments. Dr. B.R. Ambedkar in his speech dated May 24, 1949 in the Constituent Assembly explaining the scope of the draft articles pertaining to the appointment of Judges to the Supreme Court stated as under :

"With regard to the question of the concurrence of the Chief H

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A Justice, it seem to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. "I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings all the sentiments and all the prejudices which we as common people have; and I think, to allow B the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition. " "

C Dr. Ambedkar did not see any difficulty in the smooth operation of the constitutional provisions concerning the appointment of Judges to the superior Courts. Having entrusted the work to high constitutional functionaries the framers of the Constitution felt assured that such appoint- ments would always be made by consensus. It is the functioning of the D Constitution during the past more than four decades which has brought the necessity of considering the question of primacy in the matter of such appointments. Once we hold that the primacy lies with the Judiciary than it is the Judiciary as a collectivity which has the primal say and and not any individual, not even the Chief Justice of India. If we interpret the expres- sion "the Chief Justice of India" persona designata" then it would amount E "to allow the Chief Justice practically veto upon the appointment of Judges" which the framers of the Constitution in the words of Dr. Ambedkar never intended to do. We are, therefore, of the view that the expressions "the Chief Justice of India" and Chief Justice of the High Court" in Articles 124(2) and 217(1) of the Constitution mean the said judicial functionaries as representatives of their respective courts.

Then, who are the other puisne Judges to be consulted by the Chief Justice of India and the Chief Justices of the High Courts while making recommendations for appointments to their respective Courts? It is neither possible nor the requirement under the Constitution to consult all the puisne Judges. We can legitimately assume that there is a practice that the senior colleagues are always consulted by the Chief Justice of India in the matter of appointment of Judges to the superior Courts. The Law Com- mission (under the Chairmanship of Mr. Justice H.R. Khanna) in its Eightieth Report submitted on August 10, 1979 in paras 6.5 and 7.6 H recommended as under :

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.) 975

"When making the recommendation for appointment of a judge of A the High Court, the Chief Justice, in our opinion, should also consult his tow senior most colleagues. It the letter containing the recommendation for the appointment, the Chief Justice should state that he has consulted his two seniormost colleagues and also indicate the views of each of those colleagues in respect of the B _) person being recommended ....................... .

As in the case of the High Court Court Judges appointment, so in the matter of appointment of a Judge of the Supreme Court, we feel that the Chief Justice of India, while making a recommen- dation, should also consult his seniormost colleagues. The number C of colleagues to be consulted for this purpose should be three. The Chief Justice of India in the communication incorporating his recommendation should specify that he has consulted his three seniormost colleagues and also reproduce the view of each of them regarding his recommendation." D The Law Commission in para 6.13 further recommended as under :

"At this stage, we should like to reiterate what we have mentioned earlier about the evolution of a convention that a recommendation made by the Chief Justice with which both his seniormost col- E leagues agree should normally be accepted.

The provisions regarding Judiciary in the Constitution were dis- cussed in the Rajya Sabha in the course of debates on the 14th Report of the Law Commission. We have already quoted some ofthe speeches made by the Members. Mr. M.P. Bhargava, speaking on November 23, 1959 F stated as under :

"a convention should be developed that names from the bar are ""•· recommended by the Chief Justice after consultation individually or collectively with his fellow judges in the High Court." G There are positive indications to show that the Chief Justice of India had been consulting his senior colleagues in the matter of appointment of Judges to the superior courts. We are, therefore, of the views that the opinion of the Chief Justice of India in the process of consultation for appointments to the superior courts must be formed in consultation with H

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

A two of his seniormost colleagues. Apart from that the Chief Justice of India must also consult the seniormost Judge who comes from the same state (the State from where the candidate is being considered). This process of consultation shall also be followed while transferring any Judge/Chief Justice from one State to another.

B On the same parity the opinion of the Chief Justice of the High Court must be formed after consulting two seniormost Judges of t]ie High Court.

The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court must be in writing < C and form part of the final recommendation

Chief Justice of India - Appointment by selection on Merits

Senior-most puisne Judge of the Supreme Court - barring on two occasions - has been appointed to fill the office of the Chief Justice of D India. There is, however, to known method of appointment to the said office. No objective criteria has either been laid down or established by convention. The appointment to the highest judicial office in the country has been, more or less, at the discretion of the Executive. The only consistency in the said process, we are told, is the practice that the outgoing Chief Justice of India makes a recommendation, to the Executive, naming E his successor-in-office. There are instance where the recommendee of the Chief Justice of India was not the seniormost puisne Judge of the Supreme Court. The very fact, that the recommendation the outgoing Chief Justice of India has come to stay as a standing practice, goes to show that there is no existing convention of appointing the seniormost puisne Judge as the F Chief Justice of India. Seniority alone or selection on merit, is the question. The seniority rule stagnates the system due to lack of enterprise : merit on the other hand does justice to the selected and brings vigour to the system. In any ., .._ G case, to follow "seniority alone" rule, there has to be some objective basis for reckoning seniority. Method of appointment and seniority are inex- tricably- linked. Often, High Court Judges with lower seniority in the same High Court are selected for appointment to the Supreme Court. Many a time appointment is of a High Court Judge, to the Supreme Court, who is much lower in all India seniority. There are many instances where a junior H High Court Judge was elevated earlier and some time later the senior from

ADVOCATES ASSN. v. U.0.1. [KULDIP SINGH, J.] 977

the same High Court was also brought to the Supreme Court. When A Judges are appointed to the Supreme Court from two sources, and they take oath the same day, no one knows how the inter-se seniority is fixed. On an earlier occasion appointee from the Bar was placed senior but on a later occasion the process was reversed. These instances are not by way of criticism but only as a pointer with a view to straighten the exercise of B discretion in the future. It may be that the High Court Judges, lower in seniority, are preferred on the basis of their merit in the process of selection. Even on that premises there is no justification to apply "seniority alone" rule to the office of the Chief Justice of India. Needless to say that the duties and responsibilities of the office of the Chief Justice of India are much more onerous than that of a Judges of the Supreme Court. The C responsibility of toning-up the Judiciary in the country rests on the shoulders of the Chief Justice of India. He is to make the appointments of Judges in the High Courts and in the Supreme Court. He has to select the Chief Justices of the High Courts. He is responsible for the transfer of Chief Justices and Judges of the High Courts. Apart fro~ fontrolling the D judicial and administrative functioning of the Supreme Court, the respon- sibility for the satisfactory administration of justice all over India lies on him. As the head of the Judiciary, he would lay down the principles and practices to be followed in the administration of justice all over the country. It is thus obvious that with these manifold duties, functions and respon- sibilities attached to the high and prestigious office of the Chief Justice of E India, the appointment to the said office must be by selection based on objective standards and not by mere seniority. If proper emphasis has to be given to initiative, dynamism and speedy action, the criterion of seniority which relies only on the quality of the person at the time of his recruitment, will unhesitatingly have to be pushed to the background. p The Law Commission of India headed by as eminent a person as M.C. Setalvad, in its Fourteenth Report given .on September 26, 1958 • recommended as under :

"This leads us to a related point upon which we have bestowed G anxious consideration. It has been the practice till now for the seniormost puisne judge to be promoted to be the Chief Justice on the occurrence of a vacancy. It would appear that such a promotion has become almost a matter of course. We have referred to the high and important duties which the Chief Justice H

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A of India is called upon to perform. It is obvious that succession to an office of this character cannot be regulated by mere seniority. For the performance of the duties of Chief Justice of India, there is indeed; not only a judge of ability and experience, but also a competent administrator capable of handling complex matters that •. may arise from time to time, a shrewd judge of men and per- B sonalities and above all, a person of sturdy independence and towering personality who would, on the occasion arising, be a watch-dog of the independence of the judiciary. It is well-accepted that the qualifications needed for a successful Chief Justice are very different from the qualifications which go to make an erudite c and able judge. The considerations which must, therefore, prevail in making the selection to this office must be basically different from those that would govern the appointment of other judges of the Supreme Court. In our view, therefore, the filling of a vacancy in the office of the Chief Justice of India should be approached with paramount regard to the considerations we have mentioned above. It may be that the seniormost puisne judge fulfils these requirements. If so, there could be no objection to his being appointed to fill the office. But very often that will not be so. It is, therefore, necessary to set a healthy convention that appointment to the office of the Chief Justice rests on special considerations and does not as a matter of course go to the seniormost puisne Judge. If such a convention were established, it would be no reflection on the senior-most puisne Judge if he be not appointed to the office of the Chief Justice. We are in another place suggest- ing, that such a convention should be established even in the case of appointment of Chief Justice of the High Court. Once such a F convention is established, it will be the duty of those responsible for the appointment, to choose a suitable person for that high office, if necessary, from among persons outside the Court. Chief Justices of the High Courts, puisne Judges of High Courts of outstanding merit and distinguished senior members of the Bar G should provide an ample recruiting ground."

A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan, [1968] 1 S.C.R. 111, observed, at 122 and 123, as under :

H "It is obvious that the only method in which absolute objectivity

ADVOCATES ASSN. v. U.O.I. (KULDIP SINGH, J.] 979

can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective th_at it fails to takes any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided how does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore is how to. ensure reasonable . prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows:

"...... ,. Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one critprion of selection. It tends to eliminate favouritism of the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subor- dinate positions. As employees move up the ladder of respon- sibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any levei it is as dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true". (Introduc- tion to the Study of Public Administration, 4th Edn., pp.380, 382)."

The only criticism against the method of selection on merit may be that in an atmosphere where correct appraisal is not available and the objectivity becomes a casualty, the method fails. The criticism has been proved wrong by the satisfactory operation, over a period of four decades, of the promotion rules pertaining to the All India Services. In any case this criticism is wholly irrelevant in the context of Judiciary. There is enough H

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

A understanding of the proper values regarding the efficient functioning of the Judiciary in the country.

Reversing S.P. Gupta's case we have held that primacy, in the matter of appointment of Judges to the superior Courts, vests with the Judiciary. This being the present state of law, it is the Chief Justice of India and his B consultees in the superior Judiciary who are to select - in consultation with the executive - the next Chief Justice of India. They have to lay down the standards of objectivity and rules of appraisal. We can safely bid good-bye to the "seniority alone" rule and hold that 'the selection of the Chief Justice of India be made on the basis of merit alone. c Other Issues

What should be the criteria for appointment to the Supreme Court? Verma, J. has dealt with this question and we entirely agree with him. Ahmadi, J. has observed "there was hardly any discussion at the Bar", no D specific point was formulated during the arguments and as such "it would be hazardons to lay down any guidelines in this behalf'. With this caution Ahmadi, J. has not found favour with the 'legitimate expectation' principle adverted to by Verma, J.

E The issue regarding the appointment of Judges to the superior Courts, the incidental :ssues thereunder and all the connected question arising therefrom are wide open before, us. We are called upon to interpret the constitutional provisions regarding the functioning of an institution called Judiciary. We cannot leave the work half-way. We must find out the intentions of the framers of the Constitution and lay down a complete functional - scheme to enable the institution to operate smoothly.

Whether the elevation of a person to the Supreme Court is an appointment or an invitation is not a matter of substance. The question for consideration is how to select 26 persons out of a collectivity of more than four hundred? it is an important link in the process of appointment/invita- tion and cannot be left in uncertainty. There can be no doubt that appoint- ment to the Supreme Court is by way of selection on merit and "seniority alone" has never been and cannot be the basis. Even otherwise appointment to such a high office under the Constitution cannot be on the sole criterion of seniority. Undoubtedly, the selection has to be on the basis of merit but the limited role played by seniority in the said process cannot be ignored:

ADVOCATES ASSN. v. U.0.1. [KULQIP SINGH, J.) 981

The length of service in the High Court or in the All India hierarchy is-the_ A only basis for bringing the Judges of the High Courts within the pale of consideration. There are instances where a junior Judge from the High ' Court was elevated and some time later the senior Judges from the same Court was appointed to the Supreme Court. Is there any logic for such an arbitrary process? There. are plenty of instances where Judges far below in seniority were appointed to the Supreme Court without considering their seniors in the same High Court. It was only with this background that Verma, J. has observed that seniority of a Judge in his own High Court and his legitimate expectations and aspirations have to be taken into consideration. Though there is plenty to say, we do not wish to delve into this subject any more. We agree with Verma, J. and hold that appointments c to the Supreme Court are to be made on the basis of "selection on merit'', but in the process of selection the senior Judge in the same Court is entitled to be considered in preference to the junior one. We reiterate that the merit shall always be the out-weighing factor in the selection of Judges to the Supreme Court of India. D So far as the interpretation of Article 222 of the Constitution regard- ing transfer of a Judge from one High Court to another, we entirely agree with the reasoning and the conclusions reached by Verma, J. We reiterate that the power vested under Article 222 can only be exercised in "public interest". It is only the Chief Justice of India who can examine the cir- E cumstances in a given case and reach a conclusion as to whether it is in public interest to transfer or re-transfer a Judge from one court to another. .• Concept of "public interest" when read in Article 222 makes it obligatory that the Views of the Chief Justice of India are accepted by the Executive. We also agree with Verma, J. that a transfer made in public interest on the recommendation of the Chief Justice of India is not justiciable. F

We entirely agree ·with the judgment propose by Verma, J. on the issue pertaining to Judge-strength. We only wish to add that the Law v· Commission headed•py Mr. M.C. Setalvad in its 14th Report forwarded on September 26, 1958 in chapter 6, para 82 recommendt:d as under : G "Any proposal made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, should be accepted without demur or delay/'

We, therefore, fully agree with Verma, J. that apart from justiciability H

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

A even if a proposal on the administrative side is made by the Chief Justice of a State which has the concurrence of the Chief Justice of India then the Executive is bound to accept the same. It is not necessary in that situation to get an adjudication from the court.

Before concluding we must notice the main argument advanced by B Mr. Shanti Bhushan, supported by Mr. Ram Jethmalani and Mr. S.P. Gupta. According to Mr. Shanti Bhushan the appointment of Judges to the superior courts is a matter which does not fall within the Executive power of the Union or the State. It is outside the Executive sphere. According to him the appointment of Judges is an independent constitutional process beyond the legislative competence and as such cannot be a part of the Executive power of the Union or the State. The argument in substance is that Article 74 of the Constitution of India has no application to the matter of appointment of Judges to the superior courts and as such the President is bound by the opinion of the Chief Justice of India rendered during the process of consultation. The argument is attractive but the view we have taken in the matter it is not necessary to go into the same. On the basis of the reasoning and discussion on various lssues, we conclude and hold as under :

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

2. The majority view in S.P. Gupta's case (supra) - giving primacy to the Central Government in the matter of appointment of Judges to the superior courts - does not lay down correct law andtis over-ruled to that extent.

3. The expression "President" in Articles 124(2) and 217(1) when read with Article 74(1) makes the President to act on the advice of the Council of Ministers with the Prime Minister as the head. The Prime Minister and the Council of Ministers are bound to tender the advice in accor~ance with the interpretation given by this Court to Articles 124(2)

. ADVOCATES ASSN. v. U.O.L [KULDIP SINGH, J.) 983

and 217(1) of the Constitution of India. A

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

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

6. The opinion of the Chief Justice of India, forwarded in the manner indicated above, shall be primal. No appointment can be ~ade by the President under Articles 124(2) and 217(1) of the Constitution unless it is in conformity with the opinion of the Chief Justice of India.

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

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

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

10. A Chief Justice/Justice may be transferred from one High Court H

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

A to another - Article 222 - in public interest. A transferred Chief Jus- tice/Judge can be transferred again and the power is not exhausted after the first transfer. The consent of the Chief Justice/Judge concerned is not required under the Constitution. S.P. Gupta's case stands overruled to the extent.

B 11. A proposal for transfer of a Chief Justice/Judge under Article 222 has to be initiated by the Chief Justice Justice of India and the ultimate recommendation in that respect is binding on the Executive.

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

13. Fixation of Judge - Strength in the High courts is justiciable. The proposal made by the Chief Justice of a State for increasing the strength of the High Court, if it has the concurrence of the Chief Justice of India, D is binding on the Executive. S.P. Gupta's case overruled to the extent.

Before parting with the judgment it would be appropriate to say that the opinion circulated by Verma, J. was based on elaborate discussion amongst the Brother Judges who were available and participated in the discussion. Although Verma, J. incorporated various suggestions in his E original draft but a feeling left lurking in my mind that I have something more to say in support of the conclusions reached by Verma, J. and that is how I ventured to embark upon writing a separate opinion.

The questions referred are, thus, answered and these matters are disposed of. F

(Kuldip Singh)

I gratefully acknowledge the opinion of Brother Kuldip Singh, J. as ' G a forceful concurrence on practically every point with my opinion and a further elaboration thereof with more reasons to support the conclusion.

(J.S. Verma) H

ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.] 985

I respectfully agree with the additional reasons given by Brother A Kuldip Singh, J. on issues 1 to 5 in support of the conclusion contained in J the opinion expressed on our behalf by Brother Verma, J. On other issues I regret my inability to concur.

B (Yogeshwar Dayal)

I respectfully agree with the additional reasons indicated by Brother Kuldip Singh, J. in respect of issues 1 to 5 in support of the conclusion contained in the judgment of Brother Verma, J. on he behalf and also on behalf of myself and three other learned Brothers. In respect of other C issues I regret my inability to concur.

(G.N. Ray) D I respectfully agree with the additional reasons given by Brother Kuidip Singh, J. on issues 1 to 5 in support of the conclusion contained in the opinion expressed on our behalf by Brother Verma, J. On the other issues I regret my inability to concur.

E (Dr. A.S. Anand) • I respectfully say that I stand by the judgment written on my behalf and that of Brothers Dayal, Ray and Anand by Brother Verma. I may, however, say that I am very gratified that Brother Kuldip Singh, J. has F broadly, agreed with us and supported our conclusions by his learning and eloquence.

(S.P. Bharucha) G PUNCHHI, J. This opinion is in the nature of an epilogue, though not in stricto sensu. Much has already been written on the two topics under reference to this Bench, and on other as well without reference. I on my part would have liked to avoid making any addition thereto but it seems H

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

A the turn of events leave me no choice. I feel it would be a dereliction to withhold contributing and leave unsaid what needs to be said.

This nine-JJJdge Bench sat from April 7, 1993, to hear this momen- tous matter concluding its hearing on May 11, 1993, close to the onset of B the summer vacation. I entertained the belief that we all, after July 12. 1993, on the re-opening of the Court, if not earlier , would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which had engaged our attention, striving for a unanimous decision in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this Court. I was indeed overtaken when C I received the draft .opinion dated June 14, 1993 authored by my learned, brother J.S. Verma, J. for himself and on behalf of my learned brethren Yogeshwar Dayal, G.N. Ray, Dr. AS.Anand and S.P. Bharucha, JJ. The fait accompli appeared a stark reality; the majority opinion an accomplish- ment. The hopes I entertained of a free and frank discussion vanished. But D then came the opinion dated August 24, 1993 of my learned brother Ahmadi, J. like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned brethren Kuldip Singh and Pandian, JJ, dated September 7, 1993 and September 9, 1993 respectively. No meaningful meeting thereafter was possible as the views by that time seemed to have been polarized. So now the firm opinions of the eight brethren, as communicated are known to me. Loaded with these opinions I set out to express my own, more as a duty to the venture embarked upon, for I owe it immesurably, for being party to the referal.

At the outset, I must remove a misgiving pertaining to the contents and thrust of the order of referal re correctness of S.P.Gupta & Ors. v. Union of India, [1990] Supp. 2 SCR 433, the opinion of which was authored by Jhe then Chief Justice of India, Shri Ranganath Mishra and concurred to by the present Chief Justice of India Shri M.N. Venkatachaliah (then as a Puisne Judge) and by me. We had referred only two questions to a bench of nine-Judges, namely, to test the correctness of the opinion of the majority in S.P. Gupta's case relating to the status and importance of consultation and the primacy of the position of the Chief Justice of India, and whether fixation of judge strength was not justiciable, clarifying in the ultimate paragraph that apart from the two questions afore-indicated all other aspects dealt with were intended to be final by the said order. As I H view it, due to the rigidity of its terms, except for the two questions

ADVOCATES ASSN. v. U.0.1. [PUNCHHI, J.] 987

:;pecifically referred, no other matter was open to canvass as has seemingly been done. And whatever had been by us to support or justify the referal, were views which by no means could be termed as final and settled and were plainly open. Rather, when in terms thereof, a nine-Judge Bench, presided over by M.N. Venkatachaliah, J. (as my Lord the Chief Justice then was) sat to schedule hearing in the matter, it fell clearly and in unmistakable terms from His Lordship speaking for himself and on my behalf that though we were parties to the referal order, the views .expressed therein were tentative, and more in the nature of expression of doubts, and we were otherwise open to conviction concerning the two questions. Apart from that, this, is it seems to me, is otherwise the correct position in law. No Judge can sit on a matter committed, let alone the subject of judicial discipline. On re-constitution of the Bench in the present combination the position could not have altered. In the opinion, at places, avoidably though, it has been assumed that the order of referal contained final statements of exponence of law and that we were in accord with the setting up of the National Judicial Commission through a Constitutional amendment. The D record in this regard needs to be straightened.

It was viewed by the referring Bench that somewhere down the lane, on account of the majority opinion in S.P. Gupta's case, the special and priviledged position of the Institution of the Chief Justice of India, or in other words the 'primacy' of the Chief Justice was lost. This necessitated of putting to job a larger bench, to examine whether his primacy could be ,• retrieved and restored back to him institutionally, in the context of appoint- ment of Judges to the higher judiciary. Along side this thought, but on a different pedestal, was a doubt expressed that could it, under certain circumstances, be said in the first instance, that the Central Government F is not bound to appoint a Judge so recommended by the Chief Justice of India, and in the second could a power be contemplated in the executive to appoint a person despite his being disapproved or not recommended by the Chief Justice of the State High Court and the Chief Justice of India, and would that not be wholly inappropriate constituting an arbitrary exer- cise of power? G

Now primacy of the Chief Justice of India, as I conceive could have two facets; one, institutional but personal to the Chief Justice of India and the other constitutional. For the institutional primacy a little historical background would not be out of place. It appears that statutory recognition H

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

A to the status, rank and precedence of the Chief Justice of a High Court was first put in words by the Government of India Act 1915-19. A part of its preamble is worth reproduction. It reads as under :

"Whereas it is the declared policy of Parliament to provide for the increasing association of Indians in every branch of Indian B administration, and for the gradual development of self-governing institutions, with a view to the progressive realisation of responsible government in British India as al} integral part of the empire:

And whereas progress in giving effect to this policy can only c be achieved by successive stages, and it is expedient that substantial steps in this direction should now be taken:

And whereas the time and manner of each advance can be determined only by Parliament, upon whom responsibility lies for the welfare and advancement of the Indian peoples: D And whereas the action of Parliament in such matters must be guided by the co-operation received from those on whom new opportunities of service will be conferred, and by the extent to which it is found that confidence can be reposed in their sense of responsibility: E

Section 101 of the afore said Act provided that each High Court shall consist of a Chief Justice and as many other Judges as his Majesty may think fit to appoint. Section 103 provided that the Chief Justice of a High Court shall have rank and precedence before the other Judges of the same Court, and all other Judges of a High Court shall have rank and precedence according to seniority of their appointment, unless otherwise provided in their patents. The experimental measure of Indian participa- tion, in so far as the judiciary was concerned, augured well, and true to the hopes raised a standard was attained in establishing the independence of judiciary. This was so even while the appointing authority was the Governor General in Council and not a political government, as we now have, answerable to its electorate. Thus, a large measure of confidence and-trust got developed on the judiciary's sense of responsibility. A provision such as Section 103, regarding rank and precedence, was therefore not found to

ADVOCATESASSN. v. U.0.I.(PUNCHHl,J.] 989